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person shall be arrested, restrained, banished Rights” in Massachusetts, in 1780, it is laid dismembered nor any ways punished, no man

down that shall be deprived of his wife and children, no man's goods or estate shall be taken away from "No person shall be held to answer for any him, nor any way endangered under color of crime or offense, until the same is fully and law or countenance of authority, unless it by plainly, substantially and formally described. virtue or equity of some express law of the

to him. And no person shall be arrested or im. country warranting the same, &c.

prisoned, or despoiled or deprived of his pro“No man's person shall be restrained or im- perty; immunities or privileges, put out of the prisoned by any authority whatsoever, before protection of the law, or deprived of life, libthe law hath sentenced him thereto, if he can erty or estate, but by the judgment of his peers put in sufficient security, bail or mainprise,”

or the law of the land. &c.

“Every person has a right to be secure from

all unreasonable searches and seizures of his Thus was sown the seeds of English liberty person, his house, his papers and all his posseson American soil. But for a long series of sions. years prior to the declarations of Independence

"The liberty of the press is essential to the King George had been riviting the chains of security of freedom in a state.

6.The people have a right to keep and bear servitude on the American colonies, who had arms for the common defense. The military horne it until forbearance ceased to be a vir- shall always be held in exact subordination to tue, when on the 4th of July, 1776—135 years the civil authority and be governed by it. after the first declaration of American liberties peacable manner to assemble to consult upon

"The people have a right in an orderly and the American colonies by their Deputies, put the common good. forth tke immortal Declaration, drawn by the

“The power of suspending the laws ought

never to be exercised but by the Legislature, inspired pen of Thos. Jefferson. It will be seen

or by authority derived from it, to be exercised that among the many complaints, on which in such particular cases only as the Legislashould stand or fall our claim to separation and ture shall expressly provide for. freedom, the rendering the military independ

"No person can, in any case, be subjected to ent of, and superior to the civil power, the de- virtue of that law except those employed in the

law martial, or to any penalties or pains by nial of the right of trial by jury, and transport- army or navy, and except the militia in actual ing us to foreign lands to be tried for pretend service, but by authority of the Legislature.ed offences were not among the least.

Such, reader, were understood to be Ameri“He has affected to render the military in- con rights, in our Revolutionary period, the dependent of, and superior to the civil power. men loved their country for the sake of the

“For depriving us, in many cases, of the benefits of trial by jury.

common blessings to flow from its just and “For transporting us beyond the seas to be wise laws, honestly administered. Such the tried for pretended offenses."

liberty of the inaugurating that good system of Reader, have you seen nothing of late that fundamental law that pervades the ConstituSavors of outrages thus complained of in our

tion of the United States and every State in Magna Charter cf freedom?

the Union. Let us look at the "Great Char

ter of the Union. . Here is enough to settle And again: in the Virginia "Bill of Rights the point without bloodshed. of 1776, written also by JEFFERSON, it is declared that

"The judicial power shall extend to all cases

in law and equity arising under this Constitu"All power is invested in, and consequently | tion, the laws of the United States, and treaderived from the people, that magistrates are ties made, or which shall be made, under their their trustees and servants, and at all times authority. amendable to them.

"The trial of all crimes, except in cases of “All power of suspending laws, or the exe- impeachment, shall be by jury, and such trial cution of laws, by any authority, without con

shall be held in the State where the said crimes sent of the representatives of the people, is in- shall have been committed. jurious to their rights, and ought not to be ex- "Treason against the United States shall ercised.

consist only in levying war against them, or "In all cases the military should be under in adhering to their enemies, giving them aid strict subordination to, and governed by, the and comfort. No person shall be convicted of

treason unless on the testimony of two wit"Freedom of the press is one of the great nesses to the same overt act, or on confession bulwarks of liberty, and can never be re

in open court. strained, but by the despotic governments." "Congress shall make no law respecting an

establishment of religion, or prohibiting the And yet again: in the “Declaration of free exercise thereof; or abridging the free

civil power.

