National Republican., 1881-11-07

| culion for the enforcement Of such penalty for
| feiture, or liability Now,
THE COUNSEL FOR THE DEFENDANT
argues that neither the word penalty forfeiture
or liability equivalent to the word punishment,
and therefore, that the section under which these
| indictments arc drawn Is repealed unless the
penal sanction Is comprehended by the term pen
| atty! and this he insists means only that which
can be enforced by civil action orby the term for.
/ ieitufC, which relates merely to property, or by
the term liability which he says meaus merely
subject to n civil prOcecdiug' But without at
tempting TO 20 into the precise technical delni.
Ton OF each OF these words, IL Is my opinion that
they were used by Congress to include all forms of
| punishment for crime; and, as strong evidence OF
this view, found, during the process of the ar.
the counsel TO section which prescribed
fine and imprisonment for two years, when in
| penalty Of not less than $1,000, and to
| Imprisonment not more than two years. More
ovSr, owe any man using common ianguage mlgn,
party to liability, and, if asked what liability,
might reply, A liability to be Imprisoned, This y
avery general use of Language, aud surely II would
| not be understood rs dcnoting civil proceeding.
| ! think, therefore, that this word liability, Is
Intended TO cover every form OF punishment TO
common laws Of the country. Besides, as my
Brother Treat reminds me. the word prosecution
Is used in this section and that usually
DENOTES A CRIMINAL PROCEEDING"
The other case is the case Of the United States
against Barr, which is found in the 4th Sawyer,
page 20. In that case motion is made IN arrest
VI nCVllNSe " SNlu inc keCllOn was
so amended by II subsequent law. They sny the
motion is bnscd upon well known rule, citing the
case OF the United states against Tyner, IL Wal
lace; - That there can be no legal convic.
ton nor valid judgment pronounced upon
conviction unless tho law creating the
9liens'e be at that time e existence" &c.
now, II understand the position OF my friend,
which was not 50 much elaborated as other por.
lions of his argument, II is this: That section l3
mcnt has actually been fled or proceedings COM
lncnccd, but docs not apply where no proceeding
has been taken. Is that ihe positonH
Mr.. Bliss-Now, call Your Honor's attention to
one or two things which l think will dispose Of
Tint very broadly In the first place, Your Honor
VIII perceive that in neither of these cases is any
such Limitation of section l3 indicated. They
speak Of the provision us salutary one which will
do great deal Of good, &c. 1t does not appear
here.
AN BOUND TO SAY ArF1RMATIvELY
that these indictments were not pending at the
time OF the repeal nor that that they were pending
nj the time. II does appear that the oicnse was
committed on the Sth of January 1877, and the re.
| peal was on the 10th of January, 1877. Criminal
Justice IN Oregon must be good deal quicker than
| IN most other places IL u man committed that of
| fense on the Sh OF January and they got around
| and had him indicted before the 10th OF January
when the statute was repealed. Yet thcsc gentle
| Now submit Your Honor should not assume any
thing OF the kind. The statute Is in force for the
purpose ofsaving that which ought TO be protected,
and is applicable To all cases of oienses actually
committed prior TO the time of the repeal, no mat
Ter Whethef an Indictment
| HAD BEEN FOUND OR NOT
| But, Your Honor, am fortunately able 10 relieve
| my friend entirely upon that subject In neither
one of these cases was an Indictment found before
The repeal l have gone to the record aud find
this condition of things. In the case of Ulrci the
change in the act was made on the Sd day of
| March. 1875. The indictment was found in May,
| 1875. The defendant pleaded guilty in November
May. 1876. Now, the indictment was not found
until two months AFTER the law was repealed. In
In tl,a1 Ian uIaI,.
10Th OF January, 1871 the Indictment was found on
the 2st of March, 1877 and the verdict at the end of
the term. Now, both Of those cases, therefore,
stand as authorities before Your Honor in two
circuits of the United States that that Sec
ton 10 does have the salutary effect which the
courts say 1t ought to have and which we claim 1t
has because they stand as authority for theEltr
ment that the repeal in both cases have been mA.
