The New York herald., 1868-02-27


Unless there DO somo especial reason for immediate
nearing furnishes sufficient cause for granting post
ponement
Mr., Merrck-I supposed your Honor would have In.
ierred tue reason from The statements.
The Chief Justice-It is the Importance OF an early
decision OF the case presumep
Ar Merrick-Yes, sir; the is OF great public
interest," and the conduct of the business Of the govern
ment actually requires its speedy settlement III
case between private individuals and relating simply
to matters OF property the FOR General Thomas
would not hesitate under the circumstances acquiesce
In the suggestion Of learned brother other
side. In view, however, OF the importance OF the
as matter OF great public are constrained
to object and believe that your Honor will appreciate
the orce oil Che reason and the proprey Of the sugges
ti0n.
Mr. Carpenter-I would like to suggest il the Court
please. that this of haste in examinat of
case is very much at the disposal Of counsel, who
be, they choose, goodna about 1t and be very
brief. think may your Honor that you will
indulge us TIL to morrow we can put in our case In two
hours. The public service cannot certainly langush
great deal within that time.
Mr.. Ridde-Besdos, this is tho final trial of tho
case. IL IS but the beginning, and not the end.
The Chief Justice-The hearing may DO continued
until
Mr.. Merrick-Before your Honor passes that order
would move behalf OF the defendant that the case
bc adjourned from before your Honor at chambers
your Honor holding the Criminal Court of the District
OF Columbia. apprehend there is no question as to
tho power OF your Honor to adjourn the case; and
from conversation few minutes since with Mr. Car
penter appiehend that tho adjournment into the Crim
side
Mr. Riddle-My learned friend does not suggest any
u
suppose acting under ordinary circumstances that
II your Honor should retain this you would then
pass order the effect that tho defendant appear
tho ensuing term OF the Criminal Court This motion
seems simply TO anticipate that order aud by direction
OF tho court places this more Immediately the
control OF tho Criminal Court rather than OF a Judge
sitting as an examining court We would prefer TO have
action on this motion deferred until Tomorrow, that
both questions may be heard and disposed OF at tho
same time We would like to look at the matter in all
it, aspects
The Chief Justce- am as ready to decide this ques
ion nj as at anV 10 hara
process issued by Justice at chambers, IN his magis
teral capacity, simply with WOW to preliminary
inquiry into the question of whether crime has been
committed or not The functions exercised by justice
at chambers might have been exercised by the same
magistrate a court, provided tho had been
initiated in the court and by the magistrate as court
Ihis not having been done, the inquiry whether
It Is good practice Perhaps with the consent Of all par
ties II might be DONE and perhaps the transfer might
administer TO tho convenience OF record: but
1t could not change the character OF the In
vestigaiion IL could not change the position
Of the parties to the investigation, whether carried
by tho court by the magistrate. Either tribunal
must in a magisteria capacity resolving prelim
nary inquiry question whether tho laws have
been violated. Now, would 1t be good practice. pro-
vdcd the parties consented to it, TO permit the Judge at
chambers transfer his labor, IL he has the power
do so, into the courp 1t changes tho character OF
the investigation in no respect changes the relations
OF tho parties to the investigation In no regard;
changes
Mr. Cox--wi your Honor allow me to state an add
tona consideration and that Is the doubt which exists
whether while the Criminal Court IL in session. the
sderaon OF case Of this character can be proceeded
Win nj CnamDers anu because Oh THIS Wnother
IL would not be advisable to adjourn the examination
over TO the Criminal C0urta
After brief conference with his associates on The
bench, the Chief Justice sad-Ths inquiry submitted
by counsel seems to presuppose that the duty and
authority OF a criminal court Is 10 inquire whether
crime has been committed the court sitting and acting
In separate capacity from It's grand jury, tribunal
created by tho law for the purpose Of making the in
qury and rendering unnecessary that the should
act Now. tho highest function that a magistrate
exercise in this particular ia to inquire whether
has probably been committed and the highest power
that ha ran Ia
offender TO upon trial before the court There
is nothing n the nature OF the investigation, except the
OF inquiry into the truth, which Is anala
gous to tho ultimate trial. The duty Of the judge at
chambers IL merely TO inquire whether an offence
probably been committed and that being the tho
propriety Of action would be in chambers as
magistrate and not upon the bench AS court
THIS question had before been suggested to my
mind informally new question. IL IS SAID to have
been ruled by very high authority in this District not
that transfer should take place, but that It might be
DONE that docs not affect tho question OF the pro
prlety OF practice. While should be very glad to do
anything In power to convenience tho record or to
conyeusnce either party In fair of thu
case and while will do far time permits, it
seems that nothing would be gained by the
transfer asked and therefore overrule the application
| would state that have informally consulted with my
brethren the bench and that they all concur with
me In the view have expressed.
