National Republican., 1881-11-07

evaded by sworn Ignorance 7--for that Is what this
amounts to. In the case cr pdrie Bollman and e.
pdrte Swartont Cranch, 40 case decided by Chiei-
Justice Marshall, who, Imagine, knew something
upon this subject AFFIDAVIT was filed when pur-
ported 70 he as near the substance OF letter from
Colonel Burr TO General Wilkinson as the person
making the afldavit could give H.
THAT WAS GOOD AFFfDAvITl
The man swore to copy" Of the letter based
on information and belief The Judges, however,
were OF opinion that as such testimony delivered
In the presence Of the prisoner on his trial would
be decided inadmissible IL could not be oonsl9
cred MS a foundation for commitment" Good
although in making commitment the magls.
trnte does not decide on the guilt or innocence 81
the prisoner. yet he does decide on the probdb1e
cause" Goodl "Aud long and painful imprison-
ment may be the consequence OF his decision.
Probable cause ought to be proved by testimony
in Itself legal, and which, though from the nature
of the case mustbe crpdre ought in other respects
to be such as a court and jury might hear" That
Is good law. Whatever evidence there Is, now
ever little Of 1t there may be, must DC evidence.
with the Constitution. The man who seeks TO
take from another his liberty, the man who seeks
to d5gg anoshe1 from his home 5oSed Gy ,hSt
more than Information aud belief" For the pur.
pose of depriying man Of his liberty there must
be, as foundation for the proceeding, fact sporn
10 by some responsible person The idea that an in
formation can be filed OH an affidavit made on
information and belief" and citizens branded
and their reputation destroyed simply because
and honest information and belief" does the
swearngl II won't do IL Is q violation OF the
fundamental law of our country. present to these
gentlemen this opinion of Chief. Justice Marshall.
and commend It TO their attention.
The next case to which shall refer Is the one
about which so much has been said, and about
which will say n little, is the Maxwell case, In
which Judge Dillon gave an opinion. wish to
call attention TO that opinion. distinction has
been made IN this country TO which will refer
hereaitcrl between revenue cases and oil other
cases. and now say to these gentlemen that this
Government had been i'm existence at least two
generations before the word information" was
ever used In our legal proceedings IN respect Of
any except revenue cases and cases arising In nd
mirnlty aud IN the slave trade There was u dis
tinction made, and probably for this reason reve-
nue. crimes are artificial crimes; they arc not
crimes IN the nature of things; they arc simply
nude crimes by law. II is not a natural crime for
being IN the world who wishes to purchase; Il Is
not naturally criminal act for me TO buy where
can buy cheapest. But the law steps in
AND MAKES 1T A CRIME
for mo to sell certain articles for instance without
having paid an export duty, or TO buy certain art
Giles without, having paid an import
duty. These I say, are not natural crimes
| Of the world shows that men violate
| such laws who are not destitute of honor or hon
esty, and consequently the distinction has been
made TO which Thave referred here, and Of which
| shall have more to say hereafter. In the Max
well case Judge Dillon says: "W We are Of opinion
that ofIenses not capital or Infamous may, In the
discretion OF the Court be prosecuted by informa-
| ton. We cannot recognize the right Of the Dis
tTict Attorney TO proceed on his own notion" as
they do In New York. There probably IL the most
liberal practice In the world. And here let me call
attention TO one statement in the brief filed by Mr.
Bliss yesterday. lie says; i state as matter oi
fact within my knowledge that in the Southern
| District of New York informations are filed with
| out oath." Now, state my opinion rs a lawyer
that If this lstrue the Judge who allows such pro-
ceeding ought not TO 90 permitted TO disgrace the
| bench upon which he sits, The ermine that hi
stains should be torn from his shoulders IL thi,
statement is true He violates
THE CONSTITUTION OF THE UNITED STATES.
