The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-05-14

. reply was published IN the Missouri Advocate and
was written by mr.. Luke EDWARD Lawiess, a citizen
OF the United States and counsel for the Soulards
and purporsed 70 be merely an exposition 81 Certain
errors OF doctrine aud fact alleged TO oe contained
IN The opinion OF Judge Peck IL was written IN
April. 1926, Mr.. Lawless was, by order OF Judge
Peck, arrested by the Marshal brought into court IN
custody, committed TO prison FOR twentyl0ur hours,
and suspended from practising as an attorney and
| counsellor In the court Tor eighteen months.
| The case created great deal OF interest Judge
| Peck was impeached by Congress. The trial pro-
cceded and lasted from time to time I'LL the 3ist OF
McDnrie one OF The managers, opened the article
of Impeachment contendng that II the latter
| signed
was Ialse ana malicious as charged by Judge Peek.
IL was libel and could have been disposed Of by an
Indictment and trial for libel, ana that the respon-
| dent was guilty OF
| DANGEROUS UsuRPAToN OF POWER
! In proceeding by summary process and attachment,
as Tor contempt TO pronounce sentence and innict
punishment lie held 1t to be incontrovertibe that
| tie common law OF England, as such, has no SEMI
bance Of authority IN The courts OF the United
States any more than the civil law OF the Roman
| Empire. And he added this most significant SEN
| tcnce:-.A greater political solecsm cannot be I'M
agined than that the laws OF foreign country-or,
what - more absurd, q particular branch or the
laws OF o foreign country-snal be recognized by
our courts as Inc law or the United states without
| on Monday, January 81 1881. the final vote was
| taken on the Judges impeachment, with the re-
| sult-2l for impeachment and % against.
Alter all this case, generally quoted in the
present controversy, loses ali force from the con-
GLIDING words OF the prosecuting manager, -'that
no laws OF a foreign country shall be- recognized by
our courts as the law or the United States without
legislative authority" The ground work, the very
recognized by our statutes by legislative authority.
And legislative authority II That Is all that is
inenls TO the code, has already been given. That
| UNLIMITED POWER
beneath the act conferred upon the Judges cannot
| be denied. In how far the people themselves by
"eonlrioutlve" negligence tended TO thls result Is
4 GENERAL CONTEMPT
Ior me Judges OF our courts has grown into fashion,
uosl iisiuious anu dangerous feeling, and calcu.
latec 10 do vastly more injury Than the power which
would enable them to assert their proper dignity
| and TO command respect. To beard a hon III his
den, Douglas IN his hall, was practically deemed
the extreme OF rashness; to .ny in the lace OF the
/ courts IN England was flight the most daring
would ialter ut. but to charge the Judges OF our
courts with 'having been seen'-implying that they
renee. Give The Judges the power to punish in a
proper manner, open contempt and that power
VIII excite cherish and foster spirit OF self respect
| for themselves and reverence for the laws they
| are sworn to justly administer.
| the REMOVAL OF CAUSES TO TIE SUPREME COURT.
me part OF the sectien 81 which Is attracting
| more particularly The attention OF the BAR anu
which mas consequently been most criticized from
that the same section amends the second subdlv-
sion OF the tbiry-thid section by providing that the
action or proceeding In any stage thereof brought
III The Superior Court or the Court OF Common Pleas.
been brought in the supreme Conrt--ths to extend
10 any motion heretofore made In any such action
Cou aSf s the su
case to pas ny sun OF its oo"y motion any
Common Pleas 9ne priaepe %pon o0uv Which,
this claim for more extended power to The Supreme
Court rests Is not at all unfamiliar TO lawyers nc.
quainted with The constitution OF the Queens Bench
IN England. IL has always been deemed essential
10 the due and perfect administration OF justice that
there should exist somewhere o general judicial SUI
pcrvsory power over subordinate Jurisdictions.
ms supervisory power exists III all supreme trlbu-
nas, and that the Supreme Court OF the State OF
New York does not possess 1t now Is simply owing
10 the fact that Ii mas been shorn or those inherent
powers which ever existed In all supreme yudi-
cal tribunals having their origin In English law.
