The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1881-11-05
THE STAR ROUTES.
Argument on Motion to Dismiss
the Information.
GEORGE BLISS REPLIES TO MR.. WILL
SON.

WASHINGTON, Nov. 1.-The argument on
the motion to set aside the criminal informa-
ton in the Star route cases was resumed THIS
morning before Judge Cox.
George Bliss spoke on behalf of the Govern
ment and said:
IL has been assigned to me on the part Of the
government to present to the tcourt such rea-
sons as led the counsel on the part OF the gov
eminent to take what we admit to be be the
somewhat unusual proceeding OF filing or seek
ing to file this information. As was stated at
the time when we made the application for
that permission, we were put in thisscondition
The Grand Jury had been adjourned till the
Sd of October, and what we regarded as some
of the most important and effective overt acts
in pursuance of this conspiracy had taken
place on the LIST OF October, 1878. 1t was open
to the claim, therefore, that under the three
years statute of limitations, unless the pro-
ceedings were commenced in court before the
LIST of October, 1881, they would be barred un-
der the statute. Under the circumstances IL
was not open to us to consider whether we pre-
ferred to 60 before the Graud jury or whether
we preferred to file or seek TO Tile an ln1orma-
ton. We were placed in the condition that IL
we did not file, or seek to file an information
we felt we should not have done our duty to
the government. We therefore adopted the
proceeding by information, subject, OF course,
to q motion to set it aside. L think that we
NAV claim to be here without being exposed to
the denunciations which We heard yesterday
of having made an attack upon the people, OF
having undertaken to violate their dearest
rights (Mr. Brady having substituted himself
in the place of the people). The position OF
myself and my associates in this case IS prieny
this.
We have no desire, under ordinary crcum-
stances, to proceed outside of the general prac-
tice in criminal cases. We have no desire to
avoid the grand jury, and we think that we
seeking to avoid the petit jury. as that they
should charge that we are seeking TO avold
the grand Jury. We have no desire to do II
except where we can show cause why 1t should
be done. I agree that under ordinary circum-
stances and without good cause being shown,
the proper and expedient way is to proceed be-
fore the grand jury. The chief ground, and
the one which should be first considered, be-
cause it goes to the basis of the whole proceed
ing, is apparently that no criminal informa-
ton can be constitutiopally filed in this coun
try, but that an Indictment is necessary. The
fifth amendment to the constitution declares
"that no person shall be held to answer for a
capital or otherwise infamous crime uni ess on
preseniment or Indictment OF grand jury,
except in cases arising in the land or naval
forces or in the militia when in actual services
in time of war or public danger, nor shall any
nersop be deprived of life, liberty or property
without due process of law" As to this provis-
ion, it is first to be noticed that by specifying
certain crimes which can only DO prosecuted
con presentment or Indictment of grand
Jury, it necessarily implies that there are
crimes which may be prosecuted in some other
way, and it will not be pretended that there IS
any other way except by an information Ii
the crime charged is not infamous then there
can be no doubt that an information may
properly be fled. By the common law OF
England there were two kinds OF information,
one filed by the Attorney General OF his mo-
ton and known as an ex-otnclo information,
and one filed by the Crown Prosecutor on the
relation of some one who felt injured. That
,o,,, WON 10 ssaG over Ms and was adODt-
ed BY the constitution and its amendments.
Mr. Bliss cited several acts OF the Revised
Statutes to show that the prosecution had a
right to proceed by information in criminal
cases, and that it had been repeatedly recog-
nized by Congress by authorizing criminal pro-
cseding by "indictment or information" and
cited cases where the right to file information
had been sanctioned by the courts. The ques-
ton remains whether the crime charged in this
information is ono coming within the class in
which inform ations are not allowable. viz, "for
capital or otherwise infamous crime" This
information being clearly not capital, it only
remains to ascertain whether 1t is infamous;
There is no decision that conspiracy to defrand
or any conspiracy which does not concern the
administration of justice is an infamous
crime. We therefore broadly say that conspir-
acy to defraud has never been held BY the
courts to be an infamous crime. 1t follows
that conspiracy such as is charged In the case
before the court is not an infamous crime, but
III the court SuOulu lcSdI0 tuO quCoeiOh 40
doubtful. the safer and fairer way is to allow
the case to proceed. If there is conviction,
the higher court will protect the accused
against the enforcement of the judgment if its
yerv basis is adiudged bad. If there is an acquit
tai no injury will be done, and defendants will
obtain what they insist is their due.
Mr.. Bliss mentioned that under section 5440,
r. S.. the information certainly did charge de-
PENDANTS with the crime of conspiracy and in
legal and proper shape, and -insisted that the
alleged conspiracy was not only possible for
defendants to execute but that they did in fact
execute it to the injury Of the government,and
their own enrichment. The objection that the
information is not filed by any officer authoriz-
ed to file the same is directly in the face OF the
decision in u. S. VS.. Black, which holds it may
be fled by q United States attorney. In this
case moreover for greater precaution the infor.
nation is filed by the direct representative OF
the attorney general, and by express authority
of the attorney general
Mr., Bliss attacked the position taken yester-
day that Brady could not be proceeded against
even by Indictment much less by information.
An officer, said Mr.. Bliss, might commit all
sorts of crimes and might then resign. He
could then 90 scot free because the only reme-
dy was by impeachment, and Impeachment did
not lie against person out of office. That
was the doctrine ths Court was asked to estab-
lish here that an officer might defraud the
Government and, having resigned, might snap
his fingers and say, in the words OF Tweed,
"What are you going TO 90 ABOUT IL!
Mr.. Bliss replied in detail to the criticism adj
vanced yesterday upon the form of the infor-
nation, and in conclusion said the last objec-
ton seeks in effect to try the guilt of the &C.
cused on affidavit. In such a mode trial the
defendant, if guilty, as we believe, could
doubtless answer the Government We prefer
to try them where the constitution ald laws
give us the right to try them, before jury OF
Twelve men and with witnesses facing the
Court and jury and subject to cross examina-
ton.
Mr. Bliss having rested his case, Mr. Inger-
soil commenced his argument. He took up
seriatim the counts in the information, critic
Using and ridiculing them as he proceeded: He
then proceeded to call the attention OF the
court to what be termed the Inconsistencies ap-
parent upon the face of the information; assert
ing that it charged Mr.. McDonough with con-
spfracy to deiraud himself; that it charged
Brady and McDonough with conspiracy and
then charged Mr.. McDonough with pay
ing his client Brown, $13,500 for intiuenc
ing Brady to conspire. Was it possible, he
asked, that one conspirator would apply to an
outsider to use his influence to get a Cocoon
spirator to conspre? If it should turn out to
be true that Mr.. McDonough paid Mr.: Brown
to influence Mr.. Brady to conspire that allega-
ton would be evidence that MIR. Brady had
not consplred.
Court adjourned until tomorrow morning
x,han Mr. inoarsolJ concludes his argument