The New York Herald Newspaper, June 28, 1858, Page 2

rays lal c- & ? : HISTORY OF THK CASE. Here are indictments for the smailest offences known — t the law—assauit and battery. They are against au epera bouse mavager who was not present, aa: against a Judge of this court who was \y present ia his offccial this Court who were present a8 peacemakers. AN ALIAS FOR ONE OF THK P4 ‘They are ali charged with assault and battery on ove George Wilkes anc on one Joan Darcio, but wholis better \snown to the police 0! this city and to the Loadon potice as John Darcie Dixon, & fugiuve from the latter city, Mr. Warrso (starting ba bis fee:)—I submit to the Court that counsel shoud be co to the ‘Votved in the motion, and not oe itted to waste time Om_makers having to do with it. The Recorder—Coucsel iseue before the Court. Mr. Hall—I shall de #0, but among the igsues of this case will be founc that woich Tam now coming at, for is ts a principle of jaw that irreguiaritics committed by in a0. cent parsons carelessly have a different legal aspect from those committea by persons who the opposite character, aod who tb this case, as I propose to demon- strate, krow that they wore committing irregu- ar ‘The private prosecuter bis succeeded in stopping (ee mouth of my client and I that he now oro poses to step toe mouta of my client's savacete, Bat I ¥ li coufloe myseifto the records of the court, to the papers before the court, and to guch legitimate observa- ions wa spring from these papers, ACTION OF THE GRAND JURY. ‘These parties, it is to be prosumed in law, were pefore the Grape Jury, and supplied the evidence, whatever it Was on Which these tadiotments were found. Did the Grand Jary fad ap indictment for offical misbebevior, waick woud have been the simplest and easiest mode of procecurs? No, they did not, but they found an indict ment for the simplest apd petiiest offence known to the law, and the logical inference for this is that they couid have found no fuch iodictment for oficial misbehavior. Here are theae incictments, and what a burlesque on judi- cial proceedings wili be found to be bahind these ssfoma looking records, Not merely irraguiarity and carelessness, and taxpericg with (he Grand Jury, for waist the par. ties menable to this court, bot the smallest ad pet- Won that one man can make age’ost agowber. 2 my bard an envelepe addressed to the Grand evidence wbion Mr Wilkes seut to that sigh, as we say, oftamperiog witht I your Honor’s attention to some gicauings tLis evidence furnished by the private prosecutor WHO COME OF THE PARTIES ARE aa, One of these defendants, was an Opera ger. bir. Darcie was aso cailed critic, but, many of the critics cow a days be gradustedas must confloe himself to the like 8 g a ciaquewr in foreign pits. Mr. Wilkes was, as he claims bere, te editor of a paper waich would appear to be sa of shoot from an cid aod higaiy respectable newepaper of this city; bot between the old and tbe new there is about es much difference as ihere is between good old crusty port wine Gud the sixpenny porter that scavengers Griak about the streeta. This editor and eritic, or ore of them st least, bad been complained of asa visorderly pereon by (he manager of the Opera house, and the ma nager, making use of that common law right which excel. | ers Dave always beld to be a right to exciude capacity as a magistrate, and against officers of | sume the responsibilities of a just course, even though tt bear the person who occasionally exercises jaris- dction ip the very Court ta #bich you are ewpannelied ‘The complaint agaivst Juige Kusse | aod others was made before the Maycr by the Dut subsequent to that date, and krew it to be in regular progress, ae. Coulse, made access to ine May Grand Jury, and fed by the ou prits associated with bim tv bis offence forestailed the complaint and invented a groundless coun- tercharge. The result of this proceeding was to per Bee Pe Seeent a tho cee, ne it succeded; for the May rand Jury uot Knowing ite wecret his ory, took up tre | Complaint of Juige Russell, aud did wot foiah with his witnesses until the day previous to the close of their long and laborious session. Rey then oa hig own showlog, ‘unanimonsly diacharged his co nplaivt, avd took a vote— 4s Lhave been infor med—wheiher they abould page ‘with the compiatut against him whicn bad vow arrived ve- fore them. This vote, os [ have also been informed, resulted in a te of eleven to cleven. I am further informed tha: twas the unanimous opinion of tbe Grand Jary, that the cifnce oj Judge Rumel), a4 exhibited by the tes- Umony of bis own witnesses, was ove the’ iondiy calied questioas ic- | for progecution and punishment, but thatthe brief time left them, aod a 60 the uopieasant duty required, to pre sext au officer to whom they were to make their report, rendered it more advieable that the case should go over fo soother Grand Jury, Oa that state of the aifair | therefore row desire to present the case to you, aod I betiove that you wit! fod inthe examination of it that ‘Gu Outrage bas been perpetrated against a common rigds which every gent ema. who takes pride ia the city, and feeln « respect for tho laws, bas ad toterostto condemn Ido not fear, gentiemen,’ tuat the station occupied vy Juoge Russelt, wil make you hesitate in administering due reprobation of bis acts, if his acte be bad In the eye ofthe jaw be is atinosta ci:izeo; aod when be steps from the depen, filled with the vicious purpose to assail Bnd Cegrace a cit:z¢p Op @ conspired cause, be shoul! be ‘Qs amewable to the action of the law as the poor aad in- experienoes persons, who, for similar agsaulis and oui- rages he hes ime and aga'n consigned to the celis and cbaics of the State prison fcr ten, twenty and even forty yeara, Rely ing op that natural sentiment of justice which ac- tostes every woll reguiated and inteiligent american mind, | am, gentlemen, yours very rescectiully, GEORGE WILKES, 348 Broadway. P. S—The affidavits and other pavers in ths ca pow in i, ban: co Clerk of the Court of Se: 4 will deliver them our wheaever you eball send fer them. Liadionsatn id GW. The conclusion is very much like that of a bawdy book which hes appended to it & mora! from the Eoglish Read er, that is the jettar which bronght this subject to the ac- tice of the Grand Jury, But istoataily No. List OF WIfNRSSB3, ETC. Accompanying if and in ibe same handqriting, is a brief and extract irom a newspaper. It is headed WITNESSIS AGAINST A.D RUSSELL, EDWARD 8. MALLOY AND CALKKS, IN THE MAITER OF THE RIOT AT THK ACADEMY. Recorder Baraarc, Mayor Tiewana, Samael Brey sort; Aid to Superiatendent of Police, Sheriff ‘Wil ett, witnesses as to peacedie intentions of Wilkes aod Darcie ia vistung the Academy. Recorder is also witneas of Rassel = to confine Wilkes aud Darcie in station house Here the proeecutor would even drag your Honor into the matter, as if to convey to the Grand Jury tne ites that the foud which bas been sought te be kept alive be- tween the Recorder and City Jucge ever since the erec. tion of the la‘ter office still existed. Ia the namo of one of the genticmen named in tnis list, av honorabie man, and my wortwy client for years, /cisciaim aoy sick idea 88 that be would be a wituess against Juigs Russell, ex Cept ina regular way. Then here is the pronunciamiento that I rpoke ot: — 1y persons from house so as not to sudject 7 to annoyance by the few, had excluded shis Tl) person trou® the Academy of Music. DUTY OF A MaGIsTRATR. parers tai were before the Grand Jury, he w anc mace his com piaiat to Jadge The Revised Statues Thomas §, Hamblin, the wituess who served on the pro- Pprietor the following letter and notice Orrice or Porren’s Srinzt, New You, april 23, Ma. Berxarp Utiman:—8rr—It ws my inten ion’ to visit the Academy of Music on Mondey evening next accompanied by the musicel reporter of Porter's Spirit of the Times, tu order that may witness the performance on that occasion, and (vc.. 2, p 704) require that complaints shall be mado ia | write bir oviicn of Iter the women onee w riticg and wader oah (as was done here), before aay | both'be provined wom titcts wale game porchage of your watisirate, that any person bas to commit an | agents in accordance with the lavariable rule of ail pereaus c*lesce agaizat the pornos or property of another, aud de- | Stached (0 Turns Shirt, when vining ‘eaves and "ieer Giare it to be the duty of such magistrate to exemine such | FiO" i Docomcany me willbe Mr Jone Dern ee comp'sinant and any witness tbat may be produced, cath, ty reduce such exsmiaation to writing, and cause —- be subscribed Dy the parties 60 examiued; and if itr nw 0, You are aware bas {or a lous period acted as the regular musical of Porter's Spirit of the Times. I wead you thia notice tm order, sfler what nas bappened. Uiat no peraon may per. appear thar there ia just reason to fear he comms. | susde you Mr Darcie or myself intend to visit the A: sion of aug such offence by the person compiained of, itshall | for any Wegal purpose. Yours. tc, (GO. WILKES, be the duty of a magistrate to issue @ warrant unaer his Baur of ‘Forvér's Spirit of the Timea, hao, sad be THE Wa NT. urnished to the Grand Jury, showing the in- mn of the former. In fact it is a sor. of pronun:damen- spart—s very fiiisustering document. It con fae a toreat and intunstion that Mr. Wilkes and Mr, Darcie, or Mr. Darcie Lixen, or whatever bis name may | E. Ulims' be, Were gowmg to present themselves at the Academy of ‘Muric cu & certa'n night and obtain admission willy nisly Mr U iman received this formidable document, acd what did be cof Ho laid tt before Judge Ruasoil. Ali that the statute requires is that there shall be reason to fear a breach of the peace; and reason extstirg here Judge Russell issve i nis warrant, on whiob the charge of assault and battery has been got Jadge Russe knew the antecedents of this man Wilkes. The records of the court showed that while toarnea fl this city go the If your eer be walking along the street, and hear a couple of rowé.es declaring their intentions—perbeps not 1m polished Ianguage—to go on an adventure, would you not oosciude tbat they meditated violence? and would you not go to the tation house god lodge information against them, or, using that discretion which is the bet ter part of valor, would you not home’ ‘This Warreot was icgged and placed ta the heads of one of the cfllcers of the court. I think it was pretended be- Core the Grand Jury that the officers of this court, chose o Honor or by your Honor'ajassozmte, had no right ute any such warrant. I do not subscribe to that The Judge had jurisdiction by the statute to © warrant, and the officers of the court bad juris aiction to execute it. The Reoorder—There can be no question about that. Mr Ral—I think not. Mr. Whiting—I do not know what the object of my learned fritue's speech is Mr. Hall—You wit Gad out before I get through. Mz Whiting—Weli,1 suppose so, but 1 do not want to be kert waiting till next week. | submit to the Court ‘bat on such # motion as this the rule is weil eettied. The mot.on to quash an indictment is to be argued on the papers themee!ves, apd not on matters dehors the indictmeat. If course: means to avail bimsel! of tos opportunity of abus ung the Complainant in this case, or any of the witnesses in the case, I wil! not consent to his doing so. It is irregular, ‘and ought not be permitted by the Court, The Recorder—Counre! for the application bave un- doubtedly the right to bring such introda maiver de- art as in their jadgment will enable the Oourt derstand it Mr Whiting Yee: connected with the papers ‘The Recorder—Counsel is com'ng to that. 1 believe it is evidence or stating the points ip an argument to state to sat )@umre going to Cofoantso Ihave atresdy staied that | am going to reat there papers, but I preter to “take him out—drag him, out’? edge Russo!l was there ua je was there as tres eh rong str to ink place§ice ie Lot to of the Mayor of this city 4 be comm gt Hussell went to the spot nlangenge Hence the ars 4 batiery chaige, be indictments. [ can coneetve of the matier ban ac a very grand attempt on the part Witkes to make bis paper retl, and to bring the of. this court into official disrespect. I can conceive 20% (be idee a teen to go to the epot. of Me exaltation to all Grab stress, and among the { st. Giles, of Cuurch aad Mercer streets. Bat if please, if theve facts be true. if these papers ate of facts to your Foner, whats ciiaas of m bas been reached ic this city THE DANGER OF ETOH A PRECEDENT. been ought at the Gracd Jury was a shieid wen the people avd the sity of @ Vizvianse Com bet pew your Honor i called upon to decile lew or the law breakers shail rule. The rm ms thet your Hosor hee ixsced a bench recently net @ notorious raffien. if your hould permit ularities that were be re the Gras te nothing & prevent that ruflian ge by malice same pretence Cher Wwolote Daltery in ew 4 ered Be might ¢o so not with any ides of Matter to a Cc uriction, but with toe ides of dicial ermine through the mire, if euch re are to be upheld in this community, hers (# nothing to prevent \ue indictment of the Ja Over and Termiper SUMENTS BEFORE THE ORASD JURY that was before the Jane Graod Jury Grand Jory #'*o, and they diem\ased or Itxom, have been singing apd brow 4 ai at the May term there war @ tie in the jory room that (be jurors stood cieven to cieven, &e., but the en dorsement on the papers is simply this: “This com- aint Gistuisned May 20,1868. Henry Baylis, foreman. ow, what are the irregularities in the case? of my client we are bere to day to thank the people State of New York that there siands in their place a gen temas who would not do ae some District Attorneys | have done, perbape. under the ctrcumstances— | woud burn the papers, destroy tuem, nod not allow them to be- come part of the records of the court | will simply cou ter( myssi? with reading these papers to your Honor aad making some geuersl observations upon them In the firet piace, bore is a letier addressed to the Graad Jury— the hand writing on the envelope beimg that of Mr. Wilkoe — Mr. Tandervaort will wend down to the Grand Jury the Papers in this Case Lo marrow, Wedneniay mornin WOET, Trevnay Jone 16 Toia shows that the communication wae the first thing that brought to the knowledge of the Grand Jury the fact Uaat wach ® cution Ought to go OO—a ¢ mmanication bot by the Instrict Attorney, but by & private person (Counsel here cited the case of Ool. Jack, from the 84 en Law Journal, in which the court decided ‘t to be an indictable offence for & person, other than the proper of!) oreman. cer of the court to rend a communication to the Grand | are fike marine monsters 4 legitimate fn introducing | Us to the notice that Mr. Darcie would visit the A guid to have used | care with us Of @ Jadge being Graggea in the mire would be | T*?! } farnisbed me, that be hi Grand Jory, inetigat | the seps Tom tsking. by any persons) | y; | To Delsif | of the | | who Mr. Wilkes is. Then he gives the form of warrant. —_ of warrant granted by Russell on above peaceful acl : Whereas complaint on oath bas been made ens to di ani d culty, and rict, so as to interrupt his oustness, ac. WITNESSES TO GOOD BSHAVIOR. Then come the witnesses to the peaceful Wiiker and Darcie Witnesees as to the peaceful entrance of Wilkes and Darcie, and of the sudden and coprovoke? and riotous as- eault committed upon them by Buseell aud others:— (eo Witkes, Jobn Darcie, Ralph Patterson, po icoman; Wm. Fider, do.; John Williams, }do.; Lewis De Avgelis, United Statee Deputy Marehal; Wm. M Tweed, Supervisor; John Ciancy, President of Board of Aldermen; Hon. John Wheeler, ex M..; A. A. Phillips, ex Jadge Marine Court, There are the gentlemen who interfered to protect Mr. Wiikes from the riotous aesacit of Ruasell, Matloy, &>. Witnerses as to Russell's violeat conduct and exclane- Mons :—Fimupd J. Biankman, lawyer; William Mou trie, lavwezer; Wm. H. Allen, Drill Sergeant to Police; Joseph Dowling, ex Captain Sixth Ward; Henry J Brent, artist and sutbor—a fellow who attempied to commit euicide, aod who (it w reat pity) did not succeed ; Samuel C. Jolie, in District cesler in mvs.cal instruments, Jobo Loru, Cle Attorney's office. Witnesses who eaw Wilkes and Darcie poss throvgh Fourteenth street alone to the Academy —Alfred Joel, mercbant: Mosely Levy, janitor. conduct of Now, who ever doubied that these gentlemen would | have gone to the Academy peacefully, taken their seats away Aud remained quict till the time for distur- ee came? Then comes the auxiliary evidence. AUXILIARY EVIDENCE. Witnesees as to Mr Darcie’s uniformly quiet and deco rous deportment whensver visiting the Academy :—Geo. Bancroft, bistorian, Nathaniel W: and —— Cort, atock- ; Heary sey mour. reporter Daily bite, sed Courter Ea WILKES TO ULLM. And floally comes Witkes’ lotter to Uilman, Lotter wextto Ullman by Mr, Wiikes, eight daye \- ye Orrice or Pouten's Srimst or tar Tress, New Tonk. april 16. 