National Republican., 1881-11-05

ecpcd In any other mode than upon preasntms,nnt 81
Federal olenses Of whatever character or grad,s Ss
prosecuted upon accusation made by grano l99rgt
ali ocnscs must he prosecuted with tue sanction OF
ETn mt bc bg inc U r G npeaton @ IS that oenses other
than those falling within the class speca,y u uesoSvu
] lion OF q grand Jury. Aud certainly as respects
ofIenses not capital aud not Infamous there Is I no
cedurc and as such oenses It is entirely comnetsnt
ior G3ngrGss 70 ,hey & IN etb"r mode But
there is act Of Congress prescribing IN terms @ ah
| ment or by information, or otherwise. OF course
they may be prosecuted by indctment Inls v , ~,
| Amendment aud from various provisions Of acts q
Congress IN relation to grand jnriss NC & tnet a nras
euled upon the presenment or ndclmeni oiSSsnu SnS
| although not Infamous, must be thus proseouledY
There no act OF Congress 70 that effect aud no spe
! cutious by criminal Information.
II VAS IN dc in daily aud consan, use IN Eng,anfn NM
| the American Colonies This was well known .I wnen
which provided only for the Ireyi9ns action ,rSso 0i
grand Jury IN capital or otherwise @ rosncuio
by nfopmetion Iangiagc expressive ofsuch Intention
would have been used CongreS' pas never S o
power to prescribe either modes Of proceeImg SLING OF
ina In general Way Tie Federal Courts must be gov
crncd In these respects by the common law win Tue
WinItcd states vs. Reid, s How, SGl.) Congress new
cthclcss created Federal oilenses and ciothed tne
Federal Courts with Jurisdiction over Such onensc9,
aud no legal reason exists the absence OF express
Of the t%o sTS% S5 Som@pnaw methods
Restraints have in Ensland been @ @imppfeI upon ,Un
alt filed by, his attorney ygencTal-,g Miii mnrc
Nrained q Bl Com; a0!l By The C9mstltnii9in % % o.
by that consl tuition, however. in niurmetons are sti,
sy are co gS pS % s TGG SGS%u
nannst Qose they can only be filed by leave 90 tne
Bl, tom, 400 note tO Till OF rights ana ueCslOd
in New York; wharton's Criminal Law seventh
Thus by constitutional provision and positive
legislation in the States, nformainns, ms mode
of criminal prosecutions were either very mucn
restricted abolished, aud the result was That III
the State courts the prevailing method Of prose-
cation was by Indictment, nnd naturally tue same
, practice obtained In the Federal courts. But thc
constitutional provision (Fiith AmcndmcnO
leaves all oIcnscs open to prosecution by IN
formation, except those which are capital OF IN.
. famous, and there Is no enactment OF Congress
preventing II resort to this mode OF procedure: On
the contrary, there are provisions in several ncls
Of Congress which imply that nformations may be
filed for criminal Oiienses. We are OF the opinion
therefore, that offenscs not capital or inlamon,
may, IN the discretion of the court be prosecuted
by information.
Ihaye also to refer to the fact that my friend yes
terday IN citing Judge Fields charge To the grant
Jury, delivered in California, remembered 70 ior
, get that Judge Field in that charge, specially ex
4, cepted the right to proceed by Information, ana
RECOGNIZED THAT RIGHT.
@ and then went on to speak ms 10 the procedure
r before n gTNnu Jury. lHlnh INV NlINt NV,
Q fairly claim that have shown to Your Honor no
only that the right to proceed by information eN
y isted by the common law when our Constitution
was adopted. but that II came over To this country
ms part of the institutions and procedure wnlcn
: we Inherited, that II was early recognized by Con.
yrcss that IL has since been repeatedly recognize I'd
I by Congress, and that II has been repeatedly rec
| ogrizcd in numerous cases by the courts OF the
United States, and in all portions Of the country
q I think there is but single case, which was OF Sc
4 little Importance that our friends on the othel
2 side
: DID NOT REFER TO IT.
