National Republican., 1881-11-07


the Court rs follows.
May It please the Court after the very elaborate
argument Of Judge Wilson, md the eloquent aud |
exhaustive discussion OF this subject by Colonel
lngcrsoll, shall not require the attention Of Your
Honor but briefly There are n few ASPECTS Of this
case which, up to this hour, have not been as fully
presented in consequence Of the Limitation OF the
time ofthc speakers, as they perhaps ought TO be.
wish therefore, to call attention to two or three
principles which, In our opinion, control this case
absolutely. We understand or at least do, that
this case rests now IN condition where Your
IIonors discretion is in measure 10 dispose ofit
You are asked to permit this paper to be filed here
| I'm court, and In the event you should deem It i'm.
proper to allow this prosecution to proceed under
this process you will in your discretion send II to |
the grand jury. flour appreciation of the law is
correct there is nothing send 10 the grand Jury,
for this charge Is absolutely
DESTITUTE OF ANY CRIMINAL QUALITY
whatever, and n the acts which are embraced In
this information do not sngly or in the aggregate
express any crime under the statute laws of the
| United States whatever. IL that bo So II would
| certainly be improper to pcrplex the defendants
by any further prosecution under H. either by this
| means or the instrumenalty of the grand Jury. |
| The type of jurisdiction which Your Honor ad. |
| ministers differs In great many fundamental |
particulars from the type when preceded ~ the |
fact that ut common law crimes do not have to be |
defined. General rules were laid down by the |
the Courts. Ifiu the opinion Of the Court an act |
which was criminally complained of came within |
courts determined for lie iirst time that that act
| was q crime. To Illustrate what desire TO pre-
briefly irom Whartons Criminal Law, sec ii.
Sec n: An oncnso which may be the subject OF
criminal procedure has been defined TO ne nn act
either forbIddng or commanding it This lhs definition.
there Is no common aw nails in states In whIchth
Is recognized. as viii presently be seen q common
that particular act is an indctlbic OIense.
S sSG 70 been Ss ou hSd o 30 S HS
cause appeared to the court hei1rc which they were
and Other her acts which had been hed to be- midmenn
ors although such hrstmcntoned acts were not Tor
dent exactly applied to them sc.
SO that say in common.law jurisdiction where
the common law is administered purely ~ the ab'
scncc Of statutory control 1t was IN the discretion
Of the Court to define crime, aud " the act com,
planned OF commended itself 10 the Judgment aud
conscience of the Court rs crime the Court had
power under tho administration of the criminal
not forbidden by statute and though not included
IN ANY PRECEDENT TuEREToFonE MADE.
Your Honor remembers that the origin of the
common law was In the discretion of the admin
first to hear controversies aud settle them accord.
ing TO his Judgment and conscienee: ., Ailerward,
Il Is supposed under the theory OF the common
law distinguished persons were designated in diff
ferent portions of the country to act for that pnr-
Common on law there lies hat peculiar principle and
judicial discretion determining what Is and what
is not criminal Now, is that principle resident OF
ministerng2 If that discretion Is utterly and
totally eliminated from your judicial power sitting
under Federal jurisdiction, then II cannot be IN
vokcd to aid the uncertainties of this statute.
~ THIS STATUTE DOES NOT DECLARE
the acts which are complained of in that In
: formation criminal, and II 5y no resIatement or
ere here in the statute hinted ut cannot be con-
structcd into an oilensc which is condemned by
tu tar "A NN0 n
Honor will not further trouble yourself with It,
It seems TO me to be important 70 know what this
| and ingenious representative OF the Govern
, ment who held Your Honors attention so
SSS SnS hSy T%a %Rh Judge s' %U
/. placed upon It, and there was, In meas
, ure an attempt made to answer IL but he dwelt
but briefly on IL and left IT, pronouncing II new
question, and cited two authorities, which he said,
, only bore u shadowy analogy TO the prop99sitlon
, argued and insisted upon, and therefore did not
really commend them
; AS AUTHORITIES UPON THE sUBJECr;
SO that, MS he len 1t, there Is not any answer at
a to tho position GEem , oy Judge WiSoq us hr,hr hOS
, noticed, there being two other gentlemen TO ad:
i dress the court on the part OF the government,
/, have thought proper TO call Your lIonors nttcn'
l ton to the views which have suggested them
selves to me touching the meanns OF this statute
, Now, understand Mr., Bliss To say that Your
Honor could not take this statute and out of II de.
