r (& TE VOL. X. NO. 122. PHILADELPHIA, SATURDAY, NOVEMBER 20, 1869. DOUBLE SHEET THREE CENTS. i FIRST EDITION THE BROOKS CASE. .liiHtico at Hjnst! The Motion for a New Trial of Dougherty und - Marrow Overruled. THE S EN T E N C 13. Tach Gets a Fine of $1000 and an Imprisonment of Seven Years! T) la morning the Court of Quarter Sessions do inonstratcd, to the Borrow of the ruffians and to the gratification of the law-loving public, that there Is law for our protection, and that assassins cannot live In Pennsylvania outside of a penitentiary. About half-past nine o'clock this morning a strong guard of policemen file t down Fourth street, much to the bewilderment of the citizens who were hurrying to and fro in their business affairs, and next made their appearance about the avenues leading to the Court House and In every corner of the court-room, . preventing any access whatever to the prison-van and any undue rush Into court, and giving out to the friends of the would-be assassius or Mr. Brooks that any attempt at a rescue wonld be foiled. This unusual scene attracted large numbers of citizens of all professions to the Court, who had the satisfaction of seeing tho hired murderers, Hugh Marrow and Jos. Dougherty brought before the tribunal of Justice to receive that judgment which they so richly merited. Having reached the court-room, the prisoners were at once escorted to one of the ante chambers and there searched, to see if they carried any weapons con cealed about their persons, and were then seated in the dock. Messrs. Hansford and Cassldy, or counsel for the prisoners, being present, Judge Ludlow made bis appearance and proceeded to decide the motion for a new trial and pronounce Judgment, which was that each convict should pay a line or one thousand tiollars and undergo an Imprisonment in the Eastern Penitentiary of six years, eleven months, and twenty-three days. The decision of the Court was as follows : The prisoners having been convicted of an assault and battery, with intent to kill and murder, move the Court for a rule for a new trial. Fourteen rea sons have been filed in support of this motion, and as several of them involve Important principles, they will first be considered. First. It Is said the Judge who tried the cause erred "in allowing the Commonwealth to set aside jurors without aligning cause therefor." It is contended that the state has no such power in a case not capital. The consideration of the question involved in this reason has obliged us to examine the law relating to it very thoroughly, and aided as we have been by the elaborate and very learned arguments of the counsel on both Bides in the case, we have arrived at the conclusion now to be stated. - It cannot be doubted that at the common law the King might have challenged peremptorily, without Keeking cause, any number of jurors, and for this reason the Btatute 33 Ldw. I, St. 4., was enacted, which declared that "if they that sue for the King will challenge any of those Jurors, they shall assign for their challenge a cause." Hob. Dig. p. .'129. Since the passage or this statute, and to the pre sent day, it has been the practice in England to per mit the Crown to "stand aside" Jurors until the panel has been exhausted ; or, in oilier words, cause need not be shown until all the jurors have been called. 8 Hale, PI. Cr., 271 : 1 Hawd., PI. Cr., ch. 43, sect. 10; Koa. Crim. Ev., lsfts. Bluckstone, vol. 4, p. 853, says: "This privilege or peremptory chal . ienges, though granted to the prisoner, is denied to the king by the statute 33 Edw. I. St. 4, which en acts that the king shall challenge no jurors without assigning a cause certain, to bo tried and approved by the court. However, it is held that the king need not assign his cause or challenge till all the panel in roiie through, and unless there cannot be a full jury without the person so challenged ; and then, and not sooner, the kings counsel must show the cause, otherwise the juror shall be sworn." in Judge Sharswood's edition of Bluckstone I find a note by Christian, that the practice Is the same both in trials for mixdemeanarH and for capital offenses, for which principle he cites 3 Harg., st. 4, 519. An examination of this case proves that it fully supports the doctrine named in the note, for In the trial of Lord Grey aud others for a miadnieanr, iu I0h2, the Lord Chief apatite said: "If they chal lenge any person for the king they must show cause in due time, for I take the course to be that the king cannot challenge without cause, but he is nut bouml to kIuho hi eaiue presently l la otherwise In the case of another person. " The English statute being In force In Pennsylva nia, the law remained unchanged, until tne passage of the act of 29th March, 1813, i Sm. Lows, p. 03, -wherein it was declared, that the Commonwealth, "ex cept in cases of felony" might challenge no greater number than the defendant or defendants, and as by the act of April 4, 180!), In all criminal cases, ''wherein peremptory challenges have not heretofore been per mitted by law, the defendant or the defendants shall be allowed to challenge four persons peremptorily," the act or 1813 gave the Government four peremp tory challenges in misdemeanors. Doubtless when the act of 1813 was passed the legislators overlooked the fact that under the sta tute 33 Jfdw. I, the Commonwealth had no per emptory challenges; the act, therefore was to that extent unnecessary j though as to the right to chal lenge in misdemeanors, in one point of view, the law ' might have been useful aud necessary. Iu lhiti another act or Assembly was passed, and it is to be remarket! that this act is Identical with the law of 1813, and both are but repetitions of the Eng lish statute. Ch. J. Gibson, In Commonwealth vs. jolllffe, 1 Watts, 6H0, remarks that "the provision that in any case of felony the Commonwealth shall not challenge without cause, was repealed by the act or 134," this, however, is a mistake, or it may bo a misprint, as was remarked by Mr. Dwlght upon the argument, for If we read for "repealed" reunited, we will settle the difficulty. It is abundantly elear, from what has already been said, thai up to the passage or our penal code In lSito the Commonwealth, in felonies, had no right per emptorily to challenge any juror, the st atute of Edw. I having taken away that right, and our acts of Assembly simply re-enacted in terms tho English statute. The right te "set aside" Jurors being well settled in practice In England, the question or tho power or the Commonwealth never seems to have arisen in this