The daily Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1841-1845, 1842-05-19
From the National hltellgencer.
THE UNITED STATES VS.. HENRY A. WISE
AND EDWARD sTANLY.
ON Uarrant for Surety oflhe Peace.

In this case warrant was issued by Judge Thrus-
ton on the 18th instant, setting forth that oa'h has
been made before him that the parties were ABOUT 10
commit a breach of the peace by fighting duel, ana
that they making preparations 10 hght ouei,
the Marshal Of the District, nc was commanded 10
bring them or either of them before him or some
other Judge Justice Of the Peace IN the Disct oi
Columbia TO be dealt with according to law, &c.
On the 18th instant Mr.. Wise was arrested ana
taken before Justice Morsell The was contin-
ued before him until the morning of the 18th frlday
when the witnesses appearing and the District At.or
new being about to proceed with the prosecution, Mr.
Wise moved that he should be discharged from arrest
on the ground his being Member OF the House oil
Representatives, and the warrant not charging MN
with an actual breach Of the peace, he was privileged
under the law Of Parliament from arrest until 30
charged.
Justice Morsel heard argument on this point and
it being novel and important adjourned the case be-
fore Judge Dunlop When the warrant was SHOWN
to him with Justice Morselrs endorsement, he SAID
that the case could not be brought regularly before
HIM by adjournment from before magistrate, but
that Mr.. Wise must be considered as under arrest
and petition for writ of habeas corpus which would
according TO the practice In the courts here Try the
case as de ropo before him. Mr. Wise then petition
ed for writ of habeas corpus, which was granted and
sued out, and that writ the case came up before
Judge Dunlop, to be heard on Saturday, the l4th
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 oil
the House of Representatives his colleagues Messrs
Goode and Hunter, who were in defending the great
popular privilege for which he was contendng.-
That this aone d be he he'd pH "A s
n;.tr;e. The Court granted the request Where
Disu Ws,s q Node Hunter filed sundry excep-
0e q s sSs warrant for informally and nsucency
and lastly admitting the Formally and suficiency 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 as 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 Senator'S and
Representatives ''shal in all cases, except treason,
felony and breach of the peace be privileged from ar
rest sc, He said that these were atc terms,
and were to be taken in their iao sense and
Interpretation at the time they adopted in the
Constitution.
They were precisely the terms used by Coke in the
Institutes treason felony, and the peace y and cited
2 Wilson's Reports, Wilkes's case, to show that the
Interpretation Of the Judges of these terms was that
there must be actual breach Of the peace" commit
ted and charged, or privilege would apply lie also
cited Mr. Jefersons Manual to show that privilege
is in the power Of the House. and is restraint to the
proceeding of inferior courts, but not Of the House
itselfn &c. And even in of treason, felony,
and breach of the peace TO which privilege does not
extend as to substance, yet in Parliament member is
privileged as to The mode Of proceeding The case is
first to be laid before the House, that may judge Of
the fact and of the grounds of the accusation, and
how far forth the Of the trial may
their privilege. Otherwise it would be in the power
Of other branches of the Government, and even of
every private man, under preences of treason Sc to
take any man from his service in the House, and so
many, one after another would make the House
what he pleaseth,' SC. GO So when member stood
indicted for felony, adjudged that he ought to
remain of the House till conviction. For il may be
any mans case, who is guiltess, to be accused and
indicted of felony, the like crime" These and
many other authorities cited, and the privilege
was claimed not for the member but for the People.
II their right TO have their Representative free
from arrest until charged with treason felony or
tual breach of peace.
The District Attorney (Mr. FENDALL) replied that
the old authorities and Coke especially, used such
word as actual breach of the peace" He argued it
an Interpolation of the Judges in Wilkes's
That in that the charged with libel
as a breach of the peace; the Judges had only de-
cded that libel was no breach Of the peace and that
surety of the peace" could not be demanded for IL
bel for the libeler in every had by the very
publication, done the mischief he intended and there
was object in binding him for the future.
That the House of Commons had, by an order of the
same year. changed the rule in the Wilkes case, and
thereafter Peers and members of Parliament had
been held to bail and surety of the peace, This he
cited many other authorities to prove. And he ar
gued against the consequences of contrary doctrine
in this country and insisted that in all cases of trea-
son, felony, and breach of the peace, the Consttu
ton of the United States meant TO exclude except
privilege, and leave members of Congress the
footing with other men, citizen could be arrested
and held to bail in all to prevent well to
punish breaches of the peace, and there rea-
for exception to the exception Of the Consttu
ton as to members of either House.
MIR. HUNTER, in reply, after showing the great i'm
portance Of the principle of popular privilege attach
ed to the right of representation elucidated the au-
thorities cited by Mr. Goode. He denied the posi-
ton of the District Attorney, that the Judges had
erolaed the word "actual" upon the old authorities
in Wilkes's case, but had cited the old authorities
and the common law words and given them their
true and conservative meaning and Interpretations
They had decided that in all cases of felonyy treason
and the peace" the latter words to be taken and
held to mean actual breach Of the peace That this rule
OF Judicial Interpretation had not been changed by
order of the House of Commons. That order he
cad, and it showed simply that thereafter libel was
to be considered breach Of the peace. The House
had not said that Peers and members of Parliament
were in future not to be privileged when no actual
breach Of the peace had been committed, and they
were charged with being about to commit such
breach; but it left the leading principle in Wlkes's
case untouched, that members of Parliament were
privileged from arrest and bail except in of ac
tua breach of the peace and ordered simply that libel
future should be held additional exception to pri
vege. That in England the House Of Commons had
power to restrain privilege and they had only done
so in this order. The House here could not restrain
privileges. Up to the time Of Wilktss case the ex-
,eptons to privilege were but three Treason, fe-
ony and breach of the peace. Thereafter they
made, by this ORDER libel another exception. This
order changed the law Of privilege. This the House
If Commons could do. This, however, the whole
Congress in this country, as said by his colleague
MIR. Goode,) could not do. The Constitution fixed
his law of privilege permanently and it must remain
IS adopted by the Constitution until the Constitution
,e changed. He reviewed the authorities cited by
he District Attorney to show that they settled only
he principle that members of Parliament were not t
privileged from arrest in of breach of the peace
II, in other words, actual breach of the peace or
hat they were cases which subsequent in date c
o the order Of the House of Commons changing |
I'll