: torminc what act was denominatcd criminal. But
! you must depart into the common law; you must
:, | go into the common law to discover what acts in
5 the common law ure here hinted at by the statute.
So understand II to be conceded TINT ms s9tue'
. define any crime; and II you stop with the Inn.
guage in this statute you stop short OF definition
OF CRIME UNDER THE LAWS
of the United States. That understand to be con.
u ceded aud, therefore, that being felt the gentle
g men seek relief from that embarrassment by say
9 Ing that they will look to the common law and SEQ
d what the term to dciraud" means; and after
y | certaning what that term TO deiraud means Mt
common law, they Will import that meaning from
| M thereby
Y create the crime. We say that cannot be done
!, Your Honor is not here holding and exercising two
Z separate criminal jurisdictions. You are now eN-
c ercsing Federal Jurisdiction SOLELY and the crime
y cannot lie with one hemisphere IN the common
u either common.law crime or II statutory crime.
g 1t cannot be made up Of part Of each, but the
y place or definition either at common law or In the
statute. How say that this statute is uncertain.
THEY coSCEDE 1T IS UNCERTAIN
rs to that point that the second section Is too un.
j. certain to be administered without some source Of
3 information, aud the question Is, what source Will
y the court corsult2 VIII ~ consult other statutes
of the United States which define and make penal
; certain acts of officers and ctizens-denominatlng
u them irHuds2 And viii IL take the definition
. which may be found In other statutes of frauds,
aud import that definition into tho statute, and
y say that Is what this statute monns2 Or Will Your
" Honor go on IN excursion 10 the common law nnd
!; find the definition there? Now, we say that the
Jurisdiction of this court Il limited by constitu-
lional boundary from defining crimes that Your
Honor cannot define crime; that that Is wholly
% aud essentially legislative power, to define II
n | crime In the establishment of u government,
n dividing the several departments Into trinity Of
U EXECUTIVE, LEGISLATIVE, AND JUDICIAL POWERS.
!. we necessarily made some change upon what the
= Jurisdiction was heretofore. The very object OF
y these constitutional limitations nnd boundary was
Q tD establish new Ordcrof things. II wasoscparate
e into the several departments me powers OF
. the government In England, as Your Honor re-
o members, they were exercised IN mass; Parlin-
u mcnt had no restraint upon II. IL lett the courts
g the power 70 administer the criminal law rs It
Q seemed good IN their judgment on the case Now,
IS l say that that power legislative in its nature
: which was present and possessed by the English
courts has been taken away from the courts OF
this country that the courts OF this country never
a had that power. There Is u case III Dillon
IF which bears upon two aspects OF this case pagc
d 225)-the Of the United States against Clay,
l. ton where the Governor OF Arkansas was arrested
lt by the United States authorities Tor an
r. ALLEGED VIOLATION OF THE ELECTION LAWS
j. of the United Sta,es-and II was claimed upon the
Di part of the representative Of the Government thai
le he was an election officer All officers who con-
u mitted frauds in the course OF an election were
N subject to certain penalties ana Liabilities under
nc that statute As Your Honor remembers, Governor
re Clayton was charged with being an election olicei
within the meaning Of the statute aud arrested by
Us the United States nuthOryp Little Rock. Now, lht
Court has held that the GOyenOrdid not come win,
In the rigid meaning OF the term election omcer,
= therefore, the courts having no power 10 extend
- the meaning to embrace case that possibly Nigh
VI be within tile mischief of the law-might be within
the reason Of tho law, but was limited IN It's power
70 10 punish acts that We're within the letter OF the
= law; aud the Court held that he could not be pun
ished underthNt statute aud the courts say (UnieC
Iiu States VS.. Clayton, Dillon, page 22j):
"a, When courts, In continuing statutes, depart from
n the Language employed by the legislator, they ncu
w. the risk Of mistnkng the legislative VIII or declaring
y. sion The legitimate junction of courts 10 ieIprc
10 the legislative VIII, not 70 supplement II or To suppl
Ing the law thcy cannot make it, il belongs only Il
the legislative department to create crimes aud or
N dan punshmens,
:. aRg,N