1868, reached me, and 13 justification be. | of that met My shewer ia, tba! 1 geod Mr. Tarcie to the Academy, and y was said by the proseoulor | orher pincss of public entertainment, not es Jobs Darcie, but ‘Jury, Judge Russell used very rough | as the representative of the paper 1 conduct: amd Lelalm, ‘that so by ae he ars bitnwelf lawfully and decorously while in a'tendance a: euch pieces bis personal cherseterie- rged a hw representatire powicion ope ediiwe to submit to any other rule, and make mans. ers the umpire Of ihe private standing of their employees, Ko} Would be continaetty subject to theatrical disiaton snd might et any moment bev: \urnea woo their hapés and their p»yer lef: deficient of @report This was the your arbitrary and invidious exclusion of Ma. to the Academy as our reporter, with dines. in ® nce with Cur rule, to par for bis ticket, and you, knowing him to be o him to be ex eluded. aud did no doem \i wor b the wale bo acquaint ne With thereecript. Tt is for this wrong and indignity we seek rene. and we expect to get It by nw Teee nothing in the charges you make against Mr, thet may vot Le asily exp ained away; and it matiers Whether or po he was the original “Toncbstone” of Dereie i ile the Loucon Fra, since i fied pim to be a bevier writer than the person who hea charge of that department, im the Indicated Loudon journal. Moreover my personal observation o’ Mr Darcie euitrely in hie favor. 1 hove always foaad him to b Al mannered, se'f respect bul er, that if any evidence oan be acted corruptly while tn my em Take f ploy, or Violated the decorum dine to any respectable place of a uh public ent ment be wi. a! once pe dismieaed from nection with he Spirit, More than this, I have ant toe except that | desire to agwure you, ximply by ® desire to vind ente the - dmst, and ty estab iieh the princip'® that efitore bawe the same privilege of admission, for pay, to licensed piaves of pubtic eniertainment se all other members of ‘the omnmunity. Yours, &c. GEO, WILKES Faitor of Porter's spirit of (he Times. A PRIVATE NOTE TO THR GRAND JCRY. Now, nore is anothe? document, which your Honor ought to take into consideration. |It was supposed by « sort of feral fiction that what travepired ina Grand J room wes secret, but it would appear from the following that uch an ides is a more fiction. To te Forewss —Dran Srn—Mr, Moo! who appeared before you for a moment sfier I jeit Ack ber, is the counsel of Wr Ullman and if you will ca’! him he will give you the origin of the affeur, Very GRU, WILKES. UNPLEASANT REMINISCENCES. Now, irregu’ are of two kinds, thowe that are | bowsest of careless, or perhaps both, those that are Malicious and that bear upon their (ace mation, Ne . Honor mus: see at once that in this Oase these Irrega jaritioe affected the Grand Jory—that the Grand Jory placed reliance on these uneworn statements, Now, f to show your Honor, by the records of the court, Thold io my haod two indictments ngainet him for publiching a bawdy newapyy Mr. Whiting (tartirg to his fest)—They nection with tbe The Recorder offer them ° Mr. Hall—To show to your Honor the kind of man who has been tampering with the Grand Jary—to show that these Irregularities were not committed by a respectable man, but by a man who, if the scum of New York city A traneacts Mr. Hall)—For what purpose ¢o you | were boiled up, ‘would float to the eurface. I have aright to show your Honor from the records @ho he is, because 1 will be presently called npan to apologize for the Grand Jury, and to esy that they knew pot the antersdents of this person, for there are some men whose antecedents hich the accretions of the sea Jury) sometimes cover up. The Revorder—Doee the conrt in thet case 0 to the ex. | The Recorder-1 think it ie improper to @> into thet teat of saying that the indictment onght to be quashed’ MR. WILKRS TO THE GRAND JURY. Mr Fali— the 18 80 lot me read the letiers of thee to the Grand Jury:— New Yorn, Jane 10, 1855. Forms ary Gerriewey—I respecifully sead you List of witneases in & complaint now pending against ‘edge Russel! and others for riot avd assanit at the Ace- demy of 08 the nicht of the Sith April, and earnest- iy hope Will fod & proper to send for there witnesses and let them patiently be hoard I ask ttis as & oltinee, for myself and for other citizens upon whom e has been crostly outrage! and J am convinced that whee you know the truth, ycu will obeerfully as =e eee... ence of It. Now | matier Mr. Hall—tf your Honor thtoke that it is improper for me to show by the records of the court who thie man is I uppose I may say that he bas been once convicted of felony, and was complained of — The Recorder—it is questionable if you can be allowed bel ty ote ir. Hall—Have I not a rigbt to show that the man who by pg FY Recorder—| think not. In the eyes of the law Mr. Wilkes is a8 worthy of credit and as entitied t the pro- tection of the law ae any other man in the community Mr Ball Bur unter ihore papers he does not stant in the atlibude of & geutiemas, wheu he essate your How's NEW YORK HERALD, MONDAY, JUNE 28, 1858. estociete, and when, for aught I know, he may have as- esilee your floner behind your beck. I osa vow under- stand why my learned friend who prosecuted Wilkes then is Low bere as couneel to ivterrupt me when I beg your Hovor's a tention to bis character. Mr Whiting— {appeal to your Honor against this attack on tho preseswer. Nr, Ball—1 have cropped the subject. bir, Whitipg—Yes, after you extausted it. Counsel! should have confined himeett to the legat arguments to be Presented to the coveideration of the Court. His other powts might be proper ca the trial of the indictment, but brr ovt of piace ere. The Recorder—la the eye of the law Mr. Wilkes is as credibie es any otber max Mr. Hail—if your Honor thinks so after his Hbelliag jour arsociate, I bave ro objection; but {can only say Wat 5 our Bovor is a kincer hearted man than [ a ‘The Recorder—Legal!y and in court I am a kind heartea maa, ‘THR LAW AND THE FACTS. Mr Hal!l—Your Honor bas before you these irregulari- ties ona it fg Jor your Hovor to say whether you wit! tole- rete auch ivreguiarities in the initiation of an indictment, ‘or the smallest offence known to the Jaw. It wil! not be Cepied that this whole thing sbows that Judge Russell acted iD & megister‘ai capacity and brought himselr Girectly witb that rule—that if ae Judge w court or out of court, acting in an effictal capacity, zvep exceeds bs jurisdiction, he ig not amenable. Your Hovor rememvers tne case of Chas. Pianey, of ‘Sriatcl, who was indicted for uot going to @ riot, and your Honor wil) find in that case the authorities to show that a Judge may go w the seene of riot, on vit, and may order the arreat of persone on mere Vv: warrant, Ha Atom Seti a Jucge Oe 0? aes Ir Hail—A magistrate, ap ge Russell possesses the powers of a magistrate He would be indictable for not goirg He couin not go as a Judge, because he is not a Judge while out¥of court, but be could go as @ magis- trate Justice Duer, for ips! . is a Judge but nota ma- gictrate, wa og Aoxor is both Juoge end . The Recorder— Was there avy warrant agaics( Wilkes? Mr. Hal— Certainty. Mr. Wbiting--Never. Mr. Hau— tir Wiikes was