Mr.. Merrick-fhen may 1t please your Honor, General
Thomas having gwen bail 10 appear before your Honor
this morning. he is In obedience to the cxigency OF
that bond now before you, and surenders himself 20
the Marshal OF the District Of Columbia. by whom he
was arrested under the warrant issued an affidavit
filed on Saturday last He being now by virtue OF the
surrender thus made IN the custody OF tho Marshal,
present TO your Honor, holding the Criminal Court OF
the District OF Columbia petition Tor habeas corpus
The following 10 the petition:-
To the Hon D. X CARTIER CHEF Justice Of tho Supreme
Court OF the District OF Columbia holding the criminal
Tps non ,f Lorenzo ihomas-Tha he now held in
custody BY the Marshal District under and BY virtue
G rad S and wits ~
said Imprisonment wholly nnnw,n ana % ~ bs Ggot nea a
upon the facts stated IN the cause OF ms a,rcs anu
the Marshal to bring the body Of your petitioner before
your Honor IN open court tha tns ~ NJ "a ~ M
dealt with according 10 law
Mr. Carpenter-If tho court please. desire to state
thai regard this action entirely unnecessary
epsods This action has been prosecuted here by the
secretary War for the purpose OF bringing THIS matter
TO settlement In the courts fhero no FEELING be-
,wcen him and General Thomas; considerations alone
OF public nature have actuated tbs prosecution Gene
raj Thomas is gentleman who wiz nos depart wo 90
not ask that no should be required TO enter into his
and surely no cannot come into court and
make himself prisoner unless the court at least accepts
that fact. or somebody asks him TO be imprisoned win
the full latitude therefore, which consent ne sha 4
have and which nave doubt your honor will very
willingly accord 70 MN y, ss .n,s rs,hsr VIII
The Chief Justlce-rhe question Is now a. 70 the
staud urs OF the defendant DO counsel ask any alton
on the part Of the court IN reference 70 the announce
ment that they surrender himyA -,
Mr. Cox-Thers Is necessity for asking that any
action bo had by Honor The accused has surrcn-
dered himself to the custody OF the Marshal
Mr. Bradley, Sr His bail have surrendered him.
Mr. Cox-Ges, sir: his Dali nave surrenuer0u nim.
Ua "a nov in the custody Of the Marshall he not nj
large By the terms OF bis recognzancs he was bound
to appear before your Honor to-day He has so ap.
neared and now bail surrender him To the Marshal
OF beng baed TO appear on tho FIRST day OF the
next term OF the Grimm Court he baed appear
here Had no been baed to appear before the Crimna
Court IL would bcen competent for his surotiss
have surrendered him at any time. His bail soc props
to surrender him here at this time. He Is, therefore
now LEGALLY and technically in the custody Of the Mar
sna whetner there be any personal actual restraint o.
not This being the case he has right to ask for
writ OF habeas corpus In order that the right Of thu
Marshal or AMI ybody else 10 hold him In custody may b,
tested.
Mr. Carpenter-If the court please, this rocosnizanc
did not bind bait return the defendant to the Mar
shall ID bound the bail TO return the defendant 10 yoi
Honor 10 70 very clear 70 my mind that the dofendan
cannot here and ask have himself imp risone
as foundation for an application OF habeas corpus.
The Chief Jusstce-I have never heard Of prisr,ns
surreuderug himself 10 his sureties the Marshal; II
always To the court Where 10 the process Of the MAJ
shai by which 6eporal Thomas Is held HIS 'rarraI
has rsturned and the party's recognize noe hi
/ been substituted Having appeared according 70
Of tho reoogn he u present In co ART 70
i ora charged. Aara n m