The Morning herald., 1878-02-04
JUSTICE TRIUMPHANT.

THE M NAMEE CASE-JUDGE WALES D!S-
CHARGED THE PRISONER. /
James McNamee, who was committed to
jail on Wednesday evening by Justice of the
Peace Cole for non-payment of fine and
costs imposed upon him, not in accordance
with any law of the State, but through the
caprice of the Justice, was heard on satur-.
day morning on writ of habeas corpus
granted by Judge Wales. The prisoner
was brought before the Judge in the GUS
tody of Deputy Sheriff Herdman, and wa
represented by his counsel, Messrs. Sharp
ley ard Turner.
Mr.. Turner, with great clearness and
force. stated his case, and in appropriate
language censured the illegal assumption
of power by the magistrate. He argued
that the offence of adultery, for which the
warrant was issued, was not crime known
to the statute law of Delaware and fur
ther, that It was not an indictable offence
By the common law Of England, but only
one cognlzable in the Ecclesiastical courts,
hence any attempt of Justice of the
Peace or other magistrate to issue war
rant for such an offence was a clear infrac.
tion of Law. The attempt to obtain juris-
diction by averring that It tended to a
breach of the peace, was, 1t is true, an In
genious attempt to obtain jurisdiction, but
was equally illegal. He concluded by ask
ing the discharge Of the prisoner. la.
Judge Wales rendered his decision SUBJ
stantially as follows: The question for me
to decide is simply one of law, and not a
question of morals. The power. of the JUS
tice of the Peace is defined in chapter 97,
section 8, Of the Revised Code, In these
words: ...... a.
"Every Justice of the Peace may punish
by fine, not exceeding $40, all assaults and
batteries and other breaches of the peace
punishable by any law of the State, when
the offence is not of a higher Or aggravated
nature provided that the defendant shall,
In writing, submit to his decision, and pro.
vided, also, that after hearing he shall con-
| slider that the case ought not to be submit
ted to higher jurisdiction otherwise he
shall commit or bind the de 'endant for his
appearance at the proper court 10 answer
the charge, and shall bind the witnesses for
their appearal ce, and may require surety
tfthem If necessary. He may also punish
op such fne any offence against any au-
bhorized ordinance OF city or town."
His powers are limited by this section,
| and by his power to commit for contempt,
as In the case of refractory wituess, &c.
Now, there is ne such offence known to our
statute law as the offence charged in this
commitment nor is It indlctable at com
mon law. Even If 1t were, The Justice
would have no power to pass upon the case,
but after hearing the complaint and the
| witnesses should bind the party over to
answer the charge at court. The Justice
has mistaken his authority. He seems to
have taken for granted that the case was
going to tend 10 breach of the peace, and
that It was his duty to fine tine party. A
penalty cannot be imposed, however, for
the mere tending of any offence to breach
the peace, A lioel tends to breact OF
the peace, but the Justice after bearing .
libel case should bind the party over, and
could not proceed to fine and then imprson
the party until the costs were paid. do
not tqink there is any difficulty in this case
at all, and the petitioner will have to be
released.
Judge Wales then endorsed the return as
follows "And now, to wit, this I'd day o.
October, 1878, the within return Of the
Sheriff having been made, and the matters
therin duly decided, It is ordered, adjudged
and decreed that the petitioner be dis
charged and 1t is further ordered that the
Acosts be paid by the county"