ayrested on the verbal war- rent of Judge Russell. We take the point that the mere verbal command of a magistrate who is present at tho scene cf @ cirturbance ts epougn to Iega'iz2 the arrest of the party. Wall the officer bring me ‘ Archvold’s Re- port ers’ ecition. Mr. Whiting—Icea, (Langbter). Mr. Hali—fais is a motion addressed to the diacre- tion of the Court, and that ciseretion has been always found to take @ very wide range. In caves where the clfence Is @ serious ore a Court will not lock bebind the tncictment, but #hero it is@ mere tri- vial eflence, lke aseault anc battery, it 18 for tho Court to *ay whe rer it will net consider irregularities that ought to vitiate the indictment The Recorder—Did you look at that point, whether two Cifferert indictments can be found for offences growing out of the same traveaction ? Mr. Hal'—My learred astociete bas that question on bie brief, Your Hevor will perceive that, if tt be conceded that Judge kusrels bat a right to issue a warrant for the arrest cf Harcte—Wi'kes and Darcie being there together — be bad a rixbt wo order the arrest and removalof Wilkes The Rerorder—-Toere can be no question of that. Judge Russeil bad tbe right to iseue bis warrant, beivg reepovstble for # c'vil or crupinal action, Mr. Hail—Yes ; for impeacbmect or misbehaviour in efice, Your Hapor will also perceive that fthese three indicurente are copfeseedly for the same thing, and it is theretcre tor your Honor, under sucn circumstances, to exercise your Cescretion as to quashing them. Toe Recorder—Tbe three tadictnents might be con eclic¢ated into two Mr Hail—they might be consolidated into one, If tne Juege bad cone less than bis outy,be might have been &s liable as Mayor Pinney to !ndictment. The Recorder— How am 1 to find out the tacts unless I bave the evic ence before me? Mr. Hall—Here are the unswora statements of this mav before tbe Grand Jury, and here are the affidavits that were before the Grand Jury in May, when they dis- m'seed the complaint, they being the same as were be- fore the Gran Jury in Jupe, that found the indictments. The Recorder—I understand you to move for the quash- ager tne waictments on two grounds ¢ Hall—On three; Orst, tor irreguiarity on the part of the ae ip the Grand Jury room; second, for ir reguisrity in sending a private communication w the Grand Jury room; and thirdly, because even on the aifidavite of the prosecutor everything done by | Judge Russell was dove in the exercise of his juriadiction. It Das aiways been the practice of the court, when tae District Attorney and tbe Court are eatisfied thaton the best statement of the fects before the Grand Jury an in- dictment capnot be sustained, to quash it at the outset. Here the evidence is not cnly insufficieut to sustain the indictment but itis fuly evficient to ehow that Judge Rurael! acted ly. I will now leave the cae to my ed gsrociate, whose voice is seldom heard in this court. but lam beppy to eay it wil! be found enlisted Against every cilort of malice, prejudice and oppression. Mi MALL'S POINTS. The followirg are Mr Hall's legal pointe:— Tbe Greno Jury of June endorse “iil found” upon the | fame papers oo which the May Grand Jury bave endorsed | ‘DIN diemisced The presumption is inevitab’e— they acted on the samo thing—an the names of Darcie, Wilkes & Co. were on the papers, apd the transaction tbe same. POINT FIRST. Therefore, that this was an irregularity the Court will | oties, and quash the inoictment so found in the exercise | of its diserenon, Fven if :— ‘The action (f June was not concluded as res adjudicate | by that cf May IL, But if the indictment Is not absolutely vold for bis re or alter action, yet ihe Grand Jury are within the con- tol of the Court. (The Philadelphia cage of Jack vs. Crane—3 Phil. Law Journal)—and this being @ motion a¢dreswed to discretion, | the Court-—jea/ous of ite rights, jealous of assauite made on iteeif, jealoun of what may be one of its precedents— Will notice (his irregularity. POINT SxCOND. But Me June Graud Jury did not take up the matter ex mero motu, ae the endorrement on the Wilkes package of v8 apd envelope show. ae took up the case instigated by bis communication, IRREGULARITIES, He eends in without authority f:om the Coart— He seads in without aothority from the District At- 'y: 1. A letter full of advice—full of unsworn facte—full of con\empt toward the Court—and al! calculated to bias and to prejudice. 2 A brief, one part of which is contradicted by Re- corcer ary we cant ray. ‘ore is no degree toa tampering with jurors, petit or x grand Imporrible to what par) of ut» worn statements ight to or supplied om! worn ataiements aay that Recorder Barnard The Recorder could not disclaim this to be bas m court, No doubt this had more to do with the fi than any- Barnard thing, for the Grand Jury said, “ Why, this iccictment.”” Story, im case 2 Gallisom repert, 364, qnasbed an mt for receiving the testimony of » person sot under cath. Ie there apy distinction between some evidence under yd some Det? Vis go to Grand Juries, but unsworn statements wae tho never. ‘The vupeworn testimony in Judge Story’s casé was rejected ace the inoictment quashed because it was irregular to ap extent Can we irquire to what exteat? This case only differs {row the Jucge Story care in that, vis , if some part of the evidence wes under oath another part was of mixed un- twern advice ard statement of facts, Now, which guided the Grand Jary’ If there is danger cf tampering, bat should be sv ffictent to quash. POINT THIED The afl te endorsed by both Grand Juries—“ dis- @iseed” ant “found”—show a disturbance in which Darcie Was arrested on @ written werract and Wilkes by & mazietrato’s verbal commanc— Web uilicient under 2 R. 8. 888, sec. 8, 4tb ed. Under 1 Archibald, Waterman ed., 24 2, aste 27, re- forring to Yeates’ case. ots before the Grand Jury show the Judge right to do as he did. vised them that the Judge was wrong. the Court or District Attorney advised them be | eruld not have found it, i pot the Court, in quasbipg the indictment, do exactly what ‘ould have compelled it to advise the Grand. Jory to do if the Grand Jury bad had advice from the Goort instead of Wilkes, viz , not entertain an indictment om its record? MN. WHITING REQUIRES MORE LIGHT. Mr. Whiting—There are several points on which the contieman opened, but whieh be did not argne. Mr. Hell--[ Dave argued the case fully. Mr. Whiting. You bave not argues it ail, aod I want to bear it argued before Igo on, OF atleast want to bave the polote stated. Is there ne authority to be read? Mr. Aali= Yer would not let me felly open it. MR. O'CONNOR BCPPLIES MORE LIGHT. Mr. 0'Conor—1 shall contend Mr Wilkes commit tea & grave error when be eupposed that he or Mr. Darcie oT any otber man bad an absovute right t visit the Opera honre without the consent and against the will of the manager. For that! moan to refer to 14 Howard, United States Reports, 668; © Carpenter, page 1) Smith's Land. vine, wg Cases, Rex Kerwan, p 30. of Ubis case, that that point alone is enough to of it; but I donot mean to rest upon fi shall refer to the 10th section of Dongan’s charter, ‘26th of Mentgomries, to Davies’ laws, 813, &e., and I fball mairan that in givinggprevious notice,’ as Mr, Uliman did, to these parties not to procure tickets, he did precively what be ovghtto do, and that in their giving hotice to bim tbat they meantto enter whetber he choss Or not, they cit what the, to do in warning the proprietor and allowing tl ion of the magistracy to preventa rict, to their conduct woul: vend, in other words, that they were in the wrong. I shail show that any cilicial conser of the bose attention was called to should rightfully have LT Next breach of the public 8 fnct employed by Ju ire Ruere!! duty to do #0, but aduty which if he negiected he wou bave been snl to jast impeachment. tend generally that this whole transaction—call thing, from the letter etating hie intention to down to the time when bimeelf to the reat of the public afandamental mistake on his part. founded on the