National Republican., 1881-11-04

quasi Judicial functions sitting In his place to de.
eide upon questions which the law confides TO his
Judgment and dlscretion2 Where Is the difference
in prinCiple2 OF course there cannot be one.
will recosnizc-authOritics nre too
wen settled-that the Judge of court cannot be
accountable, either civily OF orminnliy, for what
worthy of animadyersion there is another mode
by which he may be tried. IL is the higher court
Of impeachment. That is 80 thoroughly set
tied now, so far as the Judges Of the courts are
concerned, that nobody, presume will be found
10 controyert It, Upon principle II is exactly the
who is charged with tho duty Of iischarEing any
kind Of functions under the law. If the law has
called upon him to decide. the law which requires
him 10 decide protects him in that decision.
am not LEFT, fortunately, to my poor weak logic In
regard TO matter of such importance as this. The
same doctrine is strongly stated in Cunningham
VS.. Bucklin, Cow, 17S, by Chief-Justice Savage.
CONCLUDE THIS REFERENCE
TO authorities by his quotations from the latest
American text-writers, which apply the doctrine
as TO to the courts TO executive and Legislative
officers. Il Wharton G. L., 9Th Ed, section l57l)
To subject the superior officers Of government,
upon whose uninterrupted presence at the helm
the safety Of the state depends, to indictments for
in office, would be injurious 10 the
body polite and consequently In such cases Inn
peachmen is the sole instrument of penal revision.
This principle applies 70 tho executive officers
of government, so far as such officers are clothed
with discretion; 10 the legislature and clearly to
the Judges of all courts OF record so fur concerns
their judicial as distinguished nom their minis
terinl acts
Why, If Your Honor please, by the very terms of
every count In this Indictment these gentlemen
have said that the discretion rested with General
Brady to make these expeditions and this increase
OF service. They put their case upon that ground
They say that the law and the regulation gave him
the authority TO do this but they say he did II cor
ruptly. Now, this matter of increasing and expe-
diting, according TO their own statement OF this
case, was matter that, under the law aud rcgula-
tions, was placed upon his judgment and dis
cretion Now, this authority says that that execu-
i've officer, who has this responsibility thrown
upon him under the law, where the law makes X Il
protector against any criminal accusation or prose-
cution on account OF IT, except by Impeachment.
THE PRINCIPLE APPLIES
10 executive officers of the Government so far as
such officers are clothed with such discretion.
Why, Your Honor, If q case like this can be main
tained In this court then these gentlemen may
come In here II they please and arraign upon in-
formation the members OF the legislative branch
Of this Government for acts and votes of theirs in
the discharge Of their duties in passing this very
here. They can arraign every member aud Senator
that voted for that bill II this principle can be
maintained. IL cannot be maintained.
THIS GOVERNMENT WAS CONSTRUCTED
with Its three coordinate branches, each the
equnl of and independent OF the other, and your
Honor has no more right to try an executive OIL
Ger ora Senator or member Of tho House OF
Representatives for acts done by them In the dis
charge of their official duties than you have to
Try the chief justice of this District Court.
The u principle must bs the same. In
you Will find this language;
II Is sufficiently settled that legislators the judges
OF our highest courts and OF all courts Of record net
officers OF each OF the governments as are entrusted
with responsible discretionary Duties not liable "a
al ordinary criminal process, like an Indictment or
official doings however corrupt. There ls some ap
parent authority for Including with them justices q
their Jurisdiction but the plain weight OF authority
6S@ be e. to S the ordlnar cr%nai proeets tRoa
not 70 the civil as we have seen In cases OF corruption
not OF mere mistake or error"
There Is no doubt about t. except justices of the
peace. That Is the way Mr.. Bishop puts IL.
