National Republican., 1881-11-07
THE STAR ROUTES.
[continncf frnm Third pnne.l

vho.e our sense Of Justice and fair dealing, ald
love Of fair trials, and the protection Of the Glitter
than Il Is elscwherc2 So / say that this crime o
conspiracy Is itself fugitive and abnndone!
srime, ana in consequence OF It's tendency 10 Worl
injustice IN other countries, II shouldno be
WELCOMED HERE OR ENLARGED.
Mr. Wharton says II is an odious crime He say
that il is not TO be extended by Implication at all
Now 1t IS probable that Congress knowing the fac
that every State had abolished the old common
law conspiracy, almost every one, because Of It's
uncertain nature, because Of its tendency TO on.
pression-knowing that fact intended TO substitute
something else for that theory Of criminal con-
spiracy. IL is a ACKNOWLEDGEMENTS with which
Your Honor, as well as every lawyer, as a matter
ofcoursc, is familiar, that you cannot punish the
intent to commit an ofCnse until that intent finds
some expression in an act That is general state.
ment that commends itself TO the intelligence oi
was an Invasion of that principle. 1t was an ex.
ccptionol crime under the common law wherein
aperson's intent, unexpresscd any further than to
concur with some ono else could be punished, aud
u being iinpulitic, unwise, and oppressive TO 60
leyond the acts which citizen did and undertake
% punish the intent which he had, It might be
uone IN thnt exceptional case alone Of conspiracy
ana Congress knowing this lsay, has left it out OF
CRIMINAL CODE OF THE UNITED srArEs
This Is not conspiracy proper. While It nscs the
term, combine, conspirc, confederate Onl all that
II does not place the statutory crime Of conspiracy
up II the same ground that the crime Of con-
sp rucy occupied ut common law This crime
Oucs not possess the traits and chnrnctcrics that
conspiracy possesses 0t common law, but 1t does
possess iruits and characteristics in common with
n nCunsmrnCy ana nm attempt to commit n crime.
Now, under the law of attempts by two or more
persons they could not be punished unless the
acts which ui,ey attempted were criminal at
common law. Now, Congress has borrowed this
statutory oilcnsc from the oilcnSes ut common
law which constitute conspiracy, and also
constituted attempts and has incorioratcd within
its provisions the principles of both ofltnscs /,
itnot fair 10 conclude that Il has limited the effect
Sl ms statute to thc effect which those nilnnscs
had when combined at common law? When II
consolidated and iucOrpOm Ci into one statutory
onensc two OilcnseS, iudividunizcd and dlstin.
gulshCd NJ common law, Is il not fHr TO say that
~ Introduced into the new OilCnsc all the limita-
uons ana qualifications that both oilenscs had AT
common lnw2
IT SEEMS TO NE IT'S.
It will not be disputed that the case where two
ormore persons conspirc together to commit an
oncnsc NJ common law, which is in iselfa misde-
moanor, is distinguished from the msdcmoanor OF
conspiracy proper, conspiracy by two or more
persons 10 commit an ofIcnsC rcuIircd TINT SOME
overt act should be done to accomplish II. Then
such conspiracy By two ormorc persons TO commit
IN Ufcnsc must be 70 commit acts which constitute
an oilense AZ common law, which acts Themselves.
when consummated, were iudiCiablc. Now, II
Congress has taken up that claSs ofmisdemeanors,
attempts as such by two or more persons and con 4.
tpiracies ms such nt common law and has thrown
them into unity IN this statute, 1t has adopted all
the attributes Of both. This statute stands sub.
Jected 70 aud limited by the principles which con.
tfoled both those crimes at common law That
being So the exposition by Wharton of this statute
becomes as radiant rs the sun He treats Il as an
incorporative OF the two common law misdemcan-
ors into one act embracing both ofIenses and
therefore suujectng itself to the rules which would
govern those Oiienses sngly or together. And then
Is IL not in consonance
WITH THE SPIRIT OF THIS STATUTE?
The first effect OF this statute is to abolish conspi
racies, which were SO OdiOus in the estimation OF
the law. II does not hold cOnsptacics punishable
as they existed at the common law. 1t has substi.
tuted ior CommOn-lRw conspiracy some other con-
splracy Now, the change that has been made in
,,F1
because the old consplraces were oppressive; they
were obnoxious TO the law. Now, would they
@ when they have entered into the meaning of the
tuulenlmeht t by constructing new crime out of
the ruins of two old ones would they embrace
within the ofense trivial frauds? It seems to inc
not; IL seems to me they were not imposing cruel
and unusual punishments; for so obnoxious were
unusual punishments in the estimation of the law
Ofthis country that there has been snt n constitu
tonGl canon against them. And yet it would be a
cruel and unusual punishment to punish crime OF
buch llght ana trivial character that q court of
squlty even would not take cogniZanCe Of it. So
interpreted under
THE PRINCIPLES OF THE COMMON LAW
through which II had its parentage-interpreted
under the liberal principles which are impressed
on our criminal jurisprudence by constitutional
nltatlon-lf II be interpreted In the light of the
NOR mo ENLARGED humane spirit which prevails in
our institutions, as distinguished from Others il
must seem, II was meant that the punishment and
iTaud shall be made certain and the crime must be
limited TO criminal frauds Now Your Honor will
appreciate, before you arc through with this case
II you have not already appreciated, some of the
uncertainties which still prevail on the subject of
law iheIe mas not been Il leading principle in
thls whole controversy that has not been the sub.
