Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1864-08-31
OPINION OF JUDGE PEARSON.
HABEAs CoRPUs-RUssHLL VS.. WHITING.
lCoNcLUDED.l

CONCLUDED
One who is familiar with the expressions which
preceded and caused the passage Of the .cs of 81
Oh. 2, and also with the legislation which in En-
gland is popularity termed the suspension of the
act since its passage up to the formation of the
Federal Constitution, and the occasions which pro-
,uced those suspensions can be at no loss to con.
lecture why the trainers of that instrument limited
The power of suspension by Congress to the times
IF rebellion or invasion, and why the suspension
cannot be supposed to embrace any other than
criminal or supposed criminal matters" A brief
reference to the disturbed times in England between
the period Of passing the act Q679) and 1877, and
to the mode suspending it, will. explain it all
in 1858 James II fed the kingdom without any
purpose Of abandoning the throne and though
abroad, continued, he and his male issue, so long
as any Of them survived, to claim the crown, not
withs;anding Immediately after his departure it
was settled on another branch of the family. The
claims of the excluded family continued until -.
During this period of rivalry for the throne En-
gland was subject To rebeliDns within, aided often
by concurrent invasions from without melted by
James and his descendants. At several times the
preparations for overthrowing the dynasty were
formidable and alarming. On such occasions the
parliament passed laws which abrogated temperate
y rights Of The subject secured to him main
ly under the kabeas corpus act OF Charles. The
first was cnac.rd in the first year of W. and
NJ and during their reign and that Of William Ill.
"a period of twelve years-tive acts of, this kind
were passed Their Titles were to empower the King
either W "appr1heud and detain," or to commit
without ball. such persons as he shall find just
cause to suspect eonspirpg against the gov
eminent" From thence to the close of this strug
gle for the throne there were passed five more acts
one in each Of the years l7l4-l7l5-1722-
l744- l746 The titles Of all ere in the same
words and of each it is "Gn act to empower h1s
majesty 10 secure and detaim such persons az his
aaajssiy shall suspect are conspriug against his
person and goesrnmsat" The next in point of
time was that o! TIT, Noticed in Hurd, 133, which
denied the privileges Of the habeds corpus act Of
Charles only "to persons taken in the act Of high
treason committed in any Of the colonies or on the
high seas in the act Of piracy, or who were charg
I'd with Or suspected. OF any of those crimes. y
There are no others TO be found on the British Stat
utes till after the adoption of the Federal Constr
tuition. Those passed in 1874 and thence till the
close Of the revolutionary struggle in France, sey
eral i'll number, bear the same titles as those of
and after TIA; two Of them ofexueme dates, 1859
and 1794-are set forth as perfect samples Of them
all.
A consideration of the provisions, of these, acts
will establish the second proposition, that the poU-
err to suspend the privilege Of the eorit" carries
aoih 1t no pouer other than simply to deny the ben
et Of the aorit and su6ect the purity to amprsson-
aaent ds,its only dttendttnt consequence.
Each of these acts was popularity termed "sus.
pension of the ha6eas corpus act" Campbels life Of
Lord Mansfield, and parliamentary debates of 1894
This was their popular name because they denied
to the accused persons arrested upon charge Of
. the crimes mentioned, the privilege secured by the
act of Charles But the denial of this privilege
did not constitute all that as procided By thest
acts
First, they enacted that alt persons who on
/ certain day, usually the day of giving the roya
assent to the acO should be imprisoned within thu
4 Kingdom, and all who, after that day, should b.
I imprisoned for high treason, suspicion Of Treason
or reasonable practices, by warrant signed by 81,
Of the pri7y council or by any Of the principal sec
retaries Of State, may be detained in custody with
out bail Or main prize until certain day, (the da
when the act was to expire) This soas a suspen
sion of tho privilege of the a0rit.
Secondly, it was enacted that no Judge or justie
! Of the peace should try such person so committe
without order signed by six Of the privy cour
T Gil, until the day when the act expired-any la
L to tho contrary Notwithstanding. This s0as d
aidl of trial. .-. -.
i Thirdly, it was provided that after the day whe
\ the act should expire all persons so imprisons
4 as corpus act Of 81 Charles,2
4 And, lastly, it was provided that the act shou
not extend to the mprsoning or OBTAINING Of ar
y member Of either House of Parliament until Il
4 matter Of which he might he suspected should
b first communicated to the House Of which he W
u member, and the consent of the said Hause Q
III tanned for copmittment or OBTAINING. Vide 6 "
u Stat Of the Realm, l. W. and l., ch Z, in Unver
n ty Lib Chapel Hill. King vsDespard 7. R. Il
ri Bae. Abr. Hab. Corp. note to y 73O
HI Thus it is that the first provision was to
nv the prisoner bail-this deprived him OF the pr