idea that there is no government in country, 4 that every ‘ali his own imagined vances as he car lay bis bands on. If a man wil not let me into his butcher's stall to buy from him the idea is that knock him down and buy from bis jourveyman. Wen me eee SE oe 6 ban Saatvor es ameane in by compulsion. that thie cafes of eapitcasoen ‘to Grand Jories is not fory weil understood. I think I may do that with safety, cince whee we refer to the books we flud & vast amount of contradictory matter as to what their duty and what uch that ft wae he torney— | Barnard. How much all this inflamed or inflaenced the Grand | naturally | re the rights and duties of persoas coming im conta:t wih =. qt - be ible, = the course ove woigh these opposia, autboritios eal it the argam ‘80 as to do justice to them all; [ shall claim, however, this the Graod Jury, as re- cognized in the laws of the country, is rather @ negative Wan an ive ion. Ibis aa institution iater- posed by our constitution betwoen the citizea aad anjust prose the Or its offiviais. {¢ ts not government the place or duty of the Grand Jury to become a sort of inquisition to search about seamne. the persons who may consider themesives sggreived by acts; but it is tbeir duty to know the thiogs which ta the due regular order the adwinistratin of justice are delivered to them to charge of the court. I do not mean by that thoy cappet take notice of light that reaches them by accideat inapy wey by the ta! tion of one of their fellows, provided the: ig done altegether fairly, aud in cue peed of that decorum 1b should always attend the administration of justice; but I mean todeay the pro- position generally what they are to be ured as affirmative, Sastnoncmeraae vate persons. In tupport of this st of Petite my me iple, deep and fun iamental io the Eipgiiah law, though not weil sustained there, that a men sbail not be tried witbout being presented by his peera. Jt is whet the friends of liberty struggled for in A and what they have in this country; that is trat before man is sujected to the pain and some of 8 pt prosecution, a Grand jury of bis low citizens make the accusation To the vext place T shall olaim that prosecusdons rigutfully belong to the State and its officers, aud not to private per- eons. The law bas provided against uojust and inconve- pient prosecutions at every stage, from the initiation to theend. Tbe Grand Jury cannot present indictments; they cap only give intimation that they desire to do so. 1 om equally that the District attoroey gs apd refuse to draw up an indictment. It is very certain that the District Attorney had the power origivally in this State, and bas it yet, merely subject toa special {che poy to enter a nolle prosequi on apy indictment; and it is bie duty to do so when be seee that a prosecuiion will not subserve the interests of the commonwea'th. The jave not the Grand Jury a right to take up matiers of public notoriety? Mr. O'Jonor—I do not deny, generally, their right of Proceecing m an orderly and decorous mauzer, in har. mony with the Court of which tbey are a branch, or with the public officers appointed to attend to thei, acd with out whoze aid we know they could not very well get along. But I ciaym that their functions are properiy of the kind I bave stated—that they are not governmental instruments to enn — _ - — po - ments to protect en st uniawfel prosecutions. Taking this view of the matter, ani claiming that the Grand Jury hold this relation to the Court, I clam that woeuever the Grand Jury, under the oid system, presented an indictment’ which the officer of the goverrmert thongbt not a proper cause for prosecu- tion, 1 was bis duty to enter a nolle prosequi. Isbell claim that these prosecutions are not private property al oll; that they are acts of the government, and that they were originally altogether, as it respected prosecution, under the Girection of the administrative oflicor of the govérnment—the Attorney that represents the state. They ure still under bis cortrol, subject to a power vested in the Court. I shall claim that this motion comes befcre your Aonor in a double aspect—that it comes as a strict motion ad¢ressed to the Court to quash the indictment, as having been tu ly presented; and also aga matter addressed to your "8 Gigcretion to advise the District Attorney to enter a nolle presequi. THE RECORDBR DISCLAIMS BEING A WITNESS. The Recorder—Before Mr. Whiting opens his argument it might be proper to etate, ss wy name ie mentioned as one cf ibe winesees in Mr. Wilkes’ brief as to Judge Rue- seli’s iptertion, that 1 kvow nothing whatever of Judge | Russell's intention—not the least. Mr. Ball—We euppored that to be the fact. MR. WHITING'S ARGUME?T. Mr. Whiting opened, by saving thatthe assent of the District Attorney to bis (Mr. W.’s) being associated with him for the prosecution came so late that-he bed not bad time to read all the papers in the case, or to pos- sess bimself of their cparacter; but he understood that the mention of the Recorser’s rawe as a witness, in Mr. Wilkes’ communication to the Grau was in reference to the fact of Jud, paving sent a message to his Honor not to take bail for there parties. He complatned of Mr. Ball's not confining bimselt to the matters properiy up for argument, but in- dulging in very stropg and intem expressions to- wards both Mr. Darcie and Mr. Wilkes, on whom the Grand Jury had pronounced that Judge Russell com nitted & viokent agsauit and battery. He intended to answer no partof such remarks except this. He (Mr. Hail) seemed to intimate tbat Mr. Wilkes had been charged, by indict- ment, with felony. That intimation entitely gatrui- tous—entirely a mistake—entireiy untrue. Even were it true, he heid that it was out of place ia the consideration of this motion, He argued that a magistrate who de- ecende from the bench and engages ina riotor street fight te as amenadie to widictment as any other persow in the community. that med The Recorder—I do not thiok there is any doubt of ts an abstract queation; but the coptrary is not clai on the other side. Mr. Whiting remarked that it was for the purpose of ‘ally their grounds thai he asked the othor fide tostate their legal propositions fully before be ad- cressed the Court. Mr. W. then proceeded to discuss apd ey Se course of the Grand Jury as connected ithe Recorder ca pretty, sroogiy of tbe ceavlo- The rder—1 am pr st yo cont ” of Darcie against tion that the iadictment on behalf the cfllcers for aseault and cannot be sustained. ‘Mr. Whiting \nquired if there was any evidence that the parties were cflicers’ ‘The Recorier—That is the question which comes ap. Mr. Hall had omitted to eay that the Court would take cogn zance of the fact that these parties were officers of the Coort, and aiso that if the indictments wore ne to ove it would pecessari!y be quashed ax to all Mr. Whiting contended this was not one of the facts of wbicn a Court could take judicial knowledge, and ‘that bis Hopor bad no right even to take judicial notice of the fact that the Abrabam |). Russell pamed in the indictmert was the same persomeas was Judge of this Court. The motion to quash must rest entirely on what a) pears on the papers, and op nothing extraneous to them. As to the irregularities complained of on the other side, they rested on mere assertion. There was nothing better settled than that the Grand by u sotaside. He it it would be seriously c: that a Grand Jury, in session, cannot pave their at- tention called to an offerce by the complainant, or that the complainant cannot take such a step without a violation the | ‘The Grand Jury was supposed to consist of the moet jlo citizens of the county, Aud how was this Grand Jury conatitated ? ‘Mr, Hall reminded the Court that when he desired to cosi#er the character of the complainants ho was called to order, and now, in his turp, bo did object to this, Mr. Whitirg enid he had he bad only tried to k: Jearned friend within the rules and not it aseail the cbarscter of Mr. Wilkes or Mr. character bad nething to do with the motion. ‘The Recor der—Not