The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1881-11-07

fact sworn to by some reputable person. In
this case ignorance and malice had united, and
honest ignorance had done the swearing
[Laughter.] This government had been in ex-
istence for at least two generations before the
world information had ever been used in
respect of anything except revenue cases, or
cases arising in admiralty, or in the slave
trade. There has been q distinction made, be-
cause crimes against the revenue were not
natural crimes but artificial crimes He re-
ferred to statement made yesterday by Mr..
Bliss that, in the southern district of New
York, informations we're filed even without
any oath to support them. If that were true,
he Ungersoll) would state that the judge who
allowed it should not be permitted to sit upon
the bench, and the ermine which he stained
should be torn from his shoulders. That
Judge violated the constitution; his action was
infamous But whether that judge did such
thing or not did not change the law. Strange
ideas of justice they must have in the state of
New York, II that statement were true-if
man could be arrested and imprisoned without
anybody having sworn to any guilty act or
offence-if man could be imprisoned on the
unsworn guess of a district attorney, or of his
deputy, or of the deputy's clerk. He had no
doubt but that the information in this case
was the child of the New York practice, and
was suggested by gentleman who was in the
habit of preaching in courts where men are
deprived of their liberty without the accuser
resorting to the formality of an oath or affirm
alton. 1t might be that the oath in New York
is 80 little regarded that it is understood to be
a mere matter of form. And yet that was the
of New York. 1t was thar practice which had
brought proceedings by information into uni
versal
HORROR AND CONTEMPT.
That was the practice of the court of star
chamber. That court had not the right to pass
sentence of death, but it did pass sentence OF
imprisonment. 1t put men in the pillory. 1t
branded, them, cut off their limbs, took from
them their estates made them infamous, and
ofenses were multiplied until it cost man his
property, his reputation, simply for having
made disparaging remark about some royal
robber. That was within the province of that
court. and the reason why it became so odious
was that information was filed without oath,
and without affirmation. They did exactly
New YORK. ss annseessary for him to
give the history of that court There was not
a lawyer in the world who did not know it; not
lawyer who did not know the practice of
filing informations without oath was the club
in the hands of the Tudors which struck down
the liberties of Great Britain. There was not
lawyer who did not know that it was used by
the Stuarts, until finally the blood of King
Redeemed scaffold. England had no real lib
erty until that infamous court was abolished
in the year 1641-the birtb-year almost of Eng
lish manhood and liberty. Referring again to
Mr.. Bliss argument, he quoted the following
paragraph:
as doubtful chat is the question whether the
offence is infamous or mott the safer and fairer
way is to allow the court to proceed
hazard, said he, the declaration that that
is an original remark Qaughter) by prose-
cutor in criminal proceeding. 1 do not be-
lieve that it can be found in the report of any
speech or in any brief. The court is told that,
if it has any doubt of its Jurisdiction, the safer
way is to decide that it has got it Qaughter),
and why? Because call the rights of the ac-
aucnd will hn fad md Of
eminent saved" A man was once arrested
and taken before justice of the peace; the
case was heard, and there was not a solitary
thing against that man-nothing except that
the police had arrested him. The Justice said:
az will fine you 81 and costs A lawyer
asked the Justice why he did it. "Well," said
he, "if you do not fine him. you might Just
as we'll not arrest him. Somebody has got to
pay the costs, or there is no use in having a
case" (Laughter.) once saw little play
acted in which one of the characters always
quoted some authority for everything he did.
Being in company on the stage with several
others, who went away one by one, he found
on the floor $40 bill and picked it up The
question with him was what to do with it,
Said he: "Maybe they lost it, and maybe they
did not. If should say I had foond it, it
may be the means OF some of these men lying
about having lost it. There is no doubt in my
mind about what what ought to do" and,
putting it in his pocket, he said:
WHEN Ii OOUbI IAhE IHE IRlCks
(Laughter) That is really the argument urged
in this case. If your honor has any doubt as
to whether you have the jurisdiction, the
safer way is to decide that you have. If you
have any doubt as TO whether this is proper
proceeding, the safer way is to say that it is.
II you have any doubt about the guilt OF the
accused, the safer is to say "guilty"; but all
the common law, all the statute law of every
civilized nation, says exactly the other way.
There is no law on the subject which does not
say when the court has any doubt as to juris-
dictien, stop. When a court has any doubt as
to the guilt of prisoner, stop. That has been
the law of the centuries, and, until man re-
turns to barbarism it will be the law Ia whis-
per, Except in New York'), except it may be
in the southern district of New York.
Uaughter.) The grand jury stands as wall
between the citizen and common calumny.
ANY man who has anything against one of his
neighbors goes to the district attorney and tells
him what he knows, and then the district at
torney can introduce him to the grand jury.
There he tells his story and, if the grand
jury fails to believe him, no oneE is malgned,
no character is stained. no face of woman is
made white with shame and grief, no children
hang their heads because their father has been
maliciously assailed, no one knows of it; but,
if we leave the grand jury out, and
allow men to come into court when the infor-
nation is filed, it becomes matter of public
record, and in that way man OF excellent re-
putation can be substantially destroyed by the
malice of one man. The question is, Will the
court abandon the practice OF 100 years, or will
it say to all persons wishing to indict others for
offences of this gravity: "You must go before
the grand jury? That is the question. state
that the law is that this court has no jurisdic-
ton Of this offence until an Indictment has
been presented. state that, even if the court
has Jurisdiction, there must be probable
cause" / state that
PROBABLE CAUSE"
,rust he the affidavit of some man who knows
and states the facts. state that the practice
of allowing men to be arrested, without oath or
affirmation, is simply infamous, and that any
iudge In the United State who does 1t ought to
be impeached. And if it is done in the south
ern district of New York it is disgrace to that
district. And another thing insist upon is
that the Indictment itself must be reasonable
and not contradictory, and that the pleader
must set forth the facts. The court here, at
the conclusion of Mr.. Ingersoll's argument,
took a recess for half an hour After the re-
cess Mr.. jeff Chandler, of council for Mr..
Brady, addressed the court. He understood
that this case rested now In condition where
his honor's direction was in measure to dis
nose of 1t. His honor was asked to permit this
paper 10 be filed, and, in the event that he
should deem il improper to let the prosecution
uroceed in this manner, to send the case, in his
discretion, to the grand jury If his (Chand-
ler's) appreciation of the law was correct, there
was nothing to send to the grand jury, for the
acts charged in the information did not singly
or is the aggregate express any crime under the
statute law of the United States. Mr.. Chana-
Ter spoke nearly two hours, in the course OF MS
| remarks denouncing the course OF the govern
| ment in poisoning the minds OF the people
| through the press. He claimed the court Tor
this reason should expel from its records this
| polluted thing.
MI. Chandler, after further argument said