He Is willing to rob citizens of their liberty OF
information, without any probable cause being
| shown, without even asking for an oath If thai
| judge does 1t he does an Infamous act but whethe
| he docs II or not II does not change tho law
strange iden ofustice they must have In the State
| Of New York, to allow man TO be arrested ant
| imprisoned without anybody In the world having
sworn that he Is guilty Of any ofense, without any
| body in the world having even affirmed that III
| has violated any lawl man can be imprisoned
there, II appears, on the unswotn guess of dis.
trict attorney. Of the district attorneys deputy
| or of the deputys cerkl And have no doub
| that this information was the child of the New
| York practice, suggested by a gentleman who il
| in the habit ofpracticing In courts where ar,
deprived ofliberty without requiring their accuser
to- go through the formality Of taking an oath, o.
without their accusers res0rting 10 that formallty
1t may be that in New York the oath Is so litti,
regarded that II is understood TO be q mere matter
\ Of form. Laughter
THAT Is THE PRACTICE
NJ
| lon says: ave cannot recognize the right OF thu
district attorney to proceed on his motion, an,
shall require probable cause of guilt to appear b,
| the oath OF some credible person before we viii
| allow an information 10 be filed" So that in thi
case so far as probable cause is concerned, 1
makes no difference whether the court has juris
diction of this information or not even admitting
| that tho court has full and perfect jursdic
tion the probable cause must have beef
issue or it must be stricken from tn
files. Judge Dillon goes on to say; But will
these safeguards there is no more reason TO fear Al
oppressive use ofinformation than there Is reasol
to fear the abuse Of the powers Oft the grand jury.
differ with Judge Dillon. differ with himi
there is to be any irresponsible power II Is thous
and times better to lodge IL In tho grand jury
whose members change every court, thnn 20 lodg
It in the breast ofa Judge who holds that onic
during life. Ifthere is to be any irresponsibl
power used let II be
USED ny TwENTY-TIIREE PERSONS
coming from the body of the community, rathe
than be used, year amer year, by an irresponsible
court responsible only to the power that appoints
The history of England shows that the Judiciary
cannot be trusted absolutely with the liberties o
the people, No department, unless it be depart
ment springing constantly from the people, receiv
ing fresh blood every election, can safely b.
trusted with human liberty So that If there Is b
be any Irresponsible power In this country, wan
that power to be in the hands of n body of me
the people themselves. do not agree with Judg
Dillon, although have as much respect for Til
that 1T is the Grmest pillar i
the edifice of human liberty where It
properly guarded by law. Judge Dillon says fur
ther: "Whcrc the accusation Is u grave one [thi
Is tolernDy grave accusatiOn or where tn
charge seems TO be doubtful liz seems to be some
what doubtful in this case, where they cannot fin,
q solitary man to swear 70 itexcept upon inlorma
ton and belief-tolerably doubtful [Iaughtorl-
the court will refuse leave to file an Information
and compel the district attorney
TO LAY IT BEFORE A GRAND JURY"
That is good law, good sense healthy healthy
In Woods, 502, in the matter of q rule of coul
prescribing the duty OF the Circuit Court comm.
sioners In certain eases Justice Bradley gives h
iden upon this point He SAYS:
/ nm Informed by His Honor, the district judg
that great inconvenence h caused In this district
ihe revenue laws, against whom no sufficient eviien,
can he produced either before the grand jury To wa
Justify conviction, whereby much useless expense
caused 10 the Government, and tue personal lbert
cause Of this evil seems TO be The fact that
Ss GRm Sc Ger are no
closed sweaS I mat, upon nIormaton, ne has reaso
has committed the ofTense charged
That is this case exactly. Thomas L. James, wl
makes an affidavit In this case, is g an officer" All
lie swears upon the relation of other person
whose names he docs not disclose. What 9th,
persons did he employ TO ferret out the sinr-rout
frauds? llG does not even give their names.
ioned in tie counts OF this information OF
case could not have been better described than 1t
described here by Judge Bradley. He proceeds:
The district Judge, not being satisfied that this Is
sufficient ground for issuing warrant OF arrest, hi
} desired my advice In the matter Ailer eXamlnatic
OF the subject, we have come to the conclusion th
such an affidavit does not meet tho requirements
the Constitution, which, by the fourth arclo OF Il
amendments declares that the right Of the people
be secure IN their persons houses, papers and elec
against unreasonable searches ana seizures, Sha
not be vlolated and that no warrants shall Issue
upon probable cause supported by oath or atirmntO
describing the place TO be searched and the persons
be seized.
I Colonel Bliss quoting this provision droppJ
ont the word "peTsons," by inadyertence, SUI
: pose, and substituted the word things" makli
, Il read, THE place 10 be searched and the thdl
7 to he seized" Naturally, under the New YOr
! practice man would coniound persons vii
, things. lLaughterl Judge Bradley proceeds;
Itispla!n from this fundamental enuncla!ion as W,