National Republican., 1881-11-04
THE STAR ROUTES.
frnnlinned from Fnst nancl

been lost by long disusc l need not take up inc
time of Your Honor In reading from thai case;
That 4 Is true, had reference 10 lutS,sWg ,be
tenure and The right Of property 19Gn IN i tSe EvT way
now n Y6up Honor plcnsc. this old instrument
of kingly power, this weapon Of king against
. RIGHTS or SUBJECT,
,bat has bccn buried ont Of The sight Of men for
more than century aud half In this lurlsdlo-
tinn, which had long ceased to be even memory
and whose existence even Is only TO be learned by
The study Of the history Of long.gone times, Is
sought to lie brought from its deep grave ana used
to strike down that shield both OF the G2ycren,
and Of the citizen the grand jury and the aticmpt
is made TO Use II again rs weapon OF ,olense
ngninst the rights aud liberties of the citizen;
know thnt Your Honor will not permit this unless
driven to il by the stern requirements Of the law
which II is your pleasure To- obey and your uuty,
as its officer, TO enforce. Ana you VIII DC 'he I'o'e
RELUCTANT TO PERMIT THIS
when YOU consider that during the life of this
nation and during the century ana 2 haii OF ii lnw
as It existed in the State Of Maryland, before thls
nation began this institution, the grand Jury mas
been the recognized, and the only, recognized au;
thority for the prosecution OF parties for alleged
crimes. Your Honor knows better than can st,.e Ky,
them the purposes of the institution kiowu WIN ~ a,e we
been. most benehcon Thcynr rctwof9ld, the protec-
tion Of society against wtongdoers hy presenuung
them for trial. and the protection OF citizens
trials on unfounde1 accusations.
Before this body accusations must be brought
evidence must be hoard and Onigiegd etldc1lcc Gun
DC hegrd Hearsay goes Tor nothing, 1S 'DH nub
lie olnmor Is impotcnt conscientious impartial
men, good and lawful" men, selected from @ the
body Of the people, hear the witnesses, SIT ana
weigh the testimony, examine and cross -cxam-
inc, and on their Odhs say whether there should or
should not be prosecution. That Is the grand
THE WIT OF MAN COULD NOT DEVISE
scheme moro in consonance at once with the
rights Of society and with the rights OF the cluzen
Speaking oft n most learned jndgc said Z" Into
every quarter Of the globe In which the Anglo
Saxon race have formed settlements they have
carried with them this time.honored institution
ever regarding IL with the deepest veneratlon and
connecting its porpotuity with that OF civil lib
orty;" and Mr.. Justice Field, In charge deliy;,
cred 70 grand jury n California, has spoken OF
II in these words, which.
YOU WILL FIND REronTED IN . SAWYER:
In this country from the popular character OF our
tween the Government and the citizen which required
the existence of the grand Jury protection against
stiutlon was adopted in this country and Is continued
from consderations similar 70 those which give to Il
not only ofbrngng to trial persons accused of public
pToectng he Citizen asanst unoaHdcd accusation
whether II comes from Government or be prompted
Shall be rCqufed SccordRs to the findSSmcnS mt V law o
the country, except In the cases mentioned oanswer
body, consisting ' Of not ic's less than sixteen
nor more than han twenty three - good and lnwln 4,
clare, upon careful dclibcraton, under the socmnty
OF an ONt, thNt thprc ~ MS hCcNSntlOI
and trial From these Observations, It will be seen
gen tlemSn that theTe re Is double duty cast upon ySI
20 see that parties against whom there s Just grount
answer the charge and on the other hand, duty tc
the citizen TO see that he Is not subjected % prosecu
than public cidmoro or priiuto malice.
but NOW YOUR HONOR Is ASKED
TO allow the place of this shield Of both societ,
and the citizen, this institution of civil liberty
whose just methods have exclusively obtained II
this Jurisdiction for more than century and
9raordinNry and odions weapon Of a crown--aI crown
information. beg TO repeat that this will not b
done unless some inexorable idtC requires It,. Ant
this branch Of the subject. The Constitution ha
so limited the powers of Congress that Certain
crimes can only be presented by grand jury
are rare in this country If an ofIense Of thu
grade Of this we are now considering is not infa
nous, then Infamous crimes are exceedingly rare
SO that IL this proceeding can prevail, from thi
time forth the grand jury may practically be dis
pensed with forif in this case the precedent 4
established, and by your decision you say that tht
District Attorney may ignore the grand jury anC
come forward with an information, then, as e
that vast number of Oflenscs which come y thu
attention of this court, the occupation OF tn,
grand jury will be gone II you decide that IN,
District Attorney has the right to do this in thi
case, how can you deny that right IN any sucl
case that may be prescnted2 II You so decide yOl
place II In his power TO strike down the great pro
tector of society and Of the citizen repeat thei
that nothing but the rigorous demands of dut!
