Part 9 (1/2)
Mr. Davis lingers on the stair-case, and goes to his office, not knowing or caring, he would have us suppose, what had been the issue. Upon this evidence, it seems to me a clear case for holding the party over for further examination and trial.
_Wednesday, Feb. 26._ Upon the opening of the Court the Commissioner delivered his decision.
He commenced by stating the offence under the statute with which the defendant is charged, and stated that he should confine himself princ.i.p.ally to the question whether the defendant was aiding or abetting the person who had been arrested, and that the legal decisions upon the construction of the statute were merely for the purposes of this examination. The Commissioner then reviewed the evidence as to the expressions of the defendant in the court room, and stated that it had been proved that the defendant said the officers of the Court ought to have their throats cut. No notice was taken in the opinion of the evidence of Geo. W. Minns, Esq. The following extracts are made from the opinion of the Commissioner.
”The defendant has also volunteered the statement in this court, when called as a witness in the preceding examination, that he was glad the prisoner was free, and when further questioned, he left it unexplained whether that opinion also embraced the unlawful means that had been used.”
”These facts have a legal bearing upon the _animus_, the wilful intent with which any act may have been done, by the defendant to aid in the rescue; and I should fail in the duty of a magistrate at this time, and under all the circ.u.mstances surrounding this examination, to permit to pa.s.s unrebuked any manifestation of a resistance to or contempt of legal process, especially when coming from intelligent citizens and men in official positions, whose countenance or encouragement may have involved, and may again involve, the excitable and less informed in an open violation of law. At the same time there is a plain distinction as to the penal consequences, between a moral and a legal aiding or abetting; and holding throughout these examinations, as I trust I may be enabled to do, an impartial as well as a firm hand, care shall be taken not to confound an indiscretion or a moral perversion, or any mere expression of opinion, however gross, with a wilful act const.i.tuting legal guilt. I fully recognise the doctrine suggested in the defence, of the largest liberty within law, and also the right of the people to make or amend const.i.tutions and laws, by all const.i.tutional means or reserved powers.”
”But so far as the defendant is here proved to have done any act, there is no evidence which connects him criminally with a preconcerted plan of rescue; and I take pleasure in adding that the conduct of the defence by the learned counsel, and his testimony and disavowals, have greatly aided me in coming to that conclusion.” * * *
”Of this preliminary point of the evidence I do not find an aiding or abetting within the provisions of the statute. But, in connection with what immediately followed in the pa.s.sing of the defendant out at the door, the exclamation supposed by one witness to have come from him, his position and his hand upon the door, immediately followed by the rush of the rioters who surrounded it, and the absence of all evidence of attempt on the part of the defendant to prevent the rescue, it presented, on the part of the evidence for the prosecution, a strong case of probable cause, that made it the duty of the district attorney to bring the party to an examination. But in the view I take of a preliminary inquiry in this form, and especially where not only the evidence that would come before a grand jury, but the defence is gone into, testimony stronger than probable cause should appear, in order to hold the party to a trial.” * * *
”Then is that proof found in the acts of the defendant as he pa.s.sed out of the door, in themselves or in their connection with his preceding declarations and conduct?”
The Commissioner then reviewed the evidence of Mr. Byrnes, and come to the conclusion that taking it as it stands it does not satisfactorily prove that the defendant uttered the words ascribed to him. * * *
”The only other evidence refers to the manner the defendant went out of the door. Hutchins, who pa.s.sed him out, says that the defendant turned his back to the wall, the outer corner of the cas.e.m.e.nt, instead of going directly forward, and put his head on the outer door, and then it started and was forced open. This act, as it was exhibited to the Commissioner, by the witness, is not inconsistent with the explanation that it was the result of the rush and pressure without, and the force there applied to the door; and if the attack was unexpected by the defendant, his neglect to interpose resistance to the forcing of the door, or to aid the officers, which it was his duty to have done, and which, it has been urged by the district attorney for the prosecution, with much force in the argument, may have been caused from sudden surprise or agitation. And even if, as the previous and subsequent conduct of the defendant might lead to infer, was a wilful omission of duty, especially in a magistrate, yet, if unaccompanied by any act or expression, aiding in, or inciting to the rescue, and in the absence of a call from a proper officer for a.s.sistance, it is not the distinct offence charged in the complaint, or defined in the statute; and the party, if answerable, is so in another form and tribunal. It is further to be considered, as suggested by the counsel for the defence, that the decision in this hearing is not final, or in any legal form conclusive, and as the defendant has a permanent locality, leaves the inquiry open elsewhere, should this evidence or further proof require it. Upon the whole evidence, therefore, and applying the rule which should govern preliminary examinations, of not binding over a party accused, without testimony beyond that which might const.i.tute legal probable cause for his arrest and examination, I shall order that the defendant be discharged.”
The commissioner now addressed the defendant personally, and said--”Charles G. Davis, the court order you to be discharged, and go without day.”
Act of Congress of 1850.
AN ACT TO AMEND, AND SUPPLEMENTARY TO THE ACT, ENt.i.tLED ”AN ACT RESPECTING FUGITIVES FROM JUSTICE, AND PERSONS ESCAPING FROM THE SERVICE OF THEIR MASTERS,” APPROVED FEBRUARY 12, 1793.
_Be it enacted by the Senate and House of Representatives of the United States of America in Congress a.s.sembled_, That the persons who have been, or may hereafter be, appointed commissioners, in virtue of any act of Congress, by the circuit courts of the United States and who, in consequence of such appointment, are authorized to exercise the powers that any justice of the peace or other magistrate of any of the United States may exercise in respect to offenders for any crime or offence against the United States by arresting, imprisoning, or bailing the same under and by virtue of the thirty-third section of the act of the twenty-fourth of September, seventeen hundred and eighty-nine, ent.i.tled, ”An act to establish the judicial courts of the United States,” shall be, and are hereby authorized and required to exercise and discharge all the powers and duties conferred by this act.
SEC. 2. _And be it further enacted_, That the superior court of each organized territory of the United States shall have the same power to appoint commissioners to take acknowledgments of bail and affidavit, and to take depositions of witnesses in civil causes, which is now possessed by the circuit courts of the United States; and all commissioners who shall hereafter be appointed for such purposes by the superior court of any organized territory of the United States shall possess all the powers and exercise all the duties conferred by law upon the commissioners appointed by the circuit courts of the United States for similar purposes, and shall moreover exercise and discharge all the powers and duties conferred by this act.