Year: 1868




The Court Refuses to Admit Him to Bail.


In the Criminal Court this morning, tefore
Chief Justice Cartier, the argument upon the
motion to admit John II. Surratt to bail was
resumed.


Mr.. Merrick, tor the prisoner, called the at
teEton OF the Court to a case IN IL Peters, which
he thought conclusive as TO the jurisdiction of
the Court 10 take bail in its discretion.


Mr.. Riddle, for the Government. said he did
not dispute the iuri diction of the Gourt
case in Cranch's Circuit Court Reports fully
sustained 1t.


Judge Cartier said he was glad the gentlemen
agreed, as IL was a question upon which he had
some doubt.


Mr.. Riddle said that Mr. Wilson who had
not yet come in, might differ with him. He re-
ferred to several authorities as to the power
and discretion of Circuit Courts.


Mr.. Merrick then read several authorities in
support Of his view OF the case, and said -
These are the only authorities deem II expe-
dent TO refer TO on the question of law SUBJ
mitted with regard 10 the facts which would
seem to appeal 10 your honr for the humane
exercise OF your discretion. Your horor, no
doubt. has duly considered them all, in the
charitable hope of being able TO exercise your
judicial discretion tavorably TO the prisoner.
and at the same time consistently with Justice
TO the country. deem ii proper, however, to
suggest one fact which may not have been
called 10 the attention of the Court. IL is this
The prisoner Is poor. There was a small in
heritance near this city unfortunately now
somew hat famous in the history of the coun-
tTy) that came 10 him, his brother and sis
ter. 1t came, however, burdeRed with a
debt which has not yet been discharged,
and which, when discharged may and per-
baps will, exhaust the property. He has no
means whatever. HIS brother has none; his
sister. very frail. gentle, kind hearted and
accomplished girl, is under the Disadvantage
of great physical debility. supporting herself
10y her own eXertions in this city. Such means
as through the kindness of friends were ad-
yanced for his benefit, We're exhausted during
the protracted and expensive trial through
which he has already pass Although his
counsel were not. as has bet n untruly sand. VOL
unteers in the case. but We're regularly retained,
they have received nothing: and i'll view of the
cIrcum stances OF the prisoner they expect
nothing, because there is no ability 10 meet pro-
fessional charges. On the contrary, Your
honor, in the discharge of what they conceived
to be their professional Suty, in obedience to
the dictates of that spirit which characteriZes
the profession, they have expended their own
funds TO aid IN the preparation and trial
of the case OF their client. They were COM
PEELED to advance their means in order to
meet the neces sary expense of the case
which they had unuerta ken TO conduct. Hay-
ing entered upon a case in which careful and
anxious examination satisfied Us that our client
had deceived US in nothing, and where we had
and have still have a firm cor yiction that be
was wrongly accused, we felt the honor of
the PROGRESSION, the cause of Justice, and our
own reputa; ions demanded that our client
should not be allowed 10 want for such means
as we could supply. But our ability in this
regard has been tried 10 its utmost Capacity
The prisorcr has no means of his own to meet
the eXlgepcies OF the impending trial. If h.
be admitted o bail he may settle up his affairs
ana manage 10 see that the property
winch have spoken may Oe discharged and
something realized for his urgent necessities
He may also arrange among his friends to raise
means with which to carry on his deience
The witnesses must not only De summoned and
brought here and paid their per diem allowed.
but their expenses AT the hotels must also b.
borne whilst here, and for this the accused
must himself provide. II canrot be expected
that We should bring TO this city from remot.
States, and even the provinces of another Gov
ernment. parties 10 testify, and then require
them TO pay the expenses incident to a prO-
tracted stay in attendance upon Court. and at
the same time suffer the loss they must sustain
by suspension of their business This loss
they may and should Dear. but their expenses
W Whilst llN ing IN the CITY should be borne by
the party at W hose instance they are summoned
Mr.. Joseph Bradley, who, believe, has a GER
tlficate from the physician as to the condition
OF the prisoners health. has not yet come INTO
court, but will be here in a short time An
other fact to winch 1 desire again to call the
attention OF your Honor is the long period of
his Incarceration, and the further fact that he
has already gone through with one trial |
am tree to say to your Honor that il he had
not already gone through with one trial
even If he had been incarcerated tor this
Length OF time, l would not have made and
urged the motion now before you in a case like
this. l cannot appreciate the learned District
Attorneys distinction between degrees of muir
der; and have not learned anything in the la
1 have studied OF the offence of murrferum MAG
nGtum. Having gone through with one trial
suffered this long incarceration, and been shu
deprived OF means, with his health failing end
bail ready before your honor, 10 IN sure beyu~d
any reasonable doubt the certainty of his at
tendance " hen demanded, may Justly app.aI
10 your honor 10 exercise your discretion with
a charitable consideration for humanity spd
the sufieIings of the prisoner.


Judge Cartier sand: 1 will exercise nv iuds-
ment III TINS case upon the predicate that have
power 10 admit bail. The authorities which
have been read have led me the conclusion
contrary 10 my convictions, that. / have this
power. 1t is, however, one TO be exercised
with great caution and with judicial reluctance
All OF the authorities cited so admonish the
Court, and tor the obvious reason that the accu-
ation-to Wit, the accusation of murder-is a
grave one: and that the law can obtain no COM
pensation on bail the equivalent of the stake
which Is the life OF the party accused. A case
may often arise when a court will feel called
upon 10 exercise this power, and in the
case before me l should have no hes
lauon about dong it, did the cireum.
stances of the case seem to require H.
This case, by the application and with the
consent Of cOuPsel,-for from my view of the
case from the bench, i am compelled to treat
the postponement of it as with the assent of
counsel-has been deferred TO an approach
term, TO be held next month. There is not
therefore, in contem plation of the lapse of


"
the defendant is to suffer, and even IL there
were, II is not 10 be disguised in the history of
the csse that 1t is very grave oLe. While there
are no degrees higher in murder than murder
with malice aforethought, and no penalties in
murder greater than death, il is nevertheless a
feature Of the present case to which we cannot
close our eyes, that it was a grave offence
against the public and the world, whoever com.
mitted If: thati was connected with the attempt
to destroy the Government, or one Of the de-
tails of that attempt. although out of season for
that purpose II nevertheless was one of the
entalments of the attempt not only to DESTROY
personal life, but the life of the nation; and in
that point Of view il rises to great gravity ni
should be treated with great Judicial circum.
spcction. While it is a very grave matter for 2
man to be restrained of his liberty, the ocras;on
of restraint without exercising any judgment
over the guilt or innocence Of the defendsnt1 is
very grave; and these considerations alone.
with the fact that the continuance of the case
does not impose long delay, with the additional
fact that this continuance is with the consent
If not the request Of the defendant are perfectly
conclusive TO my mind against interposing The
.srelncnnt power" Of letting 70 bail in q capital
case, and will compel me IN this case 10 over
rule the motion for bail, which will be the
order. i 5ssara - T4s - 1llf77 81
81 = = +.