Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1823-08-29

provisions of this aci are founded in that supposi,ion
hen this method OF dispos'ng oi offenders hy deain
iug them here presents the finest facilities in III,
world, for introducing themselves lawfully into the
,ery situation in which they would enjoy the hes
Opportunities OF pursuing their designs.
Now lG this plea of necessity could avail al MI
| against the constitution and laws of the United
States, certainly that law cannot he pronounced ne
ncsslry which may defeat Ms own ends much les.
when other provisions OF unexcepiionahle Legality
migh he resoriej TO, which would operate solely To
'hc end proposed, the efecual exclusion of dam
terous characters. On The fact or the necessity or
'd' tins exhibition OF legislation aud zeal, moth
my neither admit nor deny IL. In comn,on with
every other citizen am entitled TO my own opinion,
Dat when express II, itshall be done in my private
| capacity.
Bur what shall we say to the provisions of ,hi. nc
/ a. they operate ON Our vessels of war? Semi
| your Sheriff on board one of them, aud would the
siiried Young men OF the navy summit to have n man
taken would be repetition oI the affair Of The
| chesapeake The public mind would revolt at The
idea oi such an attempt and vet IL is perfectly clear
that there is nothing m this act which admits of any
| exception IN their favour.
| Upon The whole | am decidedly of opinion tina,
the bird section of The state under copsi-
deraiion, unconstitutional and void and HAT every
arrest made under subjects the parties making il 10
an action Of ueSpass
! Whether possess the power TO administer a more
speedy and eIhcacious remedy, CONES next TO be
considered
That party should have right to his liberty and
no remedy To obtain II, rs am obvious mockery, but
rs still greater to suppose that he be altogether
precuded from his constitutional remedy recover
his freedom.
am firmly persuaded, that the legislature of Sout,
Carolina must have been surprised into the passing
OF this act. Either msapprehend its pu,porl, or
1t Is s,udiousy calculated to hurry through its own
execution 80 as To leave the objects Of reu,edless
10y giving Il the form of "A state prosecution. the
prisoner IS To he deprived the summary interference
OF the Uuited States authority and by passing il
through the Sherifs hands, without the niervenrinn
oi any court OF justice, he j. 10 he deprived of the
Iuui Act. la,
wl',., nm appeal might he had the Supreme Court
Thus circumstanced, is Impossible to conceal the
h"rish'ps OF his case, or deny his claim to some
remedy.
The opposition TO issuing The writ Of H,beas
corpus founded altogether on the ground that he is
~ custody under state anhorry I; and the pro,iso 10
the I'm scciiun OF the Judiciary Act Of 1882 is relied
OF. hat provisO j. ~ these words Provided.
that wits OF Habeas Corpus shall iu no case ex end
in prisoners IN gao uhrss where they are in custody
undet nr 10y colour of the authority of the United
, o.aes, committed Tor trail hrf,e some CONT
"i the same, or are necessary TO brought mo some
cOuU To testify
NJ, King admits, tina, this proyso is fatal 10 his
motion, unless his he taken OUT OF H. by one OF
boh oi Ike following considerations.
LIST That so lar It's II ahridses the right Of Haheas
corpus 1t is inconsistent wtl that provision of the
constitution which declares that 80 the privilege of
: tie WIN OF Habcas Corpus shall moi he stsnen,led
unless when IN cases of rebellion or invasion the
publIc safely may require ia state of facts which
cannoI possibly he preCcated of the present. or
ID hat the prisoner cannot he said 10 he in con-
hutmr" under st1ie authority, If the state law he
{ VOID under which he arrested And heinz lv his
national character entitled to the protection of this
court, ~ other words constitutional suor Of the
United States courts, his, which is the only atrouafe
remedy should he extended to him.