Vances.

dom of speech, or of the press; or the right of | able construction is, that no man has a right to the people peacably to assemble, and to peti- suspend that writ in districts where Lliu civil tion the Government for a redress of grie- power is loyal, and is not impeded or menaced by

"The right of the people to keep and bear hostile forces. All know that in a state of actarms, shall not be infringed.

ual conflict, within hostile lines, the civil power "The right of the people to be secure in however loyal may be its agents, is not safe to their persons, houses, papers and effects against trust with the trial and punishment of traitors, unreasonable searches and seizures, shall not trust with the trial and punishment of traitors, be violated, and no warrant shall issue but up- who may be leagued in such vast numbers as to on probable cause, supported by oath or affir- defy all civil process. Especially where the judimation, and particularly describing the place cial agencies are justly suspected of disloyalty, to be searched and the persons and things to be seized.

it is proper to suspend this writ but never “No person shall be held to answer for a --NFVER-NEVER

in a

district where capital or otherwise infamous crime, unless on the civil power is omnipotent. Nor is a presentment or indictment of a grand jury, it a safe doctrine to hold that if Congress except in cases arising in the land and naval forces, or in the militia, when in actual ser- has the power to suspend the writ (and that is vice, in time of war and public danger; nor now the conceded fact), that power can be shall be deprived of life, liberty or property, delegated to the President, or to any other without due process of law; nor shall private property be taken for public use without just branch of government agencies. For if Concompensation.

gress can delegate power in this instance, it "In all criminal prosecutions the accused may in all, and it may invest the President : shall enjoy the right to a speedy and public with every other power it pleases-the matrial by an impartial jury of the State and District wherein the crime shall have been king of laws, treaties, trial of impeachments, committed, which District shall have been pre- &c. In fact, Congress may declare the Presiviously ascertained by law; and to be inform- den supreme law giver and dictator. This ed of the nature and cause of the accusation; proposition is too absurd to require argument to be confronted with the witnesses against him; to have compulsory process for obtaining to enforce it, and yet, it is precisely what Conwitnesses in his favor, and to have the assist- gress has attempted, in delegating a portion of ance of counsel for his defense

its power to the President. Suppose that any "The powers not delegated to the United States by the Constitution, nor prohibited by

man in either of the loyal states should be arit to the States, are reserved to the States re- rested on suspicion of being disloyal to the spectively, or to the people.

Government. Does any one believe it would "All Legislative powers' herein granted, be unsafe to trust any judge in his county, or shall be vested in a Congress of the United States.

his state, even, to hear and determine the char"The privilege of the writ of habeas corpus ges, and that if he was really proven guilty, shall not be suspended, unless when in case of doés any man believe any judge in his state rebellion or invasion the public safety re

would connive at his release? Such an idea quires it."

would be monstrous to entertain. There is no To the last paragraph we would devote a word or two. So great has been the desire to this writ. Not a man in the loyal North, (save

excuse then, in the loyal states for suspending see the rebellion crushed, and no impediment

a host of leading Republicans) has raised his put in the way of those who would honestly do

voice against the Government, and all, save it, that many Democrats justified the act of

those disunionists, would fight, if necessary to the President in suspending the writ in Mary

defend it. land, before that state was brought under the full control of the U. S, power. It was then

All, then, have one common interest in seean open question, whether the President or ing the laws and all legal orders obeyed. But Congress had the full or concurrent power to under the late order, the best man, the purest suspend this writ. Republican great men and patriot we have in any state may be listuspectDemocratic statesmen differed on the subject. ed” by some personal enemy, and by false acBut that matters not for our present purpose. cusations arrested for Cdisloyal practices," All agree that our fathers, in framing the Con- and bundled off to a foreign bastile, without stitution, did conceive of a possible necessity ever being informed what he was arrested for. that might require the suspension of this ines. We have hundreds of such cases to fill up the timable right, and they provided that somebody black list of tyranny and personal revenge:might use it when necessary. But the reason

Tis but a few days since we heard of General

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Prince, of the army, who was liberated from criminal offense unless upon the presentment

or indictment of a Grand Jury, except in cases Fort Lafayette, and for the first time acquaint- of impeachment, or in cases cognizable by Jused with the charge against him, which was for tices of the Peace, or arisinging in the Army stealing horses he was taking over the line, or Navy or in the Militia, when in actual serwhen he pulled out a 'pass' for the identical vice in time of war or public danger." horses, which he had in his pocket at the time, shall not be suspended, unless when in cases

