Gambar halaman
PDF
ePub

party who is in confinement under judicial process is brought up on habeas corpus, the court or judge before whom he is returned will inquire: 1. Whether the court or officer issuing the process under which he is confined had jurisdiction to issue it. If so, mere irregularities or errors of judgment in the exercise of that jurisdiction must be disregarded on this process, and must be corrected by regular appellate proceedings.1 2. If the process is not void for want of jurisdiction, the further inquiry will be made, whether the case is by law bailable; and if so, bail will be taken if the party offers it; otherwise he will be remanded to the former custody.

This writ is also sometimes employed to enable a party to enforce a right to control, growing out of one of the domestic relations; especially to enable a parent to obtain the custody and control of his child, where it is detained from him by some other person. The courts, however, do not go further in these cases than to inquire what is for the best interest of the child, and they do not feel compelled to remand him to any custody where it appears not to be for the child's interest. The theory of the writ is, that it relieves from improper restraint; and if the child is of an age to render it proper to consult his feelings and wishes, this may be done in any case,2 and is especially proper where the parents are living in separation, and both desire his custody. The right of the father, in these cases, is generally recognized as best; but it is not an absolute right, and must yield to what appears to be for the interest of the child. The courts have a large discretion in these cases, and the tendency of modern decisions has been to extend rather than to limit it.3

judgments. Such officers could exercise only a special statutory authority. Yet its exercise in such cases is not only judicial, but it is in the nature of appellate judicial power. The jurisdiction of the Supreme Court of the United States to issue the writ, in cases of confinement under the order of the District Courts, is sustained on the ground that it is appellate. Ex parte Bollman & Swartwout, 4 Cranch, 75; Matter of Metzger, 5 How. 190. And see ex parte Kearney, 7 Wheat. 38. Is it competent for the legislature, when the judicial power is all vested in certain courts, to empower a ministerial officer, or even a judicial officer not sitting as a court, to exercise an appellate jurisdiction, however imperfect, over the judgments of such courts?

1

1 People v. Cassells, 5 Hill, 164; Bushell's case, 9 Ohio, N. S. 183; Matter of Metzger, 5 How. 191.

2 Commonwealth v. Aves, 18 Pick. 193.

3 Barry's case exhausts all the law on this subject. We refer to the various

Right to Discussion and Petition.

The right of the people peaceably to assemble and to petition the government for a redress of grievances is one which "would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature of its structure and institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen."1 But it has not been thought unimportant to protect this right by statutory enactments in England, and indeed it will be remembered that one of the most memorable attempts to crush the liberty of the subject in that country made the right of petition the point of attack, and selected for its contemplated victims the chief officers in the episcopal hierarchy. The trial and acquittal of the seven bishops under James II. constituted one of the decisive battles in English constitutional history, and the right which was then vindicated is "a sacred right which in difficult times shows itself in its full magnitude, frequently serves as a safety-valve if judiciously treated by the recipients, and may give to the representatives or other bodies the most valuable information. It may right many a wrong, and the deprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and deliberation, a simple, primitive, and natural right. As a privilege, it is not even denied the creature in addressing the Deity."2 Happily, the occasions for discussing and defending it have not been numerous in this country, and have been confined to an exciting subject which has now passed away.3

decisions which are reported in the order in which they were made: 8 Paige, 47; 25 Wend. 64; People v. Mercein, 3 Hill, 399; Barry v. Mercein, 5 How. 108. For the former rule, see King v. De Manneville, 5 East, 221; ex parte Skinner, 9 J. B. Moore, 278.

1 Story on Const. § 1894.

2 Lieber, Civil Liberty and Self-Government, ch. 12.

For the discussions on the right of petition in Congress, particularly with reference to slavery, see 2 Benton's Abridgment of Debates, 57 to 60, 182 to 188, 209, 436 to 444; 1 Ibid. 397; 12 Ibid. 660 to 679, 705 to 743; 13 Ibid. 5 to 28, 266 to 290, 557 to 562. Benton's Thirty Years, vol. 1, ch. 135, vol. 2, ch. 32, 33, 36, 37. Also the current political histories and biographies.

Right to bear Arms.

Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms. A standing army is peculiarly obnoxious in any free government, and the jealousy of one has at times been demonstrated so strongly in England as almost to lead to the belief that a standing army recruited from among themselves was more dreaded as an instrument of oppression than a tyrannical king, or any foreign power. So impatient did the English people become of the very army which liberated them from the tyranny of James II., that they demanded its reduction, even before the liberation could be felt to be complete; and to this day, the British Parliament render a standing army practically impossible by only passing a mutiny bill from session to session. The alternative to a standing army is "a well-regulated militia," but this cannot exist, unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts.1

1 In Bliss v. Commonwealth, 2 Lit. 90, the statute "to prevent persons wearing concealed arms" was held unconstitutional, as infringing on the right of the people to bear arms in defence of themselves and of the State. But see Nunn v. State, 1 Kelly, 243. As bearing also upon the right of self-defence, see Ely v. Thompson, 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for "lifting their hands in opposition" to a white person was held unconstitutional.

