New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1881-11-05
THE STAR ROUTE CASES.

TION AND CLAIMS THAT NO INJUSTICE 20
THEREBY BE DONE BRADY AND OTHER Aii i'.,I
CONsPIRATORs-A LoSG ARGUMENI-'a"' ~
SOIL BEGINS REPLY.
WAsuINGTON. Nov. 1.-The argument Oh
the motion to set aside the criminal lhIoI'p4 nj
star Route cases was resumed TINS mofliis " r1, 90
trict Crcuit Court before Judge Cox George Io'
- vi, olaressod the Court behalf OF the HoNcIu
,+ IL ssil. {" II has been assigned 10 me on 'Ho
mar, NJ tho Government to present TO the oo"i' sun
reasons "a led the counsel on The part oil the Wv
20 take what we admit to be the somewhat dnuSu' pr
ceedng of filing or seeking TO HE 'hi' n'io'
A was stated at the time we maze une "i'
,,lioation for that permission, we were put IN
This condition: The Grand Jury had peeh au-
;ourned TO October g. and what We regarded as sumo
of the most important and effective overt acts !"
,ursuance Of this conspiracy had taken place on Oc
fober l. ISIS II open TO the claim, therefore, u'
nuder the three years. statute OF limitations unless we
,roceedngs were gun court before October l. 1851
they would be barred under the statue Under te o
cumstances, 10 not open to us 10 cohSiuei 80,
We preferred 10 go before the Grand jury or ""'
we nreferred TO fle or seek file, an Information VIC
were pacod In the position that II we dlu ho' nv
at IN file an information, felt we should not nave
done our duty TO the Government We 'noio
fora adopted the proceeding by Hnlo'i"''
subject of course, to a motion 10 SET IL "SIuo'
\ mink that we may claim he here, without being eN-
posed 70 the denuncations which heard yesterday
f having made an attack upon the people, OF having
rndertakcn TO violate their dearest rights-Mr Brady
having substituted himself in The place OF the people
The position OF myself and my associates In TINS case Is
briefly this: We have desire, under ordinary crcuh
stances TO proceed outside Of the general practice III
criminal cases We have desire to avoid the Grand
Jury And we think that might Just as well charge
that the other side seeking to avoid the Pett jury as
that they should charge that are seeking 10 a'o Tue
Grand Jury. have desire 10 do 1t, except "here
I'VE can show cause why it should be done agree hat
and wifi
being shown the proper and expedlent way Is u PIo
coed before the Grand Jury"
THE RIGHT TO FILE CRIMINAL INFORMATION.
"The chief grounds and the one which should DC hrSI
considered to the basis OF the whole pro
leeedingIs apparently, that criminal information
can be coustuonally filed in this country but that
an indictment is necessary. The fifth amendment to
the Constitution declares that person shall be held
10 answer for a capital otherwise infamous crime
unless on preSentmen or indictment OF Graiu jury,
eTcent in cases arising in the land naval forces,
or in the militia when in actual service IN time OF
war or public danger, shall any person be deprived
AS to this provision 1t is first to be noticed that by spec
flying certain crimes which can only be Piosecued on
a presentmcnt indictment OF Grand Jury h neces-
far meS tns s6r sne other are way and il viii not
be pretended that there is any otheT way
Infamous then there can be doubt that an ntorma
tiOn may properly be flied. by the common law OF
England there were kinds o. infOrmatiOn-One filed
by the Attorney OF his own motion, anu known
oico information and one MED Dy tne crow" 5
prosecutor the relation OF someone who fet injured
That law passed over TO us ana was adopted D!
Mr. Bliss here cited authorities show that the prosecu
ton had the right to proceed DS IA cti S
Congress by authorizing criminal proceedings by dlct-
He then continued Thc right to file informotions has
been sanctioned by the courts in repeated cases lhe
earliest case to be that OF the United states vs.
Mann which arose in 1912. where it was held that the
expectation of goods TO foreign country contrary 10
the embargo of 1909 uislemeanor, and could
DE prosecuted by criminal information. In this case
Story commentator the Constitution, was the
In the Of tue Uni ed ates in which the pracuceo
filing criminal inormaons has been sanctioned ana aI,
cases being thus clear both under the statutes OF e
United states and under the decisions Of the courts the
question remains whether the crime charged iii this in
formation is one coming within class i'll which in
formations are allowable
THE CRIME ALLEGED NOT AN INFAMOUS ONE.
"The only possible Limitation the right TO file an in
formation the fifth amendment to the Consu-
tution already quoted. That amendment prevents the
filing Of an information 'for capital or otherwise ina-
nous crime The offence charged in this II formation
being clearly not capital, it only remains 10 ascertain
whether il is Infamous. In examining TINS question, we
must ascertain what crimes were infamous al the time
OF the adoption of the Constitution In doing we are
compelled 20 back largely To the older English a-
thoT1ties in to tine olios; for by the amend
ment of the law Of evidence the distinction has ceased 10
be practical IN the law Of England, II not III all OF
our States Il was for iong period claimed or assumed
% 49, r. he rested Inv The ninsEment which
was or might be inflicted. Later there come claim
that the form of Judgment was the test as 10 whether
but this doctrine long since OyerTued and it is now
nndoubted law that the question whether
a crime is infamous, is to be settled solely
by the of the crime, without reference to the
judgment actual possible to the punishment. The
test OF tany Is the nature OF the crime Itself Judged
DIV this test what crimes infamous In the general
Iare Infamous is treason, felony, and those crimes
(which are included under the designation Of
10 into suInent show that conspiracy to defraud
was not felony 1t does not cone within any OF the
henDiaons felony understood at the time Of the
M Bliss here gave numerous citations of decisions
crimes infamous, ana then continued: :" IL
Twill noticed that the crime Of conspiracy to deiraud
held the English courts all relate directly
the 81 Justice s5GS IGrse 3c snf %
ceny and forgery ana receiving stolen goods
the administration of justice the other hand note
only the crimes which involve degree OF fraud OBJ
held NOT to be Infamous Is conspiracy to de-
hnclude conspiracy in their statement Of what
crmes infamous, but they refer Tor
mean thereby not conspiracy understand II, and
administration justice. There decision that a
epracy TO defraud or any conspiracy which does not
germ the administration OF Justice Is an Infamous crime
1T will be perceived therefore, that there Is
holding conspiracy to deraud or conspiracy generally
70 be an infamous crime The only passages IN the text
books which may be appealed 10 20 uphold the doctrine
that conspiracy to delraud is infamous crime are
references to conspiracy generally and are based either
upon Cokes language or upon cases which do not
~ ss,ne me,nng "a nnw We thereFore sav nafo
SAM ~ ny d az hoe 1919 t sy oiOay
courts to be an infamous crime and that any passages
sn the textbooks which to hold either
attended 10 apply cOnspiTacies other than
which affect the administration OF Justice based
OIL q Misrepresentation Of the cited to sustain
them.
THE CASE SHOULD PROCEED.
But If the Court should regard the question doubt
su the and iaer way is to allow the to proceed
IAN the rights Of the accused Will be protected
and those OF the Government secured. If there a
yiction Ia CHER will protect against the enforce
anent of the Judgment IL lis very is adjudged lille
gal. On the other hand If there Is acqual no in