before the indictments were fovnd, Then II,
still hold that an Indictment would lie for oiTcnsee
committed before the repeal, because of the saving
virtue of section l3 of the Revised Statutes Now,
my authority is the record in the Office of the At
torney- General of the United States GentIemen
can see it there IL they raise any question That Is
where saw them this morning. think there
hear nothing more of It, There was yesterday
good deal which we consider in the nature of de-
murrer TO the indictment, or information, without
its being brought
WITHIN THE STRICT RULES
applicable to demurrer to an Indictment where
the defendant Is compelled to admit the facts; and
all OF the arguments yesterday, which, MS think,
was directed to an attack upon the form or sub
stance ofthe information, Is irthe nature of such
n demurrer. have referred TO Il portion of It
simply because IL ought to be answered. At the
same time we here repeat the objection which we
lntnated yesterday that they nre not ut liberty in
this form of procedure to evade the restraints which
demurrer has imposed upon them, and that they
are, therefore, not ut liberty attack the form or
the substance in the way that they did. They are of
course at perfect liberty to attack our right 10 fle
any Information charging such a crime, and IL
may be possible thnt IL we should file as nm infor-
nation which Your Honor, upon simple inspec-
hp iTfn fga,,
for instance, which should omit the namta OF the
conspirators, or anything ofthat kind, then Your
Honor might say 1--WE will not cucumber the rec
ord with any
IDLE PAPER OF THAT SORT"
But on a motion of this kind we insist that the
question as TO whether the paper Is technically
correct, involving questions ON which your de-
cison may be one way or the other Is not mat
ter which should be here now considered; but IL
comes up properly either on the demurrer to the
information, or after trial and conviction if con-
victon there should be. It would come up on a
motion then which does not come up here though
much of what has been sad would be ruled out
under strict practice of that nature But only
call attention to that here bearing upon the
attack which was made upon the information on
the ground that the conspiracy was not set out in
proper form, In the first place no attack was
made upon the first count Of the information, ex-
cept the allegation on which have already said
all i have to say. The allegation that n con-
splracy to dcfraud must be a conspiracy to commit
an existing crime. The first count was passed over
absolutely without any criticism in any manner.
Mr.. Wilson-Allow me to correct the gentleman.
The very first criticism made upon the informa-
ton was upon the first count.
Mr.. Bliss--in what respect?
Mr. Milson-i.et me take the paperGnd Twill see
u Mr.; Wilson (poiintng to a. a paragraph in TnE
lyZed and stripped of its verlHgG
Mr.. Bliss may be wrong in not having taken
1t in. not only listened to II yesterday but read
II to-day, and II did not seem to me TINT lhcre was
any attack made by them on that ground.
Heading from Mr.. Wilson's argument In ycsler.
days REPUBLICAN,.
As tothe suiicency Of tho information, viii asi,
The court 10 road tile case of The People w. nraOw
court IN reading Il. l therefore now Invite your 1T.
iGniSm IN, GnS, l9 'hs III of ts nor9lon In the
IT CHARGES THAT
on the LIST ofOc,0ber ls;S the accused combined aud
c9nirderncd together to 1rmnd ile United SlnleIout
of large sums uf money by uuuwmliy, lTUululpnty
and q, rrnpty' and Lr9nl wicked AMI corrupt mohvGs
means, causing and procuring unnccc,snry and i'm,
proper, aud rNtravagant. and unlawful additional
in question ntd by uniawrly, wicscdly, aud cor.
ruply. and from corrupt AMI improper moliycS and
causing and procuring expedition In arrying the mail
on snd route TO bc increased without good cause and
greater proportion Than was allowed by law.
STRIPPING THIS STILL FURTHER
Of rs verbage ana stating II In its very essence Is
this; That these parties cunspired to dcfraud the
be paid lor aidtIonal Service, ana By causing and
procuring expedition In carrying the mail and nd.
lion nn lie Jaw allowed TS % means ~ vcPrea Of
dcrudlng are the expedition and the Increase nf
Vice. Now, the simple question Is, Has the unlawful
or the corrupt expedition of service, the corrupt
and unlawful Increase of service, or the corrupt and
unlawful allowance OF greater proportion Than the
law allowed, been made an Olltnsr under the laws OF
the United States? Has any statute defined this as a
crime, or have all Of these put together been mndcun
Oitense against the United states by any statute, or
have they ALL or either Of them, been declared 10y any
statute TO constitute u criminal maud against the
United States" There Is no such statute.
/ CHALLESGE TIIE PRODUCTION
of any such legislation and there being none Il ls al.
sOluley conclusive Of this case There can he no
prosecution for such charge or " these parties were
Cnmpued 70 90 10 LrIal on lhIs miOrmMinl n M nlsn.