National Republican., 1881-11-05

ullu Htuteu GNpfcSSlg lnut
ton nled by the Attorney General was filed as alb
solutely Of his right; and that the court would
not grant him permission when he sought TO al;
vide his responsibility with the court and applied
for leave TO file mn information. The court
said, "No, wo won't give you that leave you
have that authority absolutely, aud you must ex.
ton Therefore II that was 80, when there Is no
power IN the court to apply any limitations 70 the
nation Of that class my friend insensibly, so to /
speak, slid over from that class rather, TO the /
other class, and insisted upon applying 70 Il oS ihe
by the crown prosecutor upon the relnpon OF |
somebody else.
Mr. Wilson-I desire to correct my friend on the |
other side II am allowed My point was this, and |
] think stated itso the Court comprehended IT. |
that the class of finformntions Of which he is now
speaking, which were filed by the Attorney Gem
eral of his own notion aud at his own discretion,
and upon his own responsibility, could not be llled
says that no man shall be arrested except upon
oath or Affirmation showing probable cause, and
TINT excludes that form of proceeding which pre-
Mr.. Bliss-I do not see thntthat makes any dii-
erence upon that subject His assumption then
was that the ouiy form of information which can
General had right to Gle er.oGcio for nny INSIDE
mcanor, but Is nn Information which Is 70 be
filed on the relation OF somebody else who deems
himself affected by IT, Now, do not care to argue
upon that question rs TO which kind OF informa-
uon II is that may be filed, under, our form
will have no difficulty In arriving at
the conclusion that In Il proceeding like this,
where there comes here the officer Of the Gov
crnmcnt acting on behalf Of the Government
representing directly aud specially tho Attorney
General and where the otiense Is an ohensa
against the Government, and where there eau be
no private prosecutor, no inormer on the relation
OF some one else. the information from the very
which the. Attorney-General filed us of right,
aud that the only Limitation which Is placed
upon that power such Limitation ion
provisions OF the Fourth Amendment TO the Con-
stution that refers to the oath; that there Is no
other Limitation placed upon the power OF the At
torncy-Geucral 10 file Information than such MS
arise from the two clauses in the Constitution, the
one that II cannot be done for capital or an In.
famous crime, the other that no person shall be
held TO answer except upon oath or affirmation
showing probable cause.
The statute of4 William and Mary cited by my
| friend yesterday as putting Limitation upon the
power was expressly and admittedly n statute
limiting the power of the Crown prosecutor and not
limiting thd power Of the Attorney General, butnp-
piled solely to the second class OF iniOrnatons.
do not think we shall disagree upon that subject
| The cases which he also cited from Blackstone and
| other authorities are all cases OF that kind.
| 1t was alleged yesterday, among our errors OF
procedure, that we had not stated TO the Court In
| some way or other that Mr.. Brady acted upon petit
tions which came from the neighborhood Of the
mail routes, and various things of that sort. How,
| Your Honor, could we state IN an Information tnat
| there were certain pctitons2 That would have
involved our going into the questions of
| how the petitions were gotten up, mud
showing, as we expect 10 show, the practically
|
| matters Of evidence. They have nothing TO do
with the question whether this Information
the question whether we came cieanehsndcd into
| court or whether we did not. They are concerned
entirely with different class of questions As 10
this question OF being clean handed, &C., call
| my friends attention TO the following passage
from Cole on Criminal Information, p.50:
The court will grant criminal information for a
sopsracy to raise the price OF st or my Necessary
loVcept the attorneygen on behalf o. the crown,
The party applying for the information seems him
self In some measure hnty and the application pro.
groSn5s % @ q pSbic policy ihe court viii grant rule
prosecutor. Where the olcilse Is asnngi tue publlC
s bribery BE- YIN In . ,ns Sc Sc eL d ma %se
the court will grant an Information on the sole est
nnony OF u pditiceps eriniinis II funcon,radcted
And therefore II 1t were correct that tho rules ap-
plicable to this Information are the rules appica
BILE to the second class OF informations III England
(Which could be filed only by the authority OF thu
court and with the leave of the cour), then sub
nit that this prosecution Is one which the court
in England would authorize independently OF th'
rules which are laid down ns applicable TO prose
' which relate to % the @ prosecutor himself cas;es
libel and things Of that kind) where they ma,
very properly put them under some control, A
me as saying for q moment that there Is any rea
son III the position taken that the Information
filed Ia this country Is 10 be assimilated To the sec
; | ond -class of informations.