CHAPTER XI.

OF THE PROTECTION TO PROPERTY BY "THE LAW OF THE LAND."

1

THE protection of the subject in the free enjoyment of his life, his liberty, and his property, except as they might be declared, by the judgment of his peers or the law of the land, to be forfeited, was guaranteed by the twenty-ninth chapter of Magna Charta, "which alone," says Blackstone, "would have merited the title that it bears, of the great charter." The people of the American States, holding the sovereignty in their own hands, have no occasion to exact pledges for a due observance of individual rights from any one; but the aggressive tendency of power is such, that in framing the instruments under which their governments are to be administered by their agents, they have deemed it important to repeat the guaranty, and thereby adopt it as a principle of constitutional protection. In some form of words it is to be found in each of the State constitutions; 2 and though verbal differences

1 4 Bl. Com. 424. The chapter, as it stood in the original charter of John, was: "Ne corpus liberi hominis capiatur nec imprisonetur nec dissaisietur nec utlagetur nec exuletur nec aliquo modo destruatur nec rex eat vel mittat super eum vi nisi per judicium parium suorum vel per legem terre." No freeman shall be taken, or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will the king pass upon him, or commit him to prison, unless by the judgment of his peers, or the law of the land. In the charter of Henry III., it was varied slightly, as follows: "Nullus liber homo capiatur, vel imprisonetur, aut disseisietur de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terræ." See Blackstone's Charters. The Petition of Right 1 Car. I. ch. 1 prayed, among other things, "that no man be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent, by act of Parliament; that none be called upon to make answer for refusal so to do; that freemen be imprisoned or detained only by the law of the land, or by due process of law, and not by the king's special command, without any charge." The Bill of Rights-1 Wm. & Mary, § 2, ch. 2 — was confined to an enumeration and condemnation of the illegal acts of the preceding reign; but the Great Charter of Henry III. was then, and is still, in force.

* The following are the constitutional provisions in the several States:Alabama: "That, in all criminal prosecutions, the accused. . . . shall not be

-

appear in the different provisions, no change in language, it is thought, has in any case been made with a view to essential compelled to give evidence against himself, nor be deprived of life, liberty, or property, but by due course of law." Art. 1, § 7. — Arkansas: "That no man shall be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land." Art. 2, § 10. California: Like that of Alabama, substituting "process of law" for "course of law." Art. 1, § 8. Connecticut: Same as Alabama. Art. 1, § 9. Delaware: Like that of Alabama, substituting for "course of law," "the judgment of his peers, or the law of the land." Art. 1, § 7.- Florida: "That no freeman shall be taken, imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land." Art. 1, § 8. Georgia: "No person shall be deprived of life, liberty, or property, except by due process of law." Art. 1, § 2. — Illinois: “That no freeman shall be imprisoned or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land." Art. 13, § 8. Iowa: "No person shall be deprived of life, liberty, or property, without due process of law." Art. 1, § 9. Kentucky: "Nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land." Art. 13, § 12. - Maine: "Nor be deprived of his life, liberty, property, or privileges, but by the judgment of his peers, or the law of the land." Art. 1, § 6. Maryland: "That no man ought to be taken, or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." Declaration of Rights, § 23. Massachusetts: "No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." Declaration of Rights, Art. 12.Michigan: “No person shall . . . . be deprived of life, liberty, or property, without due process of law." Art. 6, § 32. Minnesota: "No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers." Art. 1, § 2. — Mississippi: "Nor can he be deprived of his life, liberty, or property, but by due course of law." Art. 1, § 10.- Missouri: Same as Delaware. Art. - Nevada: 66 1, § 18. Nor be deprived of life, liberty, or property, without due process of law." Art. 1, § 8.- New Hampshire: Same as Massachusetts. Bill of Rights, § 17.- New York: Same as Nevada. Art. 1, § 6. - North Carolina: "That no freeman ought to be taken, imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land." Declaration of Rights, § 12. Pennsylvania: Like Delaware. Art. 9, § 9.- Rhode Island: Like Delaware. Art. 1, § 10. South Carolina: "No person shall be taken, imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty, or property, but by due process of law." Art.

[ocr errors]

« SebelumnyaLanjutkan »