History, 1838–1856, volume D-1 [1 August 1842–1 July 1843]

  • Source Note
  • Historical Introduction
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subject matter. If the object were to arrest a man near home, and there were fears of escape if the movement to detain him for examination were known, the word charged might warrant the issuing of a capias on suspicion. Rudyard (reported in Skin 676) was committed to Newgate for refusing to give bail for his good behavior, and was brought— before Common Pleas on Habeas Corpus. The return was that he had been complained of for exciting the subjects to disobedience of the laws against seditious conventicles and— upon examination they found cause to suspect him. Vauhan Chief Justice, “Tyrrel— and Archer against Wild held the return insufficient, 1st. because it did not appear but that he might abet frequenters of Conventicles in the way the law allows. 2nd. To say that he was complained of or was examined, is no proof of his guilt. And then to say that he had cause to suspect him is too cautious; for who can tell what they count a cause of suspicion, and how can that ever be tried? At this rate they would have arbitrary power upon their own allegation, to commit whom they pleased”. [HC 5:229] From this case it appears that suspicion does not warrant a commitment, and that all legal— intendments are to avail the prisoner. That the return is to be most strictly construed in favor of liberty. If suspicion in the foregoing case did not warrant a commitment in by its officers, of a citizen of , might not the objection be urged with— greater force against the commitment of a Citizen of our State to be transported to another on suspicion? No case can arise demanding a more searching scrutiny into the evidence, than in cases arising under this part of the Constitution of the It is proposed to deprive a— freeman of his liberty; to deliver him into the custody of strangers, to be transported to a foreign State, to be arraigned for trial before a foreign tribunal, governed by laws unknown to him; separated from his friends, his family and his witnesses, unknown and unknowing. Had he an immaculate character, it would not avail him with— strangers. such a spectacle is appalling enough to challenge the strictest analysis— The framers of the Constitution were not insensible of the importance of Courts possessing the Confidence of the parties. They therefore provided that Citizens of different States, might resort to the Federal Courts in civil causes. How much more important that the criminal have confidence in his Judge and Jury. Therefore before before the Capias is issued, the Officers should see that the case is made out to warrant it. Again <​was shot​> on the 6th. of May.— The affidavit was made on the 20th of July following. There was time for enquiry, which would confirm into certainty or dissipate his suspicions. He had time to collect facts to be had before a Grand jury or be incorporated in his affidavit. The Court is bound to assume that this would have been the course of . but that his suspicions were light and unsatisfactory. The affidavit is insufficient 1st. Because it is not positive. 2nd. Because it charges no crime, <​3rd. it charges no crime​> committed in the State of . Therefore he did not flee from the justice of the state of , nor has he taken refuge in the State of . The proceedings in this— affair from the Affidavit to the arrest affords a lesson to Governors and judges whose action hereafter may be invoked in cases of this character.—— The affidavit simply says that the affiant was shot with intent to kill, and he believes that Smith was accessory before the fact to the intended murder, and is a Citizen or resident of the State of . It is not said who shot him, or that the person was unknown. The of [p. 1442]
subject matter. If the object were to arrest a man near home, and there were fears of escape if the movement to detain him for examination were known, the word charged might warrant the issuing of a capias on suspicion. Rudyard (reported in Skin 676) was committed to Newgate for refusing to give bail for his good behavior, and was brought— before Common Pleas on Habeas Corpus. The return was that he had been complained of for exciting the subjects to disobedience of the laws against seditious conventicles and— upon examination they found cause to suspect him. Vauhan Chief Justice, “Tyrrel— and Archer against Wild held the return insufficient, 1st. because it did not appear but that he might abet frequenters of Conventicles in the way the law allows. 2nd. To say that he was complained of or was examined, is no proof of his guilt. And then to say that he had cause to suspect him is too cautious; for who can tell what they count a cause of suspicion, and how can that ever be tried? At this rate they would have arbitrary power upon their own allegation, to commit whom they pleased”. [HC 5:229] From this case it appears that suspicion does not warrant a commitment, and that all legal— intendments are to avail the prisoner. That the return is to be most strictly construed in favor of liberty. If suspicion in the foregoing case did not warrant a commitment in by its officers, of a citizen of , might not the objection be urged with— greater force against the commitment of a Citizen of our State to be transported to another on suspicion? No case can arise demanding a more searching scrutiny into the evidence, than in cases arising under this part of the Constitution of the It is proposed to deprive a— freeman of his liberty; to deliver him into the custody of strangers, to be transported to a foreign State, to be arraigned for trial before a foreign tribunal, governed by laws unknown to him; separated from his friends, his family and his witnesses, unknown and unknowing. Had he an immaculate character, it would not avail him with— strangers. such a spectacle is appalling enough to challenge the strictest analysis— The framers of the Constitution were not insensible of the importance of Courts possessing the Confidence of the parties. They therefore provided that Citizens of different States, might resort to the Federal Courts in civil causes. How much more important that the criminal have confidence in his Judge and Jury. Therefore before the Capias is issued, the Officers should see that the case is made out to warrant it. Again was shot on the 6th. of May.— The affidavit was made on the 20th of July following. There was time for enquiry, which would confirm into certainty or dissipate his suspicions. He had time to collect facts to be had before a Grand jury or be incorporated in his affidavit. The Court is bound to assume that this would have been the course of . but that his suspicions were light and unsatisfactory. The affidavit is insufficient 1st. Because it is not positive. 2nd. Because it charges no crime, 3rd. it charges no crime committed in the State of . Therefore he did not flee from the justice of the state of , nor has he taken refuge in the State of . The proceedings in this— affair from the Affidavit to the arrest affords a lesson to Governors and judges whose action hereafter may be invoked in cases of this character.—— The affidavit simply says that the affiant was shot with intent to kill, and he believes that Smith was accessory before the fact to the intended murder, and is a Citizen or resident of the State of . It is not said who shot him, or that the person was unknown. The of [p. 1442]
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