Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1864-08-26

case was gratified to, find that my conclusion IS
supported by the opinion Of Chief Justice Marsnah
in the case Of Bollman and Swartwout. he says
that the clause of the constitution which author-
ICES the suspension of the writ applies only to the
writ of ha6eas corpus ad su6jicisndvn, the great
writ of right" sued out by aperson who stands
committed for some criminal or supposed criminal
offence, and does not embrace the-inferior kinds OF
the writ, such as habeas corpus adj stificGnduTn
and the like. l will also refer to the very full and
able argument 1ed by Mr.. Moore in this case.
l am Of opinion that the return of W.: ID. y.
Whiting is insufficient and does not show that the
petitioner is liable to military service. My conclu:
sion is tina: he is entitled to exemption, and shouio
be discharged the facts set out in the return TO
R. NJ PEARSON, G. j.
Richmond Hill, July 25, 1854
NoTSThe case was tried during the suspension of the
writ and Mr.. MOore's argument is directed wholly to the
question whether the writ be consutonaly suspen-
ded except in where the person deprived OF MS
liberty upon charge of crime
ARGUMENT OF B. F. MOORE.
propose to show: T. That the clause of the
Constitution declaring that the privilege Ct the writ
Of habeas corpus shall not be suspended unless,
when in cases of rebellion invasion, the public
safety may require it, allows of such suspension
only in cases Of criminal or supposed criminal
matters,-And,
2. 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 lis 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 (art l. S. 8, c . yesting 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
H. ,f,1fin Of fhn
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 pro-
vides that the Federal Courts shall have power to
issue wIits of Scire fdcts hdbeGs corpus, and all
other writs necessary for the exercise OF their re-
SpecliVe Jurisdictions: Provided that wrlts OF hG-
6eas corpus shall in no extend to prisoners IN
jail, unless where they in custody under or by
color Of the authority of the United States, Tor are
committed for trial before some Court of the same
or are necessary to be brought into court to- teS-
tfy p The judiciary act of the Confederate States
of March, 1851, Sec 49, is substantially the same !;
the only change being in the omission of the quo
ted words contained in brackets. This omission,
however, affects no change in the scope or interpre,
tation of the two sections. As there is restric
ton in the statute as to the kind of wrts of habeas
corpus which may be ISSUE either by the adjunct
of the term privilege as in the Constitution, or
otherwise, it follows that the number and kind of
such writs which they issue caR 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 0f17s9
is omitted in that of March, 1851 And it is equal
ly clear that the Federal Courts had authority TO
issue the writ of haJeGs corpus al respOndendUn1-
GG Satisfdci6nduR-Gd fdcieadum ct TecipleRduN,
and all other kinds which might be necessary to
the exercise of their jurisdictions.
The power to clothe the courts and judges with
the authority to issue any kind Of the writ is clear
ly derivable from Art 8, UNITED States anil Con-
federate CONSTITUTIONS which cOEfers 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. it is man
ifest that the Federal Courts would not have pos
sesSed the power to issue any Of the wrts Of hGI
beds corpus, inasmuch as these courts derive all
their jurisdiction and powers from special grant
Er parte Bollman 4, Or. 70. 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
act in regard to persons detained under federal au.
thorlty. Doubtless, however, when the power of
suspension was granted it was upon the idea that
the cOurtS would be invested with the authority to
issue every kind of the writ which was then in use
and had been found convenient for the better pro.
lection Of the citizen and the more convenient ad
mnlstratiUn of justice. But it cannot be reasona.
bly, supposed, that the trainers of the Federal Con.
sttutiOn intended to allow Congress to suspend all
kinds Of the writ-thOse of al teStifcdndlttn, ad
tacieadQm ct Teeipiendum, etc first, because no
freeman could have imagined 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
trOm custody. 1t is admitted, therefore, that only
such wits may be suspended as carry with them a
personal privilege; and, doubtless, She language
1.-THE prlVllegeOf the writ'-was carefully selected
to include such only claimed such privilege and
from the formation Of the constitution it has been
conceded that the only writ meant is that os Gd
sutjicieHduna. By some, however, within. short
tune past it is insisted, that all the cases falling
under that writ are embraced by the clause giving
tue power of suspension because, say they there
Is no Limitation or modification of the class of such
cases. But do the words the privilege" embrace
all the privileges under that writ and subject them
all to suspension? Or do not the time and occasion
| rebellion Or invasion-necessarily limit the sus
| pension to some offence affecting the public safe
| ~? For why, it may be asked, should law-ab
ding citizen suffer confinement IN such cases more
than in any other, who does not aid assist nor sym
| pathize with the rebels or invaders? But sup
| pose the power OF suspension had not been thus
qualified by the time and occasion; and the clause
had expressly declared that the priUiLege of til.
SOrit OF hGJeaS corpus ad Subjiciendum may b
| suspended, let us inquire what cases were under
| stood to be. peculiarly embraced under that writ
before and about the adoption of the constitution
in 1857. If we look critically into the English Tau
books of those times We shall fud, that while thu
jurisdiction at common law, of some of the courts
to examine all cases of illegal detention of the per
son, as well in civil as criminal matters, was as
serted, the writ of hG6eas corpus ad su6jiciendum
was declared to be that which issues In crimina
| cases. Thus in BAG. Abr Hab Corn. "A under thu
head of the nature and several kinds" of the wri
it is said" The habeas corpus adj suIjicienduns il
that which issues in criminal cases." On the sam
| page, and in q note to the definition of tho wTi
al taciendum- ct Tecipiendum, it is said, of thi
writ 81 there ought not singly matter of crime t
be returned, for that belongs to the ha6eas corpu
ad suIjiciendum." This is laid down in 2 Hale p