The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1860-11-02

the writ. This statement was innocently believed
10 be true by the gentleman referred to, and when
therefore, the presence of SoMMERs at the Gilmor
House was discovered, his arrest was procured
without delay. To the establishment, however, OF
everybody but the high contracting powers, the
fact was then, for the first tme disclosed that as
far back as June 30th-more than two months
prior to Mr.. WHITNEY s statement that nothing had
been done in the case--SoMMERs had been finally
discharged by Mr.. WHITNEY without a trial. after
the identical fashion in which BARRETT, only three
days before, had been let loose the town A
reference to the docket will show that the case OF
SoMMERs was continued to the May term; that on
May 10th it was 'stetted'' by the Court and on
June 3Oth plea of not guilty was confessed by
the State! The endorsements on the indictment
are severaly as follows;
econ. H. L. BoND, Judge 'Stet, Judge"
''Not guilty-Judge."
, We have no reason to suppose, and therefore do
not to intimate that in this, as in BARRETT s
case, Judge BOND had any knowledge of the facts
or of the proof at Mr. WHITNEY's command. The
entry of 'stet' was doubtless allowed or directed
by the Judge in view of the removal of FITzpAT-
RICK case and the non'arrest of SonlERs, and
for the purpose of clearing his docket. So too
under the same circumstances, and having no
knowledge to the contrary as Mr.. WHITNEY had
he may very well have deemed the confession of
''not guilty" proper one. But, for Mr. WHITNEY,
there can be no such defence or apology. The
witnesses against FITzPATRIcK and SoMMERs were
the same viz EDWIN EAcHUs and SAMUEL BEvAN,
| -l,o,o
and were endorsed on the presentments He knew or
was bound to know what they could testify. That
their evidence would have convicted SoMMERs is
beyond peradventure for it convicted FIrzpATRIcK
of having allowed SoMMERs to make the very sales
for which the latter was indicted; and unless the
jury had been satisfied that SoMMERs had made
those unlawful sales FITzPATRIcK must have been
acquitted. The verdict against FITzP neces-
sarly involved the truth of the charges against
both. Nor could Mr.. WHITNEY have been taken
by surprise, or have acted In blind good faith
The very fact that FITZPATRICK removed his case TO
the county, was notice. of the most conclusive sort
to Mr.. WHITNEY, even if he did not otherwise know
the fact, that FITZPATRICK was guilty. and
that SoMMERs was, of course, guilty likewise A
man who removes an indictment, on his affidavit
that he cannot have fair and impartial trial be-
fore Baltimore jury, at present. for selling without
license, must certainly have bad prima facie case
No one knew this better than Mr.. WHITNEY. and
1t was his bounden duty to take notice of it, and
act accordingly. Nor is there any apology for the
proceeding on the score that the accused had not
been arrested. That fact renders the tbinp 50
much the worse. A ''stet' had already been
| Dlacp1 tha which :.
out of the way of both the prosecutor and the
Court. and left it open to be replaced on the docket
whenever after the party could be served with pro.
| cess. In that condition it was Mr.. WH1TNEy,s
duty to keepit, and to await the earliest opportu
nifty of arresting the accused and bringing him to
punishment. His volunteering to enter a confas.
sion of 'not guilty." when the party was NOT
even IN Court to ask it, and when he had. at his
hahd, conclusive evidence of the guilt can only be
accounted Tor by his deliberate determination for
some secret and private reason, to secure the es-
cape OF criminal whom it was his So orn oblioa-
ton to prosecute. If there had been anv noticaI
complications or influences in the case, as in Ran.
RETrs it would be easy enough to account for so
fagrant misfeasance, but we know of none such
ana we can therefore only ascribe the proceeding
on Mr.. WHITNEY's part to the ordinary induce
ments which control the action of corrupt and
INSCRIPTIONS men. The statement by which Mr..
WHITNEY endeayored to mslead the gentleman to
whom we have alluded-knowinp as he did. when
he made it, that it was false-pus an end to all
possibility of charitable construction in the case.
Whatever was done, was done wilfully and know
ingly, and we repeat that the case stands side nv
side with that of r. n oaIa
sation, punishable upon conviction, by Mr.. WHIT
NEY removal from the office in which he is a
standing obstruction to public justice
That conviction must follow an Indictment
against Mr.. WHITNEY for the offence TO which we
have thus alluded is matter about which it seems
impossible for two opinions to be entertained.
Whether the Grand Jury agree with the public in
this remains to be seen. If they do not the license
laws in question had well be repealed or treated
as no longer worth making the foundation of a pros
ecution, and the mercantile community ought to
know the fact. If the States Attorney is allowed
whenever his pleasure or interest suggests it. TO
dismiss prosecutions against parties who have VIC
lated the laws for the protection of our resident
merchants that protection has ceased TO exist.
Nonresident traders, instead of paying license of
three hundred dollars to the State may carry on
their business, uninterrupted, among us, by paw
ing license, of naf the amount, to Mr.. WHITNEY.
The Governor of the State can only grant noHe
prosequi, under the Constitution, after giving no.
tce in the public papers "of the application made
'or it, and the day or after which his decision
"will be given" Not only that, but he is bound
to report to the Legislature, whenever required,
ftfbn
(Which influence his decision The privilege
which Mr.. WHITNEY exercises, of coufessing s'not
guilty" at his own discretion and without trial.
is that of granting nolle prose9ui, to all ntents
and purposes, whenever he pleases He can do it
secretly, without notice to the community. and
for his own reasons, which be is not bound TO dis
close. To suppose that power, thus unbounded
and absolute was intended to be conferred by i'm
pcatlon on an inferior officer, when it is expressly
denied by the Constitution to the Executive of the
State, is at once absurd and monstrous The
power of confessing "not guilty. is delicate one
to be exercised by the Prosecuting Attorney only |
IN extreme cases. and when after diIigent enquiry
he ascertains that he has absolutely no evidence
OF guilt, which is worth submitting to jury. 1t
IS never exercised by conscientious and hich-toned
prosecuting officers, except in the rarest cases. and
then only in open Court, upon public and full |
statement of the reasons. If there is any proof |
whatever, of guilt, the right to dismiss the case
does not exist, and the States Attorney is bound
to submit the testimony to Court and jury. 1t is
their business, not his, to weigh the evidence, and
to acquit, if they think an acquittal proper. 1t is
the Governors province, and not the States At
torneys, to discharge pardon, if the case be one
for clemency. No criminal practice known to our
laws-no official prerogatives known to our Con-
the States Attorney to blend the
powers and the action of Jury and Governor in his
own person, at his own mere discretion. Public
ustlce could not live under such system. The
ioor which it opens to official prostitution and
corruption is fearfully wide and it is an insolent
md intolerable usurpation besides In the hands
'f a prosecutor like Mr.. WHITNEY, it cannot fail to
BRING the laws into contempt and nullity, and to
zap the faith of the people in the purity of the
Whole administration of the criminal law IF Mr.