State until 1S3S, when, in Commonwealth vs. JolliU'e, 7 Watts, 680, the Supreme Court expressed an opinion upon the subject. By the act or April 23, 188, arson was no longer a k capital offense. Sec. 10, Sm. Laws, 435, Jolllffe was indicted ror arson, and the Attorney-General claimed the right to "set aside" a Juror, without presently Assigning any cause, and this right was affirmed by the Court. It has been argued that Inasmuch as the crime of arson had been a capital offense, and the right to challenge twenty jurors had not been taken away by the act of Assembly, which changed the punish ment to imprisonment, in place of death, that there fore the court in Commonwealth vs. Jolllffe decided as it did. Doubtless this reason may have had weight. with tho Court, but in view of tne jitigusn practice, It can hardly be contended that this circumstance alone settled the controversy. As the case stands, it is a plain decision thai, at any rate in felonies, the Commonwealth can claim" this indulgence, and nothing less than a reversal of that decision by the ' . court which pronounced it will shako Its authority. Indeed, in warren vs. Commonweath, 1 Wr. 4ft, the Supreme Court, although the act of 1800 gave to the - Commonwealth rour peremptory challenges, refused to disturb the practice, saving that It "descended to its, like many other customs, from the country whence most or our laws and customs were derived, as is proved by Gibson c. J. In Jolllffe vs. Coiumou- I... T UTnlta " nliiii I .l.l.. ....... . notwithstanding the act or lsoo, the court atllrmed tlxi decision In a case not cauital. and a felonv in winch the point now under consideration was directly decided. We have nothing to do with the policy of the prac tice, and with the English statu to, acts of Assembly, and decisions before us, we can only say that we would have erred had we refused to penult the Jnrors to "stand asido," as requested by the District Attorney. The power is undoubtedly a great one, but as long as the prosecuting officers discharge their duties according to law, the citizen will not bo In danger. Any attempt upon tho part of the prososntlng offi cer to prostitute this power would Inevitably con Sign him to public contempt. It is right, in conclu sion, to say that I have been informed that tho prac tice of standing aside Jurors is well settled In the United States con its in this district. Second. The second reason assigned In support of this rule is as follows, viz. : "The Judge erred In refusing to allow the defendants to challenge Joseph Miller.'" Tho facts In relation to this branch of the cise are briefly these: Tins Jurv were called together into tho box, and the right of challenge was freely exercised either ror cause or peremptorily until the twelve were seated. At one time I intended to direct the Jury to be sworn as in homicide cases, but a moment's reflec tion determined me to direct the Jury to be sworn together, ns is our uniform practice in all caen not capital. I then gave notice to counsel as follows : Judge "Hwear the Jury, unless there are more challenges to makp." After a considerable delay I said to counsel, "What have you to say, gentlemen?" Mr. Cassldy (of counsel for prisoner) replied Nothing. 1 t.eu said, "The Court has directed the counsel to challenge, and therefore not availing themselves of the right, the Jury will be sworn." Mr. Mann (of counsel for prisoners) replied We claim the right to challenge until the juror comes to the book. After some converatlon between the Court aid counsel, I said, "I will not depart from the rule In all cuses below the grade of capital felonies ;I did con template having each juror sworn separately; they will, however, be Bworn together, according to our uniform practice, and I now say to the prisoner's counsel that they have a right to exhaust their chal lenges." Mr. Mann We claim the right to challenge until the jurors come to the book. After some delay, one or two of the jurors saying they were not Impartial, ami leaving the box, and others being called in their places, the whole twelve being in the box, the following took place: Judge I again sny to the counsel for the prisoners that if they have no challenges to make, the jury will be sworn according to our usual practice. A deliberate delay of several moments Mien took place, the counsel for the prisoners remaining mute, when I directed the Jury to be sworn. The Clerk or the Court then said : "Those who swear will rise and take the book." The oath was administered to six or seven or the jurors, when the Clerk said: "Those who aillrm will rise." At this point my recollection, supported by that of the District Attorney and several persons standing in the Court, differs from that or the counsel ror the prisoners. I believe the juror subsequently chal lenged was upon his reet when Mr. Mann challenged him. Affidavits of two jurors have been presented to us, but we can take no notice or them, for the reasons assigned by my brother Allison, in the very able opinion delivered In Commonwealth vs. Thompson, Pa. Hep., 217, und tho fact must remain established as reported by me to my colleagues. I regret the difference of opinion, and am very glad to say that, in the opinion of two of the judges, upon two other points, this decision does not rest entirely upon the facts as above stated upon this point. The practice in regard to challenges varies in dif ferent States of the t'nlon. In some of the States a juror is challenged as he comes to the book, and this -is believed to be the English practice; in others he may be challenged arter he has been sworn ; in some ror cause arising arter the oath has been adminis tered. With us, in this county, the practice has been as follows: In capital cases, where the jurors aro sworn separately, challenges may be mado at any time before the book has been tendered to the juror or the formula or affirmation has been commenced. In cases not capital, our uniform practice has been to swear or affirm the jurors together, and no case Is remembered In which tho right or challenge has either been claimed or allowed arter any or the Jurors have been sworn or atllrmed. Admitting the principles contended for by the counsel for the prisoners, and supported by a num ber of authorities, the Court is unanimously of the opinion that upon the facts, as reported, the chal lenge was too late. Two of us are of the opinion that, after the swear ing of the seven Jurors, the challoarre was too late. aud two of us are also of the opinion that, under the circumstances, the right oy reason or a