New-York tribune., 1878-06-24

tionable element; the tempting of persons
into breaking the law in order to prosecute
them for it. MIR. COmstOck is understood to
write to persons whose advertisements he
suspects, and to apply to persons who are
generally believed to be vendors of prohib-
tied articles asking them to sell him book
or instrument forbidden by the law he seeks
to enforce If the person addressed falls into
the trap, and forwards the book through the
mail, or furnishes the article desired, prose-
cuti5n is then instituted against him, merely
for complying with Mr.. ComstOcks request.
Such is the gist of his own account OF his pro-
ceedings in the recent Restell and Chase cases,
and such ia understood to be general method OF
procedure by the agents of the Society. 1t Is
not, indeed confined to them, for the practice
has been common, in the enforcement of tenn
perance laws, to send policemen in mutt, or
spies of the societies, to the saloons suspected,
to ask to buy drink; and if the drink is sold,
TO make a complaint for it. Obviously this is
not detecting an offence already and yolun-
tarily committed ; it is beguillng person INTO
the commission of an offence, in hopes that by
locking him uD for it he may be stopped from
further transgressions The distinction de-
serves consideration. Give the detective police
all possible liberty in discovering crimes after
they have been perpetrated, it remains a
Grave question whether Government may en-
ploy agents to stimulate commission of offences
for the purpose Of punlshing the acts done.
We do not make the point that convictions
thus obtained are not good in law; that is for
the courts to decide. They have view that
the only judicial question is whether the pris-
oner has been proved guilty of crime; that
how ne was found out is not their concern.
Some thirty years ago post Office clerk was
prosecuted for stealing money letter as II
went through his hands in the mail. On the
trial it came out that it was a decoy" letter
which he had opened the authorities had sus-
| pectcd him. and had put marked money in
| letter, and watched where it might disappear
on the route. His counsel objected that such
| letter was not mail matter for it was not hon
| estly intended to be carried through there
! fore stealing it was not robbing the mail.
! But Judge Belts ruled that a decOy let
! ter was entitled 10 the same protec-
| ton as any other; it was intended
| to 20 through if the clerks would let
| it. I'm Massachusetts, case, at about the same
! time, a man was suspected of dealing IN lot
| terry tickets, and by means of n search warrant
great parcel of them we're found concealed
| in his house. On his trial, his counsel set up
| that the search warrant was unlawfully OBJ
| taincd and oppressiyely executed, and there
| fore the tickets obtained by it ought not to
| be received in evidence against their client.
! But the court said the tickets were there in
court and were competent, lawful evidence.
| How the strict-Attorney got them was of
/ flot hn Iaft ia
| own conscience, or If he had broken the law,
he might be sued for what he had done. And
! they received the tickets. As early as 1922,
! in the famous case of La Jeune Eugene, Judge
| Story said the same. This case arose in the
days when tho right of visitation and search
of vessels on the high seas was so much in
dispute. The Eugene was searched, and pa
pers found on board led TO her being prose-
| cuted as a SLAYER. Her counsel argued that
| the search was unlawful, and therefore the
| papers ought to be ruled out But the judge
| said that the right Of using evidence does not
depend on how it has been obtained; if it is
| lawful evidence it may be received, even
! though obtained by illegal means. A volume
| lust now published of reports in this same
! court shows that the rule is still maintained.
| Merchants in Bangor were prosecuted for
smuggling, and their papers and account
| books were offered against them. They OBJ
iected that the evidence was obtained by an
unjust and illegal search. But the court said
| that even If this were so, it would not hinder
| the District Attorney from reading the dOcu-
ment3.
Many readers will remember Mrs. Cunning
! hams bogus baby. She had set up her pri-
vate marriage to the dentist, Harvey Burdell,
! who was so mysteriOusly murdered; /; and to
substantiate her claims she determined upon
producing a child as the fruit of that mar
riage The persons whose assistance she asked
| informed the authorities, and they determined
to humOr the cheat until it should be COM
pletely performed, and then expose it. So
they borrowed q newborn baby from Bellevue
Hospital, marked it with nitrate of silver to
identify it, and gave it in charge of doctors
aud detectives, by whom mock confinement
was performed, a medical gentleman playing
the part of mother, and, according TO the re-
ports Of the day, giving dismal grOans most
artistically Mrs. Cunningham was completely
beguiled into adopting this child, TO be pro-
duced as that of DR.. Burdell and herself.
Then the officials threw OFF the mask, pointed
out the nitrate Of silver marks on their bor-
rowed baby, and carried it back TO its mother
Mt the hospital. In this way the impOsture
designed for securing the murdered dentists
estate was frustrated. But cooperating in an
offeuse for the purpose of frustrating it, is
less Objectionable than proposing and procur-
ing its commission for the purpose of inAict-
ing punishment.
Mr. ComstOck, quite likely, justifes his
measures to his own mind by the cOnsdera-
ton that the sale OF vicious literature is car
ried on secretly, and on a large scale, by per-
sons who cannot well be convicted in actual