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

DON'T Know ~, fthcro arn-
COMMON LIARS IN THE DISTRICT OF COLUMBIA
many ofthem who would be ready and willing TO
tell lie for anybody. ! don't believe there are
any such people IN the District of COlumbia but
II the history Of this Government be true there are
great many people here In great many periods |
ofthe year who do lie about every subject about
which they speak. And i may have been, for
aught we know, that ono Of those men told these |
people. We were entitled 70 know something
about the sources Of this information. We had q
right to know what his Information was, IN order
that we might pass our judgment upon II, and IN |
order that Your Honor might he invited 10 pass n
judicial opinion upon the siicicncy Of those facts
Of be tu Of srr n" r e anbo VI Sne S G"sc
port OF this kind Of a proceeding. NY reading Of
that case teaches me. IL the Court please,
ten in cipher by Burr, and, OF course, could
not be read by anybody else. That was testified
70 % q proceeding IN the supreme Court in de.
oftho Supreme Court, which deposition was heard
by Chief Justice Marshall, who was tho commit
ting magistrate In the Burr case. want now 10
invite Your IIunor's attention 10 sDme things on
that subject from Copklings treatise H. $40:
In the case Of or pdr,c Boeman and purte swart-
whether one magistrnte could lawfully commit on an
affidavit made before another mngisirnte The CUES
that before the accused Is put on his trial ali The pro-
Justice ssrsa IN tho SS cSse o T fb sPpf ss
states W, Burr (lslfrrs Trial vol !, pp ~, s)j but
ceved and acted upon with much caution Tie fol-
lowing are his remarks on this points
has been decided IN the supreme Court Ut the United
states, though not without hesitation. The presence
Justice, confronted with the accused Is certainly 10 be
ae,lred and ought 20 be obtained unless considerable
attendance An cr pa,ye affidavit, shaped, perhaps,
Viewed with some suspicion, and acted upon with
some caution but the court Thought would be going
too fhr 10 reject II altogether.
Taken in connection with the deposition of n
CO consprHtor that was there and which had been
taken previously the Chief Justice held Burr to
ball Thai Is all there wlls OF that case aud sub
nit 1t has nothing tD do with this question The
law us then expressed may have been the law OF
1901 That TRIAL took place many wears agn. But
now refer Your Honor the charge Of Mr. Justice
Field To the grand Jury In San Francisco, reported
In sawyer,'for tho rule, and Just aud civilized
rule, which ought TO govern IN all these eases and
that Is that probable causc must be made out by
| proper and reasonable testimony The case OF
Wheclerys. Nngcnt, - Howard, which my learned
| friend referred tO, Is only case between Judi
yidunls for malicious prosecution, aud the doctrine
is there laid down forthe purposes of that kind OF
proceedings wo have referred Your Honor
| 10 Cole on Information, pages J0-jb,
rccited by my associate IngcrsoT1; to cx-
paro COLEMAN, Is Bla,ohfOrd, 400, which was read;
Rex w. WilIet, lG Term Reports, 20i wherein It is
declared that testimony required By the Judge in
an application Of this kind must be such testimony
as viii convince q grand Jury and as is proper to
be submitted for the consideration Of grand Jury
My learned friend who last spoke IN behalf OF the
prosecution. cited case probable cause united
States vs. Fucr 10 Internal Revenue Record.
| MAY PASS ny THAT
with the simple remark that in that case the
very thing was done which we are arguing In
support OF here TO witt that the matter must 70 TO
| the grand Jury and an Indictment must be found
In that case Il woman had been indicted by the
grand Jury aud the indictment was returned aud
filed In the court ~ the regular way. That is all
we ask for here. With reference TO the other cases
and state vs.. Montgomery, 8 Kansas, sSi'
gs / listened to my learned friend who read those
decisions, noticed that the Court sustained the
anidavits In both Of those cases on the clear
ground that they were In strict compliance, with
| the statute, and the statute of Indiana, which l
have before me- provides the very form OF the afli-
davit which was To be used by the magistrate, or
the substanlial parts Of IT. aud the Court
| allowed certain. crimes 10 be prosecuted by In
| formation that was sufficient because the stat
ute said g; And I is The same way in the Kansas
| Your ltonors attention q matter which has q
hearing upon this case, and which / did not find
until lust now. II Is letter written by Mr. Justice
| Miller, reported In Woodwork q G. r., embody-
ing his view OF this subject of probable cause and
| what Is necessary 10 hold man to answer for a
| crime now come TO
THE QUESTION OF DISCRETIONARY POWER,
which naturally alluded to before. This ques.