mere caprice was fairly waived. Vpon these three grounds, therefore, the ruling at the trial Is sustained. Speaking for myself, I have no hesitation in saying, that after the deliberate and protracted delays which occurred it the trial, with the repeated Invitations to counsel Co exercise their right, tho case became one clearly within tho rule stated in uommonweaitn vs. Mci-auuen, n uarns, 17. wherein the Court say, "This power to challenge lor cause at uny time oeiore tne oatn is tendered might be abused. If the objection to a juror be kept back at the regular time, ror an improper reason, or from motives of mere caprice, It would bo just enough to declare the right wholly waived, and the discretionary power to do so ought not to be de nied." ir, as now stated, the counsel for the prisoners de sired to Keenre. the seven jurors who were iiist sworn, and thus by adopting an unusual practice, deprive the Commonwealth of her right to challenge either or them, the reason was an improper one ; aud ir no reason existed, then the challenge was a matter or mere caprice ; in either case the challenge was pro perly disregarded because it was waived, and of this opinion are two or the judges. Again, as under our practice, in raw nut capital, the whole twelve jurors arc In the box together, and are thus sworn or affirmed, the reason does not exist for the rule which permits eacn juror to oe cnauengeu as ne comes to the book, for as stated in Hartzel vs. Commonwealth. 4 Wr. 4(16, "the last man may be as readily challenged as tne nrsr," ana tne ngni oi tne prisoners is not to select but to reject. Twitchell's case, . Brewster's lie,). G01. It was too late, therefore, to challenge alter seven were sworn, and or this opinion are two or the iudges. U I I.jk'. not, almost in terms, Invited counsel to challenge any one or the twelve jurors In the box, and delayed tne trial ior inai purpose; n me juror, after having declared himself perfectly Impartial, upon a challenge for cause, had not been seated In the box lor some time, and thus presented himself as one or the twelve jurors about to try the cause, who could at any time have been challenged In a word, ir every reasonable opportusity had not been extended to the prisoners and their counsel to chal lenge any one ot the twelve, I should reel some In justice bad been done; but under all the circum stances ot the case, I think It would be trifling with the administration ol criminal justice to permit tills reason now to disturb tho verdict, especially as the course adopted by counsel at the trial upon this point was during the trial, aud con tinues to be to me, a mystery. Beside all this, the opinion or my brother Allison, In Commonwealth vs. Thompson, p. 210, applies to this case. He then said: "Courts are required to exercise great cau tion in the allowance or technical aud purely legal reasons for setting aside verdicts utter a trial fairly and fully had, and where, upon the review of the whole case, the conclusion is that, in sustaining the verdict, substantial Justice is done, aud that the ver dict is such a one as ought to have been rendered in view of all the facts proved upon the trial of the CHse." The fourth, fifth, and sixth reasons, as they relate to the admission of the testimony of Mayor Fox, will be considered together. Neil McLaughlin, a most Important witness for the Commonwealth, was called to the stand ; In a few moments It became evi dent that he was not a reliable witness, for Instead or testifying for tho Commonwealth, he proceeded to make a statement which not only did not impli cate the prisoners in the attempted assassination of Mr. HrooKB, but told most strongly against tho prose cution. At llrst he denied having Identified the pri soners or either of them at any timo as tho men who were at the store or in the carriage ; then he said he was "skeered" when he made the former statement, he then prevaricated, then he qualified his former statement, and did it in a way most damaging to the prosecutiou. Under these circumstances the Commonwealth called Mayor Fox aud offered to prove, that on pre vious occasions the witness had made, uniier oath, statements clearly Identifying the prisonsrs as the two men who had hired the carrlugo, and who, a few moments after 12 o'clock, got into it and werelrlveu over the streets to a certain point, when they left the carriage, together with other detailed statements made by McLaughlin to tho Mayor of the transac tions or the day on which Mr. Brooks was shot, and or the subsequent escape of the parties from the city, their places of sojourn in New York, and final "After some consideration, and an examination or authorities, 1 determined to admit the testimony ; .,,t o ti,o dm. nr diiiiiir so I said to the jury that the evidence about to bo admitted was not to be con sidered as testimony proving the ract speoltiod In the statement made to the Mayor, but was admitted simply to show that the Commonwealth was not bound by anything McLaughlin had said, and to that exu.Mii ins credibility woum, ui wuiki, ho nuueu. It Is suid that an error was thus committed. ftt'rhn (mention thim undented for consideration 18 oneol great difficulty, and is, moreover, one about which me most uisunguisneu jimo to umcicu. Tn England the weight of authority was against the admission of such evidence, and so 1 stated at the trla , though in one cane, Oldroyd's Russell jyon, ring, y r. p, ws, me judge at nisi prins ad mitted the evidence, and his course was sanctioned by the twelve judges on appeal. The manircst Impropriety or the rule, it is sup posed, led to the passage or the Sec. 22, Common Law Procedure act, wherein it is declared that "a party producing a witness shall not be alio cd to impeach his credit by general evidence or bad character, but he may, in cash the witness shall, In tho opinion or the Judge, prove 'adverse,' that Is, 'hostile,' as contradistinguished from being merely unfavorable, contradict him by other evidence, or by leave of the Judge prove that he has made an other statement inconsistent with his present testi mony," but his attention must first be called to the circumstances under which he made the supposed statement, so as to designate time anil place, and he must also be asked If he made lt 2 Taylor on Ev. 1212, 4th Ed. 64, Sec. 1282. Stearns vs. ilk., 8 P. F. Smith, 403. In the United States tho authorities produced on the argument by counsel prove that at least there are as many decisions one way as tho other, while Greenleaf, in his work upon evidence, vol. 1, sec. 444, declares the weight