National Republican. (Washington City (D.C.)) 1872-1888, 1881-12-28
Judge Cox and Prisoner Guiteau.

lashing themselves into fearful fury
over the Guiteau trial and the
unchecked disturbance of the pro-
ceedings by the prisoner. Whatever
men may think upon this subject, few
will be found to sustain the coarse as
saults made upon Judge Cox by the
World and Tribune, or TO see anything but
the work of crank in the ignorant howl
for his impeachment. The suggestion
that he be legislated out of Office by an act
abolishing the court has been made by
some who are incensed at the license he
has allowed Guiteau, but no sane person
of respectable information will say that
he can be impeached for undertaking his
power to restrain the brutal offender.
DisclPiming any sympathy with those
whodenounce Judge Cox, we nevertheless
agree with those whothink the observance
of decorum in court of justice is not OPP
tional with any one present or subject to
the fantastic caprices either of criminal
or lunatic.
1t is believed that Judge Cox has not
been able to see his way clear to compel
decent behavior by Guiteau without in
terfering with his constitutional right to
the assistance of counsel, and that he has
doubted the legality of excluding him
from the trial, in view of the constitu-
tional guarantee that accused persons
shall be confronted with the witnesses
against them. 1t is of course important
to guard against any Irregularities which
might be regarded by higher court as
grounds for new trial.
The following authorities on the sub
ject-matter may have escaped the general
attention. They show that the question
is not a new one, and that the safeguards
thrown around the citizen are not grants
of power to him to defy society. In a
prosecution in the United States Circuit
Court of New York, for the crime of per-
jury, Judge Benedict delivered an opinion,
from which the following is an extract:
The next point in behalf of the defendant is that
he was not personally present during portion of
the trial. During the opening he COM
menced interupting the District Attorney and
persisted in denying his statements in loud
voice although admonished by the Court to refrain
from interrupting. The action of the prisoner con-
tinuing to be such as to make 1t impossible pro-
coed in the trial lUih due decOrum, he was ordered
TO be removed from the court room by the marshal
and TO be detained in an adjoining room, with
liberty of access for his counsel. The
right Of prisoner 10 be present al his
trial does not include he right 10 prevent
q trial by unSCeRly disturbance The defendant had
the opportunity 10 be present at the whole of his
trial lie was in fact present while the jury was
being empaneled and the evidence was being
introduced. He was absent during part of the
opening only because Of his otcn disordery conduct
II docs not lie in his mouth to complain Of the Or
der which was made necessary by his own mis-.
conduct and which he could at any time have
terminated by signiGing his willingness to avoid
creating disturbance. (6Batchford's United States
Circuit Court (New York; Reports, p. 1867
Wharton, the best authority on criminal
law, in commenting on the foregoing
case, says:
That a waiver may be so impl led 1t was held in
d trial for perjury in the United States Circuit
Court for New York, where the defendants con-
duct during portion of the trial was so violent
that 1t was necessary TO remove him from
the court t-room and place him in sequeEtration.
And, unless such check be applied. the defend
ant, by violent and turbulent conduct, could at
any time either bring his trial to an end or COM
pei It's extension under circumstances destructive
ofpublic decorum. On the same reasoning rests q
case already noticed, in which 1t was held, in
Ohio that defendant, in case Of counterfeitlng,
in which he was under bail, could not stop trial
by running away from the court. tWharton's
Criminal Pleading and Practice, Sec 5I3)
The foregoing authorities clearly es-
tablish the proposition that man
cannot be compelled to enjoy u
right that he despises, and that he
cannot claim to have been deprived
Of a right of which he refuses to
avail himself II is not reasonable TO
suppose that by boisterous conduct or u
refusal 10 observe common decency an
accused person can compel court of JUS
tice TO endure his insults and Interrupt
tions because to protect him from tyr
amy the Constitution gives him the
right TO public trial, the assistance of
counsel in his defense, and to be con-
fronted with his witnesses. The Supreme
Court of the United States has decided
that man can deprive himself of one of
these rights without vitiating his trial.
Following Is an extract from an opinion
Of Chief-Justice Waite, unanimously con-
cured in by the court;
The Constitution gives the accused the right Of IL
trial at which he should be confronted with the
Witnesses against him, but If witness is absent by
his own wrongful procurement he cannot complain
Incompetent evidence Is permitted 10 supply the
place of that which nc has kept away, The Con-
auuii0a does not guarantee accused person against
he legitimate consequences " his OlUR prOHlfA acts
II grants him the privilege Of being confronted
with the witnesses against HIM but If he yolun'
iRrily keeps the wirnessesRway he cannot insist on
bis privilege II, therefore, when absent by his