q | q case arising in Washington Territory and re
y ported, | think In one of the volumes OF the In
; ternal Revenue Record nntedatng these, In which
l. the decision of the court that the information
+. should not be filed but in that district that cast
has since been overruled by the two dcciSion
o which have cited from Sawyer. Now, II bcinl
G shown that there Is u constitutional and lega
right to file an Information in some classes OF case
d for some oiienscs, the question which we mex
d formation Is one that comes within the class y
e which iuformations are allowable. The only limi
tation that is pretended TO exist upon that snbJeG
Is the limitation in the amendment to the Consti
tuition which has been more than once quOte
n here OF course II will not be pretended that tn
|. offense charged IN
s. Tnts INFORMATION IS CAPITAL;
!. and therefore, oil that we have TO ascertain
II whether II Is Infamous" In seeking TO ascertain
n what crimes are Infamous we must, OF course,
a the adoption OF the Constitution That will sho,
4 us what the meaning of the language was at tn
,s time It was 50 used This amendment to the Con
|
n Court of the United States III one certainly
a relating directly to the other clause Of the amend
ment The clanse when l3l0wS Sno hiS soVt M ih
o. person shall be deprived of life, libert!
,y or property without due process of lav
- That was in the of Murrays Lessee VS.. Hobo
os ken Land and Improvement Company, Is IOwar,
~ where the court interpreted the words due PR
cess of law" and say that they "wcrc uudOubted
n words. by the law Of the land in Magma Chart
be Lord Coke, In his commentary on those word
Or e Inst 50.) says they mean due process of In,
pr The constitutions which had been adopted by Il
several states before the formation of the Feder
Il, charter more closely, generally contained y
~ words, but by the Judgment of his peers, or Il
q law Of the land n that case distress , warra,
W. r and had been levied upon the property Of a d.
" multer TO the Government, and the question wi
=, !, raised whether that was due process of law, al
" " Oh that point the court said:
nj The Constitution contains no description of tho
~ a. processes which It was intended to allow forbid
nd Piled to ascertain whether it be due process 1t
an% G1i NOT %e ss t lS Re he beSyss oysssp
of article is restraint on the legislative as well as
spS and 5 edSS' be- so q as
as Leave Leave Gongres; rSS TO nv make Say proc;
lld what pfncipe5 then are to resort to nscertl
Whether ms , esSSseq & SS SbSnESsS bo
ge must examine The CoRstitnii9n lser e see whetl
,2 In il iSund 10 be So We must look those sGti
ne uslge' aud modes fproceedng existing ~ the co
mon ll 3 Alulp INV ol ''u tHlls
or have been unsnltcd to their civil and political con
Ing tlGment Ofthls country.
ory And we contend that these are the princlp
IN which must be applied with reference to this qn
tiOn ofinamOus crimes. Itinvolycs, as Your Hol
rec will perceive the necessity of our going back to
ed oldrcpOrts in some cases to the ooS Tor the qu
~ ton of whntwus infamous has, in the modern pr
~ tcc ard reports OF England, ccusad 10 lie imports
M. because 1t was question which affected merely
M civil rights of Witnesses and by legislation ma
in | itS effect Witnesses CplSpU. bppn
iry every Tary was authorized to be n witness,
matter how Infamous he might be- Therefore,
shall go bacl; to the old authorities. even thong
our | EXCITE THE CONTEMPT
iOu of my friend on the other side, VINO has so little
ley speci for authority, trust shall not be suppo
m to be making amy prctonSe OF knowledge, but
oN we can find the proper test to apply on this qti
nat ton As has been stated on the other side, IL
tSh, ths, fora long period ceimed or a,inmed IL Englo
lssi was to be decided by the punishment which
,,a eu might be inflicted for IT, aud that view @
hey sauy crops out II crops out In some of the de
SKA sDS here. and 1t crops out even in the argumC
Of the counsel ON the other side, who, altcr stat
tied ii nnd argued from II as If the question of punl
om' ment were still the real test After this doctrine
80, the punishment being the test had begun I,
ulu shaken there was then some claim that the
the of the Judgment was the test rs to whether !
elt son was rendered Infamous by CONVICTION. "
rs IS this question nnd this view sir william SC Sc
IN. Vnrsovie, reported In Dodson, l7i, considers
nst question historically and comes TO the conclus
'me that the question whether crime Is iufamol
nu To bo settled by the nature OF the crime Aud Il
had rs we say, Is the undoubted law Of this coun
,uhrt The question whether crime Is infamous Is
Guy tied solely by the nature OF the crime, with
oh reference TO the Judgment, actual or possible
!, y. the punishment Aud the same doctrine Is
Ii,ns tS down in the ease Of Shepard, in Abbott.
atts that case II is said!
ny We ought perhaps to remark that the position
@,Ire @ sumed ny the denda4rs attorney aud the charg
lGld that the accused Is liable on conviction TO be imI