“The privilege of the writ of habeas corpus and which he could have shown at the time, if of rebellion or invasion the public safety may permitted to know the charges against him, require it." showing that the horses were his own. Thus,

Now, no one will pretend the loyal North is with the evidence of his innocence in his pock- "invaded,"; or, that we have a "rebellion” et from a high commanding officer, he was ar- within our borders and yet the writ of habeas rested without charges, and locked in loath- corpus is suspended. some dungeons for months, as a test of the ty.

"Treason against the state shall consist only rant's power. Reader, your turn may come in levying war against the same, or in adhering next. As you sit reading this, some secret to its enemies, giving them aid and comfort. personal enemy may be plotting your arrest, We deny that there is a man in the loyal and you may be sent to come foreign Bastile, states, known to any person, who comes under and there waste away in duress, without ever this definition of treason. knowing the charges against you.

"The military shall be in strict subordinaIs this the "freedom” our early fathers pro- tion to the civil power." claimed, in 1641, on the historical Rock of

Now, who has a right to disobey these funPlymouth, and for which they risked their damental commands? Are our liberties safe lives, their fortunes, and their most sacred when our inalienable rights are set aside? honors, during the fearful period that ushered Who can contemplate the parallel history of in the freest of the free among the families of Jacobinism and red Republicanism in France, mations? Is this the kind of "freedom" we

without a shudder. The Peninsular wars and have heard so much about for the last twenty- the French Revolution all furnish us material five years, sung in the school room, chanted for the most serious alarm. Read the 10th and in the cloister, doled from the press, preached 14th chapter of Allison's History of Europe, from the pulpit, and thundered from the Abo- and read the "Law of Suspected persons." lition Vaticans? Is this the "freedom" we are

Here is an extract that now suits our "comnow figüting for? Let us see if we find any missioner" trial system to a T. (See Allison's warrant for such belief in our own Magna History of Europe, vol. 1, p. 219. Charta, the Constitution, which is but a reflex of all preceuing state constitutions on this safety at Paris exercised, without opposition,

“Thenceforward, the committee of public "free" continent, whose tap root reaches down all the powers of government; it named and through a long line of freedom's consanguinity, dismissed the Generals, the judges and the o the Great Charter wrung from King John, ces; brought forward all public measures in

juries; appointed the intendants of the provinby a crude, though outraged people. Here are the convention (like our abolitionists] and a few gems from our Bill of Rights from Ar- launched its thunder against every opposite

faction. By means of its commissioners (like ticle I:

our commissioners to try for alleged offences] "All persons are born equally free and in- it ruled the Provinces Generals and armies dependent, and have certain in liable rights; (see our own condition] with absolute sway; among these are life, liberty and the pursuit of and soon after, the Law of Suspected Persons happiness."

[the same as here] placed the personal free"Every person may freely speak. write and dom of every subject at its disposal (the same publish his sentiments on all subjects, being here.] The revolutionary tribunal rendered it responsible for the abuse of that right, and no the master of every life, the requisition and laws shall be passed to restrain or abridge the the Iwambrions of every member of the Legliberty of speech or the press."

in the “The right of the people to assemble to con- islature. sult for the common good, and to petition the -The Law of Suspected Persons (see Fort

gave this tremendous never be abridged.?

power to the Decemvirs, passed on the 17th of "The right of trial by jury shall remain in- Sept. [the anniversary of which the Republiviolate."

cans of the Wisconsin Legislature celebrated "No person shall be held to answer for a by their action on the infamous army voting

