National Republican. (Washington City (D.C.)) 1872-1888, 1881-11-10


can exercise no authority given 10 him by virtue
Of any act of the Legislature Of the State OF Mary
land. The Court so declared in the case OF KING
gold W. the Levy Court Before the District AZ.
torney can ale an Information Your Honor, shy IL
Is his duty TO show TO the Court that there Is proe
able cause BY proper proof and that ne s sneh o No
point out the statute which authorizes him 20 hle
such proceeding, say that there Is no statute
which authorizes tho filing Of a criminal informa-
explained to the court how the word "inforrnn-
ton" has gotten Into our system OF statute laws
and how, 1t has been maintained there,
/ will add another suggestion OF two IN relation
to the Revised Statutes of the United States, sec;
tlon 10l6. No person., says this statute, snol
be. prosecuted. fried, or punished for any crime
laws Of the United States unless indictment is
found or information instituted within five years
next after The committing Of such crime Ihns M.
from which the word Information" was imported
is in section 1916, and the same provision Is
ALSO IN THE AMENDED STATUTES
that those statutes relate 10 the revenue Of the
United States The fact Is that the reylser has re-
ferred TO those same statutes OF Maryland Tor his
authority for the statute Of limitations, differing
from the other statute OF three years. There is
limitations found in 1913. The Language is this:
no person shall be prosecuted, tried q punished
u nj o'heT Z Within Three
wears next amer such treason or capital Qtiense Us
any ofense not capital excepted as provided lnsec
tlon 0G unless Indictment Is found or Information Is
Now, that Is the statute Of limitations which
would apply 10 case like this In order TO con.
vince Your Honor that am right in my view that
by mistake, want To- cali Your Honors attention
to the original act Of 100, where this statute Of
limitations was brought from. II Is the same
referred TO before, and Your Honor will remember
the further fact that stated that the amendments
to the Constitution which provided for restraint
on Congress relating TO the liberty of tho citizen
were not passed ut the time this statute OF l7oO
became law. Your Honor will see that the pecu-
liar language OF this fifth amendment to the Con-
sttution Is not observed In the statute OF imita;
tons as declared there. The article to which
have alluded Is In this language:
No person shall be held to answer for capital or
otherwise Infamous crime unless on the prosaptinent
or indictment of n grand jury.
Now, take the language here, and Your Honor
will observe thnt the statute OF Limitation provided
here cannot refer to that section OF the amend;
offAnse the accused shall have such copy OF In
dictment two days before the trial. &C.; that he
shall not be prosecuted for any fines forfcitures or
penalties unless indictment or Information shall
be found inside Of two years and no person shall
be prosecuted, tried, or punished for treason or
other capital oHensc," &C. Now,
THAT LEAVES OUT ALL FELONY.
Your Honor will observe there is no provision
made here to correspond with the Filth Amend
mendment at all--that they had not the Fifth
Amendment in their mind, and probably because
of the passage OF this very law the jealousy of the
people ofthe states raised against the General
Government and its powers confided to u In the
Amendment, aud long aiter this statute became q
law, which makes no provision for felonies and
otherwise Infamous crimes they passed these
amendments, aud In l79l they becnine n law. Car
there be any argument In support of the doc
trlne of the other side, from consideration
Of statute Of this kind passed nearly q yeai
before the Firth Amendment to the Constitution
was heard OFF So that that accounts for the pecu
liar language contained in the Revised Statutes
The word :" inforlnntion," whereyerit occurs, ha
crcpt into this criminal statute because there
but slight difference when the original laws weri
passed relating 10 the revenue, and the cmbargt
and to tho slave trade, between prosecutions 10
crimes aud prosecutions for dcbts-very little dis
| tinctiOn. And the word Information" applied
| TO "A proceeding that was exclusively and fairl!
applicable only to such proceeding us were guds
criminal proceedings. intended fol the sole pur
pose OF collecting Ines tOrieitures, and penalties
| There are many references TO the word iniorma
tiOu throughout The Statutes Ofthe United States
| but they refer 10 libel proceedings under nd
miralty, infJrmaions In the nature OF quo tDarrdc
and all those comm, n. law proceedings which ar
| familiar to every student of law. SO that think
If the Court please TINT instead of deriving legs
lative authority from these blind statutes for thi
proceeding, these statutes each snow that this pro
| ceeding was never contemplated.