In note TO section 1853 he says:
In our systemof government, where the executive
should be required IN the Judi cal trib ina
than would prevail II he were Judicial officer Sue,
or indicted in respect of alleged error corruption
Here we have It, We have the English authori.
ties as to the place where you should proceed
against judicial or executive officers. You hay,
the authorities of this country In reference TO The
question of the liability Of judicial officers q
criminal proceedings or acts done in the discharg
of their Official duties. Now have brought you
attention to two of the leading authorities ON thi
subject in this country. think they show
IT CANNOT DE DONE;
and / say upon principle II cannot be done. l sa,
any attempt to do 1t would be absolutely subver
sve of the very principle upon which this Govern
ment Is founded. l say u Is preposterous TO 50
public clamor, or what not, may come and file ~
Information In this court against the President q
the United States and charge him with corruptlo
in the discharge OF his official duties devolyin
upon him under his high executive ofllc,
II you can do this you can do that. IT, you allo,
| this, and some man comes and offers you tina
you cannot deny It, The President is no better, s
| far as his responsibility TO the law is concerned
| than myself or any other of the humble citizens
this country Ifyou lay down the rule once 20
| have taken start which Is the entering wedge
confusion, disorganizaiion. and all the evils whic
| will naturally flow out of anything of that kin,
Now, may II please Your Honor, passing from tina
| there Is another proposition which IL seems to III
cannot be successfully controverted, which is
| OPPOSED TO THIS PROCEEDING.
Let me state It, 1t is that, in order to constitu
au ofIersc under section 6ii0, the fraud conspirc
| TO be committed must be such an one as has bee
| defined by statute and made q crime. Or. In othI
words, the conspiracy must be TO do that which
done would be a crime by statute. will read yo
care anything about that. My friend here wi
show you after a while that this statute was rt
pcaed In 1879; but this is the one upon whic
| they are proceeding:
| Iftwo or more persons conspre either 10 comm
any olense against the United States TO defraud Il
one or more Of such parties shall do any act to abe
conspiracy shall be liable, &c, &c.
It is upon that they are proceeding. Now, sa
| you will notice how general that language 4
"rhat If two or more persons shall conspire TO dI
| fraud the United States In any manner they sha
thing they must conspire TO do must be I'll Rt whil
If done By any one OF them would be an oiense d.
nounced by some statute of the United State
That is my proposition. Let us see II can mali
| tain 1t. In other words the conspiracy must be
do that which, II done by any one, would be
crime defined by statute
THERE CAM DE No CRIME
unless the statute pronounces 1t crime. 1fyc
that ii party conspires ~ do an act the court wi
determine that that thing is fraud, Il is the jud
authority. submit that 1t is plain that ifyou lea
it open to the court to say what Is or
not fraud, there 1t is no defined crime
this section, 5ii0 The same thing might be
Views ofdifferent judges, 1t might be fraud
the estimation of Your Honor; 1t might not be
ey eIs bs sn oSe Se aS
conspiracy to commit an act would be held to he
crime. and in the other wholly inoifensiy
and md would be a Violation Of the Ions.se
tied principle that crimes must be defn
by statute: When thus defined tho citizen is pr
| tected When not thus defined, but LEFT open
judicial determination, the law becomes a del
J sion and q snare / say, therefore, that {
| truo Interpretation of this statute is that {
fraud spoken Of is something that has been d
fined as n criminal fraud by act of Congress; a
there Is no such statute In existence. In Wharton
Cr,L,, Sth Ed, Sec. 1856, lind the following,
dler:
/ BY tho thirtieth section OF the act of Congress
February 3, 1867 where there IL conspiracy 70 co
init any offense against the Government OF The Unit
States or TO defraud the United States In auy mann
whatever. and one more of the parties 10 said c,
spiracy shall do any act TO effect the object there
the parties to said conspiracy shall be deemed gui
4 | OF II misdemeanor, &c. And any district In VIII
Q | n part of the offense Is committed has Jul
q diction. As II Is settled that the United Sta
/ courts have common law Jurisdiction, this stat
i must be limited TO conspiracies to do acts forbldt
Il by statutes. Hence cOnspirdcu % deJrdud cdnHO
prosecuted under the stdtud unless the fraud be
I, tVhfch person could De sinDiy Indicted nor Sc
ton, conspiracy be SUSTAINED ioT an oiiense which
n amount to sedition
7 That Is absolutely conclusive of the propositi
/ am presenting.
- AS to the suniciency OF the information. v
!. ask the court TO read the case Of The People
I RArknton, 81 Mich, 465, and WIN not now lake