incse views OF The subject certainly mer; much
considerations Arguments in favour OF this cher isetl
right, are not igiuiy be passed over Bui VIVA,
are Courts OF the United States TO ,lo We cannot
undertake ioJudge when thar crisis has arrived
winch The constitution cnniemplaies nor are we 10
..f
words, the privilege of the writ Of Habeas Corpus
Every ste ~ The union may have had different pro
VISIONS limiting and defining The OF This PR
"''Pe some, perhaps, combining themselves to tie
p'Nirse a. II stood at common law oIhefs acopt
,"S some or All OF those statute provisions which
pave wrought such change IN lis practical utility -
team, ien,only be left congress To give an uniform
aud national operation iIis provision of the con-
s'nn!on In iegislalng this subject they have
confined us 10 those cases IN winch the party s
confined under Dnted States authoriiv or is neces-
s"ly 10 ne Introduced INTO It's courts as Witnesses
On the second p0Iu il is to he observed that the
"Viso 10 me fourteenth section OF the Judiciary Act
imposes on the petitioner the necessity of maintans
ihe affirmative OF his being coufi6ed under United
states authority so that not enough to neg alive
ms oe'"g ~ custody under authority for the
consequence is only that he is confined arbitrarily
dhu without huihoIity by state officer n case 70
which our power 10 ISSUE This writ does not extend
As lar as congress can extend, aud shall extend the
power to afford relief 10y this writ | trust shall
never he fund backward to gran, IL Al n,csan, I
am satisfied that NOT vested with thai nnwer in
ihIS
We come next TO consider the motion for the yri,
lie HomIne replegando
And here the question apnears to mo IN he g .,,,
right have to refuse il - As well might inrer
pose 10 prevent the petitioner from suing ou, bs
wr ipr IIespass AVID false imprsomcn or The cau,siu
ms Wfii lof Hesrass IN taking the seaman from his
vessel, or The ordinary writ of rcpIevn on distress
nr rrn', as 10 refuse this wilde Homine repepindo
~ IS not The proper writ for his case he must TAX
the consequences bu, this is MOI the time and n,o,ls
/ Ig writ, ,Tc &.
ana contains upon the face Of IT, its own death
warrant II u be legally gran,ahle m any
case " the return oi the party to whom it issues
SHOWS thai II y not case proper for The remedy in
tended 70 he given, there IL ends II The return he
false, ony Je contested; II true aud it presc,ts =
proper case, ihen another writ issues which brings
IA question The ighl Of personal freedom The
whole OF tins Is set iOiilI in HE Regisrna Breriqu
aud ~ Fnzhrrbcrt, which is nearly cuped from, H.
II NY opinion e%'faiadicnlIy he asked, would ex-
press the most sfios doubt whether this wri, could
dvdii ihe parry against tie sheriff. but as against his
vendee, !here Is not a question that il will lie af
common law.
But gentlemen contend, ha; Ibis writ il obsolete :.
that II j. not 10 be faked 40 from the nsbes nj in
common law, 60 be FIRST used against the st,tc
OF South Ca Dina - that Il cannot issue when the
iabehs Corpus cannot issue and Gnnlly that the
wrt OF h'vlshment OF Ward IS the oaly wrlt esInb-
lished by lass of The state the proper writ 10 rv
the question OF freedom Of person of colour aud no
other can be substituted without changing the law
I respecting slaves.
~ - i"t uHC ~ tiP~P arguments in1i can he
-u- ''ned either III llw ficf. The wrii ds HoDne
TepCtaHdo Is 'nerailcd 10y lw into the iurlsp
| OF South Carolina nor is IL unknown IN actual prac-
nee, ~ caNes to which u is applicable IN The
of New York il is annliarly used lis rue ar the
wa OF Hhvishment OF Ward expressly given hy a
stale law but Is given fdvonr Of those WHO are
by aw declared 10 be priAi0 fgcie held ne skiyes
u cu'iails no right Of recntH previously existing :
| AID only operates 10 give IN ictioa TO one whose
condition or situation places sim ~ absolute dnress
rr 10 any Other who shall charilaby volunteer in his