Richmond Whig. [volume] (Richmond, Va.) 1862-1865, 1864-05-25
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seizures of persons and property under them, without
probable cause shown under OATH showing the css OF
tae goods the place where they are believed to be de.
posied and the persons inoupAtfd 10 the theft. ltw
be borne in mind that search warrant not only com
msnds the seizure of the stolen goods but the arrest
of the person In whose possession they may be found
ana hence the language of this clause to the right OF
the people "to be IN their persons" and that
persons to be seized" shall be described In tho warrant
But ths "a plainly rredica,ed only Of the subject mat
ter of tha clause which ia for stolen OF lost
goods a0d- ffcis, aud the persons Charged with the
theit To extend the prohibition to cases Of treason
ma der or other capital felony would DO to give an
eeo; beyond the pa import Of the words employed,
ald to 90 yioencs the mlmes in enioo Of the pro-
vision Il would b. 10 introduce rule of constructor
as to the specific provisions Of the 0oDstitui On whc,
II carried ou would subver the letter and perVert the
entire spirit of the instrument
There is therefore, nothing 10 this provision restre-
tive OF the power granted in the clause In relation to
suspendng toe writ Of Habeds Corpus.
Another provision Of the Constitution relied on, IL the
first clause of par. l6 of the same secton-that "no
person shall be held 10 answer for capital otherwise
infamous crime. uue on presentment or Indictment Of
grand jury" SC. Bu this clause has reference 70 the
trial of persons and not TO their arrest The term
that go person ''sha be- held to aaSver" "unless on
presrntment indictment" PLAINLY meaus required to
answer that to say on the trial for the ofeace for
Otherwise no person could arrested, but after pre-
sentiment or indictments Of grand jury even upon
xarran; and oath showing probable cause. This clause
cannot therefore, be applied to the original arrest aud
does MOI sus ain the objection founded on It.
Agan-I. is ca d that The clause giving the power to
suspend the writ Of habeGS corpus 10 controlled by the
provision Of par 10 of the same section Shat no per
son ehal DO deprived of lfs liberty property, with
out due process Of law" from which t is contended
that no citizen eau be arrested 10 times Of rebellion or
invasion without in due course of law from
the Jude al authorities AID that the act of Congress
under consideration is in violation Of this provision Of
the Constitution.
THIS view is based upon an assumption in regard to
the force add true import Of the clause relied on which
lie errone US in two material respects.
l. Il is assumed that the terms employed have refer.
euoe 10 original arrests for offences. But this ia 10.
sustained either by The proper AID legal force Of the
words or by the context The term deprived" oon-
templates the final by which the person ia to be de.
prived Of the rights mentioned. This is the proper
and legitimate meaning Of the word and is shOw to
nave bse used ia that sense by the additional words
sue D ocsss OF law" These words have been settled
By uuca interpretation 70 be equival,n to the term
claw OF the iAnd," used in Aogad Ohartdi and that
has been determined according LORD Coke, to meaa,
oy indictment presentment AID legal trial. Il could
not be said, with any proprieJy, that person must be
charged by indictment or presentmeDt before he could
90 arrested criminal charge 1t Is clear therefore,
that ,hes words "shs not be deprived OF lile liberty
or property without due process OF law, by regu
lar Judicial trial. by which the person may be deprived
Of those rights Ths is also apparent from the other
clauses socRtsd in this paragraph of the Constitution,
in all of Whicl reference is made tie trial final act
by which the ps.son is to be deprived Of the rights
cured TO him.
Toe right Of the accused to be informed Of "the ma
ture and cause Of the accusation against him" the
tune Of bis arrest is secured oy another provision OF the
Constitution and it was right ct common l-w Wbca
wss not parted With 10 the 0Jns uaon but vas retlia
ed by the of the compact aud under the general
vation OF rights not delegated prohibited.
Il is assaaed she. the cause uIder consideration
IS ncoDPa bic with, dpaFanouat 20, tia clSuse "
leg che power pend toe Wr! Of habsaS corpus
make laws irrfurtDerance theseof aud beng qua
ran'y Of specid, and SUBSTANTIVE ight thas ls must
preVail over ths indefoits power given in the later
clause; because ths express grant OF right in one
clause overrues Inconsistent implied power derived
ON another clause. Bus the power TO lend the Wrs
Of hd6sas corpus Is distinct and sub,antve in Con-
es Is the right OF security in life, liberty AID
property TO the citizen; aud tho OF subs antve
aud independent gratis we not TO construe IA
derogadng from tina otler, unless such intention &c
fst ftom the cont H but to give such reasonable
construction tia. the 0bjecs OF both may bo accom-.
plshs that both ayhaye effect far a. is practica
ole. IL is welsetiled doctIne, that when p)Eer is
ganCd in general terms the power is to b. construed
as cc-tI e. sive With the terms, un ess some clear
restriction deducibe from the context Hero there is
restriction 10 the power granted, excep that there
must be rebellion invasion in order to its ex nc
~ - AuIOi PO"ot 10 W
interpreted to suppress the mischief AID 10 pro-
mote the remedy.
Now Wha, was the evil intended to be provided
against by the trainers OF the Constitution in wing to
Congress the power 10 suspend the writ OF hGbsas cor
pts in mss Of Rebellion and INVASION when required
oy The puslc safety? Assureily twas that persons
charged Ssh ire sSuaoc oondlc gigqg aid aud co
tost 70 ne enemy, and the IKE mgh be discharged
from srresi Sld enabled t1ereey 70 do irregarsole
i july TO the publc SAFETY. Il con,d no. have been
dreaded tina, The supsnslcn OF the right should take
ace ony 10 WHARF persOGs should b arrested
committed on iudic2 warrant, isu on oath Snoring
probable cause, as Is cooepd 81 for IN such case
,ssrs tie person charged Vh treason or felony az,
the tOGrat the accused not entitled to TIE Writ of
haJeaI corpus the law stood the time of the adop
ton of the Constitutions; and il is absurd to suppose
that the Constitution Intended 10 give pc suspend
the writ in cases where 1t could not ISSUE. The
fact that the exercise of the power is confined to
times o, reosloa and invasion when the pu 3c safety
might in LANCER from internal public en.mies shows
that t contemplated hat the of thu civil power
under ordinary forms AID modes Of pr cseding ght
be incompetent to protect the pubic safety ia such
tinei; tina; The OF public peril might be
such demand the OF public enemies and that
toey should b. held 5y Other than the power of
judicial bunes necessarily uncertain and inadequate
10 suea circumstances l. shows that such persons were
intend 10 be arrested aGd not dscharg 3D. 10 order
prevent Cue execution OF their evil desgns to secure
them TOT punishment IL que luis NltnOu regard
to the form or mode OF their ares; and it 10 manifest
tina. the trainers OF the Constitution contemplated that
the strong arm Of the Government should be called into
reqnisiJon times Of such public calamity 10 arrest
persons dangerous ID the public safety II this be not
true the power conferred must be nugAtory in times of
confusion and Generalization proceeding from an eX
isting rebellion or invasion, when the courts are OF
s:rucled aud public enemies rife in the land aid the
grant of power to Congress must bs idle waste of
paper construction leading to such rOtut cannot
be maintained. Buh on the contrary, we mlst givs
tons OF public necessity to which the rights of private
Individual must yi9l6i and that IL constitutes excep
tion 10 the rule tina. shall be deprived of his
liberty without due course Of law, and TO all osaer guar
antses Of piiTase rights mentioned in the Constitution
for the reason that the public welfare is paramount 10
all private rights. This vie appears be colclusive
Of she question: though the views herein taken of
oher clauses relied on be erroneous