the least ‘Mr. Whiting proceeded to Giscuse the of the courte taken by Mr. Wilkes to heve the matter betore the Grand Jury. There were some ex) admitted, in bis letter to the Grand ory, whlch, | it be (Mr. Whiting) bad been consulted would Pave advised omission of; Dut he con tended that on the whole it was proper aod reapeet’v!. The Grand Jury could ed as they thought proper, on this communication, but submitted that in sending it Mr. Wilkes bad rule of propriety and had been guilty of Honcr bnew perfectly well that there between public and private prosecutions Prcrecutions were Dot recognized to know owhat pee could be eptertaiped. no analogy to that of Col. Jac and denied that there was w : : : 5 which @ former Grand J been nade a8 @ plea, it might raise a nice, diM.ult ques- tion: but it did pot arise on this motion. The Recorder. Mr Whiting—Yor. ‘The Recorder—Apd do! understend that there was no evidence before the second jury that was not before the fret’ Mr. Whiting—There is no of that Mr. © Coner—Our ale toma will be that if the: found ® Dil OF Papers notewern to, it ought to be q f and if they found iton morely the same evidence thet bae been presented to the former Grand Jury, it ought to ‘be quashed. The Recorder—The testimony might be oral. Mr. Whitrg—Cortainty, sir. A bil might be found ettber or complaint aed affidavits, or on oral testimony and there war nothing before the Court to show how this bill was found Be denied the truth of the allegation that the aa eaultand battcry charged on Judg: Rossel! waa committed nan effieta! 'y. Where was the warrant, he asked that was iseved. and on what sort of a complaint was isened? There was nothing in either the warrant or com- pla:nt to author'ze an officer to execute it. Mr. O’opor— Aro we to understand you as making the preposition that the magistrate who eces a breach of the peroe committed or violence threatens, cannot order the party to be arrested? Mr. Whiting—1 bave Mr. © Conor—Then po written warrant war necessary. Mr. Whiting held that the Court had no judicial know- leege that there waa any warrant ineued Mir, Hiall--These papers that were before the Grand Jury contain the evidence of the warrant The Recorder—I will look into the papers and see about at, | Mr Whiting Very well, sir: and if Mr. Wilko has no | standing in coort, and this indictment ought to be quash- ed, let it be quashed. He submitted that this was an effort to get rid of the trial of this indictment, and thonght that the more proper and | ovorable way woud be to meet it fairly. He bad now arrived at the porition iaid down by Mr. O’Conor—that Mr. Wilkes committed « grave error when be and Mr. Darcie attempted to force their way into the Academy of Mosie. Now that was a to be decided in this case. Suppose Mr. Wilkes had not the right to enter there, would that justify Judge Rasgell in ordering bim to be locked up? He thought not. Aa to Mr Wilkes’ statement to the Grand Jory, the inference wae (hat it fell fike water on the parched ground, and bat no infloence whatever on the Grand Jary, the pre sumption at law being that took their inatruetions from the proper officers of the court. He denied the right of any keeper of a plate of public amusement to exclude any or every perren be Cee eee Se without camse, He —_ exclode Classen of pro. ple. He might exciade any man who went there with emeallpox, mafynant fever, of any Contagious disaee upon him. He mightexclude the gambler or pickpocket who went there to carry cot his bad pores; but be bad no right to exclude him (Mr. W.) if be bad sold him a ticket. Tho Recorder—Would you havea right to commit « breach of the #0 an to force your way in’ Mr. Whiting would come to that in aoother part of his argument. ‘The Recorder—A{ man who buys «@ ticket to go int? a place of amusement, hes a right to go there, but if he is not permitted to enter he has so right to commit e breach of the peace; | remedy ia by civil action for damages. Bat if he have been admitied, and be comdnetivg himself properly, criticism upon i of rae, for what be pub- thaed. Me Bali bed claimed’ tat ine Grand Jury could Bot oo nreteoting 92. find a bili oa their owa mo- tion. ber aos Rot, Of course, find a billon their own sepa nocestsy fo prooire euoh Svigence, ‘By salute the Court cannot the District Attorney to cater a nolle prosequi. The Recorder—The Court can suggest to the District Mr. Whiting admitted that. He thought this a ver inom sniae. Wherever Court snd Distric! that 9 bill could not ed, it wae seil owed it tc himself to have the indictment tried; be submitted that tae Court had no authority uncer ciroumatances of this case to order it to be quashed, ME O'CONOK'S ARGUMENT. Mr. O'Conor agreed with Mr, Whiting that this was au importert and a povei question. It wav a question which required @ very full and deliberate consi teration—ore which sbould pot be lightly treated. Since Ne York was ecity this court, uzder its present or some other na) existed as the chief seat for the administration of crim justice; and its cflloers were what might be called local woegistratee. otber criminai courts were mere ad- juncts to this. The Ceurt of Oyer and Terminer has had Jurisdiction of the more sericus grades of cflences, but even that distinction was now broke down, and this court beld juriediction in all criminal cases, acd the Presiding Judge wee, he might say, of tbe erimipal Tbe ctlice of Oi; funeticrary ever cf rans, and dignity apd power was the Recorcer. It was @ novel thing to seee bil of in- Gictment brought int this court without the co operation of ove of the constituted authorities of the land, against ene of the presi magistrates,on which bill of indict. mett he might, if put upon bis trial, be dragged down from his high station and placed atthe bar asa culprit detore the petit jurors who are inthe habit of taxing law from his lips and of being advieed by him in matters of fact teuching the jnégment to be formed of tne evi- cence. His acts and bis motives were to be asubject of newepeper observation, various as the opinions of the various editors, and were to be made a subject of discus. sien in every receptacte of vice, ax well as in more re- spectable places througbout ovr community. That, he said, was indeed a novel spectacis, and necessarily so for, if such aspectacie bad often been presented this court could not be pow in existence. Demoralization, disorder and the overthrow of end order would necessarily bave been the result in any community where the high jucges, and especially the high criminal judges, were obliged from time to time to exchacge places with the criminals at the bar, and answer for their judiciat conduct before petit juries. He meant to maictain that the courts of justice were a portion of the gi erpment. The conatitutiion recegoized three great departments—the legislative, the executive and the jodiciary, The design and intent of the constitation ‘wastbatalltheee departmerts, at feast io their higher branches, shouid never be subjected to trial before ordi- Dary juries except in cases of botorious guilt. Members of the Legislature were to be expeiied from the body to which they belorged and then to be punished by the iaw ip their private capacity, Judges were to be impeacbed avd removed from office ard then to tried betore a pond jury. for the particuiar lence for which y might be indicted. So with the President or Gover- ner. He should firet be impeached ana stripped of hie cfice, and then proceeded against criminally. Tpis was Becessary for the of order, and this necessity of observing order bad enabled the community to aiteia to this year of grace, 1858, without ever having had a high judge tried for euch an offence as assauit andbattery, ‘The question bere really was whether a small lot of crimi- and we pals, at the commencement of a term of thls court, can go before the Grand Jury and procure » of indictments agaivst the Jucges of our crimizal courts, which they must weer as an ornament until they can have been tried. If so, the Judge must either remain under the