The Portland daily press., 1868-07-22
Terms $500 per annuns, In adrance.

The practical denial OF this most valuable
of all the privileges wrested by the Barops
from King John at Kunneymede in the XIIth
century, was one of the main causes that led
70 the dethronement and execution OF Charles
1. nve centuries later
And at the restoration of the Stuarts the
people OF Great Britain demanded and OBJ
.a.neu rom his son an explicit and peremp-
tIay tHy ot suatanty OF their personal freedom in
chaISstn. naoeas corpus act of 81 Charles III,
| efficacy to which it was entitled ~ common
law, and which was reauisiIa for the dino
protection OF the liberty of the subiaot Tbis
famous statute is the basis of onr o,s,,, ond iS
beyond question part OF the common law of
this State In all its vieor, except so far az Il
has been limited by our Constitution or
laws. "
The Constitution of the United States do-
clares, (Art. J., Sec. TX, clause y that "Tbe
privilege OF the writ OF habeas corpus shall
not be suspended, unless when in cases of
rebellion or invasion, the public safety may
require it."
And our own State constitution, (Bin of
Rights, Art. l., Sec. I0,) reafirms the privi-
lege In the same words, prefxing the signif-
cant dec caration "au persons before conyic-
tion, Sha1 De 6aitabie, except for capital Of
fences, when the proof is evident or the pre-
sumption great"
II it is objected that for this latter afirmo-
the clause has been substituted a mere ne
gCliOn in the shape of Amendment III, "nO
person shall be bailable," &C., and that, there
tore, the Legislature has been at liberty since
1888 by naked enactment to forbid bail in
any case or in all cases, at its pleasure, the
answer is, that careful examination of the
resolves OF March 30, 1887 Chap. IA pretacin0
Amendment Ii, and those of March 2l. 1898.
declaring its adoption by the people, shows
that this amendment is declared to be a sub
Stitute Tor the entire 10 section of Art, |. of
the Bill OF Rights So that by such a con-
struction, the constitutional guaranty against
the arbitrary suspension OF the habeas corpus
in time OF peace has been expunged for thirty
years. Such construction Of so vital 4 sec
ton cannot be allowed. although a strict con-
structioh Of the somewhat unfortunate phras-
eology OF the resolves of 1887 and 1888
might warrant it. The preamble to that
resolve OF 1881, the previous legislation. and
the then recent opinion OF the Justices ftbe
Supreme Judicial Court therein referred To.
the history OF the amendment and the pub
lie safety all point to and demand an oppo-
site Interpretation. Clearly the intention of
the Legislature which proposed and the peo-
pie who adop'ed the amendment was hereby
to add to the list OF unbailable offences, the
three crimes OF raI :, robbery with intent to
kill and burglary, the punishment for which
had recently been reduced from death to per-
petual mprisonment,--not TO surrender the
only guaranty against an arbitrary suspen-
sion of the habeas corpus, nor OF the affirma-
tive provision for bail for all other offences.
The habeaS corpus has been called the pal
ladum of our personal freedom, and perhaps
no written guaranty supports larger part of
the fabric OF civil liberty in the United States
| or Great Britain.
The existence Of martial law has been said
to date rom the suspension of this writ, and
| pers onal oppression becomes impossible when
| it is faithfully preserved and applied,
1t is indispensable to guard it with Jealous
| eye and to prevent the slightest encroach-
| ment upon its extreme limits, for no man
can be sure that its ampest powers may not
| become necessary to his own personal protec-
| tion. Hence, in criminal cases at least, as
we have seen, the powers of the court are
bounded only by its discretion.
| So in Massachusetts the Supreme Court
| say "As a general rule, the writ of habeas
corpus and all action upon it are governed by
the judicial discretion OF the court in direct
| ing which all the circumstances are to b.
taken into consideration.'-(Case v. Briggs,
/ 16 Pick. 205)
The offence with which the petitioner
stands charged is one of the foulest in the
catalogue OF crime, but at the same time has
perhaps as often been falsely charged as any
| othCi, anu LufS from the nature OF the crime
Of the facts in this case, know nothing.
and less than two months can in any event
intervene before the petitioner will be re-
| CURED to appear before the Supreme Court
| for hnal trial.
Yet it is conceded that the reasoning
which would deprive this court of Jurisdiction
and power to inquire into this case beyond
the papers before me, would leave remedess
prisoner committed by any trial justice of
the county ON charge of murder, even not
withstanding the appearance of the supposed
victim might demonstrate the error OF the
magistrate, and although the prisoner might
thus be unustly incarcerated for period of
i four months.
am unwilling to admit such fatal defect
IN our system OF criminal jurisprudence, nor
is 1T believed that our Constitution and laws
require or justify it.
After such examination Of the points and
authorities SO forcibly and ably presented BY
the learned Attorney tor the State lor this
county, as the limited time has permitted. I
am obliged to overrule his objections and 10
allow the petitioner to show cause, IL he is
able, why he should be admitted to BAIL
The petitioner, alter a hearing, was ad-
mitted 10 bail by Judge Goddard, June 80, in
the sum OF $1700.