Edwardsville spectator. [volume] (Edwardsville, Ill.) 1819-1826, 1822-04-02

the constitution The United States as
of this state, it impairing, the obligation
of contracts and amounting to denial
and a delay of jastca.
/ Having given that consideration, which
the shortness Of the time ard due re-
gard to. the Importance of the subject
and the liberty of a fellow citizen would
admit Of, shall give an opinion on the
! several points Of objection.
It, as has been commended by the plain
THIS counsel, writ OF habeas corpus
,carno. issue bat from the. superior coars
lin term inc, and that a judge thereofin
! vacation has NJ, authority TO do so, il
would be unnecessary TO give any opinion
as to the other points, and il would be
my duty to remand the prisoner. But
as cannot admit ofthe cohstruct ion con-
landed for, | shall inquire---ist. What
were the laws Of theitcrritory relating to
the writ of habeas cdpus, at the time of
the adoption OF our constitution and Cd,
whether, at such adoption, they were
either altered or repealed
| The act of 1907, makes it the duty Of
any Judge of the superior cour. (and al
so that of othef judges therein mention
ed and that under very heavy penalty,
TO issue a writ Of habeas corpus, on ap-
Iplicatlon, accompanied with an affidavit
as to the truth of certain facts; TO ex-
anime into the cause of the prisoners
detention, and either bail, release, or re-
hand him. The act Of Congress of All
June, 1912, commonly called the Or
ganic Law, provides that The people of
the territory shall always be entitled 10
the beneht4of the writ of habeas corpus,
and that all the laws and regulations then
in force, in the territory, should continue
i'll force until altered, modified orrepea,-
ed by the genera! assembly. It being
admitted that this law of 1907 was in
force at tie time Of the adoption OF our
state constitution, it must be still SO IN
less annuled or repealed by that instru
ment, the third section Of the fifth article
Of which provides that the supreme
court shall have power TO issue writs Of
habeas corpus, mandamus, quo warranto,
ne eXeat, certiorari and other original
remedial writs and to hear and deter
mine the same. And it is cortended by
the counsel for the plaintiff, that this ar
tlcic amounts to an implied and virtual
jrepoai of ,ha. act
4 Were to construe this article in the
manner commended for, the benefit 81 the
writ OF habeas corpus, thar grsa. bnlwask
vi Civil liberty, would be PERFECTLY lila
sorry in many instances. 4 citizen might
be arrested and confined nay, he might
be conveyed by force to parts far beyond
the control of orr laws leng before tie
| sitting ofthe supreme court, if there ex.
is'ed no authority to give immediate re-
dress and relief. OF whatscrvice would
u wit OF ne exeat ,regnutl be OF, il it
could not issue but-by thelscpromc court
/ while in session? OF li.tls or none in my
opinion; as 8 dishonest debtor might sci
the laws at defiance, BY removing beyond
the limits OF the state, before the writ
could possibly be taken out and served
| The trainers OF our constitution never
could have intended to have abridged
any OF the liberties or privileges which
were guaranteed TO the citizens undes
the territorial form Of government, nei-
tter did they; as the 18th article oftbe
constitution provides in express terms
thai the privileges Of the writ Of habeas
corpus should not be suspended, but in
cases OF rebellion or inrasion; and were
the construction conleaded for to prevail,
the privilege of obtaining this wris would
be suspended for by far the greatest part
of the year. Ifthe act oflSo7. is repeal
ed, il must be by implication or inference
of the words OF the recitcd clause in the
constitution. Happily, however, forthe
citizen, we have no need to resort either
to inference or implication, at best very
uncertain and unsatisfactory modes of
constituting law, as the I'd section of the
schedule provides, that all lazvs then in
| force in The territory, which were not
repugnant to the constitution, should re-
main in full force, until altered or re-
pealed by the legislature, or expire by
their own limitations.
! The act having therefore been neither
altered or repealed, is in my opinion,
now in force and must be obeyed. A
contrary construction would not only
GUST the. judges of the circuit courts.
either IN term time or in acation Of any
authority to issue this writ, but would
limit that authority to the supreme court,
and that only when in session. 1t would
then be necessary that a citizen, illegal
" restrained Of his liberty, must be with
out impossible mode of redress or re-.
lief, but two stated periods of the year,
at the distance Of six months, the one
4 fro,,, tho ofhor s5. nv