The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-12
CHARGED WITH CONSPIRACY.
toQuash the Information Made
in Behalf of the Defendants.
The Attorneys Consume the Day in Arguing
the Law Bearing Upon the Question-A
Decision 10 Be Rendered Tuesday.

charge of conspiring to commit an offense against
the United States was called before Commits
sioner Van Buren,, yesterday morning, the &C.
cused except the first named spent the time in
general gossip In the United States marshal's
office. Bernhamer did not appear until pro-
ceedings were about to begin. He perhaps
waits until the crowd is in readiness to observe
his style as he approaches justice. 1t is not in
keeping with his customary stride of Sir Oracle
He is submissive under the influence Of United
States representatives and notes every feature
of the case with demeanor more becoming
than his obnoxious assertiveness when he pre-
sided over the canvassing board out of which all
this trouble for himself and codefendants
comes the Commissioner, after all the &C
cused had appeared and the crowd of spectators
had gathered, inquired if everything was in
readiness Mr. Spaan asked for few minutes
delay for the presence of G. w. Smith and John
s. Duncan. who were to conduct the defense on
behalf of Messrs. Coy and Counselman. He
would represent himself. and Mr. Bernhamer
would have charge Of his own case.
Five minutes later the attorneys mentioned
came in, and within moment after that there
was the first indication of the line the defense
would pursue. Mr.. Duncan said that all he
knew rs to the purpose of the government rela-
tive to the law under which the prosecution was
| instituted the newspapers furnished him. He
wanted to know the sections that allowed the
government to proceed in this way. The
| sistant district attorney gave him the informa-
| ton. "Then," said Mr. Duncan, I'VE make
motion to quash the information" His associ-
ate, Mr.. Smith, began the argument in support
of this motion, which relied on the claim that
| the information did not specify any offense
against the United States The assistant dis
trict attorney interrupted him with, II hope the
| gentleman will not object to this being
pardonable interference, but your Honor has
not intimated that you will hear any discussion.
| The government would like to be heard mo-
| ment This question cannot be discussed now.
| 1t has been decided by Judge Blodgett and
| Judge Gresham en- banc that the question pro-
posed is res adjudcata. This opinion also
stated by Judge Woods in his charge to the late
grand jury"
The Commssoner-Your remarks are not
| quite pertinent.
| Assistant District Attorney-But I intend to
| follow them up with another that refer to this
only in order to save time / am not anticipat-
| ing any discussion. In the Orange county indict-
ments the same motion has been filed before
| Judge Woods and it will be argued week from
| next Tuesday. It is hardly worth while to con-
] sumo time in an argument of 1t now.
Mr. Smith-It does not matter what the gov
/ eminent will do week from next Tuesday.
| These men are brought here under grave
| charge. and we think we will be able to show
here that the question is different from the one
| that will arise before Judge Woods We want
to present the question whether or not any crime
| has been committed against the United States.
The Commissioner Il understand that is the
one that will be argued exhaustively in the up
per court.
Mr.. Smith-Yes; in suit where these de-
| PENDANTS cannot be heard
Captain Rtter-Do YOU intend to call in ques-
ton the jurisdiction of this courtl
Mr.. Smith-Certainlv not. We raise the sim
| pie point of argument as to there having been
any offense committed against the United States.
| by these defendants
As this covered O question of the sufficency
| of the affidavit, Captain Ritter insisted on he
motion being reduced to writing, which caused
short and sharp struggle for position, the attOr
| ney for defendant stating somewhat hotly, II
| have given the reasons for my motion. am
here by right, one that entities me to the open
ing of this argument Captain Ritter represents
| the committee of one hundred and is here only
through the courtesy of the government / am
retained by these defendants and speak for
Them and in doing so have been constantly in
terrupted"
"rhis a no debating society,"" Mr.. Span re-
marked.
"Nor town meeting" said Mr.. Smith, who
then began the discussion by saying that moth
ing appeared in the affidavit charging conspiracy
against the election of Congressional represent
alive, or Delegate. or any other United States
inal judge and coroner. Has Congress, then,
any power to enact laws affecting local cleo
tions, except in immediate reference to United
States oficers9 Bringing forward the right of
Congress to interfere with the powers of the
State. he denied that any existed, and supported
his assertion by decision of the United States
Supreme Court covering case under the fugi-
tive slave law, arising under Governor Denni-
son, of Ohio. From this he concluded that Con-
gress had power TO interfere with the rights
of State officers The State government has all
the inherent powers Of sovereignty, which can
not be abridged without consent of the States,
by the United States. He drew upon Cooley as
authority, who lays down the rule that
as prescribed by the Constitution either by d.
rection or implication. What would be the re-
suit il the States should surrender their cleo
tions to the control Of the general government
Nothing but the destruction of the State govern
ment; and upon this no higher authority can be
quoted than Alexander Hamilton, who set up
that the States could not interfere with United
States elections nor the latter with those of the
States. He denied that Congress had attempted
to legisate on local elections, and these statutes
upon which the prosecution relies were never in
| tended to apply to officers other than Represent
tatiyes ard delegates in Congress. Quoting
Section f. Article l, of the United States Consti-
tuition, he said that 1t was essential that Con-
gress should have power to control the election
of these officers and excepting this, there is but
| one other grant of power in regard to elections.
That is In the fifteenth amendment-one result
ing from supposed needs in protecting the freed
men in their right of suffrage Congress has the
right to legisate for the maintenance of purity
in the election of Representatives, but it has
not the shadow of right to say how the sheriff or
criminal judge of Marion equity shall be elected.
AT this point an enthusiastic States rights man
applauded. He went undecided in the crowd.
but he is supposed to be Sam Dinnin Mr.. Smith
asked to have the enthusiast fined.
Mr.. Spaan-Ihat is a little too much applause.
Captain Rtter-He evidently thinks it is a
political meeting, both from the crowd and
| speech.
Mr.. Spaan--Ill bet he is a Prohibitionist.
Mr.. Smith, am trying to offer constitutional
arguments. and if the gentlemen of the other
side don't understand it, cannot help it. Pro-
| ceoding, he said, that in so far as members of
Congress are elected it is federal election and
the officers thereof only responsible to that
extent. Congress has no power over them re-
garding their dutica in the election of State and