degradation of being an inoicted person for months, or elze the acmixistration of justice must be suspended. Did we live, he asked, toa | ccrmunity which not only toleratessuch astate of things, byt 18 powerless to prevent it? He beid that there was no want cf power to prevent it, but that, un the contrary, ali the prizciples of law and of the constitution were opposed to such @ state of things. It would be u ecandalous thing if apresented cfimipal, untried aud unacyuitted, should sit on the bench and direct @ petty jury on the law or the evidence bearing upon the case of another maa pre- sented by the same Grand Jury, and on the same iy jaa himself presevied. He apprebeoded ‘that euch a state of things was not to be susiained. This cape was witbout a end oe boped that, by the foree of bis Honor’s judgment, it snouid not become one. He asked the attention of his Honor to the constitution of a Grand Jury, and referred to the inws beariog upon the ergepizstion of that body. In Engiand they were a sort of jocal megietracy, but in this country they hdd only to bear accusations to consider whetber there was evidence to support them, and if 80, to present true bills of indictment. He contended that uo private person had a right to go before the Grand Jury, and bring before their atenton any matter that bad not been properly originated by the publi prosecutor. This functions y bea the cuarge anc responsibility of ail cases thatare t) be prosecuted. He next called the uiteniioo of bis Honor to the common law power of the District Auoruey to enter @ nelle presequa. ‘The Recorder—I do not think that it # necessary, Mr. O’Conor; po one denies that right. Mr ©'Conor quoted judicial decisions oa the subject, to show that the responsibility of prosecuting and of catering nolle presequis belonged to that officer. cation to that was the qualification contained second Revised Statutes, that the |nstrict Attorney could not exter nolle prosequis without the leave of the Court. These propesitions afforded @ basis on which to found ibe principle as to what were the duties of Judges, of prosecutcrs and of Graod Juries. It was not regarved oe every violation of law showd be perished. There @ & great many violations of law which it were better pot to be punished than to be punished. The covstitution of the State recognized that pria- ciple, for it vested in the Governor an absoiuie power of pardcuine. ‘Mr. Whiting bad argued that tne complaint of ir. UDman end tbe warrant of Judge Rusecil showed 0 cflence, and that an officer who executed the process ren- dered bimeelf liable to indictment for assault and * ‘Was it, bewever, ac visab.¢ and proper that every possib! orror or slip of that ion should subject a judicial cticer to public ution? Did the pabiic interest re- quire that? Nay ; the public interest required that it #hould vot be done, And if a Grand Jory were to unwise as to find au \nd:ctment oo such grounds, the jaterests of public jeatics required that that indictment should be set aside. Sucb a proceeding ‘A BUpeTior Magisirare would be highly itpolitic; and no constitutional governinent could ever exist that would sliow is superior magetrates to be so pane No; they should be iret stripped the rule, erst seut back tw pri- vate life, and then tried criminaily for the olfeoce they might baye committed. [a support of these doc trines be found the English aguthoriies very full. They showed that the procees.og ayalnst magistrates was pot by indictment, but by information —a proceeding {bat obtaws there but pot bere: but the distitcuon im tbe mode of procedure showed the priucipie for which he contended. On these principles be med that oo any feible or view Of the case presented by ir. Wilkes, the care was one io which the great ends of public justice required that the Court, or tae Court covcurrently with the District Attorney, should quash the mdictment. filis learned friend (Mr. Mail) bed eaid that be (Mr. 00) woula discuss at large the question of the irreguiarimes before the Grand Jory, but there were many reasons bow which forvate him toco a0. it was a clear principle, Lowever, that the Grand Jury did not rightfatiy open their doors i « private comp)aint, unsanctioned We court or enintroduced by tre public prosecutor. It required @ special statute to enable aGravd Jury to administer oatbs to witnesses, Formerly witnesses had to be sworn in open court, so that the Court had cognizance of the matwr before the Grand Jury. This Grand Jury bed reosired a violeat ey ~ against the Clty Jodge, so vient that the coupeei for the privae proseoutor, when he came to read it, wae obliged to skip PCmMe portions of 1i, and to comfers tha: he wonld not have acvieed the os Ofsuch a paper, Bat the Graed Jory received it. ine Gid they receive! They re ceived the record of the Court showing that the prior Grand Jory bad had the matter befare them, aod dis iniesed the bill; but, nevertheless, without the sanction of the Court or public prosecutor, they reviaed the action of the prior Grand Jury and overruled |. He asked war DOs that a violeat, scandsious, iadefrpsibie j-rocreding oa the of the Grand Jury? He maintain. ea fl the Gracd Jury, as @ branch of tbe coart, shoula bave had io charge, either from the Court or public prosecutor, the matters on which they acted, and that they were oot & kind of investigating commite to go about apd snuft ont offences and. in the second place, he contended that to finda 4 jormer Grand Jury bad disaiesed it, Act aod violent tranegress: of their pe'pt on thet head was this:— of Agaivat the pudlic iaw is a itean only be dove in the name ression of like mischiefa the ition of an ingait to the ‘overeigt whoo inw hae heen trare. itis potatiowed Im. the name ot « private perro, Private person. [ft ie not alowed private re ve it secures no indemn)(y to the injured. party. Tr eecesearily folie: undoubted truths that all prove eutions are righifalty In the hans of the public nu ties, and entirely under 1 ance The pe injured by the different, relation to ihe er iminal proseen re wines, Was a gries, flags bine il persow medies are provided to redress the private wrong. is pot a recognized object of any legal proceeding, Ye Whittog bad sited how it prosecnted for a malicions wae that & man could be Prosecution if there were no Private aorwser. But that was altogether inconsequential, A man might originate and get on foot a malicious prose. cution, and be responsible for it, and yet not be a prose- cutor, fer the people of the State were the prosecutors. ‘The «uestion here, however, was whether men should be allowed in this community to take the law into their own bands and right what they to be their wrongs. ved that there wi the Gran: He that found the bil that had Jury that diemiened it, ¢: Wilkes, contaming impro: man wae the manager of there comdueting & series tone, for the amusement, of the public and for the advancement of his Mr. Wilkes, and Mr Darcie, bis agent, were citizens of New York. They bad an andoubted right lickets co to the theatre in aoubted right to hiss wi anything — or that But they must — hed suee' “ teeoly Te denied Wet ¢ ey a right to go there the predetermined intention of hissing. The auth were directly to the . The privilege tar cous, sue Wis wo es enereed without tion, or design. Bot bis admissions must etop there. Ile did net acmit that they bad a right to buy tickets against the faite and wapremedt with will of Mr UYmac, or thet * Bat be could got beve Mr. Uliman to selt th dene op with his business withom Pproveat them ‘rom market, 208 Fe ay” ta? BOHCE DO te a hag buy ticks pve them .' tile to "Tho Recorder—Would common ca. "er have arigh( to refuse to a treveller? om O'Danen- fo, oi, be would not; ad, Oe ott chavge order argument, an that poiot. Tang that : Mr. Wilkes committed a grave error in suppodag that he bimeel! or Mr: Dareto. bad fo abesiute right ‘0 virls a8 opere ‘without tbe consent and against the will of the manager, I Within cer'ain ie ane law allows Pl Sogaged ih certain sovuvelions’ For iosrasne, any clison my walk in the Park; every magistrate to furnish on request, copies of public cocuments ta his charge (Id Howard's U8. Ry 68) 80 also, a0 ts bound to take a suitors case: & cariman to take an off joad; ® hackney or couchman io carry 8 person apply- bri keeper or ferry master may 6 e saivD to a prarenger; ari, to give al'- Ivstration the most proximate to this os! bound to receive end entertain those guests, An unreasonable negieot or refusal to do 6) would tudject him to incictment, to 9 civii action and, of course, to withdrawal of big Lcense.