Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1834-10-24
DOMESTIC.
From the Whsl
| HABEAS CORPUS-BEFORE JUDGE UpsHuR

Erpnrie .McI-Higoft
The prisoner. William McEigoti, as brought before
the Hon. Abel r. Upshur OF the judges OF the Gen.
ersl Court, on the 29h day Of Septrmbcr 1884 upon
wit oil Hsbess Corpus The counsel Tor the prisoner
m A Poor and Henry l.. Brooke E,urs founded their
application Tor his discharge chiefly upon the unconsiu
uonaIy Of the 7ih section Of the Act Assembly for the
suppression OF Unlawful gaming, a. II. L. sos y under
which the prisoner had convicted and committed 10
ns jail oil The City OF Richmond, by Justices Of the
Mr.. Poor, after conendire tina. the prisoner o,gt r.,
be discharged, because the Magistrates who convicted
num- wete not the Msgistrstss who signed the wsn,n,
Tor ms arrest which he insisted by the pro
vons OF the Iswthe law requiring the same su,pirior
lof me conviction which Influenced the nj ,gi.,rsres in
causing the arrest relied upon the unronsi,utonnlv ~
the law read the Sch 9th sections of Inc Hil o Richie
aud the 4th article Of the Amendments 10 the Federal
Constitution, and contasted them " lin the section o ha
IA" unocr consideration, 20 show the oncruiy exnr
between them. - e
Mr. Brooke prefaced his argument by stating tina, not
"hssndng the Law under which the prisoner had been
convicted. was one OF long sieudng hevng be cusc
ca Ia tho year l127 he had any csse in which
had been executed. until within the lasi few months.
ano nc ocheyed Il would still have Teinsined ed letter
upon tho Statute Book, Tor the unusual exci,.mer,
winch had prevailed in this community the subject of
gaming he therefore, considered that tho question Of a
nnconsn'uionAli,y which he intended 10 urge ought 10
be regarded as one Of the 6st Importance the law having
never before been Submitted lie OF judicial de.
cision. ' w
He then assumed. tho, although il would .ppe,r tb,,
the Two Justices Of the Peace who Issued The wsrrsns ~
arrest aud commitment III this csse had taken care 10 x
she wineeses upon oath, eud had thus laid The propcr
unusuon eccord''g TO the principles Of the Virginia BILL
YET II could be shown that te law did not require Ills
10 DC done; and not requiring il 10 be DONE was
tu'iona aud vsid. il would follow, Necessary conse
law, was also void " "S
1e aea eontended that the 7h section of The gaming
law was unconstitutional aud void Ist Docaus. n Ar,
horzed any Justices OF the Pescu 10 o.rrs, t, c
zen upon their private suspicious ppored by evidence
guy because authorized them convict aud comui,
the prisoner thus arrested, without cauiTonnq him ,yb
bis sccusers aud without a tria by iurv
Upon The hrst point, Mr. b. quoed the i0 er6oo al
lie IN # Al,
10 The Federal Constitution, and urged the, these provi
son' OF our fundamental laws in truth bu; the re
Neraion' IN more solemn form, ,vib more pover
Iui sanction, OF iR0se principles tl.e common law of
England, which would b. found have governed the de.
csons oil Tie courts IN that country long series of
years PRIOR TO our RevOluon The igs in ,s country
as well as In this well knew that 4 IL were once .n "a
the highest magistrate in the sad arbitrarily TO inpriso
wnoiDsoeVsr he or his officers thought G', there would
soon be an end OF oil other rights ard imu.unies a. b.
Z. l3o Accordingly, in Englapd, they had srua ged
u 10 msh'ein THE hight OF the su, be secure ia
his person against unreasonable seizures A. was
tied 10 the subject by the express provisions OF the great
charter IN the reign Of King John and again bv te ref,
ton OF Right 3 Char. l. and was rendered slI mors q.
cure, by the celebrated Hehras Copus Act III car n
CO notwithstanding this 10 Eog!snd ,yhefe ,be NAVE
OF Parliament was acknowledged 10 be onnipo,eni his
right, together with many oiheTs aos In ,ic s
yect had been frequently violated by positive legislative
enAcnehts-ss Tor example, IN many under tie
game sod excise laws That, happily for us rLe yiss
trainers OF our Constitution md Eli Of Rights by The Two
sections he had quoted had cccuaiy protected our oi
1ens Against any violation OF the right in question: by the
ordinary Legislature. In the language Of judge Roanr
mey n.ye not been wanting on their part aud il only re
qres Tue cooperation Of The JudiciEry guarantee the
safety OF The people, w
lie then proceeded contrast the power Of gsra'es
conferred BIZ the 7th section OF the gaming law Vii &
Limitations imposed upon that pow er lv Ile loL sc,
OF tho Bill OF Rights aud urged tia, nothing could be
clearer hsn that the two pfoyus could not stand TO-
geiher The lew either repeal oithe Bill of Rght,
or the Law void. To prove his more clearly if nos
sibe aud TO chow that he had e iOtb
section Of The B OF Rights ia supporting IL 10 he violated
~ he sw ~ question be srgucd that such power as
that conferred by this law upon JusIces OF the pencr a.
