Richmond Whig. [volume] (Richmond, Va.) 1862-1865, 1864-05-21


CURED, by jury of tOelvs men. from whose unanimous
verdict no appeal could be made. Civil rights, 60 far
they depended ques ions of act were subject TO
the same dec sion. Sd, The officers and servants of the
crown, viostng the personal liberty the rghtof the
subject nigh: be sued in an action for damsges to be
assessed by jury, or, In cases were liable 10
criminal process nor could they plead any warrant or
command n their justification, not even the drecs or
der Of the Kingn M. Halam informs US that the ex.
isteuce of these muniments Of freedom distinctly
recognized even in the reign of Henry VII before even
this continent had been discovered. The language OF
Magma Chsra Is doubtless familiar to all in whcse hear
log an row spanking; portion OF which 10 a. ioi-
lows " No fireman shall be taken imprisoned IN
less BY lGpfa judgment Of his peers or the lGp Of The
land" cf
We learn that this principle having been frequently
tsnfgressed by the Kings Privy Council in earlier
times statutes had been repeatedly enacted, indepsn-
dsrty of the general con6rnaions OF the OharIa, to
redres: this material grievance. Thus, in the 18th OF
Edward Ill il is provided that mo shall be taken
by petition or suggestion Of the King or his Counsel,
unless /: be, by indictment or presentment or by
writ original at the common law" Now, sir, all the
rights thus ancen,ly existing aud existing, too, indie
pendsnty Of any specific remedies for their enfofce-
ment have been formally aud deliberately embodied in
ell the written constitutions and bills of rgh on this
continent; and this not by negative, but by positive
clauses Of the solemn organic Ian. Hdbsas coypus or
aay other remedy that could be named might be SUE
nction and yet the essential rights referred to would
continue to exist, though possibly 10 considerable eI.
tsnt losing their aetca value for want Of the remedy
thus suspend d or sunibatsd. Iismos plain that the
authority to suspend mere remedy cannot be con-
dered equivalent to the giving of authority to vic
late the right which stands connected Herewith and
just here lies tho mistake of of those whom have
lately heard speak ct hrgs upon this subject, and of
others who have taken 1t upon themselves edsy the
popular mind of the country BY elaborate essays i'd the
puDlc newspapers. .--l
kr. Hslsm at the s00th page OF his immortal work,
says: 1tis very common mistake, and tina! not only
ameng foreigners, but many from whom SONIC kn6w-
ledge Of our constitutional laws might be expected, to
suppose that this statute Of Charles H. (known the
HSbess Corpus Act) enlarged in great degree our
berties and forms sort OF epoch In their history
but though very beneficial enactment and eminently
remedial in may OF illegal imprisonment, it in
roduced no principle conferred any right up
the subject From the earliest records Of the Eog
ish Law, no freeman could be detained in prison.
cept upon criminal charge or conviction, orfor civil
debit -
Il was not to bestoW an
immunity from arbitrary Imprisonment which is abun-
dauty provided in Magma Chara G indeed it were not
much more ancent), that the statute Of Charles II
was enacted but TO cut on the abuses by which the
Governments luIt OF power, and the servile tubtety
Of coWnlaWyers had impaired so fundamental Priv
lege."
Nov, sir, the constitutional rights which assert to
be Independent of Habeas Corpus and which neither
have the authority to violate can confer powers
upon others to vioats are Of them to be found
in the following clsuies of our own constitution.
The right Of the people be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be viCllted and no
shall issue but upon probable cAu'e, supported
By oath affirmation, and particularly describing the
place to be searched and the persons things TO be
seiz d. ers -,
No person shall be held to answer for capital or
otherwise infamous crime, unless presentment or
indictment Of grand jury, except in cases arising in
the lsud or naval forces in the militia, when 10 sexual
service in time of public danger shall any
person be ubect for the offence to be twice put
in jeopardy OF life limb nor be compelled in any
criminal csse to be witaess sgaDst himself be
deprived OF life, liberty propsrty, without dus pc
cess of law; nor shall private property be taken for
public use without just compensa ion.
In all criminal prosecutions the accused shall eDjoy
the right to speedy and public trial, by impartial
Jury o. the aud district wherein the chine shall
have been committed, which distric. shall have bsen
previously ascertaned by law and 10 be informed Of
ed With the witnesses against him. to have compulsory
process Tor obtaining witnesses In his favor; and TO
bave the assistance Of counsel for his defence.
WILL auy discerning man, here or elsewhere tell me
how the authority Of Congress to suspend mere ~
eidL PROCESS for the enforcement of these rights can
the power Of destroying them? Why, sir, If habeas
corpus had never been mention 10 he ConEttu ion
yea more if it bad been heard OF in the world
all the essential principles of freedom, transmitted to
US by ioreathers and thus far maintained 10 und
miOished vgor, Worli still be ours both as present
enjoyment and priceless heritage TO be handed dosn
to ths remote generations of poseri J; who,
it is TO be hoped, will show themselves by to pos
$685. and capable Of perpetuatng them this our dear
natal soil, so long as the children OF men shall continue
TO sniourn beneath the stars.
When presenting these views in ocoas onal cclloquy
have - sometimes met with the suggestion that
inssmuct according to the common Law, there can
be rghA WithousremedieT, therefore il is eagey
soued that il the particular remedy of ha6eGS corpus be
il any way rendered ncaEsble of enforcement,
L. follows that tie rights associated with it mus: he
recognized longer existing. This is indeed too
shallow sophism to need seriou, refutaton. The
mon lIw maxim referred TO was invented to indicate
merely that when rights recognized at common Law can
be once shown to exat there Is providing spirit be-
longing to that muchlauded .ystem OF jurisprudence
which will supply, byssdsoaabls and appropriate abri
cation suitable remedy that Is 20 say such remedy
as adapted to the genius Of the common law uon prn
oipss Of Just analogy could bs made applicable TO any
e case of violated rig ht for which no specific rem
had been previously devised This is the whole matter
properly loo ked into, which, far from nferring alb
oute extinction OF right because Of the cessation Of
sthe accu toned remedy, means exactly the reverse
viz: that 90 soon as you show any given right to
tyou may feel justified in asserting that the author
icy to what would appear to be toe most adequate
aud efficient remedy might be at asserted to exist
also on the ground OF Wbs. may be regarded as rea
sonabe, and, indeed, nevitabls presumption
Having thus shown, in manner which hope will
be deemed satisfactory that the authority to suspend
the writ Of habeas corpus does not imply the power
destroy all the fundamental rights of freedom, shall
now proceed present the question under consdera-
ton in smother ligh Iexpect, in this part Of the dis
CUSTOM to say nothing which will be found absolutely
new but what, upon the ground Of authority, should
confidently hope, viii not, among the friends of State
rights aud STATE sovereignty be treated altogether with
contemptuous disregard
Isso happens that BY the Constitution of the Oonfed-
crate stss as BY the Constitution Of the United Safes
Of which is for the most part, literal copy, it ia
provided that the legislative, the judicial and executive
powers of the Govsrnmns shall be separate and dis
tine 1t has beea always admitted, and yill not am