The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-10-28
NEW YORK CITY.
THE COURTS.
UNITED STATES COMMISSIONERS COURT.

But Rests the Casc-Tho Defence Insists
rhe Production Of Marshal NIurray-Motion
. Dismiss-The Legal Arguments.
Before Commissioner Osborn.
The examination in the case OF the United States
N BENT. B. Rosenberg was resumed yerterday morn
mr. ct half past ten O'Clock according to adjourn
ment. The court room, as on the first day OF the
examination, was crowded in every part, and the
greatest interest manifested in the proceedings. The
prosecution was represented by United States Dis
srict Attorney Samuel G. Courtney, James r. Brady,
william Fullerton and John Sedgwick; the defend
ant by associated counsel, A. r. Lawrence and II. @.
Barrett.
When the Commissioner had taken his seat,
Mr.. Courtney said:-Your Honor, the evidence on
cur side IL all in and we here rest the case for the
prosecution.
ME PRODUCTION OF MARSHAL MURRAY INSISTED ON
BY THE DEFENCE.
Counsel for the defence addressed the Court, say
ing that the part OF the defence counsel did not
waive the right insist on the production OF Mar
shall Murray for the purpose OF cross-examining
him. With q view to accelerate the matter Mr..
Lawrence in the opening motion to dismiss the
complaint based his motion on the law. The law
with regard to the is perfectly plain and we
were anxious to save the time OF the Court that
did not deem IL necessary to press the evd ence
further, at all events till shall have had the de-
cision or the Commissioner on the motion which we
have submitted. II the Commissioner overrnes
shat motion-to put Mr. Murray on the stand for
cross-examlnation--but to forego that now and TO
shorten and accelerate this we propose to move
the to be dismissed, and on that motion to sub
INIT the law OF the case, that the Court may be-
come famarized with our views.
Mr.. A. X. Lawrence asked the indulgence or the
Court for lew moments while his law books We're
being brOunh into court room.
Mi. Courtney, United States District Attorney
suggest to tie Court and to The learned counsel on
the other side whether 1t be worth while this stage
Of the to take up the time OF the Court In dis
cussing The question OF law on motion to dismiss
these proceedings would 1t not be bette To complete
the evidence and at the conclusion OF the test
mony to submit motion generally. merely make
Mr.. Iawrence--we propose to follow the example
pet by the prosecution and conduct this examination
Mr.. Courtney was not aware that the learned
counsel uawrence) had the conduct or control OF The
ease or could determine how 1t should he conducted
The Court If it thought proper, might SIT all day and
hs;en to long debates and resume the case at its
proper stage afterwards lie made the motion In
good faith and to tine
Mr.. Lawrence SAID he was not going to speak all
day. He would address the Court cry briefly. The
motion he was about to make he would make in
perfect good faith, and he deemed 1t mis- duty to hls
client to make 1t at this time.
The Conmissoner-rhe defence IL entitled to
make its motion to dismiss now.
MOTION TO DISMISS.
Mr.. LAWRENCE now move that the complaint be
dismissed Counsel then proceeded with argument
IN support Of his notion He said:-fOnr Honor,
cOncldng as you do in our views you will lind this
she utmost good faith has been observed in pre-
pairing it for argument, SO as not to take
MP the time OF the Court unnecessarily. i
move TO dismiss the proceedings the ground
that the act Of March, 3, is13 under which the
made, has application 10 the case before the act,
even conceding that every fact charged has been
proved. The Court viii bear in mind that this
statute is not only penal statute but also criminal
statute and that, therefore II must be strictly con-
strued. II Is NOE remedial statute which can be
literally or eguitably construed But being a statute
which imposes penalty and affects the liberty of q
person. in ordr to cne the person to be held under
that statute he must be shown to nave done some
act which comes clearly within the provisions and
terms OF the statute and therefore, he proposes TO
to the statute ana 10 show that 1t was
not designed TO meet any such case as
place he would direct the attention OF the Court to
Tic title of the act. The act Is entitled IAN act for
she regulation OF seamen on board the public and
private vessels of the United States.n All It's rrovi-
SONS counsel commended, were directed to the pre-
vention OF the employment OF any other persons Than
citizens, native born or naturalized or native
persons OF color, on board the public or private
vessels OF the United States.
He did not suppose 1t was contended on the part OF
the prosecution here that the defendant was either
q seaman sailor on board of any such vessel or
vessels any act which he has been proved TO
have done or committed was done with reference to
putting any person or individual on board any such
vessel.
In the next place counsel directed the attention Of
the Court to the and period at which the act was
passed. It was passed on the 81 oi March, 1873, IN
view Of the fact that The war which had been exist
ing between the United States and the Kingdom OF
Great Britain might shortly be brought to close
The first section Of the act provides that IRON and
after the termination OF the war III which the United
States are now engaged with Great Britain IL snail
not be lawful to employ on board the public vessels
of the United States any person or persons" &C.
Counsel argued that this first section was the Key
note to the whole act u was rI mereiy designed 70
Counsel read the first. second tird ana uIih sec
fions OF the act, all bearing and all included IN the
text of the act and then proceeded TO quote the sec
ton OF the act under which the prosecution ~ based
and which was quoted at length In the HERALD
nroceeded.-Itwas very evident, ne said, that the
whole scope and object OF this act Is directed W the
prevention q the 81 Vino S mn not &
GEMS &C. and as the satute Is criminal STATUTE II
ne correctly understood the rues OF construction
which are applicable TO such statutes, II cannot
be stretched or strained, by implication or
be made to mean be directed against any other
thing than that which Is referred TO IN the title and
other provisions OF the act There IL no charge here
that Rosenberg or any Of the parties TO whom he IL
alleged to have falsely issued certificates was q
sailor or seaman or desired to become a sailor
or a seaman either the public or private
vessels of the United states Looking at the act
and theory, counsel could not see how such q
prosecution could be founded or sustained ON those
provisions. lie had looked over the act with as much
care as he could devote to the case during the
limited time he had for examining IL to zee on what
Initiated. He had looked in vain 10 see how the ACT
applied In the, case charged against ms Client lie
admitted that In looking over Brtghtey's DIGEST ne
had discovered reference TO a which the fo0t
note stated had been decided In the month OF June,
1883, and which IL quo ed In publication called the
ssPIttsburg Legal Jourral,n In which the court II
stated to have cded that this 18th section Of the act
OF 18th March, 1913, general In its provisions ana
general in Its application. But he fcounseD had
been engaged from the day he found that reference
10 day pursuit OF TINS book, IN endcayoring to
nnd It. and his pursuit had been in vain. though he
had visited all the law and public and private libra
ries 70 which he had He had been unable 70
End the authority there referred To and which he
Oh pit npri in States
recent publication OF Allen, and 1t seemed to him,
therefore, that Ii that was the case on which the
prosecttion rested IL was case which was entitled
10 no authority and respect and Is not to he re-
rarled as authority In this proceeding particularly
when the act itself Is so clearly an act directed
against special class Of offenders and not an act OF
general application.
n seemed to him also that in prosecution In the
rnited states courts the rule that criminal statute
should be strictly construed applies with much