On the 29th of May, Mr. Charles Pinkney, of South Carolina, laid before the House a draft of a plan of a Federal Constitution, the VI. Art. of which provided * *

"The legislature of the United States shall pass no law on the subject of religion; nor touching or *abridging the liberty of the press; nor shall the [123 privilege of the writ of habeas corpus ever be suspended, except in case of rebellion or invasion."

The authenticity of this paper is questioned in some particulars,' but the above article may well be supposed to be genuine, for it consists with Mr. Pinkney's subsequent course in the convention.

On the 6th of August, the "Committee of Detail," consisting of Rutledge, Randolph, Gorham, Ellsworth and Wilson, reported a "Draft of a Constitution," but it contained no provision on the subject of the writ of habeas corpus.

On the 20th of August, Mr. Pinkney submitted to the House, in order to be referred to the Committee of Detail, the following proposition amongst others:

"The privileges and benefit 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."

On the 28th of the same month Mr. Pinkney, urging the propriety of securing the benefit of the habeas corpus in the most ample manner, moved that it should not be suspended but on the most urgent occasions, and then only for a limited time, not exceeding twelve months.

Mr. Rutledge was for declaring the habeas corpus inviolate. He did not conceive that a suspension could ever be necessary at the same time through all the states.

1 Appendix 2 to 5 Elliott's Debates.

124] *Mr. Gouverneur Morris moved that "the privi lege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."

Mr. Wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with judges in most important cases, to keep in gaol or admit to bail.

The first part of Mr. Gouverneur Morris' motion, to the word "unless," was agreed to, nem. con.

On the remaining part the vote stood:

Aye. New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland and Virginia, 7. Nay. North Carolina, South Carolina, Georgia, 3. The article was then adopted as it now stands in the Constitution, in the following words: "The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."

The state of Maryland is reported as voting in the affirmative; but the delegation was not unanimous. Luther Martin voted in the negative, and assigned his reasons therefor, in his letter to the Speaker of the House of Delegates of Maryland, January 27, 1788, in the following terms:

"By the next paragraph, the general government is to have a power of suspending the habeas corpus act in cases of rebellion or invasion.

"As the state governments have a power of suspending the habeas corpus act in those cases, it was said there could be no reason for giving such a power to the 125] general government, since, whenever the *state which is invaded, or in which an insurrection takes place, finds its safety requires it, it will make use of that power; and it was urged that, if we gave this power to the general government, it would be an engine of oppression in its hands, since, whenever a state should oppose its views, however arbitrary and unconstitutional, and re

fuse submission to them, the general government may declare it an act of rebellion, and suspending the habeas corpus act, may seize upon the persons of those advocates of freedom who have had virtue and resolution enough to excite the opposition, and may imprison them during its pleasure, in the remotest parts of the Union, so that a citizen of Georgia might be bastiled in the farthest part of New Hampshire; or a citizen of New Hampshire in the farthest extreme of the South-cut off from their family, their friends and their every connection.

These considerations induced me, Sir, to give my negative also to this clause."

The debate on this article in the Massachusetts Convention, called to determine whether the constitution should be ratified or not, is too interesting to be overlooked.

On the 26th January, 1788, the clause relating to the writ of habeas corpus being read:

Gen. Thompson asked the president to please to proceed. We have, said he, read the book often enough; it is a consistent piece of inconsistency.

Mr. Adams, in answer to an inquiry by Hon. Mr. Taylor, said: That this power given to the general government to suspend this privilege in cases of *re- [126 bellion and invasion, did not take away the power of the several states to suspend it, if they shall see fit.

Dr. Taylor asked why this darling privilege was not expressed in the same manner as in the constitution of Massachusetts. * * He remarked on the difference of expression, and asked why the time was not limited?

Judge Dana said: The answer, in part, to the honorable gentleman, must be, that the same men did not make both constitutions; that he did not see the necessity or great benefit of limiting the time. Supposing it had been, as in our constitution "not exceeding twelve

11 Elliott's Debates, 375.

months," yet, as our own legislature can, so might congress continue the suspension of the writ from year to year. The safest and best restriction therefore arises from the nature of the cases in which congress are authorized to exercise that power at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also. He thought the citizen had a better security for his privilege of the writ of habeas corpus under the federal than under the state constitution; for our legislature may suspend the writ as often as they judge "the most urgent and pressing occasions" call for it.

* *

Judge Sumner said: That this was a restriction on congress, that the writ of habeas corpus should not be suspended, except in cases of rebellion or invasion. The learned judge then explained the nature of the writ. * The privilege, he said, is essential to 127] *freedom, and therefore the power to suspend it is restricted. On the other hand, the state, he said, might be involved in danger; the worst enemy may lay plans to destroy us, and so artfully as to prevent any evidence against him, and might ruin the country, without the power to suspend the writ was thus given: "Congress have only power to suspend the privilege to persons committed by their authority. A person committed under the authority of the states will still have a right to the writ.""

2. The provisions of the constitutions of the several states. Most of the state constitutions contain provisions relating to personal liberty, similar to those quoted from the constitution of the United States.

The provisions relating to the subject of bail will be cited more fitly under that head. Those relating to the suspension of the privilege of the writ of habeas corpus,

1 2 Elliott's Debates, 108.

are in substance the same as that contained in the federal constitution. In Virginia, Vermont, Louisiana and North Carolina, however, it is provided that the privilege of the writ shall in no case be suspended, and in Massachusetts the suspension cannot exceed twelve months, nor can it exceed three months in New Hampshire. In Maryland the writ is not mentioned.'

These constitutional clauses do not in any case confer the right nor do they operate as grants of jurisdiction over the writ of habeas corpus. They recognize the existence of the right, and declare that the benefit of it shall not be taken away, "unless when, in cases of rebellion or invasion, the public safety may require it."

*The provisions relating to warrants, have some [128 shades of difference which it may be important to notice when the validity of such process comes to be considered. They are interesting also as tending to show, by the attempted amendments of the clause in the federal constitution, the anxious concern of the people of the several states for the protection of the right of personal liberty. Maine. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without a special designation of the place to be searched, and the person or thing to be seized, nor without probable cause, supported by oath or affirmation.

Massachusetts. Every person has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order, in a warrant to a civil officer, to make search in suspected places, or to

The new constitution of Florida provides that the Governor shall have power, in cases of insurrection or rebellion, to suspend the writ of habeas corpus.

* Ex parte Bollman and Swartwout, 4 Cr. 75; Ex parte Hickey, 4 S. & M. 749.