mon law, and the statute of 31 Charles II. in amendment of the common law on that subject.

The early emigrants from England claimed the common law as their birthright. The Colonies were governed by the principles of that law, and Acts of Parliament in amendment of it, so far as those principles were applicable to their state and condition, and were not altered by local legislation.

The Declaration of Rights by the first Congress of 1774 asserted among other things, that the respective colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law, and to the benefit of such of the English statutes as existed at the time of their colonization, and which they had by experience found to be applicable to their social, local, and other circumstances.

It is not material to the argument perhaps, but on the general principles just stated, the provisions of the statute of 31 Charles II. being in amendment of the law of habeas corpus, formed part of the law of the Colonies, and as such might have been, up to the time of the Revolution, the foundation of process in the courts of any of the Colonies in which no provision had been made by Act of Assembly, and perhaps afterwards in the States, in the absence of legislation.

Upon the formation of the Constitutions of the several States, it was competent for the people of each to regulate for themselves, so far as they pleased, the whole subjectmatter of personal liberty, and the provisions for its security. So far as they refrained from introducing into their Constitutions any provisions affecting it, the matter was left to the control of the Legislature of the State, which might regulate the issue and suspension of the writ according to its sound legislative discretion.

No Constitution of that period, so far as I am aware, provided in express terms for any power to issue the writ; but without any such express grant of power, the Legislature had authority, either by the general grant of legislative power, or in the exercise of their duty to provide for the constitution of courts and the regulation of their jurisdic

tion, to enact such laws upon the subject as the interests of the people seemed to require, and by subsequent acts to modify or repeal those laws, substituting other provisions. And it seems clear that with such general authority of legislation and with no constitutional restriction, it would have been competent for the Legislature to suspend the privilege of the writ to the extent that Parliament had done in several instances before and in the time of the Revolution, whether the suspension were regarded as a prohibition to issue the writ, or as a suspension of the duty to make a return to it. The complaints of the Colonies had not been of the action of Parliament in this particular; and, aside from constitutional provisions, the several Legislatures while under the Confederation had as ample powers over this subject-matter in their several States as Parliament itself had in England.

As it was not deemed necessary to introduce any express constitutional provision giving power to the Legislature to provide for the issue of the writ, no doubt could have been entertained that the Legislature would perform that duty in the first instance; and we should naturally expect that any express declaration found in a State Constitution would be restrictive of a power of suspension, lest in some time of excitement, or through some undue influence, the legislative power might be indiscreetly exercised in that respect.

The early Constitution of Virginia, adopted in 1776, contained, as we have seen, a provision,

"That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."

That of North Carolina, formed in the same year, has the same clause, and another in these words:

"That every freeman restrained of his liberty, is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful, and that such remedy ought not to be denied or delayed."

The Constitution of Massachusetts, adopted in 1780, has a more specific clause, to wit:

"The privilege and benefit of the writ of habeas corpus shall be

enjoyed in this Commonwealth, in the most free, easy, cheap, expeditious, and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding twelve months."

It is impossible to construe the foregoing provision of the Constitution of North Carolina as a grant of power to suspend the writ, for it recognizes no right of suspension, and seems to be entirely prohibitory of a power of suspension, which would have existed in its absence. In its effect it is like the provision in the Constitution of Vermont, to wit: "The writ of habeas corpus shall, in no case, be suspended; which by no process of reasoning can be construed as a grant of a power of suspension.

If by possibility the clause in the Constitution of Massachusetts might be construed as a grant of a power of suspension, provided such construction was necessary in order to secure that power, it would very clearly be a violation of all right rules of construction, so to construe it, when, as has been shown, even a larger power of suspension would have existed in the legislature without that provision.

Now, the original proposition on this subject, introduced by Mr. Charles Pinckney on the 20th of August, 1787, into the convention which formed the Constitution of the United States, and which was referred to the committee of Detail, and for which was substituted the clause adopted as a part of the Constitution, is substantially like the restrictive provision in the Constitution of Massachusetts, and was evidently taken from it. It is in these words:

"The privileges and benefits of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding months."

* Mr. Binney, in his first tract on the subject, refers to a provision in what, according to the journal of the convention, is called Mr. Pinckney's "Draft of a Federal Government," which would appear to have been introduced May 29th, soon after the convention assembled. And he argues respecting the construction of the clause finally adopted from the paragraph on the subject in that draft, as if it were the original proposition.

It seems that Mr. Pinckney did, on the 29th of May, present a draft of

express written law, or by implication from what is written. It is derived from the Constitution by implication, under the clauses providing that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish; and that the judicial power shall extend to all cases in law and equity arising under the Constitution and the laws of the United States, &c. These clauses gave Congress ample power to regulate the jurisdiction of the courts of the United States under the Constitution, and of course to provide for the issuing of the writ of habeas corpus; which power Congress exercised in 1789, by the express language of the 14th section of the Judiciary Act, which has been quoted. If Congress had not exercised the power, the courts could not have issued the writ. 4 Cranch 94, Ex parte, Bollman & Swartwout.

Congress having exercised this authority, thus derived by implication, had not exhausted its powers of legislation upon the subject. That body may repeal what it has enacted, and substitute other provisions. If Congress should repeal the law entirely, substituting no other provision, it might be said that, along with the implied power, there was a duty implied, which Congress had neglected. But if Congress should determine otherwise, although it might be thought that there was a dereliction of duty, the courts could not hold that the repeal was invalid, upon the ground that Congress had previously exhausted its power over the subject

matter.

In Mr. Binney's second tract on the subject, page 22, he

says:

"Nothing can be suggested in argument that is more licentious than the position that Congress, in the absence of the habeas corpus clause, would have had plenary and untrammelled power and discretion to suspend the privilege of the writ of habeas corpus." And again: "What a caricature of argument it would be, to allege that the withholding, repealing, or suspending the writ of habeas corpus, is an appropriate means of constituting a judicial tribunal!"

This last remark may serve to sustain the position that the power to provide for the issue of the writ is well derived

from the power to constitute judicial tribunals. The first remark is somewhat strongly stated. It may perhaps admit of question. It might be more nearly correct, if the sole government of the country were that of the United States.

It may be true that the judicial power of the United States would not be as full and ample as it ought to be without authority in its judicial department to issue the writ. Perhaps no one would say that Congress had exercised its discretion wisely, if such provision was not made, but that is not the question. If we discard English analogies, we discard the habeas corpus proper. Something else might be substituted of a different character, and with a different effect. If we apply the English analogies, they cannot lead us to the implication of an imperative duty upon Congress to provide for this writ by the mere authority to constitute courts; the common law and English statutes forming no part of the law of the United States. If the United States were the sole government of the country, that government being based upon the general principles of the English law, the English analogies might lead to a very cogent argument, that it was the duty of Congress, in regulating the jurisdiction of the courts, to provide for the great writ which secures personal liberty. But such is not the state of the case. With the exception of the District of Columbia, and the forts, &c., for which special provision exists, and the territories, (which Congress governs, under a provision of the Constitution authorizing that body to make rules, or from the necessity of the case, it is immaterial which,) the whole country is embraced in the States; and these States acting on the analogy of the English law, have constitutional and legal provisions, securing the habeas corpus. These State jurisdictions inquire into all unlawful imprisonment within their borders, and might, in the absence of an act of Congress, relieve from any unlawful imprisonment within their several jurisdictions. It would be no answer to the inquiry in a State Court, that the imprisonment was under claim of an authority from the United States, if the detention was unlawful. If it were lawful, the Courts of the United States, if they had the power, would not discharge the prisoner. A provision in the laws