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

COUNTY CoURT.-The County Court OF
Ohio County, Judge R. 81. Cochran
preceding convened yesterday morning.
The will Of Jessie Edgington, late Of
Ohio county deceased was admitted to
probate aud record.
6. L. Cramner, challenged the venire
q being unlawful he alleging thatthere
is no statutory provision authorizing a
jury to be impannelled.
In the case of james Mccarthy, fol
release on writ Of hsbeas corpus the
Court delivered its opinion as follows
MoCARrHr-YABEAs CORPUS.
This is an application for writ o
Hsbeas Corpus by one James Nc
Carthy, who alleges that he is uulaw'
fully imprisoned, dc. The return Il
the writ shows that be is held by tb'
Sheriff by virtue Of writ OF commit
ment, which shows that the prisoner OF
the Sd day of March. 1873, was ICON
yicted before the Judge Of the Munici
pal Court of Wheeling for the violation
of the 18th section OF an ordinance de
fiuing and prescribing the punishment
of certain offences therein specified; "
this, that be did on the 22d day o
February, 1873, in said city, carry
KNOCKERS OF brass or other metal o.
material contrary to said ordinance
and is sdjudged by said court to pay
$40 fine Tor the use of said city anC
81 As costs, and in default OF paymen
of said fine and costs is committed tt
the Jail OF Ohio county for the space o
twenty days, &c" The broad question
raised and relied on by the counsel fol
the petitioner is that this imprisonment
10 in violation of section 10, ofsrticle 3
("Bill OF Rights') of the Constitution
of August %. 1872. which as shown
to the Court reads-"no person
should be deprived OF lite, liberty OF
property without due process OF Law, ana
the judgment Of his peers.
Various other clauses and sections Of
the same Constitution, have been cited
in support OF position taken by petit
toner's counsel, and their view has
been argued by ingenious arguments
offered in q commendsble spirit and
references have been made to authors
ties and precedents which show a Zeal
GUS esrnestness in behalf OF their, as
they believe, injured client. On the
other hand the City Solicitor has barely
suggested,
lst. That this Court has no juris-
diction in the premises.
I'd. That the petitioner has ample
remedy by appeal to the Circuit Court
These suggestions, though supported
by no argument or reference to suthori'
ties BY him have put the Court upon
inquiry in that direction and will be
considered.
1t is contended that the people o.
West Virginia, in framing and adopt
ing 5he New Constitution, said, and IN
tended to say, for the first time in the
history of the United States, or any o.
the States, that mo person should be
deprived Of lite, liberty. or property
without due process OF law and the
judgment OF his peers
Most of the constitutions OF the States
use substantially the same terms, ex'
cept that thedisjunctive "or" is employ
ed instead Of the copulative land, while
some OF the States only employ the
words, without due process OF law
The expressions come to us from magma
charta; have been the subject OF judi,
cial investigation for centuries, AND
have q settled meaning.
Due process OF law" or "by the law
of the land" have been held tor centu-
ries to refer to the common law as dis
tinguished from statutory enactment
1t is, that the matter shall be judicial
ly ascertsined according to tie course o
the common law or, perhaps "tht
better and larger definition of dm
process of laW is, that it means law in III
regular course of administration hrougi
courts of justice. 2 Kent Is
This expression alone, without thu
other employed in our Constitution, se'
cures TO the defendant jury in felonie'
and the higher grade OF crimes. and ii
certain classes OF civil cases.
By" the judgment of his peer" is mean
q trial by jury. At this point, | vii
say that the case cited in Is n. Y, by
petitioners counsel ls. in my judgment
not case in point.
That case, turns on the question o
the right OF the Legislature, by leglsla
tive decree, to declare nuisance, di
vest of every element OF property anc
subject to condemnation and annlhlla'
ton without due process OF law, wei
known article OF property and CONNER
cisl value-I sllude to the &C
entitled AN act for the pre-
vention OF intemperance, pau
perism and crime"-The act was ont
wherein the Legislature attempted tt
exercise judicial powers; impair the
validity OF contract sieze private pro-
perty without compen sation make
that wrong which when done, was right
change innocence into guilt DC. Il
was law denying or destroying titls
instead Of providing a forfeiture o.
goods, which implies title.
Passing this and also the case cited
in 4th Hill. l come to the question IL
our own Constitution.
In Constituting the 10th section o
Art 3. l shall endeavor
/. To give effect, to the intent o.
the people in adoptingit.
2. To give effect, if possible, to the
whole instrument.
In attempting this will endeavor.
l. To keep in view the Common
Law.
2. The proceedings Of the Conven-
ton.
3. Cotemporaneous and practica
construction.
Ard bara rap,a rl MAN he rnoda tbs