i 22 1·1zm·:nAL iusroizrrait.
Drex, JY. This rule was founded upon allegations contained in the
afddavits of two respectable citizens of McDowell county, and was granted
upon the motion of Hamilton C. Jones, United States district attorney,
made at the last regular term of this court held at Asheville. The hear-
ing of the rule was continued in order to give notice to respondent, and
to aiibrdlopportunity to the parties to tile aiiidavits and documentary
evidence. By consent of the district attorney, and the permission of the
court, the private citizens desiring to sustain the rule were represented
‘ by counsel_ at the hearing at this adjourned term, in Greensboro.
As the counsel for the prosecution and the defense have aided me by
able and elaborate arguments upon the questions of law and fact involved .
inthis controversy, I have given the case careful consideration. This
p proceeding is in the nature of an information tiled by the district at-
torney, with the approval of the court, at the instance of private citizens,
complaining of no special personal grievances, but who think that the
public interests, and the due administration of justice, require the re-
spondent to be removed from oihce, for the reason that he has been guilty ·
of gross personal misconduct and odicial malfeasance in the community
A in which he resides.
At common law the court of king’s bench exercised a superintendence
over all inferior jurisdictions, and was invested with the authority and
power to allow a criminal information to be tiled at the instance of a l
private person who had sustained a serious injury, for the purpose of
investigating the conduct of such inferior magistrates, and punishing
them for corrupt and oppressive otiicial misconduct. The person in-
juredby a criminal act was regarded as the proper person to prosecute
` the offender by indictment, and the more convenient and expeditious
L mode of procedure by criminal information could not be instituted with-
out the leave of the court; and, as a_ general rule, such leave was only
granted upon the applicant waiving his civil remedy for the injury sus-
tained. In this country the prosecution of criminal otfenses is generally
V committed to the charge of a public oiiicer, whose oath of ofiice, high
professional character, official emoluments, and sense of public obliga-
tions, are usually suiiicient incentives to prompt to a vigorous and faith-
ful performance of duty. The trial by jury is regarded as a reliable and
I sufficient security for the rights of the citizen. Criminal informations
are not allowed in the prosecution of grave or infamous offenses ; but a
person accused of crime of a serious nature has a constitutional right to
have the charges passed upon by a grand jury, and to be tried by an
impartial jury, in open court. One of the aflidavits upon which this
rule is founded, charges a high crime against the respondent, and, if
this rule was a criminal proceeding, it could not be prosecuted, as the
respondent would be deprived of his constitutional privilege of trial by
jury. This rule is in the nature of a civil proceeding, and was insti- *
tuted for the purpose of investigating charges of serious personal and
ofiicial misconduct and malfeasance, against an oiiicerappointed by this
court, to ascertain whether he is a suitable person to exercise the high .
and honorable oiiicial functions with which he is now entrusted. As