National Republican., 1881-11-04

parties were compelled to go to trial on this nfor-
nation, II Is absolutely sure that conviction
nnder Si u ne q, lay : an impossibty The, second
" worthless IL charges that the defend
ants, on the 18th Of October 1877,
| together unawmlly to defraud the Tinted states
Of America out of large sums Of money, viz: $780,
| 900, In connection with the carrying OF the Tinted
States mail and the compensation therefor with
out stating or attempting to state directly or indi-
10 be perpetrated and without stating directly or
indirectly
IN WHAT THE FRAUD CONSISTED,
and without stating anything to enable tho court
to determine whether what was proposed to be
| done would amount TO q fraud upon the United
states. This is the old English form of a charge
| that was condemned by the English courts, al
though not exactly overruled, but which has been.
his eoan Sd espeeS S Rs SG%as
| Court Of the United States In the Cruikshank
ga U; 81, and also BY Judge Dillon in the Walsh
In the case Of the United States VS. crulkshank
ct al, 2 Otto, page 5i7, the statute provides:
sc hs SS ps
upon The premises or another with intent 70 vioate
,niSasp o. n'I%iSaiS IN S any citizen with Intent
right privilege granted or secured 10 him By tie
c9nsttut2n or laws Of the United states because
bc held guilty OF felony, and, on conviction thereof
shall be fined or imprisoned or boh at the discretion
THE GENERAL CHARGE
the at eight counts Is that of banding" and in
Jua9 J 0hpre,s thrsin,,en i, and intmidate Levi Nelson
Of African descent and persons OF color, with intent
thereby TO hinder aud prevent them in their free
granted and secured" to them in cummon with ali
SSd aws u he hg Ted Tos y S 5Se n
provided for by the statgte m question do not consi
more persons toseihef but in helr baiains or con.
specified, 10 bring this case nnder the operation OF
.he statute tneIei9re u must apPear that The right
hinder or prevent was one granted or secured by tho
S ~ or laws United sSe I does
been made indlctabeby amy act Of Congress-
1T Is CRIME
TO steal goods aud chattels but an Indictment would
be bad That di no! specify with SOME degree Of
n e S sys siS Of spSe s n SeSpss 9 Se"ssS % 1
charge against him. and the couit must be able to de
subject Of larceny 20 toS Il IS IN soe States @ crime me
c9 ior w9 or more persons TO conspire to cheat aud
@ he,d thSs az Indictment for such an osnss must con
betsed @ accomplish the purpose. Tnls because 70
c ss @ and aJ2ss "a sG Se SSs'e S ss
statute and as nll cheating and deirauding has not
to state the means proposed in order tsat he cour
may see that they are in iact illegal.
In United States VS.. Walsh, Dillon, page CO. the
court say:
We have examined all the cases cited in the argr.
mepts OF the re,pecys counsel and many others and
yaneed, md now proceed TO announce, Without much
common law the osnse Of consplrScy @ was '% Complete
whenever the unlawful concert and agreement
sSnns wqs done s,c, in @ thereto Q %
conspiracy p at common lazy being complete without
law undertook to punish criminaiIy an unexecued
intent or purpose g commit crime. But such Is the
an indictment for conspiracy at common law, II Is
ifii is alleged.
IT'S SETTLED DOCTRINE
n our jursprnde,nIce nc that there ae no eommon law
An g or an eos SmSs9n s e n es ~ IN
by an act OF Congres ~ II follows that the act of Con.
