The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1842-05-19

TIE UNITED STATES vs.. HENRY A. WISE
AND EDWARD STANLY
On Warrant for Surety Of The Peace.

On Warrant for Surety Of the Peace.
In this case warrant was issued by Judge rhrus-
ton on the llth instant setting forth that oath having
been made before him that the parties were about to
commit breach Of the peace by fighting a duel, and
that they were making preparations to night duel
the Marshal Of the District sc. was commanded tc
bring thsm, or either Of them, before him or some
other Judge Justice Of the Peace in the District
Columbia, TO be dealt with according to law, &c.
On the 18th instant MIR. Wise arrested ant
taken before Justice Morsell. The contin
ued before him until the morning of the 18th Friday
when the witnesses appearing, and the District Ator
ney being about to proceed with the prosecution, MI
Wise moved that he should be discharged from arrest
on the ground of his being Member of the House oil
Representative and the warrant not charging mn,
with actual breach Of the peace, he was PrVegco
under the law Of Parliament from arrest uhui 30
charged.
Justice Morsell heard argument on tins point, anu
II being novel and important adJournea ,ns shown
20 him with Justice MorselPs endorsement, ne said
that the case could not be brought regularly before
him by adjournment from before magistrate, pu'
that Mr.. Wise must be considered as under arrest,
and petitiop for writ of habeas corpus which would,
ccnrdinp 10 the practice in the courts here try the
case as de nopo before him. MIR. Wise then petition
cd for writ of habeas corpus which was granted and
sued out and on that writ the case came up before
Judge Dunlop, to be heard on Saturday, the llth
Instant
Mr. Wise, upon being asked whether he was ready
for trial said that he had request to prefer to the
Judge which was to be heard by two Members OF
the House of Representatives his colleagues, Messrs
Goode and Hunter, who were IN defending inc grea'
popular privilege for which he was contending. -
That for this reason alone he had not engaged the
services of eminent counsel of the profession in the
District The Court granted the request. Where
upon Messrs G oode and Hunter filed sundry exccP-
tions to the for informally and insufciencyi
and lastly admitting the tormalty and sufhciency OF
the warrant excepted that Mr.. Wise was member
of the House Of Representatives and privileged from
arrest except for treason felony or actual breach OF
the peace and that actual breach OF the peace
was charged in the warrant he be discharged without
being held To bail. The other points OF exception
were waived for the time and the case was fully and
ably argued on this latter point alone
Mr. Goode opened the case. He cited the clause
of the Constitution which declares that Senators and
Representatives ''shall, in all cases, except treason
felony and breach of the peace be privileged from ar
rest &c. He said that these were common aip terms
and were to be taken in their lao sense and
Interpretation at the time they were adopted IN the
Constitution.
They were precisely the terms used by Coke in the
Institutes" treason, felony, and the peace " and cited
2 Wilson's Reports, Wilkes's case, to show that the
Interpretation of the Judges of these terms was tina
there must be an " actual breach Of the peace" commit
ted and charged, or privilege would apply He alst
cited Mr. Jeterson's Manual to show that "privlleg
is in the power Of the House, and is restraint to tn
proceeding Of inferior courts, but not OF the Hous
itselfn sc. And even in cases OF treason, felony
and breach of the peace, to which privilege does no
extend as to substance, yet in Parliament member
privileged as to the mode Of proceeding. The case !
first to be laid before the House. that il may judge
the fact and of the grounds of the accusation, ant
how far forth the manner of the trial may concer
their privilege. Otherwise it would be IN the poWe
Of other branches Of the Government, and even
every private man. under pretences OF treason, &c
take any from his service in the House, and 81
many one after another, as would make the HOUSE
what nc pleaseth," SC. So when member stoo'
indicted for felony, it adudgcd that he ought
remain of the House till conviction. For 1t may
any mans ease who is guiltless to be accused an
indicted Of felony, or the like crime" Ihese an
MANY other authorities were cited, and the prtpiles
was claimed not for the member, but for the People
1t was their right TO have their Representative ire
from arrest until charged with treason, felony or az
tua breach Of peace
The District Attorney Mr.. FENpALL) replied tn;
the old authorities and Coke especially, used no sue
word as actual breach of the peace" He argued
was an Interpolation of the Judges in Wilkess cas-
That in that the traverser was charged with Ito
as a breach of the peace the Judges had only d.
cided that libel was no breach OF the peace, and Thu
asurety of the peacen could not be demanded for
bel for the libeler in every case had, by the yer
publication done the mischief he intended, and Their
was no reason object in binding him for the future
same year. changed the rule in the Wilkes case, an
ever thereafter Peers and members of Parliament ha
been held to bail and surety OF the peace. This
cited many other authorities to prove. And he al
gued against the consequences OF contrary doctrlr
in this country and insisted that in all cases OF sire;
son. felony, and breach Of the peace" the Constit,
ton Of the United States meant to exclude or exceT
privilege, and leave members of Congress on the sam
footing with other citizen could be arrests
and held to bail in all cases to prevent as well as t
punish breaches of the peace, and there was no rea
son for an exception to the exception OF the Constt
ton as to members of either House.
Mr.. HUNTER in reply, after showing the great in,
portance of the principle of popular privilege attach
ed to the right OF representation cucidated the au
thortes cited by MIR. Goode. He denied the pos
ton Of the District Attorney that the Judges had III
terTolated the word "actaP upon the old authorities
in Wilkes's case, but had cited the old authorize
and the common law words and given them thei
true and conservative meaning and Interpretations
They had decided that in all cases OF eony, treason
and the peace" the latter words were to be taken
held to mean actual breach Of the peace That this rul
of judicial Interpretation had not been changed b
order of the House of Commons. That order
req d. and it showed simply that thereafter libel WI
to be considered breach of the peace. The Hous
had not said that Peers and members of Parliamcl
were in future not to be privileged when no acu'
breach Of the peace had been committed, and the
were charged with being about to commit sue
breach; but it left the leading principle in Wilkes
case untouched, that members Of Parliament wer
privileged from arrest and bail except in cases OF nc
tua breach of the peace and ordered simply that hbt
in future should be held an additional exception to pr
voge That in England the House of Commons ha
power to restrain privilege, and they had only don
so in this order The House here could not restrai
privileges. Up to the time OF Wilk,s's case the e'
ceptions to privilege were but three; Treason, ie
ony, and breach of the peace. Thereafter the
made, by this order, libel another exception. Tn
order changed the law of privilege This the Hous
of Commons could do. This, however, the who
Congress in this country, as said by his colleague
(Mr Goode,) could not do The Constitution fixe
this law Of privilege permanently and it must
as adopted by the Constitution until the Constitutio
be changed He reviewed the authorities cited b
the District Attorney to show that they settled onl