Page:The Green Bag (1889–1914), Volume 04.pdf/353

caped from Kentucky, or the place it is alleged he have the respect of the citizen for and obedience owed the service. to the laws, we should be careful that our courts "9. That the fugitive is described by an alias of do not extend their criminal provisions beyond his Christian name. the cases provided for; and although it may seem "10. That the indictment does not show that the to us that there are other cases that ought to have defendant knew or had notice that Fisher was a been provided for, it is not the right of the court fugitive from labor.

to ingraft or interpolate into the law, by construc "11. That the escape after the arrest by Hutchin tion, such provisions as will cover such other cases son, is not sufficiently alleged. not provided for by its terms. I think the books "The importance of the questions, and the will be searched in vain to find a case, in criminal deep interest the subject proceedings, where the always and justly excites, courts have warrantably have induced me to listen stretched the law to cover patiently to the long and such an one as was not able arguments of learned within the letter of its counsel, both for the gov reading; but, on the con ernment and the defend trary, the courts have ant, and with an earnest often held that cases which were within the and sincere desire to ar letter of the law were rive at a proper and a not within its spirit, and legal conclusion. Believ therefore not punishable ing, as I do, in the clear by it, as in the oft-cited constitutionality of this law, the power and duty case where, by statute, it of Congress, under the was made highly penal then existing circum to ' let blood ' in the stances, to pass it, and street, and a surgeon was the duty of every citizen indicted for using his to obey it, and being will lancet and bleeding a man in the street, to ing and desirous that all rights under it shall be restore circulation, who had been stupefied by promptly and amply pro tected, and all crimes an injury. The judges created by it prosecuted, properly held that though the case was within the and all penalties and pun letter of the law, it was not ishments provided for in S. A. KINGMAN, it certainly and condignly within its spirit, and the inflicted; yet it is my accused was discharged. "There are two classes of persons authorized duty to see that the defendant is not put to the by this act to make the arrest : The owner, or his hazard, vexation, and expense of a trial on an im aginary case, or one that is not provided for by agent or attorney, appointed in a particular way, and to hinder and obstruct whom, in making it, or the law itself, nor in real cases within the law, un less he is charged according to the strict rules of to aid or assist the fugitive to escape from the custody of whom, is an indictable offence; but to criminal practice and pleading. "I feel, in my position, the full force of the aid or assist the fugitive arrested by, and in the charge and instructions given by Queen Elizabeth custody of, a guardian of infant owners, to escape to her newly appointed judges : ' That you take from such custody, is not an indictable offence, care and remember to judge as well for the subject however it may subject the party to a penalty in the civil action provided for by these acts. as my majesty.' So I am instructed by the con "But it was said in argument, that if this cus stitution, the laws, and my oath of office, to take care and remember that I judge as well for the tom should prevail, then infants, in their cradles, citizen as for the majesty of the law. If we would would be worse off than adults, — a condition we