\ ton was submitted TO Your Honor and authori
| ties were cited by my learned friend who opened
suggestions and to direct Your Honor's attention
to the case Of Gains vs.. Thompson, Wallace, 3i7,
where Justice Miller delivered the opinion OF the
| court and reviewed all the questions of law and
| all the decisions arising upon the laws affecting
the authority OF the court to interfere
| OF the Postmaster. General. or Of any other
executive officer. That Is subject matter that Is
old In this court. This very case of Gaines VS..
| Thompson went up from this court, and was All
application for an injunction TO restrain an ex-
cCutive officer from doing certain act which
was within his discretionary power. The court
declares over and over again az Your Honor will
see, on reference 10 that case that the discretion
airy power given by law to an executive officer
cannot be interferred with by the judicial power
My learned friends undertook to sncer at this, bu
I submit y 70 Your Honor that Il + very serious
matter. II the Judicial power OF the country car
ecutive departments, where are we to land? who
are to carry on the business of the executive Off
GERS while this court brings them In here to nc
count to II for the proper exercise of such powers
And If IL be true that this court cannot proceed
either by mandamus or by injunction to
INTERFERE WITH THE EXERCISE
| ofdiscretion beforehand, submit to Your Honor
II cannot be done after the discretion hasbeen ex.
ercised by citing All executive officer TO account
for what he has done In this case tho remark
ment, through It's executive officers, have, IN AT
extravagant and improper manner, exercised /
How can Your Honor determine whether tn,
expediting of this service was. proper oxpe
dent, or for the public convenience or other
within With the n" judicial discretion, and that Il"
a matter that the Court cannot pass upon becnusl
il is lodged exclusively IN the mind and judgmen
of the executive oiiccr charged with the duly b,
the statute laws Of the land. l pass OH. My tim,
is growing limited, and my capacity Is limited
a 10 the r aTss Of sscioS $40 0e wi
trouble Your Honor with that. The mex
question-and that Is question of very grav
Importance here. Is whether there Is any oheuS
} here as 10 the case mentioned and described II
the information ana the point wish to make
and which has been made before, Is that to dc
fraud the Government means to defraud it b,
some statutory crime and established by some pro
vision of That was argued with great ablli
: by my learned friend who followed Mr.. IngersoI
and preceded me upon orr side of the argument
; want to invite Your IIonors atten
h WHICH SR have no been TO psors
The first Is that the case Of Dennee. which hold
the contrary Of what am talking 10 Your Homo
the public records except one. 4 great man
years ago In the case ofthe u $. ps. Coolidge Judg
Story, IN II trial fora crime which was not mad
an oilense by statute undertook
Il TO EXECUTE THE LAW
/ against tae man, Notwithstanding the fact of Oh
existence of the decision of the Supreme Court {
the United States in 7Crancli. the case Of Hudson
+; no one in United States Court can be prose
!, cuted for anything that Is not made crime by
specific act of Congress- Judge Story not salts
! fed with shat and for the purpose Of certbngt In
case to the Supreme Court. Judge Davis did not con
cur with him aud the certificate was made, an,
.. the case came up 10 the supreme Court The At
, torney- General of the United States declined !
argue the question: because II was settled In ~
Cranch, aud was firmly settled law, and the su
/, preme Court In LIST Wheaton had affirmed that dc
. csiOu. LII the case of the IT, S. VS.. Walsh q Dillor
I Coz Judge Dillon uses this language;
It Is a settled .docirne IN Jurlhprunence tll
: these are no common law Offenses against the Go,
eminent OF the United States An act OF omission
be crlmlually punished In the Federal courts nu;
be declared 10 be On oiIense by an act OF Congress.
i THAT DOCTRINE Is AFFIRMED
{ in the Hfrsh case, although my learned frien
= seems TO think that IL is not so. The Hirsh cas-,
!, Ii Your Honor will notice 1t, was a questlO
. merely In regard 70 the statute of limitations
whether that section, $40, was revenue statute
n 1t was argued that II was a revenue statute, be
cause II originally appeared in the revenue net
: 1867, II Statutes ut Large, but His Honor Judg
Miller said that did not make any difference thu
/ Il had been taken out Of the revenue law and en-
y bodied In the general statutes and therefore II
= | crime against the general public, genera
u crime, aud consequently came under the limlta
. Woods to the contrary notwithstandinl
!, Judge Woods held that To defEaud III
. | Government Of tho United States
n prosecuting fraudulent claim throug
y the Court OF Claims was an act forbidden BY III