The New York herald., 1871-12-17

then. 80
Judge BARsARD-Tnat point cannot heed you In.
CouNsEI-The point is IN reference to the bail,
sl. slr. ~, Inc point made was, an extract from the
United States, where he examines the provisions OF
the federal constitution reference TO bail which Is
THE CONSTITUTION or THIS STATE
Tne counsel read the opinion OF Justice Story to
the erect tnat excessive bail should NOT be re-
quired, nor excessive fnes imposed nor harsh or
unusual punishment innctedn &c. SO we have
the endorsement Of that learned commentator upon
the constitution OF the United states against exac
ton OF excessive bail IN case where reasonable bal
ought to be received. Is such atrocious conduct to
UNDER FREE GovRRNMENrg
And we have also from HIM mat under free gov
ernment such check would hardly be expected to
be necessary IN Its fundamental law; that there
was 10 be In all instances such a sympathy on the
part OF the pu0c servants Tor fellow citizens when
accused OF crime that every sense OF lenlency and
mercy would prompt them TO grant 1t under the
federal constitution, even II there was no sucn la-
guage USED IN II. Now, n understand the case OF
acting from him more than his own personal recOg-
nzance. In any other time than this we are living
In. when the atmosphere would not be charged with
the pernic0us element with which IL is there Is no
JUDGE IN CHRISTEND0M
nizSnces % Would mot S be- received. than what would
be security for his forthcoming In ordinary case
OF crime That could be preferred against MIN. Il
derstand the principle OF law 10 he thistnat ball Ii
not 30 much confidence In the party bailed as In
the baior whom ne selects and the persons who are
produced to the Court as an Offering upon
THE ALTAR OF JUSTICE.
@ nH ys ne ~ nm m sase
or Comst0ck. l7S2-an action upon recogniZance.
One OF the points taken by the defendant In the
action was that the declaration contained no aver
ment that any Indictment was found against HIM
on the sitting OF the Court to which ne was pound
recognzance for no Immediate time, but tnat 1t was
Tor any and all times subsequent and that II was re-
turnable until the party was released from the
OBLIGATION OF TIE RECOGNIZANCE
Dy the action OF the Court But Judge Bedford
seems inclined to think that this proceeding, as
Tweed TO bail, was an unqualified and absolute en-
largement Of hts body. 1t was. merely deciding
have provided without expense for the confinement
OF all persons or whether II would place MIN
IN A CONVENTIONAL JAIL
until the time arrived he should appear to answer
this Indictment. now desire to Call your attention
to The statement from which Mr. Tweed Is indicted.
although / do not set myself IN opposllon to the
legal Atlas on whose shoulders thls prosecution
case Within the Statute az a Mr. Graham s read
from the Second Revised statute, nth section,
page 467, on ''mock auctlons," which provides,
State Prison for term not exceeding three years,
or flne not exceeding 81 200. WHAT Is cheat and
fraud In common law. as l understand the shape
OF this Indictment, IL Is tina: Mr. Tweed, by means
OF private tokens, fraudulently and
ANNUALLY MANUFACTURED,
lent himself TO the abstraction or procuring from
the treasury or TINS county large sums OF money
which were not due TO any person whatever, and
grandisement. or else for that OF himself and his as
sociates. call attention upon this point TO the
fellcitlously stated by Juage sutherland. You will
fnd from the comprehensive language, the express
% Sl ae a% statute And on ns Isud ana
intended with the criminal Jurisprudence
II in This State such offences az common law were
ndictable, but were attended with the lowest pun
lshment provided by the statute against that CON-
mission. The object OF this statute was not to enact
new crime, but 1t was TO add greater penalty to
the crime than was attachabe TO II at common law
In case OF conviction. Judge sutherland says "tne
OF he Ss no Sc no. NJ an T
people or is calculated to defraud large numbers,
&c.n Now, certainly the making OF q false voucher
by the Board Of Supervisors OF the county OF New
York was calculated to cheat no large numbers and
In no way affect the public Within the c0ntempla.
t1on OF this clause which those now read 10 the
Court For the purpose OF criminal prosecution 10
abstract money from the Treasury OF the county Is
no more aecng tne Pnoc saan ne law
SUPERVISORS were merely individuals. IL Is rs q
private transaction between 1t and them, although
they the representatives OF the people; but
all respects 1t was rs though he had Obtained
this money by means Of false vouchers from the In
dvidual. The mere fact that they represented the
public does not make the crime affect the public
any more tnan II is affected bv any crime committed
against an individual The theory OF criminal law
Is that q vioaton OF q criminal statute Is not an
Ofiencc against an individual, no matter how Sc
verely the loss falls upon him. In that view, NJ
AN OFFENCE AGAINST SOCIETY,"
member to shield them from the ccmmission 'e1 q
crime. You must remember that for every private
purpose or for every public purpose the Board OF
Supervisors are as much an individual as though
they were an actual individual, and while tnat con-
duct bears IN It's signfcaise upon the public lnte
IN every respect and Tor every purpose OF the law
tnoughit was perfected for their own individual
Ss aeeeS to be ssy e
favor OF Garvey Tor plasterng the new Court House
were actually falsely made, they are now private
entail a greater detrIment than II they contained
In their results, as If the defendant was one thing
and the Board of supervisors set OF individuals
in The other. desire TO call attention 10 one
authority IN this connection-tne case OF Parker
where you win ind this element Of common law
stated and endorsed with q great deal power by
Judge Clinton In brief folio.
Judge BARNARD-ln regard TO the people being
injured, or any OF the parties injured, these are
matters Of defence, and must be brought at the
trial. We only recognize laws that arc brought
before II to say whether there shall be any ban, and
second, how muchS
C0UNsRL-It pears on the amount
Judge BARNARD-But Is not a matter or right
1t IS a matter OF discretion with the justice. II
person Is seen by justice Or the ofcer who brings
him INTO court IN the commission OF serious
offence, he shall be justled IN refusing bail en-
tirely. II, on the contrary, they become satisfied
that the power OF the law and the interests OF
people do not suffer by taking bail, then II be-
comes q question OF The amount.
CoUNsEI@Then we want the Court to fix the
Wishes TO be heard in OPPOSITION to the aUoIca,on
The crime carries with II penalty oi three years
IN the State prison. or one year In the penitentiary
and tine Of 81, 900, and the Court has u right to
vibrate between these three designations. and take
such two or any OF them as IL sees 1T.
MR.. O'CONOR,
IN reply, said: Your Honor having somewhat short
ened the argument OF the learned counsel for the
accused, perhaps my remarks should be In some
respects curtaled. Yet, as the general asser-
tlon has been made tnat this indctment
does not contain charge or an
indlcable offence within the meaning OF The statute
in question. suppose that cannot rIghttuuy rest
upon what has Just now passed. II Is my duty to
show to Your Honor that the offence IS indictaDo
onence, that II convicted under this Indictment
The accused Is liable TO the ful penalty imposed by
me statute, be 1t higher or u lower grade, may
be deemed expedent and proper under tile clrcum.
stances; consequently VIII address my self In the
first place 10 the Indictment and the nature
OF the offence therein contained and en-
deav0r to show 10 Your Honor tnat IN
case the accused should be convicted Dy a
petty Jury under this indictment he will be liable to
punishment according to the law and Inc dlscre-
ton oil The Court. see, sir, what the offence Is.
Leaving out the words my friend read. and reading
only tnat wnlcn ne omitted, and which Ia really the
nrecise nOlnt before Your Honor. | VIII hrinR the