Your Honor, in the notice of moton-it was no
, urged upon YOU nnd presume, therefore vii
, tlon was not filed by any proper authority Of tn
| Government.
the case In dth Sawyer It is distinctly laid dow
that the United States attorney Is the proper per
n sou; and nobody, think. caii read those variou
n sections of Revised Statutes creating tho DE
5 | pnrtment of Justice without seeing that thu
i was the undoubtcd course, aud that the onl
Il doubt that can possibly be raised on TIN
. | ghi ia whether anyDO0y but the Unit.
c STATES attorney can file an information. Tha
h question was raised in one sense in
. | certain form, in the Southern District of Me-
It York, where one of my predecessors was district
n attorney. The court held that the disrict-attoI
It ney, under the law, was made the Representative
: OF the Government, and that they could not reco2
1t nize any question of the written instructions
the attorney general outside the district attorney
II that If the district attorney was insubordna
s there was u way of reaching him. but tho cou
,r must recognize him rs the man whom III
laws for that district selected to represent the GOV
" From what have Just been saying I have pc
~ haps anticipated the next point, and tn
as II .ns to he iSsa OATH T%e ony sroSnd
ID we say, under which there can be any claim tn
y the information Is required to be upon oath Is
t. the fourth amendment TO the Constitution us
lr the right of the people to be secure in their pc
er sons houses papers, aud effects against unreasOi
Mt able search and seizure, aud guaranteeing tn
mo warrant shall issue but upon probable cnu'
1t supported by oath or Affirmation, and particular
describing the place to be searched and the perso
III anu lNlilSS 10 NC htlkeu.
IN Ind marked here memorandum und intend
ut referring to an authority which have not hei
O. but which will a,k Your Honor to place upon {
or twenty. eighth page OF my brief against paragral
ed g, Woods Institutes $50. as containing un autho
to y bearing Upon that boinI VII which psTihaps Ge0
has been accidentally LETT behind
us So far rs the oath is concerned, only desire
O. say few words In passing, aud thnt Is to urge II
er | to the Constitution IL does not follow, aud 1t
re not correct to say, that Your Honor sits here as
ire grand biry.-as tue one grand luror-as was
lie that there must be before you the sui
ly, oath and the same evidence as there must be
,ly Jury the extreme doctrine (Which think Is
at iuy sustained in amy other case) that Is applied
on the charge of Judge Field, WHICH was read to "
lat We submit that You do not sit i'll nUy sich sci
Ike in that way; that at any rate your position as
or tainy not one in which yol nrc 10 apply a
,se United States Commissonor 70 whom AN apr
lin cation Is made for warrant of arrest Il
ny that under those circumstances the .videi
which IL given 10 the commissioner is nnd must
n constantly less in nature and character than Il
for laid down by Judge Field as required for
on grand jury; and Is aud mny be constantly
not oath OF some one speaking upon inform
ID tion aud belief, but giving, TO a reasona
he extent, the sources OF his Information aud
Dr. grounds OF his belief that II 1t is to be h
de here that the rule requires that the informant
,et should be sworn To absolutely in the same SCI
We rs Judge Field lays down the rule for The era era
aw cases almost absolutely impossible eN
me to get, commissioner warrant
ty; would be at Variance with the
nd tire practice everywhere throughout the Uni
Jus States / submit that the proper rule-not argu
lrn this at any great length, as have said and
ne not dissent very greatly from some OF the auth'
TO ties which the gentleman rend TO Your Honor
m terdaY upon the question OF probable cause
wn proper rule Is that the oath may be an oath mi
cu. upon Information and belief, provided the sour
ted OF Information aud the grounds of belief are {
closed That Is perfectly consistent with all
ey decisions cited yesterday, except single decls
no. cited from Illinois, where the court applied 10
ole application for an attachment very. strict n
and a rule which differs from the rule which app
,ug IN nearly II not quite-I have had no lime 70