of authority to be in favor of the admission of the evidence. In this condition of things, I determined to adhere to the weight of authority in my own State, espe cially as reason and the due administration of Jus tice sustained and sanctioned the principles acted upon by the courts. In Steams vs. Merchants' Bank. 8 P. F. Smith, 490, our Supreme Court examined the subject, and in the learned opinions ot Judges Read and Thomp son we have a clear exposition 6r the law and review or the authorities. By a careful examination of the decisions cited In these two opinions, it will, wo think, clearly appear that the weight of authority Is In favor, in Pennsvl vanla, of the admission of this evidence; ami even In the cases in which with us different opinions are apparently announced it will be discovered that they do not conillct with the point decided In this case. But it maybe contended that Stearns vs. Mer chants' Bank is Itself an authority against the very opinion now stated by the Court. This may be true 11 the svllabus of the case is alone to be depended upon ; but as this Is not the case, we will briefly state what was, In fact, decided. In this case, the defendants first took out a com mission to take the deposition or two witnesses; then the plaintiffs took out a commission, In which the defendants joined ; the same witnesses were ex amined, depositions again taken, and these showed that the witnesses were totally mistaken In their former depositions. In this state of the testimony, the defendants en tered another rule for a commission; nothing was done under It, but an attorney for the defendants, without notice to plaintiff, went to Cleveland, had an ex farte private conversation with the witness, and then the gentleman is offered to prove the con versation of the witness, to impeach and destroy his former testimony. The Court say (and this Is the only point decided in the case): "This is a very striking proposition, evincing an entire disregard of the rights or the op posite party, and a saeriilce or the witness without ins having the slightest opportunity to toll the real truth under oath, it is substituting a private con versation with counsel ror an open examination by a tribunal or by its duly appointed officer." In this decision the whole Court agreed. It is one which undoubtedly commends itseir to tho profession as being eminently just and proper; and yet In this very case, the present Chler Justice wrote a powerful con curring opinion discussing the whole subject, and proving beyond a doubt, we think, what the law of Pennsylvania not only was, but had been. Justice Agnew concurred in this opinion the other judges simply decided the case before them. We see nothing in Stearns vs. Bank to shake the correctness of my ruling, but much to strengthen It, and there fore upon authority In Pennsylvania we see no error In the admission of this testimony. Upon principle, we wonder how any court could adopt a different rule from that acted upon at the trial. McLaughlin was not only an Important witness, but the Commonwealth, having examined him be lore the Grand Jury, were fairly bound and driven to call him. Hail the DlHtrict Attorney neglected to do so, serious injury would have befallen the Com monwealth's case. The witness is called, and proves not only to be a hostile one, but we think artfully so; he not only did damage, but did It iu the Most efficient style. Sad, Indeed, would be the condition of the Com monwealth If she could not prove the true Btate of the caBe, not as evidence of facts, but to show that she is not to be bound by the present statements or the witness. To hold any doctrine which would thus paralyze the arm or criminal Justice would be monstrous, and we will not do so unless commanded oy a legisla tive enactment, or by a direct decision or our Su preme Court upon the very point. , No injustice has been done to the prisoners, tor I not only told the jurv that the statement or Mayor Fox was not proor or the tacts contained in it. but in my charge said, expressly and pointedly, to them, "or the testimony of Neill McLaughlin 1 will dispose at once. If the jury believe his statement delivered on the witnesB-stand, you will tit once arrive at the con clusion that the prisoners aro not the men who did this deed. The Commonwealth have, however, offered in evidence the statements which this wit ness made before the Mayor; these statements are not evidence of the facts contained in them, and were only admitted to show that the Commonwealth should not be bound by the evidence of McLaughlin, aud to this extent Ills credibility would of course be shaken, If you believe he made these statements to tho Mayor." The last important renson assigned ror tho motion ror a rule for a new trial, is that the verdict was re ceived on Sunday. It is an undoubted fact that in very eirly times tho entire year was by Christians considered one con tinued term for the trial or onuses, and the purpose was to distinguish Christian magistrates from hea thens, and as these last were extremely anxious to celebrate days and seasons, the Christian went to the other extreme, and held courts upon all days alike, even upou Sunday. Lord Madstiuid, in Swaun vs. Broome, 3 Burr, 1505. gives another reason why the ancient Christians always kept their courts open on all days alike; it was because by keeping the conns always or en unnsuuu minors were not;olllged to resort to heathen courts, A canon was adopted In 617 providing: "Qnod nullus episcopus vel infra positus die domtnico causas judiciare priesumat." This was followed by other canons, fortilied, says Lord Manslleld, by Thedoslus, in an imperial constitution, decreed by the Emperors Carolua and Ludovicus, adopted by the Saxon Kings, and finally continued by William the Conqueror and Henry the Second, and thus be came part of the common law or England, ami as such a part or the common law or Pennsylvania. See 3 Burr, 15&; 8 Cowen, 28. Lorn Coke, in 1 Inst. 354, declares that at com mon law there be di'H juridici and (Hen nan iuridici, and that the Sabbath day Is not a judicial dav. ' The -construction put upon the ancient canon or 517 never included ministerial acts, and therefore the statute or 21) Charles 11, c. 7, was passed, which prohibited the serving or executing or any "writ, precept, warrant, order, judgment, or decree, ex cept in treason, relony, and breach or the peace," aud our act of 1705 simply re-enacts tha English statute. That statute had received a judicial construction in Muckalley s case, Co., where It was resolved, "That no Judicial