—§ Caxpgnter'a cage. | Xeuth'e Wading caves, 62 sex ve. Ivins ieerngion & Payao, Tk. Felt va Wuignt “® Meson & Welsby. 216. 11, Yet, in zo one of thes, cases, can the private cttzen, bie own personal ect. compe! obedience to’ of maniamus complaint to uperiors in auth Pho action are bis omnes if Me rigese be rye pies case supposed, t 2, 200eea to & pul gate keeper way wara's particule individual that iil Bot be permitted, and such Indivisual must ave for one of the veal He may not rightfully take the 0. epee to ap ator: ‘pot ‘pubite, nor ia the public duty in any way impressed upon them It is devolved upon the ‘He governs them at his private pleasure, susject to respouubility. Here bir. Wilkes is manifestly wrong. He took the law into his own bands, apd gave notice to Mr. Utiman that he meant to ceme, that they would come where there would be aseembied the most refined and cultivated poo- pie ia the city, delicate females and youog children, av@ ‘that then they would get into an altercation with the doorkeeper, and make a disturbance which would affect his bestness, Consequently, without proceeding a step further. the incor- restorss of Mr Wilkes’ course ismate manifest But bis error 's far more striking, ‘impressive and palpable. in point of Jaw, then if he had forced bis way into a cau t of jusiion, © EMDUC park, @ lawyer's offlee, @ forry boat, a cokeh, of am 2 ‘There are many orovpations subjected by government te the restraint of s licemee system, wbteb are not el vith the duty of deating with all applicants, any atorney ts so; perhaps | anion | private property of the attorney cr the innkeeper, } | n a for the sake of the present aryument I concede Kt. ut Ap wind, edisr is no; neither ia on (Dicer ve. Hides, 1 Starkie’ gut bere be put." Is one bo tbe of intoxteatin; brandy to every spplieant nota leer sed buy Neenaed 10 keen a livery R.pU7) Many ober aa er a C-4 to suoply a glass and as often as dem od er Gevote himself to particular customers without fanitt In scme countries the prema is subjected to licepse bere Biale privter is a sort of offictsl generslly assume and, i doubt to that ‘Thentricals are not allowed without 2 Leense —(Paries’ Laws, p 813) & it bas beee Fepenied!s, cten, solemnly, ageim sod agein decioed that aon issicn to. theatre is pot « matter of right. No citizen cam ciain tt The ietor admits whom be cbeees, and be may refuse a¢m's Jo the most eminent and respectable citizen, ‘The mest exalted oficial persona! of professions! x ts not exempt from this kind of tneult, if it be one, For it ‘siforda no redress, muck less does tt concede ge of resenting it by torce, or Indirect! help tt bi f lous ‘aw are reason by pronounein; claimed (Clifford v. Brandon, ¥ Dube ot Brupswiok, 1 Car. & pk ™ care tp rote # to 1 0, & Kirwan, p. 30) aduubteciy is, ‘ist an ample remedy existe in the more] force of opinion as the power of society in its volunte- ry actior. mapager rel against pi Wowld outrage public sentiment, oiled bis patrons and raim his bus'oess Kut thie remedy would bess peaceful as tee seer semenien which are allowed for the enforcement of legal Tm giving private noticos to the parties that admtesion would rot be permitter, the manarer did all that law or duly re- quired or him. In forming a determination to procure Uckele, to insist upon Admission, snd ip giving notice of such deter- mination, Mr Wilkes vielsied a private right of the mazager, and made precively euch prel'mmnsry arrapgements enaing to the production of @ rict as experience would have som- mended to tke keenest intellect New, I mean to say that Judge Russell cid only bie duty. Any cfficial conservator of the peace, whose atten- liom wae called to the existing stato of facts where Mr. Wikes's threat was promulgated or when the attempt was wale toc xecute it, might rightfully tpterpose and pre- vent the impending breach of the pubiic peace by all such means a ¢ ip fact employed by Jucge Russell. deed, it was not only within bis power, bat was a duty which bad be neglected he might have been subjected te just impeachment. Mr. O'Conor proceeded to draw a comparison botweee the course of Judge Rasseti im this watter and thet the Mayor, who acted #0 pusiliantmously im | the Artor place rict-so pusilianimoustly thet fa- silly the Recorder of thai day hed to assume the respoosibiiny of ae military to fire. He bad never beard a respectabie citizen say that {ll wae tha part of the Recorder. If ali thie | Woe just so; if ever interior magistrates are not to calied ip questicn by indictment (or mere deviations the ‘ow, when acting in persuance of they deemed theirduty, shoul¢a superior ma- istrate, be aswed bearrainec by aman who had mistaken: igbte whose action tended toa breach of the peace, it being the duty of the magistrate to nip it in the bud? Shoulc a member of that in lawfulassembly be sosteal out the Grand Jury room | own errer astoa right which abo present the upparalielet and scandalous indies for riot and assault of the bighest Judges known in << kote tomate the principle was would refer to same Tutboriiee to p bo said, had indulged in complaint of the warrant. criticym, All the circumstances ‘Wilkes poivted to a probable breach was the ground of the complaint and reat. [le would leave the matter to the judumeat Honor, astistied that hia Honor wouid be conv’ Judge Buseeil did no more than bw duty, quash the indictments. Decision reserved. fis iit Hh Erte | a Fa a : z i __PERSOs, NY RESPROTARLE LADY NG TO ADOPT A bei male chi d, can bearof sack by calling at 24 vit st, Cire: oor, back’ reom. PFORY ATT WANTED—IN REGARD td THR me Ye certnin Anton or Otho Pri ‘A native ot Te, . Alenee, France. who served in the French ueder OWT CRLR, 21 Germen steve, Raltimore, Ma, NFORMATION WANTRD —THE PARTIES WHO AD- ea Soo u re wring to No.) Marke RB, WOOLY BAMU® Lonteriile Ky, time of ize expiniap, feo 1h tow at to ob alo any informeat five for', mx inehes bt wore moustache His nde wi f one wont commontea’e anght of him Aditress 21 Third avenue. Lowiaville pavere please copy ithe SPECIAL NOTICES A’ AN ELECTION FOR DIGEOTORS OF THER PENN. #y vapia Coal Compeny, eid in the vilinge of Hawley, Pewo.,on Tuovday, the tb Inst. the following gentiomem were elected directors for the ing yesr:—Jonn Ki Wa. BP. Grits, Tanag L. rae wm Palle Georg: W. Hoyt, Chas. Morgan, Thomes W. Pearsal , Joma’han Thoraa, Wm. F Havemeyer. Ata subsequent Sorting of Os Sree tors “obr fwen wae uramimouniy re elected President of company for the enawing year EDWIN H. MRAD, Secretary. en rp ne ondermened, & parents end friend of Babbath No 91, of tae Burcha: horeh. in Thir'eenth street, tebe io tencering to you this slight tribute of our your cow obliging, and BAF’ as ow the oeeasion of our Weil on Wed: , Fume Zh, com! common poms Le —O oreaaion, provided with everything necessary and con: an fxeursh Ro accident to ihe festivities of the any. Ghonok W, BEAU, € n of Committee of Arrangementa. New Yorn, June 25, 1888. mities, 1 the oply sotion the be to €0 operate with Chairman Fi Paker. iran’ y more, Luther Horton. tian B. Weodrft, John EMOMVAL.—IBAAO SMITH, BON & OO. HAVE RE thet 7 PeyfRaeet ME nc meee Sepals the TTudaon River ihe i cil a IPRCTAL _MASO! THR Ren Gea caterer abr eictiys tag haart ad receert wre ng reioveapreaher say ‘aaaa ee stan Figc. Wasa Recretary. order FIRE INSURANOR COMPANY, awa 070. by fre Ltn and rect M RORENBAUOH, Vonetdaw ya A offer’ Betty's al anv 5 'e teh all Sees eee ese ctetled poet cast othe ee “— DANFORD 1 BAILY, Proprtetors, Pbitsdeiy his, Pa,