lect oil the most earnest debate. Researches have
been made upon all these questions by the most
eNlerlcnced and learned gentlemen of the bar OF
the Capital OF this country and they stand before
You Your Honor in rigid conflict. with each other upor
the meaning of what is infamous. They stant
confronting each other with
ZEAL AND SHOW OF LEARNING
that Is unusual touching the question whether yor
can ille an information in this court or not WoulC
ttnot be sensible for the law-m0king power to un
dertake to render more explicit these crimes
these rights, and these remedies, than they hay,
f,i hSietGGre appeared to be Why If this confusion
fity years hence? The most inconsiderable ques
lions Mns would have around them terrible perplexity
Therefore say 1t is reasonable that the jrisprli
dence of this country be reduced to higher Stat,
OF certainty in its criminal jurisdiction tnau II ha
heretofore mad: There is another principle.
criminal act is done by citizen who does no
estimate IT TO be criminal act, does not believe
70 be crime and he Is subsequently arraignet
before court Of criminal jurisdiction charget
WIN doing the act Your Honor can for the frs
time
DENoUSCE IT AS A CRIME,
because in your opinion II comes within the spirit
not the letter Of some prohibition, Then II,
criminal quality of the act is for the first time ~,
folded 10 the citizen, and IL has practically an er
post yacto operation 30 far as he is concerned Now
our Constitution cOntenpatcs in all It's parts,
high measure of cXplicitncss IN the definition d
CRIME aud It's certainiyin the administration of til
GIllnllll law. IL docs not Intend to leave tho ci
zen subject 10 Il doubt whether an uct is crmna
ornot when committed by him, whether the nc
VIII be leid III Tie opinion of some learned judg
10 be criminal when the act is not denounced NJ
the statute us criminal. Now, Wharton say
(Wharton on Criminal Law, 2 VOL, sec. 23i0G
II is not essential therefore ii should be repeated
hiesill ncl WIN coiSpi1cy, that the means emDOy,
should he Ortheinsclvts ufsuch charncter as 10 mI
Cases 10 lls elect have been already n"tced' an,
others Will be in the succeeding SECTIONS piven 4
/ ~ Ia, in ,,ti
Sa,c, Smy a. IL, mis p9ln1 ne prnegs heretofore IN
iios 4" mry uH r M ior c1nSpiracy nwaysper
province which hey Ovcrsladow are never so muci
as when they undertake 10 punish acts of whose In
trnsiC criminalty tie law gives no prior noiiCr /
indictments of this class, BY stress OF settled adu
trne on which they rest should be carried n,
iuIther tr tHnh lhe letter of these adjudication
ioI acls which a, me time of their commission wer
ot pronounctd ny me law 10 b. criminal. AS to con
kpiracleS OF TINS class such pre- nouIccment q
crmnality Is not pretended Nelhor the coniederncy
that is claimed is that In some Indefinite way Two O.
more conditions, NJ themselves Innocent produce
NOusly defined by statute or by definite JUDICIAL eN
h9iG,, To- punish iora conspiracy acts supposed I,
unconstitutional. ~
Now, II seems 70 me, as / understand the effect nj
TIC leHl 1t Is to declare and hold up In dctlie re,
view before your judicial observation two system
Gi criminal lMnishmcnt-onc where the arts hay,
Dtth htil IA their aggregate capacity or churlrtr
70 constitute crime IN tic opinion of the court
the GDlIlg OF which would subject person 10 /
penalty at common law, und 10 hold I'M in cnr
ttitst with such crimes statutory crimes which mr.,
clearly and explicitly defined I'M themselves wher
tie .Gts n'G pIIhUl,ed 50 that the person commit
ung them VIII know when done that lie make
himself liable tor an olIcnsc. II seems 10 Ine il
reference 10 those ol the first class that the lny
does not estimate them highly; that they mr.
against the principle Of law. ' "
That Is not the sprit OF the law of this country
Tie law, mere held undcrCOnSttuliUnul discinl 'nf
must define tue Crlnui must define thu mos viii"
nfe criminal from all Olher aCt,; must indiviiIi
nllle the acts which arc To be made the subiurt d
deprivine person of his liberty and his prOrgrty
Ana, igsmuch as we are in a forum where III