vsseu !" mem 6y The eommon Law Of England cited
ID, Y. Zzo--i1mg We Wiikes. Wilson, I5s-Morg,n
We Hughes, T. H. 23I, and 10 Com Law n 40
those authorities he thought, warranted bin ia saving
ms' no such power as that Of arretnng party upon lie
bare suspicion OF Magistrates, nero nlOu sxistrJun
Ger 'hc common law. The Of Ibis was two-iol
fret. 10 secure impartial uisI in the Iansu,gs =,
Lord CbIef Justice Pratt, ia Tie from Wilson Gin ia
MOI III hs Tue same person shoud DO the accussr aud
tne Judge seeSnd-Beesuso whichever the citizen i,
deprived oil me liberty, upon charge Q! having violated
the lave, there should he PEI Sop fcs,oa,e IN lin
IN damsges should tie charge prove to be Gase and mali
eou' Bul The perry sggIeyed would be derived Of nj.
hagisraee were permitted TO prison er mere
Hofuj Tor, Magistrate aedrg within bs h,,I,c,;o y
ony iesPooHoe when lac aets from otice, and Ills car
emily be sseertsned by examination oil the eitrum,t
ces under which he acted, and il is clear Tia. der, ar.
10 mesne Of sseeTtsniDg when those circumstance Ar.
confined 10 bis own BOSOM So cautious bsve bec, de-
Judges ia England TO preserve THE respou,bjIv a. 49,
upon tho official conduct Of Msgistgaas uat i, 1Is, 80
Wy nns'e hso been found necessary protect officers
chaiged with tho execution OF wBIrsus by srt at PIT.
Inen' was determined that Tie principal test Tor ,scs
tsining whether the officer sclSd IN obedience to tho ,,
~ h.
habie Tor where he would be lisble The officer J
not be Within the provision Of The staiuts r. St,r e.
olV' 1857 OPon this poial alone &c here ere no oer
nc iAsisteO, hN Tie law was Unconstitutional aod m
soDer eoined 10 h discharge, for having been sJts,J
upon void sutboyj oil proceedings CONSEQUENT uno,
hst srfsd were cara non JUDGE. Illegal sud void
Here tho Judge interrupted the Council ana .ksd u
ne should be Of opinion tbst the Ise yss uneoYsfio
becau,e 1t aOtbouzeJ Tie Msgsifstss 10 sfrest The s
upon her bare sUspcioas, Wheeler he undsfsteo H.; ~
eon'ending tbsi The prisoner s entitled 10 ls di.e
notwithstanding that The Msgistrato bsJ procerdoJ -
he lhlof"suoD Of Witnesses examined upon ost,1 0f
MI D. repliod ia The sllfmsiye, AMI urged liz, a.,
aagisuates Who Issued the warrant for The a1resf IN ~
cSse' bsd done so under the suthorty oil la law. ey.
was 20 Other lay authorizing such pgocsodpg Tt,e
genersi principle ~, That DsgsGates when eretcisi,
sPtctl jurisdiction, conferred by particular s,tats 80,
conform 70 Tic terms VI such slsiuto--t,gf tie -
we i'W 10 question entire cling end Could ne, ~
valid 10 put, and void ia part lhnt lie law 20, ILL W
SonsluuoneL " Dot constitutional N II wa eoo,;,,
uooa' The Msgstrs'os might pursue lie terms: n n 80
DOT eoastviionai, 10 departure iogn those terms sI
render ,beir proceedings valid. ''
1E D. wh proceeding wi'b tie aeagmeuf ola, H.
1ulgs expressed himself satisfied upon fhst noi,f W. ~
10 tie second pgiB Nj g. said rnueL =, ~ -, -,
s'll' Would epply Hiih increased force For II a. -
was Unconstitutional in sulhoiizing ihe Io.,scs ~ .
.hs prisoner upon Their private suspcions n fofio,f 80
90, "honh authorized hsm 10 convict bi,, 49,, Va
suspicious But, IN addition 70 Ibis ho ipsssJ 49, st