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scheme.] It declared all persons liable to ar- | away the last vestige of Gaullic liberty, can rest who, either by their conduct, their rela- repress a shudder, lest in the mazes of our tions, their conversations, or their writings (or 'any disloyal practices,' eh?] have shown iħem- Revolution, we may drift into the abyss of selves partizans of tyranny, (yes, even French contending factions, and be overtaken by the Red Republicans denounced tyranny while cruelty of a St. Just, the fanaticism of a Couthey waded knee deep in human gore!]or of fed

thon, or the crafty tyranny of a Robespierre. eration, with the enemies of freedom (the same kind of freedom' we are threatened with, per- History is our monitor. The tortuous pathway haps,] all persons who have not discharged of nations is strewn with the bleaching bones their debts to the country, all nobles, the hus- of ambitious pretenders, and national epitaphs bands, wives, parents, children mothers, sis

are graven on every mile stone:-"Enslaved ters or agents of emigrants, [those who fled from the reign of terror] who have not inces in the name of Liberty!-slain in the name of santly manifested their devotion to the Revolu- humanity!" tion., Under this law no person had any chance of safety but in going the utmost length of and suffered their liberties to be invaded, and

The people of France yielded inch by inch Revolutionary fury.

their rights, one by one, to be swallowed up, We learn from this history that all France

in the din of the demagogue's cry of "Liberwas divided into 12 classes, as follows: 1. "All those who in the assemblies of the the Committee of Public Safety, rioting under

ty," until the Jacobin and Girondin Clubs, people discouraged their enthusiasm by cries, menaces, or crafty discourses. 2. All those the "Law of Suspected Persons,” destroyed who most prudently speak only of the misfor- every vestige of their power, and they were tunes of the Republic, and are always ready to forced to bear the expense of their own execuspread bad news with an affected air of sorrow 3. All those who have changed their conduct tion! May our Nation's Capitol never become and language according to the course of events, a Conciegerrie. who were mute on the crimes of the Royalists, We are for suppressing this rebellion the [This is equivalent to Mr. Lincoln's crime of shortest way under the constitution.We saying nothing;] and loudly exclaim against the slight faults of the Republicans. 10. Those desire to see the strong arm of power outwho speak with contempt of the constituted stretched to crush out treason wherever it exauthorities the ensigns of law, the popular so; ists, but we do not want to see the charter of cieties, or the defenders of liberty, &c., &c."

our liberties destroyed. Violence should not Are we to be cursed by such a reign of ter- / be used except where violence is arrayed ror that swept away five millions of the French against the Government. If our citizens may people, and by such brutal contentions as run

under any pretext, except in actual rebellion riot between the bloodthirsty Jacobins and the here at home, be arrested, on the ipse dixit of agrarian Girondists? Are our trihunals to re

any political pretender, and transported to lapse into French Decemvirates, as described other states, without knowing what charges by Thiers, the Erench historian, who says:

have been preferred against them, we have no "The Tribunal, once the protectors of life security. Even the Jacobins who persecuted and property, have become the organs of the Girondins may in turn become the persebutchery, where robbery and murder have usurped the names of confiscation and punish- cuted, and thus the lex talionis become the

watchword for a new French reign of terror. And during all this bloody period, both the We should profit by the warnings of history. Jacobins and Girondins claimed to be acting The fate of nations that live only in bloody in behalf of "Freedom” and “Liberty!" history, should teach us that human rights Reader, see you not a parallel in the looming cannot long be trampled on with impunity. shadow before you? God forbid that truth, in Cato demanded of his son the suicide's weapon this land, should compel us to exclaim with the rather than live under the tyranny of the in 'heroic DANTON, when thrown into a French vading Cæsar. May we pray that no necessity bastile, for predicting the ruin and desolation shall ever arise where the suicide Cato shall that speedily followed:

become the homicide Brutus. God protect the "At last," said he "I perceive, that in Rev. right and save the liberties of the people from olutions, the supreme power finally rests with anarchy and despotism. the most abandoned!"

ENGLISI Who that reads the gorey pages of French history, during the reign of terror, that swept A certain lawyer once quoted Blackstone to

ment!"