act ought to be done on that day ; but ministerial acts may be lawfully executed on Sunday." , I have been Informed that In Pennsylvania courts In the ancient days were held open on Sunday, and it is abundantly clear thut for tho purpose of per forming vrim'steHiil acts, such as receiving a ver dict, the power has never been doubted, lleiide koper vs. Cotton, 3 Watts, B0; Kepner vs. Keefcr, 8 Id. 231 ; Fox vs. Mcnsch, 8 W. and S., 444. We also rerer to an aWe opinion tiled by Lewis, J afterwards Chief Justice, in a homicide case tried in Lancaster county (Earl's case), aud reported in Lewis' Criminal Law, p.821; and also to tho very able, learned, and exhaustive concurring opinion of Mr. Justice Head, in Sparhawk vs. Union Passenger H. It- Co., 4 P. V. Smith, pp. 439-40. In Eaton's case wo took the verdict npon Snnduv. Having thus disposed or tho important reasons as signed for a rule for a new trial, wo can readily dis pose of the remainder. We see no error In tho admission or the evidence specified in the eighth and ninth reasons; the ciurt did not suspend the trial to procure the attendance of Mayor Fox, though the District Attorney re quested us so to do, but went on with the examina tion of the witness upon the stand. The Judge specially called the attention of the jury to the testimony specified by counsel, aud although an officer was directed by the Court to in quire whether the Jury had agreed, yet they came into Court of their own motion ; as they took their seaU I Bald, "I sent an officer of the Court to Inquire whether you were likely to agree or not, but did not Intend to hurry you. "1 desire that all the Jurors shall have the rullest and most ample time to weigh the evidence aud consider their verdict; and ir any Juror thinks that he has not had such time, I desire that he should speak, and time shall be accorded him" After a reasonable delay, I said, "Well, gentlemen, what have you to say ?" . Whereupon the jury intimated that they had agreed. With the law as stated by the Court no lawyer can. as tho counsel in this case have not, contend, and with the verdict or the Jurv, 1 am constrained to sav, no fault can be found. A careful and anxious ex amination of the evidence has satisfied the Court of the guilt of these prisoners; It would be most plea sant to discover, for the sake of these young men, that the Jury had been mistaken; that they (the prisoners), at least, had not been guilty of a most serious crime. Our duty, however, requires us to declare that the verdict Is a TTiost Just and righteous one, and that, beyond a reasonable doubt, the prisoners are in deed and in fact guilty in man ner and rorm as they stand indicted. As this motion was heard by myself alone, I thought It but Just to the prisoners to submit every reason assigned in support of the motion and tho arguments of counsel to my colleagues. This case has, therefore, received a protracted and very care ful consideration by tho whole Court, and I am au thorized to say that wo all concur In the conclusion stated in this opinion. The motion for a rule for a new trial Is overruled. The sentence announced above was then imposed by the court, after which the prisoners were re moved to the Penitentiary under guard of the police, the van being followed by an ambulance containing Chief Mulholland and a squad of o Mice, to provide against any attempt at escape or rescue. Court of Common riena Judge Iudlow. In the matter of the Twelfth and Sixteenth Sts. Pas senger Hallway Company, the Court this morning refused to grant the mandamus compelling them to lay the Nicolson pavement, but enjoined them not to lay any pavement which had not the cubical stones. In making this decision Judge Ludlow said: That the Legislature have unmialliled constitu tional power "to take possession or the streets of an Incorporated city, and appropriate them to the pur pose of a railroad, eiUier directly or through a com pany created for Hie purpose," has been so often settled, that the question is no longer an open one. See CUy vs. Empire H. li. Co , Legal Intelligencer, July 2, 169. The charter or this company is therefore the law or the case, though its provisions are to be strictly construed. The city, howevnr, has Its clearly defined rights, and where these are exercised in subordination to the expressed will of the Legislature, and otherwise according to settled law, these rights must be en forced. Ordinances must, however, not conflict with any constitutional law upon the statute books, and they must not be unreasonable. The Legislature, by the act of April 11, 1808, de clared that "the city shall have no power to regulate passenger railway companies, uuless authorized so to do by the laws of this Commonwealth, expressly, In terms relating to passenger railway companies in the city or 1'hiladelphU; Provided that nothing con tained In this act shall be construed to release tho said companies from keeping in good repair the streets on which their rails are laid and from paying to the city the additlonnl cost of construction sewers." Here Is an act which directly conflicts with the power claimed by Councils in the ordlnnnce of 18tiit, and when, in this instauce, we look at the peculiar provisions of this char.'cr, under which defendants exercise their rights, we cannot doubt that in this case the right of the city to enforce the ordinance or Oct 21, 1809, has been taken away, tor not "until the railways shall be laid and used by running passenger cars thereon," shall "the said company be subject to the ordinances or the city or Philadelphia regulating the running of passenger railway ears," and this company may lay their railway "without the con sent of the City councils of Philadelphia." "WHISKY. In Philadelphia the Norton! of America? To the Editor of Ths Hcening Telegraph. Philadelphia has achieved such an enen viable notoiiety lately by reason of Its whisky frauds, and as our exchanges take such particular delight In reading us moral essays on the subject, that we have been led seriously to ask the question at the head of our article. We confess that we have read with a pardonable sort of satisfaction the whole pages of criminal calendar that adorn the pages of our New York ami Western contemporaries, and we religiously be lieved that if history should repeat itseir, certainly Philadelphia would not be selected us the modern Sodom. Many frauds and crimes can be laid at tho door or whisky, but we are not one or those who be lieve that the Infernal deity who presides over illicit distillation has his sole headquarters In