gress must constitute the sole basis of the ofense OF
5io) on which this indiclnent q founded charges in
m aw se esc es .es 81 S9nsacy 5 Sv
the unlawful agreement to do the prohibited act
% effect the Object thereof" These considerations
English cases the subject OF the PARTICULARLY and
The English c5Srts have sSsianed Indictments fSf
| conspiracy which were framed In the most general
% G Snf sSrn & & A s Gyfa, ax ay'g ana as
on psacpie h & have 1esn reea G SsY IN sns
i sought TO be remeded by giving TO the defendant,
S is
pies q this may be aqnd in Regina Us, sapylton,
!, p 49, and some other cases. We have no such anona
]. conspiracy like ali other Indictments must inform
sSs Sfs%a'9 eSs 1aa and
s set Every s OF ab e oess se
+ composed must be accurately and clearly alleged,
case Of 6e 1ntsd States Vs. GrnEshanR ote
~ Yss Se Ses PBs Ba By @ ae a. as
s ss Sr s hs the hs 9t % S sos s
% for vaguenes and generality, and because 4 lacked
llshed rules of criminal pleading"
The third count, If possible, is worse yet. ID
le charges that the defendants coIspred and agreed
ID among themselves to defraud the United States by
,r meansand devices In CONNECTION with the carry
IL ing of the United States mall aud increasing the
o the pay therefor You will Of course observe thai
IL the information proceeds upon the theory that
h to w expedite the i service @ SO ''0 thnt there @
not anything ayerred In either count of this in
1t formation which would enable m @ the court to salI
I'd would constitute an oiiense ngainst the United
e States. 1t is not sufficient for the peader to sa!
party was corrupt. II is not his Judgment as I,
y, what constitutes unlawuness or corruption tina
3 Is to prevail.
n THE COURT MUST DETERMINE
ne matters of that kind and the pIeader must Civ,
IN the court the facts that the court may determine
e. as 10 whether the thing was lawful or unlawful
,s corrupt or otherwise. On this subject reie
4 Your Honor to the of lure Coleman l5 Blatch
to 4l5). Thus you sec that the principle that ap
plies to judges Of Gnts GSgsts applies to esSlat9,
other proposition which Il seems :
-, me. cannot. be successfully controvered, an'
q; That in order TO constitute an oifensc under thi
VI section 5iiO, the fraud conspired to be commit
l. ted must be such an one ms ffas been defined b.
We statute and made u crime or In other words, tn
We conspiracy must be to do that which IL don
is would be a crime defined by statute.
w UPoN PRINCIPLE THIS MUST De so.
There eau be no crime unless the statute pronour
il ces crime you say that the court may deter
SO mine what Is fraud and that ifa party conBpires
NJ do M act the court may determine that that thin
is fraud II is the Judiciary that defines the Grim
n and not the legislative authority. l submit thu
-e is plain that If you leave 1t open TO the courts
m say what Is or Is not fraud, there Is no dehne
~ crime by this section 5ii0 The same thing migl
cd be crime or not crime, according TO the yaryin
o. views of different judges. invite Your Honor
To carefully scrutenlze these counts aud you will fin
IL that in not one of them Is there charge OF an
he ofiense that has been denounced by statute.
he I NOW CHALLENGE COUNSEL
10, OH the other side TO point me TO single Gas
M where prosecution has been hnd under th
rs statute, except for conspiracy 10 commit a Grim
lor defined by statute No such case can be founc
H. now come 70 the lust OF the reasons shall 9Iie @
Of Constitution provides that no person shall be hel
m, TO answer for a capital or otherwise infamo,
,a ea crime unless OH presentment or Indictment OF
~ famous crime7 That is the question. II seems
Ity be settled by the common law that IL
ich the crime and not the punishment tht
rs- renders the party Infamous, Those oiienses 2
ite tere iiberdm legem, were infamous. This c0u
W held in general term, In the case OF Cross lhi
6og there were two modes OF expressing infamy. On
'd aIi 1 10 ,he nrnsT he eourt ,,t sn
not that II the penalty derddes the offender from
cuR rights as a citizen, the right OF franchise, u
lon right OF giving testimony or some other Girl or ~
Nicdi rigit existing IN the privileges OF citixei
Will ship, Il Is Infamous.
VS. TAKE IT THAT ANY oFFEHsE
up | tho INDIGNANT for which singles n man out ar