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

  • Source Note
  • Historical Introduction
Page 1363
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7 August 1842 • Sunday
<August 7> Sunday 7. At home through the day.
8 August 1841 • Monday
<8> Monday 8. This forenoon I was arrested by the Deputy Sheriff of and two Assistants,  on a warrant issued by , founded on a requisition from of  , upon the Affidavit of , complaining of the said Smith, as “being an  accessory before the fact, to an assault with an intent to kill, made by one on ” on the night of the sixth of May A.D. 1842. was arrested at the same  time as principal. There was no evasion of the officers, tho’ the Municipal Court issued a  writ of habeas corpus according to the Constitution of the , article 8 and section 13.  This writ demanded the bodies of Messrs. Smith and to be brought before the aforesaid  Court, but these officers refused to do so, and finally without complying, they left them in  care of the Marshal, without the original writ by which they were arrested, and by which  only they could be retained, and returned back to for further instruction<s>.  and Messrs. Smith and went about their business. I have yet to learn by what  rule of right I was arrested to be transported to for a trial of the kind stated.  “An accessory to an Assault with an intent to kill”— does not come under the purview  of the fugitive act, when, the person charged has not been out of &c An accessory  before the fact to manslaughter is something of an anomaly. The isolated affidavit  of is no more than any other man’s, and the constitution says  “that no person shall be liable to be transported out of the , for an offence committed within  the same”. The whole [3 words illegible] <is> another farce. In fact, implied power,  and constructive guilt, as a dernier resort, may answer the purpose of despotic  governments, but are beneath the dignity of the sons of liberty, and would be a blot  on our judicial escutcheon.
I received a letter from the post office, which had been broken open, and I was  grieved at the meanness of its contents.
The City Council passed the following “Ordinances regulating the mode of proceeding  in cases of Habeas Corpus before the Municipal Court”
Sec 1. Be it ordained by the City Council  of the City of , that in all cases where any person or persons, shall at any time  hereafter, be arrested or under arrest in this , under any writ, or process, and shall be  brought before the Municipal Court of this , by virtue of a writ of Habeas Corpus, the  Court shall in every such case have power and authority, and are hereby required  to examine into the origin, validity and legality of the Writ or Process, under which  such arrest was made, and if it shall appear to the Court, upon sufficient testimony,  that said Writ or process was illegal, or not legally issued, or did not proceed from  proper authority, then the Court shall discharge the Prisoner from under said arrest,  but if it shall appear to the Court that said Writ or Process had issued from  proper authority, and was a legal process, the court shall then proceed and fully  hear the merits of the case, upon which said arrest was made, upon such evidence  as may be produced and sworn before said Court, and shall have power to adjourn  the hearing, and also issue process from time to time, in their discretion, in order  to procure the attendance of witnesses, so that a fair and impartial trial, and——  decision may be obtained, in every such case.
Sec. 2. And be it further ordained,  that if upon investigation it shall be proven before the Municipal Court, that the Writ  or Process has been issued, either through private pique, malicious intent, or religious  or other Persecution, falsehood, or misrepresentation, contrary to the constitution of this ,  or the Constitution of the , the said Writ or Process shall be quashed and considered [p. 1363]
7 August 1842 • Sunday
August 7 Sunday 7. At home through the day.
8 August 1841 • Monday
8 Monday 8. This forenoon I was arrested by the Deputy Sheriff of and two Assistants, on a warrant issued by , founded on a requisition from of , upon the Affidavit of , complaining of the said Smith, as “being an accessory before the fact, to an assault with an intent to kill, made by one on ” on the night of the sixth of May A.D. 1842. was arrested at the same time as principal. There was no evasion of the officers, tho’ the Municipal Court issued a writ of habeas corpus according to the Constitution of the , article 8 and section 13. This writ demanded the bodies of Messrs. Smith and to be brought before the aforesaid Court, but these officers refused to do so, and finally without complying, they left them in care of the Marshal, without the original writ by which they were arrested, and by which only they could be retained, and returned back to for further instructions. and Messrs. Smith and went about their business. I have yet to learn by what rule of right I was arrested to be transported to for a trial of the kind stated. “An accessory to an Assault with an intent to kill”— does not come under the purview of the fugitive act, when, the person charged has not been out of &c An accessory before the fact to manslaughter is something of an anomaly. The isolated affidavit of is no more than any other man’s, and the constitution says “that no person shall be liable to be transported out of the , for an offence committed within the same”. The whole is another farce. In fact, implied power, and constructive guilt, as a dernier resort, may answer the purpose of despotic governments, but are beneath the dignity of the sons of liberty, and would be a blot on our judicial escutcheon.
I received a letter from the post office, which had been broken open, and I was grieved at the meanness of its contents.
The City Council passed the following “Ordinances regulating the mode of proceeding in cases of Habeas Corpus before the Municipal Court”
Sec 1. Be it ordained by the City Council of the City of , that in all cases where any person or persons, shall at any time hereafter, be arrested or under arrest in this , under any writ, or process, and shall be brought before the Municipal Court of this , by virtue of a writ of Habeas Corpus, the Court shall in every such case have power and authority, and are hereby required to examine into the origin, validity and legality of the Writ or Process, under which such arrest was made, and if it shall appear to the Court, upon sufficient testimony, that said Writ or process was illegal, or not legally issued, or did not proceed from proper authority, then the Court shall discharge the Prisoner from under said arrest, but if it shall appear to the Court that said Writ or Process had issued from proper authority, and was a legal process, the court shall then proceed and fully hear the merits of the case, upon which said arrest was made, upon such evidence as may be produced and sworn before said Court, and shall have power to adjourn the hearing, and also issue process from time to time, in their discretion, in order to procure the attendance of witnesses, so that a fair and impartial trial, and—— decision may be obtained, in every such case.
Sec. 2. And be it further ordained, that if upon investigation it shall be proven before the Municipal Court, that the Writ or Process has been issued, either through private pique, malicious intent, or religious or other Persecution, falsehood, or misrepresentation, contrary to the constitution of this , or the Constitution of the , the said Writ or Process shall be quashed and considered [p. 1363]
Page 1363