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

~ ihcr application Criminal cases ~ generai were
to be decided aocordlng to the laa Of province Iany
IN existence and applicable and ifn9t then by nc
similar eases The exceptions 70 these general rules
he effected without some express law OF the province
THIS Is ALL Rave TO SUBMIT
to the Court on the subject the Maryland laws,
and think Your Honor will come to the concur |
slon-and ifyou cannot do u from what J. mave
forced to It by the examination which have no
doubt you will give this interesting sublect-that
and Subsequent 10 i7o2, there was no such thing
known as criminal information for the prose.
have been. under that statute with the lights
which we have 10 guide us In its interpretation
for Your Honor knows that IN Maryland 2 pro.
feotions ofthe people The people OF Maryland were,
above all Others Jealous Of their rights of personal
liberty and property, and they were particularly
ambitious TO free themselves from all the rude and
oppressive rules that pertaned to the common
law and ia their ancestors In England. They
had ned from England for the purpose OF rid
ding themselves of Just such oppressive proceed
ings rs Empson and Dudley instituted and main
tnincd against the people Of Great Britain There,
fore, say that according TO the laws OF Maryland
as they existed the 9th of February 1s0l there
could be no such thing as criminal Information
OF the kind aud character Of this which.we have
before us land II is needless for me meddle with
other kinds or other quedions), and unless the
gentlemen have some statute OF the united states
which expressly authorizes this proceeding, our
motion must be allowed and this information
must fall. desire now, II the Court please, 70
lug is authorized, or proceeding OF this kind is
authorized In this District by virtue OF any enact
ment Of Congress.
DESIRE now
II the Court please TO Inquire whether or no this
| proceeding Is authorized. or proceeding of this
kind is authorized In this District by virtue Of any
| ciNfment of Congress and say here that deny
| thai amy such proceeding can be maintained in
any court Of the United States without express ati-
thority law The Tifth Amendment emit 70 IN The Con-
culed or held to answer unless By. prcsentment or
indictment by grand Jury y No cases h SSp
serted that he United States courts may 20 bnck
70 the common law Of England at any period Of
| time and IN find the proceedings upon which
they may carry on the prosecutions in the Federal
courts under this Fith Amendment. submit 70
iSiGff" AneT his fundsmcnSl Jaw
OF the con 9ad wns neGS sn On HeforS
| not by indictment. that an act Of Congress should
authorize 1t; and Il is particularly so In this Dis.
the net OF 1901 that the laws Of Maryland as they
existed at that time, were authorized rules for
desire 70 rsSd bsy from the usSs Of
TayIoe VS.. Thompson, in 9Th Peter II was re-
lerred to here by my brother, Mr. Wilson, but he
Honor's attention TO the language Of the supreme
Court Oh that subject But | find that the book Is
not here. / presume, however, that the Court Is
familiar with what was said In that case. MS be-
cve IL was called to the attention of Your Honor
IN case while citing as the auditor of the court
Tint decision says that the common law which we
have is not the statutory laws of Maryland alone
nor the statutory laws Of England which were
adopted by Maryland but the common law
which weinherited here which furnished the rules
of decision
FOR THIS COURT AND FOR THAT COURT
were the statutory laws interpreted by the nets
of Maryland. Now IL that Is the law which relates
to property and governs the decision OF this Court
upon matters of dollars and cents. there's certainly
prevails walls Where h' personal liberty is also in,
volvcd. You also find something on this subject
In l2 Howard Reports which Brother Cook men
, toned In His argument. That case goes on 10 es-
tablish this doetrne-that for the guidance of the
trials ofcauscs in the United States courts they
evidence wide which prevailed in their Tcspcc.
