The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1864-07-14

February l795, the judge of the happening of
an event which made the call necess ssary. The
Court says: at is a general and sound plin-
ciples that whenever the law vests any person
with the power to do an act, and it constitu-
ties him judge OF the evidence upon which
the act may be done, and at the same time
contemplates that the act is 10 be carried into
effect through the instrumentaity of agents,
the person thus clothed with power Is invested
with discretion, and is quoGd hoe Judge.
His mandates TO his legal agents, on his de-
claring the event to have happened, will be
protection to those agents, and IL Is not their
duty or business to investigate the facts thus
referred 10 their superior, aud 10 rejudge his
determination. In a military point of view
the contrary doctrine would be subyersive of
ali discipline; aud, 1t regards the safety
and security of the United States and its citi-
zens, the consequences would be deplorable
and fatal"
The same rule Is oflarge application in civil
cases-as Tor example. where a deputy sheriff
has been held not liable because OF his Official
act, as such, the act being directed by the
sheriff, who Ia such cases is alone liable.
Calvin Ggf. II 1lbrook, = COmstOck. .I20
Tue following cases relate 20 the whole
subject Kendall ogr. Stokes, Howard. gs
Mitchell ogt. Harmony, Is a., il5. seamen
act. Patieu, Gaines r.. 3l2 Yakes agt
Lansing, J. r., -, 8 J. r., 800. B4rbours
Cr.. Treatise. IS, 81.
NINTm-Thls whole subject was considered
in the Dor rebellion, aud the Supreme Cont
Of the United States clearly announced the
doctrine that the discretion for which we con
tend Il IN the President. and Ia him alone
Il Howard u. ;. A., 44.l
TENTH-The statute Of the United States
passed March 3, lslS.. gives the President foil
power 20 suspend the ~trrit of habeas corTuS,r
and projects such officers A. General Dix A.
gainst any criminal proceeding lor obedience
10 the orders OF the President As here con-
piained oi-tSes the statutes Of March 5, 1868.
Sec. I and 81
ELEyENrH-General Dix acted not only un-
der color of law, bat acted in strict accordance
with the statute; and bis acts are not criminal.
--Nanderheyden dQt. Young. II J. X. $50:
Calvin qgL Holbrook, COnsi. l26l
IwELFTH-seneral Dix cannot be held.
No crime has been committed. The crimes
charged are three; kidnapping, melting riot.
and iorcble entry and detainer. Under our
laws there are no crimes ef this nature. unless
there Is wicked intent-there may be tres
pass, but not crime.
There was In fact no kidnapping, no riot,
nor intent TO make riot, pretence Of detainer
OF real estate. He acted not merely under the
color OF law. which would protect him. but d.
rectly under the statute, and he cannot be held
for crime, whether the same is unconstitution-
al or not.
The criminal charges are most absurd, and
are not made out in this case.
District Attorney Hall said that the question
was whether there was such evidence of the
guilt OF General Dix. in the language of the
statute, as TO justify the sending of the papers
TO the Grand Jury for action and possible in
dieiment. The matter is resolved into two
leading points:
First, has there been an offence committed, of a
criminal nature BY General Dix and his ass ciatesg
Second If such offence has been commit ed. i the
deenc now interp6 sed valid; does il constitute a
bar TO further proceedingsy
He contended by the occupation of the off
ces of the two journals, and the arrest of Mr..
Hallock, General Dix and his associates were
guilty OF the crimes OF melting riot and of
kidnapping. The order of the President, he
declared, was unlawful and therefore could
not constitute defence.
John Cochrane, Attorney General, made an
argument on the constitutional points of the
question.
Mr.. William NJ. Evarts closed the argument
for the defence. HE had never heard ii claim
ed" he said, that under our system of gov
erDment any one, whether poor or rich, high /
or low, general or governor, stood otherwise
before the law than on an equal footing with
his felow-citizens; but it might be, that when
an individual held peculiar public capacity, /
and performed certain peculiar functions for a
community, the acts done, which, If done In 1
private capacity, would be criminal, would not
be so esteemed when taking into account his +
public position.
1T was nothing but the sorriest fiction of 4
law that would impute to General Dix and [
his associates the alleged kidnapping, forcible /
entry and detainer, and melting to riot Ii /
would only be to find form for the assertion {
Of criminal jurisdiction on the part of the /
State of New York, in order to raise an i'm
portant public and political inquiry between
the federal government and the State of New
York.
'The learned gentleman in the course of a
powerful speech, reviewed the whole case,
contending that the acts charged as trespasses
lacked the circumstances of public crime and
personal guilt. As trespasses they could be 4
enforced, II the private interests of the par
ties supposed to be injured should lead them
10 adopt such course aud the Court would /
feel that the Grand Jury on the question of +
indictment was neither disrespeclful to the I
State, nor to the Executive, but was a proper
disposition by intelligent members of the com /
munity OF preston which may be presented 1
in other ways.
He contended there must be paramount will
somewhere, and that will, he went on TO
prove, was in the President He then took
up the separate charge alleged by the prose-
cution against defendants of kidnapping, in
citing to riot, and lorcicle entry and detaner. /
Regarding the first, the Court Judge Russell /
declared its mind made up that the alleged (
offence could not come within the legal def /
milton Of kidnapping.
Counsel then went on TO argue that crimi. I
nal intent was Necessary to constitute crime /
in regard to the remaining two charges, and
said that, If they amounted to anything, they /
were merely trespass, for which suit could /
be brought, and closed by urging a decision
of no probable cause on the part of defend
ants,
The Court took up the papers and reserved
its decision, which will be made known on
the first day of August.