BLACKSTONE

ON

ENGLISH HABEAS CORPUS

a Justice, who had decided a point against him, , the party suffering shall also have his private not, as he said, to change the mind of the action against the person committing, and all Justice, but to show the Court what an old fool his aiders, advisers, and abettors; and shall

recover treble costs; besides his damages which Sir Wm. BLACKSTONE was. According to our no jury shall assess at less than £500." state Constitutions, in order to the preserva

These rights were declared in 1688 to be tion of our liberties, frequent recourse must "the birth right of every Englishman;" and be had to fundamental principles, and as Sir

are they not ours by inheritance? WILLIAM BLACKSTONE is considered pretty

Now look at the Constitution of the United good authority, we wish to quote from him, I,. States. Sec.8 of Art. 1, declares affirmatively 135:

the powers of Congress; Sec. 9 defines their "By 16 Car. I, c. 10, if any person be restrained of his liberty by order or decree of powers negatively. If the President can arbiany illegal court, or by command of the King's trarily suspend the writ of habeas corpus upon Majesty in person, or by warrant of the Coun- the authrity of section 9, equally can he exercil Board, or of any of the Privy Council, he cise any other of the powers of Congress. shall, etc.

, have a writ of habeas corpus to bring Section 10 negatively defines the powers of his body before the Court of King's bench, or Common pleas, who shall determine whether states. Notice here the connection: Ist What the cause of his commitment be just," &c. Congress shall have power to do; 2d What

“Of great importance to the public is the Congress shall not have authority to do; and preservation of this personal liberty; for if once it were left in the power of any, THE 3d What the States shall not have the right to HIGHEST MAGISTRATE, to imprison arbi-do, under the Constitution. No other intertrarily whomever he or his officers thought pro- pretation is plausible. per, THERE WOULD SOON BE AN END

The Ordinance of 1787 expressly guarantees OF ALL OTHER RIGHTS AND IMMUNITIES. Some have thought that unjust attacks certain privileges to the inhabitants of the tereven upon life or property at the arbitrary will ritory embraced, being expressly stated to be of the magistrates are less dangerous to the Commonwealth than such as are made upon "Articles of compact between the original the personal liberty of the subject. To be- states in the said territory, and shall forever reave a man of life, or by violence to confiscate remain unalterable, unless by common conhis estate, without accusation or trial, would sent, to-wit:- The inhabitants of the said be so gross and notorious an act of despotism territory shall always be entitled to the beneas must at once convey the alarm of tyranny fits of the writ of habeas corpus, and of the throughout the whole kingdom. And yet some- trial by jury." times when the state is in real danger even this may be a necessary measure. But the happiness of our Constitution is that it is not

In the Constitutional Convention of 1787, the danger of the state is so great as to render [Elliott's Debates, vol. 5, p. 484,] we find the this measure expedient; for it is the Parlia- following sentiments advanced in reference to ment or Legislative power, that, whenever it the sacredness of the writ of habeas corpus: sees proper, can authorize the crown, by sus.

"Mr. Pinckney, urging the propriety of sepending the habeas corpus act for a short and curing the writ of habeas corpus in the most limited time, to imprison suspected persons, / ample manner, moved that it should not be without giving any reason for so doing

suspended but on the most urgent occasions, And, further to enlighten the Court upon and then only for a limited time, not exceed

ing twelve months. the subject of sending men from Iowa to Fort

"Mr. Rutledge was for declaring the habeas La Fayette or any other Bastile, 1200 miles corpus in violate. He did not conceive that a from their residence, we quote from the same suspension could ever be necessary at the same

time THROUGH ALL THE STATES. author, same vol. p. 137:

"Mr. Gouveneur Morris moved that "the “And by the habeas corpus act, (the second privilege of the writ of habeas corpus shall not Magna Charta and stable bulwarks of our lib- be suspended, unless when, in case of rebelerties,) it is enacted that no subject of this lion or invasion, the public safety may require realm who is an inhabitant of England, Wales, it." or Berwick, shall be sent prisoner into Scot- "[This was the clause finally adopted.] land, Ireland, Jersey, Guernsey, or other "Mr. Millson doubted, whether in any case places beyond the seas; but that all such im

a suspension could be necessary, as the discreprisonments shall be illegal, that the person tion now exists with judges, in most important who shall dare to commit another, contrary to cases, to keep in goal or admit to bail. this law, shall be disabled from bearing any office, shall incur the penalty of praemunire and

The above shows how jealous our fathers be incapable of receiving the King's pardon,and were of their rights, and how they feared to

WHAT OUR FATHERS THOUGHT OF IT.

97

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