; tive courts at the time OF the adoption OF the
Constitution. This has some general bearing
deuce came from Maryland. And | submit to
Your Honor for your grave consideration that when
. we are called upon to defend ourselvcs-I mean
residents of the District OF Columbia-and amy
man has the hardihood to tell us that the com
t mon law of England, at some period which he
cislon. we eau point him With triumph to the case
/ of Tayloe VS.. Thompson, and say that you must
stop within the geographical limits OF the
state of Maryland, and If you find nothing
there that interiors with the personal liberty
; Of resident in this District you find Inc,
I Congress of the United States. II Your Honor
please, desire 10 take up the subject now of the
statutory enactment relating TO this subject, and
: as preliminary observation, wish to say this
, That in the early history of our country the diff
=. ference between prosecutions of criminal char.
4; | meter aud ordinary civil actions was not so VOL
defined as II now Is; on cdptds dd rcSpondcndrunl
IN THE EARLY III TORY OF THE COUNTRY,
every defendant was arrested and was required
. to give bail. IL Is not 50 now The difference be
A tween civil and criminal practice Is very mnrket
a. | and very distinct make reference 10 the con
= dition OF the law at that time in order that You
|. Honor may understand the word information
7" The word information was frequently found upoi
the statutes of the United States In the early his
= wherever Il was found in these old statutes, re
lated to the proceedings for the collection of fines
il gaGsicri,ninal proceeding In that way Your Homo
Tan readily account for the appearance OF this wore
i, information, and 1t has been kept up and carried
,r meaning attitude in the Revised Statutes OF tn
ID United States. There is really, Your Honor onl
i one class. OF cases that can be right
20 prosecuted by criminal Information" In thi
!, country. That exception to the rule out
y side Of this District, has been probably mad
~ / refer TO section 1022, relating 10 prosecutio
~ under the civil rights net That section provide
u rights act may be prosecuted either by indictme
IN or information. The Congress of the United State
VI deemed it essential, when they thought 1t ncccs
declare that a criminal Information might b
~ maintained under the civil rights law PerhaT
te that was necessary under the condition OF societ
s. MS IL prevailed at the time of the passage of thl
" statute. That say Is
i u THE ONLY INSTANCE
~ where criminal information is expressly author
n. lied by Congress except In this District, In I'll
ut statute referring to our Police Court Now, upo
ne this subject desire to invite Your Hohors after
al ton to what Mr. JUSTICE Story says; and rcnd !
r. in order that Your Honor may understand II bctt
by hearing IL oitener, and may have II ixe
Il. during the course Of his argument / refer
ID the l7sOlh section Of story on the Collstitniio
found in the vol PaSS So 5nage o s%id be-
: lied by Congress, although my learned friend reu
c. from the case of Mann VS.. Tho United States,
!" tce story in 1872; supported Information the
r. which he afterwurd declared was u quasi crimn
u information, an Information for quasi Grimm
er ohense. "
n This Is another mode Of prosecution which exis
by The common law IN EeSaTS TO
dctments found by 9 grand Jury. the mode. he
Of The Goyernment or lis officers. An Information &c
on orally differs In nothing from an indictment In
sR aS OF lie proper law ocer Of tie Cover
81 sS w TS ns yrey or np5rS !"
America andl has never yet been formally put in
sSffa' he S SaG
nS demeanor, though common enough III clVll prose'
en- lions for penalties and fOrieltureS.
nd Now, when Justice Story made his decNrati
o. In 1912, he entertained different view from VIII
I'd he did when he wrote his commentaries on I
~ | brought Ia the 9th vol OF Peters Reports, aud
is will now read TO Yonr Honor what alluded 70
n to the declaration Of the common law PREVAIL
nd In this court as understood in the Supreme Coz
inr | of the United States:
of Az Congress has made no new law on thsbnDJecl,l
No Circuit Court bound 10 decide this irdi
IL, TO the law of Maryland which does not consist mer,
uy in enactmeiIts ftheT own the statutes Of Enga
Ie- In force or adopted by the Legislature. The adu
cations OF their courts the settled and uniform pr
ly ce and usage the state IN the practical operali
vas OF It's provisions, evidencng qe Judicial CONSTRUCT
ed of lis Terms are TO be considered Nc n part OF
statute aud rs such furnishing rule for the
, cisons the Federal courts. The statute and rs Int
w probation form together "a rule OF title a
property which must be the same In all courts. u
FUR I'm tile OF that State III