The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-12-17

:. ,'sTUGfsTHtJ, J}EHInzg x
Yesterday evening Deputy Marshal J. A.
Lynham served the following writ, issued
by Judge Underwood, upon Sheriff Smith,
of Henrico county. The writis, Of course,
in the usual form.
VIRGINIA "" = '.+ @'
tThe President Of the United States Of america
toH. j. Smith, the Sheriff Of He'srfco county cI
Virginia, greeting :: .s -ss..s..-T vi ..a.
J. Phillips has been committed and now re-
mains in custody in the Jail Of sad county,
and is now actually in said prison for matter
cognizable in the Circuit Court OF the United
States for the District: OF virginia,
"We therefore, upon the application Of the
said James J. Phillips, command You that
the body of the said James J. Phillips, by
whatsoever name he may be called. together
with the day and cause of his caption and re-
tention, you have before the Honorable John
q. Underwood, one of the judges Of our said
Circuit Court of the United States for the
District Of Virginia, at the courtroom in the
city of Richmond in said district, on the 9th
day of February next ia. ID. 1862 at u o,clock
NJ, to do and receive whatever said judge
then and there Of him in this part shall con-
slider, and have then and there this writ.
'sTo the Marshal of the United States for
the District of Virginia to execute.
''Witness, the Honorable Salmon P. Chase,
Chief Justice of the Supreme Court of the
Uni ted, States, at the city of Richmond, this
18th day Of December A. ". 1885,
- 'sW. II. BARRY, Clerk"
An abstract of the petition of Phillips,
hitherto unpublished, will be found below:
~. The petition of James J. Phillips respect
fully shows that he is now confined in the
jail of the county of Henrico Tin said dis
trict) in the custody and under the control
of 81. J. Smith, the sheriff of said county,
and that he is about to be executed on the
18th of December, 1868. He is informed
that according to the recent decision Of the
Circuit Court of the United States in the
case of Sally Anderson he is entitled to his
discharge from said custody upon the
ground that the sentence pronounced
against him and the judgment in his case
was rendered bya court composed of judges
who were disqualified to act as such by rea-
son of the operation of section three of arti-
Gle fourteenth Of the Constitution of the
United States, known as the last "consti
tutional amendment" He alleges that he
was tried before the Circuit Court of the
county of Henrico in July last (18CS), and
that upon the 18th day Of said month SEN
tence Of execution was pronounced against
him, IS will appear by the records of said
court upon page forty-eight. In the judg
ment then rendered it is recited that in
order to give your petitioner time to apply
for writ of error to the judgment afore
said, the court doth postpone the execution
of the sentence upon said prisoner for
reasonable time beyond the first day of the
next term of the Court of Appeals Of this
State not exceeding thirty days after that
date, and that as the time Of tho meeting
of said "court was the 18th of October,
1868, execution was ordered on the 9th day
of November, 1865" ...a.a-.
The petition then recites that superSe-
deas having been awarded by judge of
the said court, and that afterwards, on the
4th of November, 1868, the judgment of
the lower court was affirmed, and that on
the 5th of November the Circuit Court en-
tered the said order as the judgment of the
court. 1t is further stated that the peti-
toner was reprie7ed, and his execution un-
der the judgment aforesaid postponed until
the 18th of December. t
The petition continues Your petitioner
alleges that under the operation Of the rule
laid down by the Circuit Court of the
United States the supposed judges who
acted as such in the said Court of Appeals,
and who entered the Judgment of affirm
ance, were not authorized SO to act, but
we're disqualified from SO acting by the Con-
stitution of the United States, that one of
them, the Hon. William 7. Joynes, had been
formerly, some years before the war, the
District Attorney Of the United States for
the Eastern District Of Virginia, and took
au oath TO support the Constitution of the
United States, and afterwards held the
Office of Circuit Judge of the Chesterfield
circuit in Virginia, under the late Confede-
rate States, and took an oath to.support the
Constitution of the said Confederate States;
that another, the Hon. R.. L. c. Moncure,
had been member of the Legislature
many years before the war, about the year
@ls49, and was at the breaking out of the
war judge of the Court of Appeals of
Virginia, and in both characters took oaths
to support the Constitution Of the United
States that he was during thew o judge
of the Court Of Appeals Of Virginia, and
acted throughout the war in that character;
that another of the said judges, Hon. Alex.
Rives, had been O. member of the Leglsla-
ture of Virginia, and had taken the oath to
support the Constitution of the United States
before the war, and your petitioner is in
formed he voted for the ordinance Of seces-s
sion in Virginia. He further alleges that
at the time the Hon. Joseph Christian as
Judge of the Circuit Court entered the or
der affirming the judgment rendered By
him-viz., on the 9Th of November, 1868, as
the order Of his court, he had no authority
to enter the same, because the said Judge
had been before the war member of the
Legislature of Virginia, and in that charac-
ter had taken an oath to support the Con-
stitution of the United States, and during
the war was q member Of the said Leglsls-
ture, and took an oath to support the Con-
stitution of the Confederate States. Your
petitioner further alleges that the clerks of
said courts, and ell other officers thereof ex-
cept the said sheriff, we're from the same
causes disqualified by said Constitution
from holding or performing the duties OF
said Offices. Your petitioner further al
leges that the judgment against him was
pronounced by court declared by the Cir
cult Court of the United States to be in
competent that under said ruling neither
those who claimed to, be q Court of Appeals,
or the Judge claiming to be Circuit Judge,
had authority to try him or give judgment
against him.
Sheriff Smith, Notwithstanding the SER
vice Of the writ, is proceeding with his pre-
parations to carry out the order of Judge
Christians court, of which he is the execu-
tive officer. The galloHs has been made,
and will be erected to-day. Present ap-
ipearances indicate that Phillips viii be
hung Tomorrow, unless the Governor in
,terferes, which he will hardly feel justified
in doing. The sheriff sees no difficulty
about obeying the orders Of both Judges, as
the writ requires him to bring before I'm.
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