Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-04-10

vision. IL man is seized without legal
authority or inst cause, cannot the often
der be punished He certainly can-and
in what other way could you enforce ODE
diencc to this provision The other two
articles before mentioned can certainly
have no bearing on the question before the
house, they merely relate to the manner i'm
which, and the place where, offenders shall
be tried-they are directory to the legis-
lature and to the courts of justice-and it
is not stated that either the one or the
ether have acted contrary to their provisi-
ons-No attempt to try these persons was
made by gen. Wilkinson-he sent them
to this place-they were delivered to the
civil authority, and their case is now under
legal adjudication. The courts of Justice
are the proper tribunals TO decide, accord
ing to existing laws, where they are to be
tried and IN what manner. We are told,
however, sir, 1t is necessary to make pro-
vision by law to enforce obedience to the
writ OF habcas corpus, and to punish those
who may refuse TO grant it With regard
TO the latter case, there is not the least
ground of complaint-The writ has not
been refused in any INSTANCE when demand
ed 1t was issued at New-Orleans, and
also at Charleston and indeed Il is not pre-
tended the civil authority have on any &C.
CASTOR violated this writ. 1t has, on the
contrary, yielded the most prompt obetll-
ence to itin every instance. Fit was made
to appear to me, that there we're not pro-
visions by existing laws to enforce obed;-
ence to the writ of habeas corGus. and TO
punish the violations of it, would be among
the first TO make such provisions-but this
has not been shewn, and cannot, Ipresume,
be proved to be the case. In every state,
and IN every territory as far as we arc in
formed, there are laws to enforce obcdi-
ence to this writ and to regulate the mode
in which it shall be obtained and prosecut-
ed-and by the Saith sec. of the act to esta-
blish the judicial courts of the U States it
is declared, that the laws of the several
states, except when the constitution, trea-
ties or statutes of the United States shall
otherwise require or provide, shall be re-
garded as rules of decision in trials at COM
mon law in the courts of the United States,
In all cases where they apply. This pro-
vision must relate to criminal rs III is 70 CT
vllcases. You have therefore the same pro-
visions at least, to enforce obedience to the
writ of habeas corpus in the courts of the
United States, that there are in the re-
spcctlVe state courts and il has not been
shewn that these provisions are defective
IN the state courts Gentlemen have not
pointed out an instance in which this writ
can be violated with IMMUNITY. In every
case that can be stated the ageressor NAV
be punished under existing laws; and that
is the only mode in which you can enforce
obedience to this writ, or to any law. You
cannot prevent, absolutely, the commission
OF crime-you can only punish the often
def, and thereby discourage others from
committing similar offences-you cannot
prevent man, while at liberty, from ex-
Crtlnp his rOhucir1l
no more prevent him by law from violating
the writ OF habeas corpus than you can
prevent one man from striking another, or
from seizing him and carrying him away
by force. All you can do in either case is
to declare the punishment that shall be i'm
fiic'etl on such offenders 1t HIS been stat
ed by one gentleman (Mr. E.lliot) as doubt
ful or unsettled, whether the common law
of England is the common law of the u. 6.
and as such binding on the courts of the u.
y. and IT 1T were not, it was insisted we
cughtto make provision by law TO supply its
place IN regard TO the measure before the
house. On this subject, Mr.. Speaker, |
entertain no serious doubt. | am clearly
OF opinion, that the y. s. as a nation, have
not adopted, nor are bound by the common
law of England, and that as a common Ian,
Of the union, it can have no force in their
courts of justice. But it is equally clear
that the several states, or at least most of
them, have adopted the common law of
England either in whole or in part, as the
law ofthoSe states respectively, under such
restrictions, as the change of government in
those states seemed TO rcqure-and being
IN this way incorporated into the laws of the
individual states, and becoming a part of
them, 1t becomes under the act of Congress
already mentioned rule of decision i'm the
courts of the United States la the extent TO
which it has been adopted in each state re-
spectively wherein the courts may he hold
en-, and under the restrictions contained in
the said act. 1t is therefore in force IN the
courts of the u. S. as being the law of the
individual state, in which they sit, and not
IS being the common law Of the union
They can derive no jurisdiction from the
common law, any more than they can fl ON
the statute law of an individual state, and
1t may be laid down as clear law, that the,
can have jurisdiction in no case, except
where it is expressly or necessarily given
to them by the constitution or statutes of
the US. But when jurisdiction is 50 given
to these courts in particular case, the
laws OF the state wherein the court sits,
will be the rule OF decision in such case, as
far as they apply. SO in the case before the
house, the courts and judges of the L.. S
are authorised by act Of congress to issue
the writ OF habeas corpus, ana having thus
acquired jurisdiction, the laws of tile re-
spectiye states will be regarded as the rule
OF decision, and govern the tro, ,;,,.s. -.