The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-09-21
A Puzzled Magistrate.

An interesting question of law has arisen
in the case against the licv. Mr.. HAYDEN, az
Madison Connecticut. The counsel for the
prosecution sock to put in evidence certain
declarations made 10y MARY SrANNARD, the
girl whom h. is alleged to have murdered.
To thcsc declarations the counsel for the
prisoner strcnnously object. on the ground
that they were not made In Mr. lIAYDEN'S
presence. and ON the further ground that
they do not constitute such part Of what
lawyers call the res g,sf0 that Is 10 say,
the things done. or, in this case. the homi-
eide MS to Justify their admission. They
were not made at the time Of the Hing OF
the place OF the killing, and some of them
are even said To have been uttered by the
deceased in II different town from that In
which she met her death.
This question H. admitted 10y both sidcs to
be- Of the utmost Importance. Our corrc-
spundcnt gives IL ~ the opinion ~ the pros-
ccuting counsel that its disposition Ivy the
trial court will determine the fate of Mr.
HAYDEN. The pending inquiry. however Is
only preliminary Investigation before II
magistrate to ascertain whether or not
there is u ease Of probable guilt against the
prisoner. But much depends upon the doe
laratiOns of the deceased. even In this pro-
cccding: and il was the plain duty of the
clcrgyman's counsel tp object tu them and
ondcaVor to keep them ont.
This having been done it devolvcd upon
the magistrate TO decide the question of
law which wa. thus presented to him. lie
had heard arguments upon IL 10y the legal
representatives of tile STATE and th. chosen
Al. 1. 4.
of Connecticut afforded him access Ia all the
prccedcnts aud authorities. With the light
obtained from these sources. Ii" should
have considered the question most carefully
aud then decided ii t. the best of his ability.
But Instead 81 doing this, he announced
that he would go To- New Haven AMI ask the
Judge ~ some higher court how he ought
Ia decide.
We do not believe that such q course Is
proper tnder the laws ui ia" State II Com
necticut this magistrate * charged with Ger
tain duties judic ial duties which he cannp
delegate To- others however high may hc
| the court 81 which they happen tu h lnrin-
| hers. IL Is true, he may avail himself OF the
| benefit III arguments 10y counsel tu aid him
| in the discharge Of his duties; but thusc
| arguments must be made In open court. or
| communicated by one side to the other. -
that the prosecution and defence are
both fully heard. But this Is very different
from hearing what Is really an argument in
| private: an argument which affords nu up-
portunii Y ofrcply; anargumcnt hv some one
who rests under no sworn obligation IN the
| cas-" and who incurs no responsibility ion
| his utteranccS. Yet the advice from the
! Judge of some higher court which L. t. be-
solicited In the HAYDEN ease will virtually
h" an argument of precisely such u char
acter.
We know that Judges sometimes consult
! their brother Judges ont 81 court on eases
which the latter have not heard argued. but
We dn not think III" practice can Ice np-
! proved, II il defended on tn" ground that
| no harm can come from the discussion ul
| questions uf law In this way; but We do moi
think that Judges ought to help de'id" ever
such questions when they were not present
! AT the argument II one Judge can eat
another 10 his assistance. privately. In thi.
| manner, why may he not with equal pro-
pretty, consult any member oi the bar of
the same subject? 4 Judge 50 cnnsult',
speaks under no nflicial sanction. tut merely
~ an indi, idual The practice. logically
carried ont. iustilies Judg" m asking any
one hc likes how he ought to decide u Qucs
tiun ~ law Wrthnk he should act unable,
10y any advice save that derived from opcl
argument and the decisions of courts re-
ported In the books Judges incompetent &
,lo this ought To- give place To- ahicr men.