Will ever
DRIVE THIS COURT To so DECIDE.
Now, said In the beginning, If Your Homo
please, that If this information eau be filed !
must be, not because any statute has authorized II
but because 1t Is authorized by the common law
and therefore proceed TO consider that commo
law remedy, and to inquire whether these lcarnc
gentlemen have brought themselves within II
requirements: If they resort 70 the common lay
quiremcnts. ifthcywiil hive by The sword they ma IA
perish by the sword" / beg Your Ilonors indul
gence therefore while ] consider as briefly as cir
cumstanccs will allow this common law proceed
ing by information. There were two classes O
informntiOns at common law. First, the attorney
general, who represented the Crown, might file al
information in the Court of Kings Bench ut hi
own discretion and on his own responsibility. II
did not ask the leave of the court 1t was tn
Kings own court and the attorney general wa
the representative OF the King. The court wou
not grant him leave II he asked H. He had til
absolute power and upon him alone rested tn
responsibility No oath was necessary 10 such a
information. No witnesses need be examined
No evidence was required that there was any prob
able cause iorthe proceeding.
BLACKSTONE TELLS US THAT
''the usual objects of an er.D1lco information ar
properly such enormous misdemcanors MS peCu
liarly tend to disturb or cndanger the Queen
government, or to molest or hurt her I'm the dI,
charge of her royal functions, or materially
prejudice the public generally" and he give
as instances seditions, riots, libels upon III
Crown, upon the judges, &c n class of cases
which this one bears no resemblance whatoye
But no matter about that for the purposes of IN
argument Nobody now will pretend that such
proceeding as that can prevail in this cOuntr
The fourth article of amendment TO the COnstitl
ton has made 1t impossible That provision reaC
as follows:
houses, papers, and effects against unrCstsOnal,
searches and seizures shall not be violated. aud
warrant shall issue but upon probable Su
ported by oath or affirmation, and particularly
scribng the place to be searched and the persons
things TO be seized.
Now, If Your Honor please, since that provsic
was adopted IN our Constitution no attOrnc
general, no district attorney, no special aSsista
district attorney no combination of lawyers,
anybody, can on his or their own discretion III
responsibility, present TO this or any other cou
in this country an information. There must
accompanying II an oath or affirmation, and tn
oath or affirmation must be sufficient TO she
probable cause. What that expression "probal
cause" means will hereafter consider.
Thus yon will see may 1t please Your Hon'
that there is one feature OF the common law wh
has never had, and which, while our CONSTITUTE,
stands, can never have a foothoid In tho juri
prudence of this country.
THE OTHER CLASS OF COMMON LAW
criminal informatlons consists of those presen
fce. This was also an old remedy. II was
prosecution by the master Of the crown office
the instance Of some informer, II tbecame SO NUT
an an act Was Was passed, and G Gof William % and Mar AZ
ask your indulgence while read the recital
it, The title Of that act this;
An act TO prevent malicious informatons In I
Court of Kings Bench, and for the easy Tevers
of outlawriea IN the same court.
The act proceeds:
Whereas divers malicious ana contentious perso
have more Of late than In times past procured TO
exhibited and prosecuted infOrmatlons in IN
MaJesty's Courts Of Kings Bench, at Wcstmnsi
against persons in all the counties OF England
tTespassos, batteries, and other mlsdeneanors q
amer the persons so Informed against have appear
and pleaded To the issue the infOrmcrs do very sedt
proceed any further, whereby the persons inform
against put TO great charges hi their defense a
although AZ the trial ofsuch informations verdcts
given for them or HONc IrOSrYH DO entered nga
them, they have no remedy for obtaining co
against such iniOrmCrs, &c,
Providing that thereafter they shall he requir
10 ,,iva a Ifiud i'm thn sun1 nf tNnnty Nn,i,l5