The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-02-17
CASE OF CHURCHwELL CONES.
Habeas Corpus Case in the United,
States District Court. ~sG

IC0 LID ~ ~ SSe~ -
Decision of Judge Underwood.
The case of Churchwell Combs was
called in the United States District Court
Saturday morning. The petitioner was
represented by Messrs. Robert Ould, II.
] Johnson, and r. T. Daniel.
District Attorney L. H. Chandler ap-
peared for the Government, and was as
sisted by H. G.. Bond, Esq.
Before any proceedings were had in the
case, the petitioner was taken to the
clerks desk, and made affidavit to the
statements contained in his petition, the.
former affidavit having been made before
the deputy clerk.
When the case was called, and before
the return was made, Mr.. Chandler moved
to dismiss the proceedings, on the grounds,
first, that the petition does not give the
time at which the offence is said to have
been committed; and secondly, that the
last section of the habeas corpus act of
1867 excludes from its effect any person
who is or may be held in the custody of
the military authorities of the United
States, charged with any military offence,
or with having aided or abetted the rebel
lion against the Government of the United
States prior to the passage Of this act.
The motion to dismiss being submitted
without argument by the prisoners coun-
sci, the court said that murder is not a
military offence unless committed under
certain circumstances, and that as this
case did not come under these circum-
stances, the Government must make re-
turn to the writ. The clerk then read the
return of Major Vance, which is substan-
TALLY the same as the one already pub
lished.
Mr.. Chandler (after the reading of the
return) renewed the motion to dismiss the
proceedings in the case for the reasons
already stated.
Mr.. Ould said that the counsel for the
petitioner, having already argued at length
the questions involved, they did not pro-
pose to 20 over them again before this
court, but would content themselves with
a simple demand for the discharge of the
prisoner.
Some discussion arose as to whether the
motion to dismiss should have precedence,
which was decided by the court in the
affirmative, asking to hear argument on
that question.
Mr.. Chandler then proceeded to the ar
gument on his motion to dismiss the petit
tion, urging that the court had no juris-
diction, because the United States courts
have no right to take prisoner from the
custody of the military authorities, held
as such under the reconstruction laws of
Congress. This was one of the most i'm
portant cases which has ever been
brought to the notice of this court, for it's
decision involves not only the validity OF
the reconstruction acts, but of the pro-
ceedings of the Convention now in session
at the State capital. He claimed that the
acts referred to gave the military COM
manders full power in all cases.
Colonel Ould, interruptiDg, said that the
counsel for the petitioner denied the power
of Congress to pass any er post taCto law,
and claimed that the reconstruction act,
if applied to this case, operated retro
spectively.
Mr.. Chandler, resuming, quoted from
the laws, reciting that as there were no
legal State governments in the rebel
States, therefore, these district command
ers were clothed with this power to try
all cases, and that the State courts have
only been allowed to proceed upon suf-
ferance of the commanding general. Con-
gress virtually says that you have no legal
authority, and we must give you laws. ,
In regard to his second point, he quoted
from the supplementary reconstruction
acts to show that General Schofield had full
power to remove every civil officer in the
State from the Governor down, and Judge
Burnham is only holding his court under
that power. He argued that conquered
territory was always under the control OF
the conquerors, and that Virginia had put
herself into such q condition as to require
the United States Government to make
laws for her government, and read autho-
rites on that point.
Colonel Ould said, in reply, that it could
make no difference in this case whether
Virginia is State or Territory. The
Constitution is the supreme law in every
part of the United States, and prevails In
all the Territories no less than the States.
No er post facto law can be passed by Con-
gress. If General Schofield can try this
man, he can also try man for murder
committed in 1850 and if the theory OF
the District Attorney were true, and were
mother Eve here, she could as we'll be
tried for eating the apple in the garden Of
Eden.
Mr.. Chandler rejoined that the United
States had not only the right to acquire
territory by treaty, but by conquest; and
the moment allegiance ceased to the former
Power it adhered to the conqueror, ano
they had absolute power to pass any laws
they may choose for their government. II
all respects Virginia is conquered terri
tory, and she has not been recognized
anywhere as State since the end of the
war.
Judge Underwood, in giving his decision
said that not having time to render al
elaborate opinion in full in the case, he
would indicate in general terms his views
upon the subject. The first question which
came up was whether we are in a state o
war or of peace. The court holds that WI
are in neither; between the two there i
always middle state, called state 0
siege, OF. truce, or armistice, and in hi
opinion we are in that latter state. Th'
fact was apparent to all, every one knew
that we had been in state of war. Were
no other evidence existing, the acts o
Congress would be sufficient to establish
the fact. The power to declare war CAV,
also the power to declare peace, and Con
gress, the war-making power of our coun
try, had not yet declared peace. AS be
Gors. said thera is ALWAYS an intermediati