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

Gains case am Of opinion that the act of Con-
gress suspending the writ Of habsas corpus does
not apply to this case Since the decision in Gains
case was gratified to find that my conclusion Is
supported by the opinion of Chief Justice Marshall
in the case Of Bolman and Swartwout He says
that the clause of the constitution which author
ICES the suspension Of the writ applies only to the
writ of ha6sas corpus I'D suJieiendum, the great
writ of right" sued out by person who stanos
committed for some criminal or supposed criminal
offence, and does not embrace the inferior kinds OF
the writ such as habsas corpus ad testDseoadun
and the like will also refer to the very full ana
able argument filed by Mr.. Moore in this case,
am of opinion that the return of W. Il. y.
Whiting is insufficient, and does not show that the
petitioner is liable to military service. My conc'u,
sion is tina. he is entitled to exemption and should
be discharged the facts set out in the return to,
''s '''' R. n PEARSON, O. J.
Richmond Hill, July Is, 1854.
Nor.-Tbe case was tried during the suspension Of the
writ and Mr. Moores argument is directed wholly to the
question whether the writ be consutionay suspen
ded except in cases where the person deprived Of his
liberty upon charge of crime.
ARGUMENT OF B. F. MOORE.
propose to show: T. That the clause Of the
Constitution declaring that the privilege of the writ
of ha6eas corpus shall not be suspended, unless,
swhen in cases of rebellion or INVASION the public
safety may require it, allows of such suspension
only in cases of criminal or supposed criminal
matters,-And,
O. That the power to suspend the privilege of
the writ carries with it no power other than simply
to deny the benefit of the writ and subject the
party to Imprisonment as its only attendant con-
sequence and to maintain both Of these PROPOSE
tons by the uniform practice and understanding
both in England and America.
l. The clause CART l. s. 8, c q vesting Congress
with the power to suspend the privilege OF the
writ is the same in words as that in the Constitu.
ton Of the United States and must therefore, have
the same Interpretation. The Constitution of the
United States was adopted in 1888 the judiciary act
was passed in September 1885, within the year after
the adoption of the Constitution and by Sec
yides that the Federal Courts shall have power to
issue wrts Of scire fuchs. habeas corpus and all
other wrs necessary for the exercise of their re-
spective jurisdictions Provided that writs Of ha
beas corpus shall in no case extend to prisoners in
jail unless where they are in custody under or by
color Of the authority of the United States, tor are
committed for trial before Court of the same,
or are necessary to be brought into court to tss-
tfy. T. The judiciary act of the Confederate States,
of March, 1861, Sec Is, is substantially the same !;
the only change being in the omission Of the quo
ted words contained in brackets. This omission,
however, affects change in the scope or interpre
taton of the two sections. As there is no restric
ton in the statute as to the kind of wrts of habeas
corpus which may be issued, either by the adjunct
of the term privilege as in the Constitution, or
Soherwise, it follows that the number aud kind of
such writs which they issue can be limited only
by the necessities arising in the exercise of their
jurisdictions Hence il is clear that the courts may
issue writ to bring up . witness, though that
power specially granted BY the judiciary act Of 1882
is omitted in that Of March, 1851. And it is equal
ly clear that the Federal Courts had authority to
issue the writ Of habeas corpus nd respondendum-
Gd sGtisfaeieadans-adt aciendu,n ct rscipsenduDa
and all other kinds winch might be necessary to
| the exercise of their Jurisdictions.
The power to ciothe the courts and judg with
the authority to issue any kind Of the writ is clear
ly derivable from Art 8, UNITED States and Con.
tederate CONSTITUTIONS which GOLFERS judicial pow.
ers. If it had been possible to establish judicial
system without the use of the writ and Congress
had not conferred the authority to issue it. is
fest that the Federal Courts would not have pos
sessed the power to issue any of the writs of ha.
beas eorpus,. inasmuch as these courts derive all
their jurisdiction and powers from special grant,
EE parte Bollman T. Or. rs. In such contingency
the power of suspending the writ could have oper-
ated only upon the courts and judges of the States
IN such cases only wherein they might assume to
ct in regard to persons detained under federal au.
thority. Doubtless, however, when the power of
suspension was grained 1t was upon the idea that
the cou Is would be invested with tho authority to
ISSUE every kind Of the writ which was then in use
and had been found convenient for the better pro-
lection Ut the citizen and the more convenient ad
UinIstratlUn of justice. But it cannot be reasona.
oily supposed, that the trainers of the Federal Con.
stltuton intended to allow Congress to suspend all
kinds Of the writ-those of nd testi6eandum, ad
Jaciendum ct reoipiendun, etc; first, BECAUSE no
freeman could have magiDed any conditions of pub.
lie danger which could possibly require the law.
abiding man to be imprisoned; and secondly, be.
cause of the use Of that emphatic language which
is peculiar to the writ used to deliver prisoners
from custody. 1t is admitted, therefore, that only
such wits may be suspended as carry with them q
personal privilege; and, doubtless she language
1.-THE privilege OF the writ'-was carefully selected
to include such only as claimed such privilege and
from the formation of the constitution it has been
conceded that the only writ meant is that Of ud
suylcSsndum. BY. some however, within shor,
time past, it is insisted that all the cases falling
under that writ are embraced BY the clause giving
the power of suspension; because, say they, there
is no Limitation or modification of the class of such
cases. But do the words 1.-THE privilege" embraces
all the privileges under that writ and subject then
all to suspension !? Or do not the time and occasion
rebellion or lnVasion-necesssrily limit the sus
pension to some offence affecting the public safe
~! FOR Why 1t may be asked should law.abi
ding citizen suffer confinement IN such cases NOR,
than in any other, who does not aid assist nor sym
pathize with the rebels or invadersy But sup
pose the power of suspension had not been thu
qualified by the time and occasion aud the claus
had expressly declared that the priuileqe Of tn
0rH OF h0bsas corpus dd subjiciendum NAV b.
suspended, let US inquire what cases were under
stood to be peculiarly embraced under that wri
before and about the adoption Of the constitution
in 1851 Ii we look critically into the English las
BOOKS OF those times we shall find, that while tn
Jurisdiction at cQmmon law, of some Of the courts
to examine all cases Of illegal detention of the pei
son, as well in civil as CRIMINAL matters, was as
serted, ihe writ OF Aaosas corpus ad suIjiciendum
was declared to b. that which issues in crim ina
cases. Thus in BAG. Abr Hao Corp. A. under tn
head Of the nature and several kinds" of the wrj
it Ii SADLY habsas corpus ad suljicienduns
that which issues in Criminal casaan o. tho aa,n