Mr.. CUok-Mny interrupt you for a moment Il
| call attention TOT iuct which perhaps you hav
| oyerlOOked-thut that amendment was propose
| resolution-thc first ten Us these amendment
were proposed by Congress, and Others that wer
not reported by resolution in l7S9, and were rati
lied before lIpl and also 10 the fact that OIL Sep
TENDER 30 1879, 1t will be found that II offere
| to submit these amendments
Mr.. Totten-Ihut was right.
Mr. Cook--So that before the passage OF the az
OF lido, Congress had prepared and contemplate
| these amendments. Both OF these were In the
| brains ut the same time.
| Mr.. Totten-l think there can be no such infe
ence derived from the fact that my learned fren
has Just stated. 1t Is Il fact TINT these nmendmen
were not ratified and were not the law OF the Ian
when the act of l79O was passed; and In the satu
itself there IL internal unmisakable evidence tn
the Fifth Amendment TO the Constitution was III
known at the time and had not become obligato
upon legislative power.
WITH RESPECT To THIS AMENDMENT
ofthe Constitution Your Honor will find all tn
Is said about II on page 81, LIST Statutes at Iarg
They are set out in full here in note 1t refers
the resolution OF 1883, Post o., aud they were rat
fled before 1901. The position of this resolutiC
shows that II could not have had any bearing upC
the legislative mind when the act OF 1870 "
written aud they were not in force; consequent
the words otherwise infamous crime" do not o
cur in that statute therefore submit to the Cou
that the argument is complete, that the word I'll
! part of the statute, can have no releren
10 the Fifth Amendment, and cannot support
; the least the app icatlon made for an iniornat
of this character In this court. therefore subn
to the Court that have shown conclusively Il
I origin and use of this word Information" al
! that II shall not DC Interpreted as an authority
Congress for proceeding oIthis kind In the face
| the Filth Amendment 10 the Constitution and
!, provisions. Now, Your Honor, there have be
. statutes passed which authorized criminal
n | formations. Your Honor Will hud one in the
e relating to seamen, In the thirteenth volume
Statutes a. Large page isi and the provision
a ! similar manner by the district attorney. by
9 formation. II goes on in this language:
IL shall not be necessary that the accused shall la
u ! been previously Indicted.
e Now there is a declaration, If there can be su
y thing that in every other case except In j,
those cases, the legislative miud considered II
: an indictment by u grand jury was necessary
n the punishment of crimes. Your Honor will Il
: | in the Revised Statutes relating TO the District
: l'Columbia, the same Thing. Section 1864 says:
Prosecution In the Police Court shall he by Inf
nation under oath. Without ndetnent by gra
Il ! ury or trial by petlt jury,
d There is another legislative declaration that
% oil other eases In this District indictment by
Is grand jury and trial by petit jury shall not
o avoided III any instance. Now, let me Invite W
J. Honors attention TO the statutes upon which
d learned friend so earnestly ana eloquently reli
n In the first place, we have the act vi June % Il
IS brought to Your HonoPs attention for authority
i | this court
: IN REGARD TO ENTERTAINING PROCEEDINGS
u :, by Information. | refer to Richardson's Supp
y ment, p. 80, to which Your Honor got the rel
- ence from Brother Cook The language Of
n statute is:
u That the Criminal Court orthe District of Colum
a ors committed in said District, not legally triabe
u prosecuted by Indictment or Information.
% Now, If Brother Cook or any other man will sh
Il me that this kind Of an ofense II II be one, is
~ qnired by any statute Of the United States to
~ prosecuted In this court by information, Will
- init that this statute bears for him. Bpt IL
- now aud as read IT, Il only give this court Jul
10 dictien To try cases by Information where that k
y. OF proceeding is required by law and there Is
X place in the statutes of the United States wher
is crime is required by law to be proceeded agui
10 by Information except In tho Police Court OF
- District of Columbia. Even IN tho statute relat
"A to civil rights the discretion is In the Dist
" Attorney as to whether he shall proceed
ir by INDICTMENT or BY INFORMATION
Of Now, the history of this act OF June %, 1874
n presume, this, although nnutgive the impell
ID acts Of this legislative power that prevails in
1T District, but will tell you what happened ab
lr that time. There was u very distinguished liter
A. gentleman who had offended resident Of
I'd District Of Columbia-a citizen OF the United ST.
es by publishing what my learned friend wo
al oall-a peecadillo. II was called libel aud
III Police Court issued warrant upon informal
is having been flied showing probable cause for
ID arrest Of this distinguished gentleman,