Philadelphia. Offenses against the law always exist in proportion to the depravity of public morals, ami if this be true and who can doubt It? we are undoubtedly not the llrst on the list of cities. Our observation has brought us to believe that the many cases of newspaper report concerning whisky men have mainly been the result or technical viola tions, which the many and conflicting character or the regulations on the subject render It Impossible to avoid ; and that Philadelphia has been selected as the scapegoat or the country while the dttes or the West are passed unnoticed. We will not stop to in quire why this is so, we only know that it Is the ract. Frauds do not con line themselves to whisky, but are. general. ff the amount realized by the Government from whisky forfeitures is any evidence of the extent or its frauds, it certainly speaks bad for the great uuss of other taxpayers. Since the inception of the excise law 'he Treasury has realized from lis investigation i income re turns live times, aud from manufacturers' returns (other than whisky) tifty times the amount it has from whisky forfeitures, und we chullenge denial of our statement It may be asked, that if the frauds on distilled spirits are as one to live against Incomes, and one to tifty against other manufacturing lute rests, how is it that the public has never been made acquainted with the facts? Tne reasons are, that while special revenue officials are appointed at large salaries and enormous perquisites iu shape or moie ties, to take charge oi whisky, our local officers at tend to the other, with the results stated. While our home officials are actuated by a desire to faithfully enforce the law, their actions are not biased by a greed for a share of the penalties. If a taxpayer, other than a whisky man, is suspected, a careful and private examination is make, and If an understate ment exists the tax is promptly assessed and col lected, andtnat without needless expense ami litiga tion. Be It a distiller or liquor dealer, on the flim siest ol excuses his place is seized, the conspirators trusting that the possession of his business accounts will give them sufficient data to make up a case. If they fail iu this, they then prefer criminal charges against the unfortunate wretch, to drive him either to confess judgment, or to compromise with the Gov ernment by the puyment of a sum of money. The charge is then abandoned, und the mercenary detec tive claims and receives one-half. This Is no Idle llc t ion, as many a reader or this will testify, or the many arrests made, consequent upou whisky sei zures, how many have been tried? This crusade is not conducted against open viola tors of the law, of whom we will speak hereafter, but aguinst the licensed grain distillers ami esta blished dealers who have capitul at stake aud can afford to pay. Is the revenue benefitted by a whisky detective force? We feel safe Iu asserting tliat tho money realized by the Government solely through tho agency of this class of detectives has not paid for their salaries. In the Fifth Collection District, around the Rich mond coal wharves, Is really where the whisky can cer Is located. Frauds are there committed in open defiance of law, and without an attempt at conceal ment. Molasses is the material used, being easier bundled, and requiring uo great outlay of moiiev. Local officers wink at the matter, and detectives aid and abet it Why? Hacauso there is no nroney In it, and whero thero are no moieties there are ;no de tectives. But why do detectives abet it? Ah! hereby hangs a tale. The ltiehmond contrabandist, utter supplying local wants, starts for business cen tres to peddle his surplus. This is the opportunity Mr. Detective has been waiting for. He seizes the whisky, of course? Not a bit of It. He follows the wagon it is in until It stops opposite some responsi ble dealer's store, when presto! the sturo is seized. How long, oh ! Lord, how long ? , Philadelphia, November 20, 1809. Vlruiubi ruuite (join West. The schooner Lucy D Captain Higgins, will leave this port to-morrow witlr!a J argo of b) tons or Vir ginia granite, shipped by tho Hichmond Granite Company ror New Orleans. It will be shipped thence to St. Louis, and will be used tn the construction or theramous suspension bridge crossing the Missis sippi at that point. We have hitherto chronicled the uso or tills graulte Kast and North, where it Is regarded as the best for many purposes. There is reason to believe that it will soon bo equally in de mand at the West. Jliehinond jJinpatch. monk fliiotRtlonn by Telegraph I P. M.1M Gleudiunlug, Davis Co. rvport through their New XOm UUUOO mo . ... . t v fi,mt.rA.l U. ti' v .1 Krln It BSU io; i senium union j ee. Bo'; OQLt-lTnl anil Wuli 1 l lw Ph. and Rea. K. T Mich. S. and N. Lit.. 89 Cle. and Pitt. R. ... . 82 Chi. and N. W. com.. Tltf Chi. and N.W.ptef.. 8rt Chi. and H. LB. KW Pitt, Ft. Way. 4 Ch. t&X PaolfloM.8 t . ..... w. D3!g Mil. and St. Paul It o W Mil. and St, Paul pf.. 8UJ miauls fbjfcpauoo. . . ,, , On Wells, Fargo. United Stales fi'i Gold i2tl; Market steady, SECOND EDITION LATEST SIT TELEGRAPH. The Stonewall Disaster Captain Wash ington Censured Grain Trans portation in the West A Heavy Libel Suit Eflects of the Great Storm. The Falling Building Accident in St. Louis Army Resignations Ver dict for $5000 Against a Railway Company. FROM TJ1E WEST. The Stonewall Dinnnlcr Cnptnln Wnihhiaton Consured. Despatch to The Evening Telegraph. St. Louis, Nov. 20 Tho committee of mcr- clinnts. appointed to investigate tho conduct ot Captain Washington in passing; tbo wreck of tho steamer Stonewall without rendering aid, re ported as follows: Your committee, appointed at the request of Captain Washington to investi gate his conduct, as Master of Submarine No. 13, in passing the burning steamer Stonewall, beg leave to submit the following report: We have examined all the witnesses at our command, also the affidavits of persous living near the scene of the disaster, and, after care fully weighing tho evidence, we think that Cap tain Washington committed a grave error, not characteristic of our Western steamboat men under similar circumstances, in failing to lend his boat, as he could undoubtedly have rendered great assistance in the matter to those in the water nnd others who had succeeded in getting ashore. (iraln Trnnnnnrtntlon. The President of the Merchants' Exchange has received a letter from tho agents of the Hamburg Company at New Orleans, relating to the business of forwarding grain by steamers. They state that the present undesirable condition