the privilege of trial by jury, means the right to trial by jury. The idea of the former is, too, quite as old as the latter. Nor is the phrase itself, viz: "The privilege of the Writ of Habeas Corpus," a new one. It was known and used in England nearly one hundred years before our Constitution was made. In 1692, the Province of Massachusetts was organized under a new charter, under which the General Court passed certain laws, one of them claiming the benefit of the Writ of Habeas Corpus was rejected (by the King) on the ground that "the privilege had not yet been granted to the plantations."-1 Barry's Hist. Mass. This colonial act adopted, it is said, the Habeas Corpus Act of 31, Charles II., and it was disallowed in 1695.-Hurd on Hab. Corp., p. 111. But "the right to the Writ, was, before that time claimed as one of the existing privileges of the Colonists in Massachusetts," Hurd, p. 110, and in a book, the second edition of which was published in England in the year 1767, named like, and based upon Henry Care's British Liberties, it is said:

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"Many gentlemen that refused (to grant supplies to Charles the First) were imprisoned or sent abroad by the King and his privy council, and the Judges refused, to several that applied for it, the privilege of the Writ of Habeas Corpus, to which they were entitled by the ancient common law of the realm." That, be it observed, was before the Petition of Right or the passage of the Habeas Corpus Act.

Not only then was it known that the word privilege signified the right to the Writ of Habeas Corpus, as it did to the trial by jury, and other rights of the people of England, but the phrase, "the PRIVILEGE of the Writ of Habeas Corpus," appears to have been well known to and used in the Colonies and in England, at least as early as 1692; and, it may be here stated, that the whole clause now in the Constitution of the United States, including the word suspended, as applied to the privilege, was borrowed from the Constitution of Massachusetts, in which it had been used ten years before; and not only that, but the privilege had actually been suspended by the Legislature of Massachusetts a year before the Constitution of the United States was adopted.

In September, 1778, a State Convention was called in Massachusetts. They framed a Constitution, which, having been approved

by the people, the Convention adopted in June, 1780. The city of Boston agreed to it, "but with proposed alterations, one of them respecting the privilege of the Writ of Habeas Corpus; with regard to this, they wished that the privilege should be more accurately defined and more liberally granted, so that citizens should not be subject to confinement for suspicion."-Barry's Hist. Mass., vol. 3, p. 177-8. The article itself is in the following words:"Chap. 9, Art. 7. 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 occasion, and for a limited time, not exceeding twelve months." A reference to the Habeas Corpus clause offered by Mr. Pinckney, on August 20th, and hereinbefore copied, will show that it was taken, word for word, (except, indeed, the "free, easy, and cheap," words,) from the Constitution of Massachusetts; and the whole argument based on the want of analogy between the English Constitution and our own, is now cut up, root and branch, by, not the analogy, but the identity between this legislative suspending clause of Massachusetts and that in the Constitution of the United States. If it was not a loose, it was surely then an "inaccurate expression," to say that those words "were first introduced into the Constitution of the United States."

The occasion of the suspension was Shay's Rebellion—after which, viz: (on Nov. 10, 1786,) the privilege of the writ was suspended for eight months.-Barry's Hist. vol. 3, p. 235.

It is not then correct to say that the expression "suspending the privilege" was first introduced into the Constitution of the United States. Nor, indeed, was the thing itself, or the like expressions unknown here or in England.

To suspend signifies to withhold, "to debar" for a time, from the execution of an office or the enjoyment of a revenue or of any privilege.- Worcester. To debar from any privilege, to cause to cease for a time from operation or effect, as to suspend the Habeas Corpus Act. Suspended, prevented from enjoying a right.― Webster. That the privilege of the Writ of Habeas Corpus shall not be suspended, means then, that the right to the Writ shall not cease for a time, unless, &c.

1. It is very obvious, therefore, why the word privilege was made the subject of the predicate suspended.

In relation to the Government of the United States, there was no Habeas Corpus Act; for while the Writ was, the Habeas Corpus Acts were not, the same in the several States; nor could it be known whether Congress would ever pass such an Act, (which, indeed, they have not yet passed;) consequently there was no Act, present or future, to be suspended.

2. Nor, had they suspended the Act of 31 Chas. II., or any other act, would that have effected their object; because as the Common Law privilege of, or right to, the Writ was not given by an Act, the suspension or even the repeal of the Act would have left the privilege or right unaffected.-See Hur. Hab. Cor., p. 133.

