The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-03-11

ers OF taxation, IN TACT with the whole
instrument, and the common law.
Section IA of Article 10. is referred to
in support OF petitioners construction.
We ind the same identical substancs
in Section 8 OF Article 2 Of the old Con-
stitution, where is recited that "Tbe
trial of crimes and misdemeanors, un-
less herein otherwise provided, shall
be by jury, &C." and yet neither the
people, the bar, or bench have ever
questioned the power Of summary police
regulations, such as were exercised in
this city under it, and have ever been
exercised in other States and Govern.
ments under like provisions.
Such police powers have been exer-
cised in this and the old State, without
the Intervention OF q jury, always
And full authority for these and other
proceedings, are found in chapter 20 of
Shsrswoods 4th book of Blackstone,
which in the light OF the argument in
this case, would seem strangely incon-
sisteut in the great commentator after
his eulogium of the right OF trial by
iury. believe the trainers OF the Con-
stitution intended and adopted "or" in
stead of and" in the section named.
Lord Chancellor Ellesmere, in his rules
OF Interpretation says, Words may be
taken and construed y 4,
Sometimes distinctive for copula-
tive. 5, A copulative for q disjunc-
tive" &c. Whether this be too latitu-
binary or not, we must IN some way get
at the fair construction OF the whole
Constitution, which, while harmonic
ing it with itself, reconciles it with the
common law.
If it does not mean "or" then the first
clause of section l3 Of article 8, con-
fiicts directly. I'm suits al common
law, where the value in controversy,
exclusive Of interest and costs exceeds
twenty dollars, the right OF trial by 3
Jury Of twelve men, if required by either
party shall be preserved"
Here it is distinctly recognized that
man may be deprived OF SO or less
gitlo,a jury. Five dollars or twenty
dollars are property as distinettvety as
twenty thousand dollars; and often the
smaller amount is as necessary to the
happiness and welfare of its possessor
as the larger lie to it's possessor. 1t may
to the poor man, be the means OF ga
wing his life, or his liberty or preventing
imprisonmentf for debt and the like.
hold that the intent Of the trainers
and the people was to preserve the right
of trial by jury as amply as it was en-
loved at the time Of it's adoption and
that they added the words "or the jndg
ment of his peers" as 'declaratory OF the.
principles of the common law as applied
to certain classes OF cases.
have diligently examined the Jour-
nal Of the Convention and find "or" in
the original report of the Committee on
the "Bill OF Rights" and in all the
changes made in COMMITTEE Of the
Whole" do not find any substituting
"and" for "or". If the change was
made it was by the Revisory Commit
tee to which it WAS referred and from
whence it was reported back to theCon-
vention and sundry amendments made
and noted, and no such change was
made. as appears by the journal up to
the moment the Constitution was
adopted with but three votes in the
negative.
TO my mind it ia inconceivable that
in such Convention, containing such
men, such an important change could
have been made without note or eI-
citing debate or comment at the time.
| can account for the word as it appears
in no other way than that it must be an
error OF an engrossing or enrolling
clerk. Be that as it may, the
practical construction must be "or"
rather than land" in the class OF cases
embracing the offense charged against
this man.
In the light of cotemporapeous con-
struction | am supported in the view |
have taken.
In all the necessities for a Conven-
ton, as urged by its friends, through
the press and various other ways, who
is there that ever heard urged the ne
cessity or propriety Of such change as
this? Courts in session at or since its
adoption have entered judgments and
DEGREES jepriving men OF property
without trial by jury. Men have been
i'm prisoned TOR debt and fraud as be-
tore prisoners have, on pleas Of guilty,
been sentenced to FIVE and ten years
i'm prisonment without jury. Many Of
such proceedings have been had at the
instance OF the distinguished lawyers
who were OF the Convention. Rights
have been vested in pursuance Of such
construction; legislation, while the Con-
vention was in session, proceeded and
ia now proceeding upon such coustruc.
lion; and are insisting upon the necessi-
ty Of other construction, none but the
petitioner who stands before this Court
an adjudged violator OF q law that has
mad sanction for hundreds OF years.
In view OF an apparent epidemic
in "Habeas Corpus" l briefly con>
slider another point or two in this case,
and upon which it would have been
solely determined, but for a generally
expressed desire to consider the Con.
stitutional question.
This matter involves, substantially,
review of the decisions OF other courts
and the discharge of persons committed
under their Judgments. Its exercise
gives to this court the nature OF al ap.
RELATE judicial power, the exercise OF
which is, in this Gaze, of doubtful pro-
priety and extremely delicate without
special statutory authority, and even
then delicate. 1t may be seriously
asked whether the employment Of
Rabess Corpus by one court in q msn-
ner to correct the errors and irregulari-
ties nf another, ia not an abuse oil the
WRIT The court committing the Pc
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