of the bar will prevent them front making en gagements for large quantities on account of the considerable draft of water of these steamers with a heavy cargo at present. They state that ample cargoes are offered in cotton, which pay better, and the Hamburg steamers have no com partments to carry grain in bulk. A Ileavv Mbel Hftir. Judge Wolf, of the Court of Criminal Correc tion, has sued the St. Louis Time for $25,000 for an alleged libellous article charging him with partiality and Incompetency. A Fntal Altercation. John S. Turner, of Glasgow, Mo., a large stock raiser, had an altercation" with a deck hand on the steamer Nile this morning. The man struck him with n mallet, iuilicting pro bably a fatal Injury. The FallinK itulldlng Accident In Ht. I,oul. By tho accident to the new building at the corner of Fifth and Olive streets, some ix laborers lost their lives, being buried in the ruins. FROM WASHINGTON. A .Indue Ailvocme a l'lil!ndc!ili!an. Special Denpatvh to The Keening 1'elegrapk. Washington, Nov. 20. Major Henry Good fellow, U. S. A., is aunounced as having entered on his duties as Judge Advocate of the Depart ment of the South. Major Goodfellow is a na tive of Philadelphia, an attorney-at-law of the courts of that city, and entered tho army ns Second Lieutenant, 2(lth Regiment Pennsylva nia Volunteers, U. S. A., on April 15, 18'lt. He was formerly a clerk in the L'nited States Dis trict Court of Philadelphia, and served with Dr. Kane in his celebrated Arctic Expedition. Army UeslKiinttonn Accepted. Second Lieutenant Samuel Purdy, Jr., 14th In fantry, U. 8. A., has resigned, with pay to February 1, 18T0. Sec.md Lieutenant Samuel It. Crumbaugh, 2d Infantry, U.'S. A., has re signed, with pay to January 1, ISi'O. First Lieu tenant William W. Tompkins, 3d Artillery, I'. S. A., has resigned, with pay to April 21, 1870. Captain Abraham Bassford, Slli Cavalry, I'. 8. A., has resignsd, with pay to November 9, 180. Second Lieutenant William II. Sloane, 1 2th Ia fauttg', U. S. A., has resigned, with pay to No vember !i0, 18(50. FROM BALTIMORE. Joiich' Fall IllMen. Special Despatch to The Eeening Telegraph. Bai.timoke, Nov. 20. Rain fell iu torrents nearly all last night, and Jones' Falls and oilier streams arc considerably swollcu. The Bremen Steamer. The steamer Ohio, of the Bremen line, is now reported coming up the bay. Verdict AKulimt u. Itailwny Coinpaur. In the Court of Common Picas yesterday Mar garet Trainer and her children got 5000 damages against the Baltimore aud Ohio Railroad Com pany for killing her husband. Juries now seem determined to make examples In nil such easss, but the Impression is they are going too far in sonic recent instances. FROM JVEW YORK. - The Storm nnd the Telegraph Wires. Den-patch to The Keening Telegraph. Nuw York, Nov. 20 The heavy gale of last night has interrupted communication with tho cables F.ast, aud no European advices have yet been received. Despatches will probably come to baud before night. The European steamer City of Loudon sails to-day, but takes no specie. New York Money and stock Markets. Nkw York, Nov. so stocks steady. Money 6 7 per cent. Gold, 12iiJ. Five twenties, 18S2, coupon, 115M; do. 1SU4, do., 113 ;; do. 18fl&, do., 113?,: do. do., new, lie.': do. 1807, lie,'; do. iscs, lis?; ; Ten-forties, 107: Virginia sixes, new Ty. Missouri sixes, 92; Canton Company, 63; Uimberland preferred, 2x; New York Central, VSi Erie, s ; Heading, T?,'; Hudson Kiver, Michigan Central, ll;i'; Michigan Southern, S; Illinois Central, 13; Cleveland and Pittsburg, 82'rj Chi cago and Hock Island, 103; Pittsburg and Fort Wayne, ti ; Western Union Telegraph, 80.V. i'OUSTEBFETiyO, Seizure of Counterfeit Money-Arrest of Bet uard Curruna. On Wednesday evcuing, lath instant, p. s. Mar. Hlial John Dunn and Oillcer Olmstead, or the City Police, arrested Bernard Currans, a man who keeps a drinking Baioon on Orango street, between Fourth and Filth btreets, on a charge ot pausing counterfeit postal currency. At the time of making the arrest they searched the premises, and in a large drawer back of the bar they found, wrapped up In a news-, paper, covered up by about tw dozen eggs, a pack age or twenty-nine counterfeit twowty-flvt cent notes, os new and as crisp as though just made. Currans claims that he has taken theso notes at sundry times In change. He has certainly passed them at sundry times. He passed three on throe dillorent butchers, three on Nlieritr Itlchardson In settling costs In an lndlotraent against him ror the illegal siUo of liquor, and one on a huckster woman in Market street. He may have passed others, but these arc nil the ofllcers have vet heard of. V. S. Commissioner Harman held him to ball In the sum of sooo, In default of which he was com mitted, and Is now In the city cells. irioutnfin 0'iMttirefa7, Xov. 19. riAi nciAnni'iti Pnrtfcnlnrs ot his Kurape from the Urre town .loll- Prrpnrnllonnln Advance A Hoop. Mklrt IMaya an Important I'art-Deoerllon of lila Confederate. The Wilmington Commercial of last evonlng has the following : From Hherltr Layton, af Sussex county, we get ad ditional particulars of the escape of Goldstmrough from Georgetown Jail, on bunday night, 14th Inst, i The preliminary work had evidently been dono by other prisoners before and during court, three men discharged at the last court, and a colored man named Lingo, convicted, participating. These prisoners not being indicted lor capital offense were not confined to their cells, but had access to the prison yard, aud to tho common entry, or corridor, or the prison. There was a small closet opening out or this entry, and extending under the stairway which leads to the second story. Some of them en tered this and took up part of the Moor so as to get access to the space between the prison floor anil the ground, and then, taking advantage of such oppor tunities as from time to time presented themselves, they got underneath the building and secretly prose cuted their work which resulted in the removal of all but one tier or bricks from the outside wall, and also the dividing wall through which Goldsbovough escaped from Ins cell to the space beneath the prison. This left but one tier of bricks In eaeh wall for the prisoner to remove, and his task, aftw get ting free from his Irons, was a comparatively easy one. All these preparations, made before the Court and during its Besslon, wore part or a goucral plan ror the escape or all who might he convicted. Goldsborotigh. it seems, did not expect to bo con victed, and so made no attempt to escape before his trial. He appeared