3. It would not have been logical to have said that the Writ should not be suspended, because that would have been to suspend a remedy while leaving the privilege of, or right to, the Writ untouched, and it would possibly have left the privilege, or right itself, open to be suspended at any time; for it might have been contended that the suspending power was only prohibited from suspending the Writ, but was not prohibited from suspending the privilege or right itself before invasion or rebellion; it follows, therefore, that the Convention was logically obliged to say that the privilege should not be suspended: thus forever guarding the right itself, save only in the cases mentioned in the clause. Nor could any word but suspended have been used. For the right to the writ being an original and inherent right—it could only have been suspended; it could not have been taken away entirely. Nor was the suspending a privilege or right a novelty in English law. The suspending power had long been a subject of legal and parliamentary discussion in England. The power itself, or the expediency of exercising it, had never been denied to parliament, but when it was claimed and exercised for and by the King, as the like power is now claimed for the President, the people by the Declaration and Bill of Rights declared and ordained that by the Common Law it never had and that it never should be exercised by their Executive, but by their Legislature only.

In speaking on Fox's East India Bill, Mr. Burke said, "The rights of men, that is to say the natural rights of mankind, are,

indeed, sacred things. If these natural rights are further secured against power and authority by written instruments and positive engagements, they are in a little better condition. Indeed, this formal recognition by the sovereign power, of an original right in the subject, can never be subverted but by rooting up the radical principles of government, and even of society itself. The charters which we call by distinction Great are public instruments of this nature, I mean the charters of King John and King Henry III., and the rights secured by these instruments may, without any deceitful ambiguity, be very fairly called the Chartered Rights of Men.

"But, sir, the East India Charter is a charter to establish monopoly, and to create power." "These chartered rights (viz., of the East India Company) do at least suspend the natural rights of mankind at large, and in their very frame and constitution are liable to fall into a direct violation of them." The privilege of the writ of Habeas Corpus is one of the natural privileges secured to men by the Great Charters. Mr. Burke included it among the others, so that to speak of suspending that privilege was not then a novelty to the lawyers or statesmen of England. And why should it have been one to the lawyers and statesmen of the United States? In fact they well knew, and had before complained of the suspension of a like privilege.

The right of the people to legislate for themselves being a natural right, and by law as much a privilege as any other belonging to Englishmen, the King, in Parliament, was justly complained of for suspending our own legislatures, "and also for suspending the operation of laws." It has been asserted "that the Habeas Corpus Act of 31 Charles II. has never been suspended for a moment ;" and that the English Imprisonment Acts used no such words as to the English Habeas Corpus Statute or Writ, and hence it is left to be inferred that the use of the word suspended in the Constitution was unknown to the English law. (That argument would not have been used as a make-weight had it not been for the impression of the writer that the expression had been first used in the Constitution of the United States; that has been shown to be incorrect, but still the assertion may be noticed, as it involves an argument against, and not for, the President's power.) It may be literally true that

the Habeas Corpus Act has never been suspended. Lord Brougham had before made the same remark.-Pol. Philos., vol. 3. But,

in the sense in which Blackstone and other legal writers used the expression, it is either true, or it is clear that during more than a century the privilege of the writ of Habeas Corpus has been from time to time suspended even in England. The dilemma is unavoidable.

Blackstone's Commentaries were first published in 1765-8. But in the book before mentioned, entitled "English Liberties," &c., and written before that, it is said: "If the Legislature leaves the Executive power in possession of a right to imprison those subjects, who can give security for their good behaviour—there is an end of liberty: unless they are taken up in order to answer, without delay, for a capital crime; in which case they are really free. The Habeas Corpus Act was intended to render the subject safe in this particular. Why a suspension of it hath ever been permitted, politicians best can answer. James II., when Monmouth was in actual rebellion against him, did not demand it. * * Montesquieu knew an English Parliament had more than once permitted a temporary suspension of the Habeas Corpus Act."Introduction, pp. 21-22.

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"This Act (31 Charles II.) has been at various times suspended, with respect to the power of imprisonment vested in the Crown, upon occasions of public alarm; such suspension usually being for a very short period. The general title given to such temporary acts has been, 'An Act to empower his Majesty to secure and detain such persons as his Majesty shall suspect are conspiring against his person and Government. The following are acts of that description: 1 W. & M., St. 1, ch. 7, 19; 7 and 8 W., 3, ch. 11; 6 Anne, ch. 15; 7 Anne, ch. 9; 1 Geo. I., ch. 8, 30; 17 Geo. II., ch. 6; 19 Geo. II., ch. 1; 17 Geo. III., ch. 9; 34 Geo. III., ch. 54, (May 23, 1794,) followed by several acts during the war then existing."-Evans' Note: cited in Chitty's Statutes, vol. 1, p. 344.

The 17 Geo. III., ch. 9, was an Act introduced in 1777 to enable the King, “any law or statute to the contrary notwithstanding," to detain in prison all who were charged with, or suspected of, committing treason in America or on the high seas, or of being guilty of what the Government denominated piracy. "This was another of