Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1864-08-31

prayer made, ON the first week Of the term after
his committent to be brought to trial, he were not
indicted some time in the next tsrm after his con
mttent then on motion on the last day of that term
be was entitled to be discharged on bail unless the
witnesses for the King could not be fourd and if
he were not indicted and tried the second term then
he was entitled to be Internationally discharged
The British Act therefore, after abrogating the
right to the privilege of the writ proceeded to an
null the 7th section Of the act Of Charles, which Sc
cured speedy trial. (Bsc. Abr. Hab Corp: 4,
note on page 1907 1t is apparent. then that "
England the simple suspension of the privilege OF
the writ was wholly disconnected with the right OF
trial There are some privileges secured by the act
of Charles which are distinct from those pertaining
to tho writ Of Aabeds corpus at common law these
are secured by legislation. If the entire act as TO
class of criminals, we're repealed temporarily, all
these privileges would of course cease to exist and
the common law privileges incident to the writ
would alone be in force. But such repeal would
not affect the speedy trial secured by the 47th sec
ten of,Afagna Chsrta- 1--WE will sell to no man,
we will deny no man, or defer right or justice"
which Lord Coke says is ever being repeated by the
Kngin all his courts. So the suspension of the COM
mon law. writ cannot, of ITSELF affect this provision
of Magma Charta 1t requires the authority of Par
Lament to do it. and if omitted by Parliament the
and Sir William Blackstone the great commentators
Of ,gisi lsw, proc.e1 with the trial "speedi-
ly and without delay" q Inst. 55-1 BL Com.
AL
1t is manifest that the privileges of the habeas
corpus act Of Charles, as to persons arrested Tor
crime or supposed crime embrace all the privileges
of the writ at common law, and secure and define
others besides The 7th section of the act does not
annul the 47,h section Of Magma Charta, but con-
firms it and defines osome extent, as to unbail.
able crimes what speed of trial prisoner Is entitled
to- 1t would not answer the purpose of suspension
| in England to repeal or suspend for time the en-
tire of Charles for that would leave in full force
] and vigor the common law writ as to bailaole Of
fences; and the provision in Magma Charta, Tor
speedy trial. as to those unbaiable Therefore, the
oct of suspension strikes at the writ -hether exis
| ting at common law or regulated by statute, and
moreover suspends the 7th section of the statute,
and the 47th of Magma Charts, both of which are
! done by an express denial of trial. The popular
name given to the legislation in England, "suspen-
sion Of the act of habeas corpus" expresses not
half its effects.
If the constitutional power to suspend the privi
lege of the writ was intended confer OH Congress
the entire authority possessed and exercised by the
Parliament before the adoption Of the Constitution
of 1885, the statutes passed those OCCASIONS must
be the expositors of the nature and extent of the
grant. These guides would. on the one hand, first,
c,nfine the suspension to crime only-secondly, to
the crimes of treason suspicion of treason and urea
! sonabe practices thirdly, you'd require the
process for arrest to be special warrant signed by
the President Secretary of State, naming the per-
son and the ofense aud, on the other hand, would
invest Congress with the power to deny trial for
Sc long tune as the act might last unless the
: President sooner consent to it
If these statutes of England, however, be not the
: true expostors Of the nature and extent Of the
power granted by the Constitution, then we must
look to the guides afforded us elsewhere The only
legislative guide among ourselves is found in the
DILL, which passed the Senate of the United States
in 1907. That however, requiring both an oath
and special warrent to precede the arrest, simply
denied to the prisoner the privilege Of the writ
privilege was. There is in it. however, no prohibit
ton against speedy trial. as in the British acts
yet the privilege is declared to be suspended for
three months, thus showing in the clearest manner
the opinion Of the President, Jefferson, and a very
able Senate that the privilege Of the writ might be
suspended in the very language of the constitution,
without dispensing with oath or warrant or pro-
hibiting speedy trial. There were in the bill no
details; the prisoner was to be deprived of the
privilege of the writ which the bill substantially
a1irms he may be, and yet not lose the benefit Of
single guard of the constitution but have the full
protection of ALL If this bill was an exercise of
the granted power (and it must be taken to have
been SO intended by its supporters by their using
the very language of the constitution) it tends to
latitude of construction which would bring the
clause into conflict with other constitutional pro
visions guaranteeing personal rights If that bill
was full exercise of the power granted land it
be no less for the enactment in the very language
of the constitution the power invoke no other
power to render the suspension of the writ more
terrlble-nor above ALL can it PROSTATE, for that
purpose, distinct guard of personal freedom. 1t
e apparent that the late act is neither English nor
American in it's character, but altogether sui gen.
eras 1t assumes against the entire history of legis
lative precedents on both sides of the water, to
suspend the privilege of the writ for other than
criminal purposes and it dares against the practice
CT both, to arrest on general warrants. -
In England the practice in cases of suspension
has been invariably to require special warrant.
Rex. Despard, Z, I. R. 1872, T. b. Com. 29, n. k.
The British acts secure the privileges of the men,
bers of Parliament against the force of an act
which did not except the members This makes no
exception of any One. In England member arrest
ed by order Of the council would be entitled to have
his release once through the writ unless the house
should surrender him. But under this act the Pres.
dent Secretary State may annihilate the entire
Congress- allow it. much Of itas he may please
to exist Such \ clause of exception is necessary
in England to secure the ancient privileges of Par
Lament, because of the Omnipotenoe of that body
There is no doubt that the reason why, in the bill
of 1907 no such clause of exception was inserted
is that the Congress deemed the members to be
protected by the constitution from arrest for othe,
: causes than are therein set FORTH
= The power to suspend the privilege Of the writ
the provision that no person should be deprived o
. his liberty without due process Of law, which il
u declared to be warrant issued on probable cause
supported by oath and particularly describing tn
person to be arrested and the guaranty of speedy
u trial, all distinct constitutional provisions, AM
g occupy each one the same prominence and the sam
e independence of each other, in the constitution
70 Neither Of them is 'proviso or qualification t
any other-each has the same constitutional status
a Any one of them can exist without the other, an
Il all can exist together and in harmony. If the bill
e Of 1907 had become law the vigur ofnone Of thes
70 provisions would have suffered the slightest impair
m ment But if any two or more of them shall