surprised at his conviction, and much cast down, but he told Lingo, the re maining prisoner, that that jail could uot hold him. and he Intended to get away. Lingo made the final pieparations, ami Tie was to escape with the murderer, the latter promising to give hlra 1100 after they should get out. All that Golds borough now required to secure his escape was to get rid of his leg-iron. To do this he got Lingo to make him a suw out of a knife, but the bolt proving harder than the knife, this experiment failed. He then told Lingo where he could find an old hoopsklrt, and directed htm to get It and make saws of the steel. Lingo found the skirt and made him eight little saws, seven or which were round after his escape concealed aiKiut the stove in his cell. Whether lie sawed oil' tho bolt with the other or not Is a question no one but himself can decide, but Sheriff Lay ton believes some one scaled the wall aud gave huh a more et'lcicnt Instrument. The surmise that the instrument used was conveyed to him In a can of preserves is incorrect, as he left the can la his cell unopened. The (SheriT showed us the bolt, and it was apparently over half an Inch thick and very smoothly cut oil'. The suspicion that he was furnished with a saw by an outside party is rounded on the breakage of the water pipe and other evidences that the high wall around the prison yard hat! been scaled. In addition to the carriage which tho tracks show to have been in waiting, it Is evident that ahorse was also awaiting the prisoner's escape, and it is now believed that he went oil on the latter. Golds borough told Lingo that his brother, at his last visit, gave him a roll of notes as he shook hands on bid ding him good-bye. Alter all the Important assist ance that his colored tellow-prlsoner afforded him, Goldsborotigh gave him the slip, probably to avoid the payment of the $lt0 promised him ror his services. a. iiaii vu m.j. mw wiiAiimuBvut Omci or th itvzKiNd Tkucorafh,! 1 Sat urday, Nov. iXI. U6!i. ( The local Money market of the current week closes active and strong, with all the features indicative or a "tringent and unsettled reeling, liorrowers who may not have provided tor their wants earlvinttio tall are entirely ut the mercy of the "money changers," and the effete usurv laws are "a dead letter," falling to afford the slightest protection, though enacted expressly for the contingencies now upon us. A large umoiint of unexceptionable paper is being daily hawked about the streets, and though there is apparently more disposition to buy than heretofore, the rate current are so usurious that time contracts are almost synonymous with financial ruin. Call loans continue easy at 6.S 7 per ceut., but dis counts range between 12 and 20 per cent. Gold Is quiet ami weak, opening at 120. Pre mium at noon VJtt In Government bonds there are not sales suttl- lUlll' W 11A (l4,M(ftllU113( 111 C VT 1 Ul Ik bllO lUar- ket is reported strong. There was considerable activity in the Stock market this morning, and prices generally had an upward tendency. Pennsylvania 6s, tlrst scries, sold at 102X. City Us were llrni, with sales of the new issues at 101 There was a lively speculative demand for Read ing Itallroad, and prices advanced 14. selling at 48;; d.49 b. o. ; Philadelphia and Erie Itailroad improved selling at 2n-,2S'f ; Little Schuylkill Itallroad t hanged hands at 42, and Pennsylvania Railroad at ev, ; :uv, was bid for Catawlssu preferred, and 119; j for Camden and Amboy. Canal shares were quiet, with sales of Lehigh Navigation at til. In Coal. Bank, and Passenger Railway shares no sales were reported. v:$ was ottered for Sejoud and Thud ; Go for West Philadelphia, and 12 for Hes tonvllle. PHILADELPHIA STOCK EXCHANGE SALES. Reported by De Haven Bro.. No. 40 8. Third street. FIRST BOARD. 11500 Pa6s, 1 ser.ls. loo sh Read R....C.4S.94 S5....102'. 100 do 4S-9J 11200 City 68.New.ls.ini 4 Too do. is. 48, 11500 Leh Con 1.... SO : 100 do.......c. 48?i 2 sh Cam A. Sc.. 03',' lot do 830. 48?i 40shLeh JN ISt j 100 do SCO. 48 2shPenna R.... bh r,oo do.s30wn.ls. 4S?i lit do Hi-, Ho do..s00wn. 48'i ar Bh T.ltSch R..U. 42 i 400 do... .1R.4N-04 K'4BhLellV R. .Is. 53'C; H)o do..stiOwn. 48 SllOBllRcad K...IS.4VS1 1'0 do Is. 4894 200 do. .SGOwiUs. 4S',' liw) do blO. 48-94 100 do 4-S'V 200 do. 18. 48-94 200 do b30. 4'J i 100 do S30. 48J 300 . do Is. 4V 200 do 1S.S5. 4s;f Nark & Ladnek, Bankers, report this morning's Gold quotations as follows : 10-00 A. 11 120'i lfll A. M 12)tf 10-15 ' .120 , 11-20 " 12tf V 10-1 " 120.': U-30 " 120 kT 10-4.1 " 12G;, 11-40 " V.. ..126'; WBBSK8. DB IlAVHN A BROTHER, 40 NO. fUThlra Street, Philadelphia, report the following quotations: U.HOSOf 1881, 117,'iwUH1.'; do. 1862,115.(411V; do. 1804,113 V U3". ; do.l9tl3, 113 V3H4; 'do. ISM, new, llB'iHO','; do.1667, do. 110'c4llo,'i ; do. 1868, do., 11674n0', j 10-408, 107 J.,'108; U. 8. 80 year 6 per cent. Currency, W.'talos; Due Corap. InU Notes, 19 ; Gold, 120 -4(120.; ; Sliver, 124125;. Jay Cooke a Co. quote Government securities aa follows: U. b. 6S Of 181, 11S118V; 6-208 Of 1862, 115illfiV, do., 1S64, H3J'(1l3:ij;i da, 1665, 113;4 114',; do., 1 July, lsas, lloM', ; do. da. 1867, iw,,iiu!.. ; do., isi, litiujitu', : 10-408, I07;i lOS.'j ; Cur.' 03, 107.'rfloS'4 j Gold, 120,','. I'hilartclplila Trade ltfOrt. Satukdav, Nov. so. The Flour market la ex ceedingly quiet, and In the absence of any demand for shipment, only a few hundred barrels; were taken in lots by the local trade at fa B-25 for superfine ; JSSftfgB-cax for extras; 5-75 0-23 for Iowa, Wisconsin, and Minnesota extra fa mily; t5'76a(liB for Pennsylvania do. do.; k$ u-76 for Ohio and Indiana do. do., and HO7-50 for fancy brands, according to quality. Rye Flour sella at 10 per barrel. The Wheat market is without essential change." Sales or looo bushels Pennsylvania redat$t-as. ami 350 bushels Delaware do. at 11-37. Rye sells at II 05(31 -08 per bushel for Pennsylvania and Western. Corn Is dim st former quotations. Sales of. Pennsylvania yellow at fltiiwl-ys; new do. at 90 93c. ; and Sftoo bushels Western mixed at ft -03(1 -OX' Oats are without change. Hales of Pennsylvania and Western at 60 cents, aud Delaware at 01 cents. In Karley and Malt no sales wero reported. Dark In the absence of sales wo quote No 1 Quercitron at 132-50 per ton. needs Cloverseed la steady, with 'sales of (rood and prime at $W87. Timothy is dull and nominal Flaxseed Is In demand at I'i-UKyjao.aud'iloo busheia sold at the latter rate. uuiuu bound8" miU mea or Western at ti-M for lroa-'
Significant historical Pennsylvania newspapers