An Instance Is
THAT or PROHIBITION,
Dy which the supreme Court or the United States
aud the Supreme Court OF the State OF New York
amt all other high judicial tribunals can send down
coed IN certain cases. How TINS power operates III
England, Is exempnied in the case OF
ANDERSON, CHARGED WITH MURDER,
and who was indicted, and was about 10 be tried be-
lore the supreme Court In Canada In tins case the
noIlon, made In Westminster uai, issued ms man
date 10 the Supreme Court OF Canada commanding
and send Anderson 10 England to he tried, thus
supcrceding The jurisdiction OF The Supreme Court
OF The colony. IL must DE admitted that this sa
GREAT AND TERRIBLE POWER
ana would be capable OF doing serious mischief il
abused: But me power must reside somewhere
anu where can il be safely deposited II not in the
hands OF judicial trbunaI-in the custody OF
Judges VINO are supposed 10 constitute the lmper
s0ualiy or justice, and who certainly more
likelr to be Tree from the effects temporary popi-
lar excitement, IRON corrupt Influences and per-
sona preludices than other men! Hitherto all ex.
pcrenCe has shown that the judiciary is the safest
depository, and although the power has been and is
llheiy again TO he abused. yet no other Judgment
can be found for Il less liable TO permit wrong.
That
WRONGS HAVE BEEN rERpETRArEp,
and may be so again, Is merely saving that all
power - liable TO abuse, and that what has been
before shall be again. What Is the remedy IN such
case made and provldedY
THE IMPEACHMENT
OF The person who wrong!ully exercises the discre
discretion Is judicial discretion, not arbitrarily
caprlciously 10 he exercised and never 10 be put
force except on reasonable and pressinggronnds
and for ustlbaolc ends. But IL may be contendei
mat the same influences which would urge
q intge 70 make an unJustnable Of this power
"ould DC int!y capable OF protecting him from the
erect OF impeachment That may be So but when
disorder aud anarchy viii nave usurped lis place
aud the remedy for Tie evil reverts That last re-
sorl ny Which people desrades from misplaced
power the arbitrary or despotic Official who has
abused their confidence, aud brought the higu
position 10 which they had elevated nm into scorn
anacontenpt When, however, all the departments
o the pubic service, become corrupt when the lu-
diary which Is the proper snppIcsscr OF abuses. The
protector Of figas aud the sole Tcdresser OF
wrongs-s IN association with that corrupt state OF
things; that ney and ali tie other 0nCIals OF the
stale or OF the community are members or corpO-
ratols OF one league against the pubic righis-then
law and justice have ceased TO be recognized and
maintained ana an outraged people fali bacF on
their natural rights, resume their sovereign power,
Miesi from the grasp Of EVIL ana designing men the
power entrusted 10 them aud place H. as the prOtec
ton and safeguard OF all, in better and worlhier
hands.
FORECLOSURE OF MORTGAGES.
Ife amendment on TINS question OF law merely
restores 10 the supreme Court, Which Is the success
sor ol the Court OF Chancery exclusive jurisdiction
oI all actions Tor The force osure OF mortgages or the
partition OF real estate III the city Of New York.
THESE actions are strictly equitable in their origin
ana character and, II Is conceded, are better ad-
mlnlsiered In a court having luIl inherent equity
powers than In any other. The fact that the other
courts oil record do not possess these powers ire
Quently occasions technical difficulties in the con-
duct Of sucn actions FAR as this amendment l.
concerned all objection Is merely technical aud Of
very little force.
SECOND SUBDIVISION.
me second subdivision OF the same section (3l
restricts the jurisdiction OF ayors' and recorders
courts 10 such cases where all tie defendants reside
WHINE ihelr jurisdiction. This Is q familiar princl.
lie IN the United states courts and, indeed Il found
realng 20 al courts OF llmlted terrIlorla, inrlsdc.