New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1874-05-27

n1s nroponnded 10 h. Suppose they we're IN
sessions 6hAnks looked up IN lal couu h i- at,end
,t,on no 40 them nor could he procure thelr a..oh
ance apon him IN jail or his own motioIas matter OF
rghe could not even send me
OF right-he could not the first step toward gohs
before the Grand jury to answer the res v Mr. Brit
tom II would be in the power of District Attorney 10
conine witness In jail cause the jaor 70 perm. no ot
OF his friends to see him, permit no messages 20 DO
from him or to MIN, ami prevent tho posspllty OF e
performing the act or duty" In gnesti9h istriotHt
torney 70 prevent the possibility OF the party eompys
and md thns proiopg his imprisonment indefinitely. with
such arbitrary aud despotio power 10y INC
Courts lt would have been mpoSslDe WITHOUT @
IN violence and mobaw break down either the lam
many Ring or the Brooklyn RING A. oo,r,-v bavc
mower TO imprlson contuinacous witness untli ne s
answer the questions propoundea 10 nun 10" ba ,o,
at liberty could to 20 before the justice wnc
holds his Court in public and TESTIFY WIZ ,Ina IN
ent thing from getting before Grand Jury slltR ~
secret and with doors locked Apart ron TINS 49,
Grafton, Courts OF Record Ike the Kings oouS and
punish for contempt contumacious witness Iioin tc
provision OF the Revised statutes guoea ex
cept It be for defi1ite time, not exceouine tI no.
These statutory provisions 40 nNI apps Courts OF
Record II Justices Of the Peace possess any power 70
commit co prison for an ns m derived from ,ome
special statute, which has no appeati2n W Rtion
Record The position substantially taken ny MI DittDn
in mis- Points that il the commitment we're deieeuvc
IN the particuar IN question, it should not avail Mr.
snanks because If the Court erred # was IN Tue pSTs
novel, bad law. MI Brton, aer 9uons oroe ia, a,
D. 40 of H. 81 expressly prohibiting mpiisohuch'i oi
There requirement here THAT Is IN section y ,na 20. 1 n
ed 30 days. In Other the expiration Of 80 DE-. TIE 's
.asr and Of refusal viii discharge see.' co,g:
M 9r anS ase aS Goat Of Rnss County oyer
MINER His argument proceeds on inc laoa 'n't s"e
Dromptu Court Of Appeato correct the errors aud re-
form the process Of tho Court sailor, on one oeet
held his newspaper upside down. He remarked that
there must have been terrible storm at sea- 'ir'
Brltton seems to have got his law wrong sue up
FIFTH POINT.
The commitment Tor order used as commitment IS
void for the reason that it sets forth oense on the
part OF Mr.. shanks.
As shown under Point H. Section q r. g. pp 400 and
400. gives Courts OF Record power 10 push as o
which is the unlawful and contumacious refusal OF
seeIon Limits the punishment to fine OF moro
than $50 and imprisonment not exceeding thirty days
for any eoaeRu specified of
BY Section IS s., $751; 9Th Ed, sproyded that
upon party being brought up on haoeas corpus that
party it shall appear that he " detained IN custody
For ap contempt specially plainly charged he commitment
b. Court officer or body having sat,o 70 S. t G @
s%s ss, 4. fSsIs h as not a sI nGas ' curing
Under these statutory provisions, 1T is certainly clear
that the commitment should set forth an ofense In
order that the Judge before whom party Is Dr9us on
6abeas corpus may determine whether he should be
discharged or remanded, it is provided that the parc-
Mar circumstances Of his oense shall be SET foth III he
order or warrant OF commitment" This provision was
Intended as proper safeguard OF personal liberty the
object 70 enable court or Judge upon haDeas cor
nus TO determine whether the act cOndnc charged az
Constituting the contempt such that the oneuse Oh
criminal contempt" could be predleated upon IT, De
mo. j. in People agt. Hackey, "a N. Y, 49, says:
The hbeas moreover declares that where the detention Of
the pa seeking be d'cs b. bsesp corpus aPRsas to be eT
sVa cont .: Jurisdiction the custody
which E ooId But tn rule - ss te Ss T n
that degree Of delinquency or ms5ehavor can De daI
the assertion Of unioaJe right party will not become
contempt by being aladg to be So TIE Question Whether
the order or judgment Of the court and 50 with quyos a
cuDabe or Innocent according the circumstances
In shanks's case there "equv0cal acts"-such,
for instance spectful and dsordery conduct in
the Immediate view ana presence OF ,he CSurt me
fully declining TO answer particular question IL upon
the facts set forth In the commitment no criminal con-
tempt be predcaten upon that refusal then there
is contempt specially and plainly charged III tle
forth in the order warrant OF commitment constitute
no oG-nse at all and on that ground shanks was en
titled to his discharge IT, IN the language OF 5ndss
to him only an assertion OF rght, no contempt
fS S the OYER
miner that the question propounded reated 70 matter
or jurisdiction inquire into the Court had no right or
authority direct the witness to The Court
of which the Grand Jury had jurisdiction. The con-
tempt here not like that OF which witness might be
guilty by refusing to answer question in the progress
OF trial conducted before the Court Ia such case the
Court has the OF determining whether the qles-
ton propounded IL legal ana proper In TINS case the
Kings County oyer aud Terminer had no means what.
to shanks related to matter OF which the Grand Jnry
had Jurisdiction Tie only means OF knowledge on this
subject possessed by the Kings County oyer ana Ter.
miner are forth in the commitment The Court acted
upon specific complaint of the Grand Jury (ols 40 10
So The Grand Jury SIT IN secret ana the Court Is not
presumed to know what transpres before them" except
their action is officially brought to the notice OF The
Court BY this complaint OF the Grand Jury made 10
the Court and forth in the commitment It does not
appear that the question shanks required to answer
related to any ofense alleged 10 have been committed
IN the County OF Kings IN the State OF New or
even the Cnited States. All that appeared on the
matter OF libel alleged to have been published of and
concerning Alexander McCue." In this complaint to the
the Grand Jury do not represent that the oense
was alleged TO have been committed in the County Of
Kings. For aught that appears the inquiry may have
related TO some ofense committed In kamschatka or in
the FIJI Islands.
In the case OF People agt. Hackey. the commitment
set forth that the question propounded To the witness
related to certain matter aud COMPLAINT pending be-
fore such Grand Jury whereof they had eognizance,
Council OF the City Of NewYork for el0nousy receiv
ing ift OF money under an agreement that their votes
should be influenced thereby Ia matter then pending
before said Aldermen and members OF the Common
Council" Had not the commitment set forth that the
inquiry related to an ohense alleged to have been CON-
mitted in the County Of New York. Hackley would have
been entitled TO his discharge upon habeas corpus 10
the OF Hackley IL How l03 II was held III the case
OF witness committed for contempt, in not answering
question propounded by Grand Jury. that the COM
properly organized and that the matter pending before
that body OF which they had jurisdiction I'm
less the commitment III the case at bar shows on its face
that the subject under nvestigaton peeting which
the question prop0unded TO Shanks related TO an
ofense (of beD alleged to have been committed in the
County OF Kings. 1t does not appear that the question
related TO matter of which that body had jurisdiction
suggested. The fatal omission is Of that which alone
would give the Grand Jury Of Kings County jurisdiction
The fact that the Grand jury IN their complaint assert
dmpliedly) that the question asked shanka related TO
"a certain matter and complaint pepting before such