The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-01-31
TEE cONsTrTUTIoNALITY OF III
RECoNsTRUCTloH ACTS.
TEST oasB IN. TIE UNITED. STAT
CIRCUIT COURT. 2,
PLEA TO JURISDICTION.

The case Of Churchwell Comb bs, brought
before Judge Underwood by O writ of ha:
bees corpus to- test the constituti utionality Of
the reconstruction laws was called yes
terday in the United States Circuit Court.
General 81. 81. Wells, Of Alexandria,
Representing the Government in the ab-
sence of District Attorney Chandler, an
nounced his readiness to proceed. He
Egave notice Of an intention to move a dis
tmissal of the proceedings in the case, in
Guiding the petition and the writ, on the
ground that this is court Of a jurisdic-
| ton too limited TO take cognizance thereof.
He hoped also to be able to show that the
petition and writ are radically defective.
But at present he deemed it best at the
outset to show that the court had no juris-
diction in the case. He would therefore
submit q motion to quash. -.
Judge Ould, in behalf Of the prisoner,
said that the question of jurisdiction
should be argued in the discussion of the
merits. of the case. His client was pre-
pared to show that the court had jurisdic-
ton. Nothing was better known thant that
no formality is required in a petition for
the award of q writ of habeas co1p9s, it
being only necessary to show that the petit
| toner claims that he is Illegally detained
The matter of jurisdiction will come up on
fthe hearing Of the cause. But the ques-
tion raised is calculated to deprive the
petitioner Of; q right never denied when
personal liberty is involved-the right to
open and close, the argument. Il Again, who
Lever heard of a notioncto quash writ OF
habeGS corpus, or to quash any petition in
any cause 2 So unusual is it that the
| learned counsel hardly knew what to call
| bis new creation. Stripped of all techni-
calities, this was only an argument of jnris-
lidiction, which is a. part of the principal
question. For these reasons, he csutend-
ed, the argument onthe merits of the ques-
| tion should Immediately be heard
| Mr.. Marmaduke Johnson (for the petit
tioner) objected that nothing had: been
| said the day before about motion to
quash, but, on the contrary, it was agreed
that the court would 60 into the considera-
tion of the! merits of the ease. He and
his colleagues were now prepared to go
into the argument,in which, Of course, the
question of jurisdiction is involved. Who
ever heard before Of motion to quash a
petition for writ of habeas corpus? This
man has been in Jail four months. With
tout the preferment of charges, or any steps
looking toward trial, it is now asked that
the court release him. IF, after hearing
the case, it is thought by the court that it
has no Jurisdiction, then let it be so de-
cided. The jurisdiction cannot be deter
| mined without a hearing. There are no
elements here capable'o of separation. The
motion should not, then, be entertained.
Judge Ould arose again to say that the
whole question Of habeaS corpus in United
States courts was canvassed in the Milli-
gan case, and then the jurisdiction wasfin-
quired into on the merits Of the question.
| General Wells replied briefly to these
arguments. He said he. believed there
were precedents for the course which he
proposed to take. If, however, there we're
not, it was high time such practice should
be introduced. If not at the outset,
when should the question of jurisdiction
be taken up. If decided negatively, judi-
ciaI proceedings cease. Further, IN such
cases a difficulty is always presented
about what the issue is. None had been
made here. o The counsel should have
made a motion. ..".
Il Mr.. johnson said motion for discharge
had been made in the petition. -. .,ay7
General Wells thought not. There was
nothing before the court on which pro-
ceedings can stand: And shall the consti-
tutionality of these important laws he dis
cussed on q proceeding that has no .foun-
dation whatever, and over which the court
has no Jurisdiction? s al
The court agreed with the last speaker
| that the jurisdiction was separate ques-
ttion, but in a case in--which the personal
liberty of citizen is involved did not
feel inclined to 60 contrary to the usual
practice. 1t must be understood, how
ever, that the petitioners counsel must
show the Jurisdiction in the course OF their
argument. 1% . 2.n
S7 General Wells then desired to state the
propositions which he desired to argue ;
which he did at much length. He held
that the proceedings of Federal courts on
writs of habeds corpas must correspond, in
| the absence of statutory provisions, With
common law proceedings. Secondly that
at the time Of the Constitution, and ever
since, it was necessary that q petition
should be filed before the issuing of the
writ, and that that petition should ba
sworn to, and show the case within the
Jurisdiction of the court, Thirdly, that
| in this case there is no affidavit at all the
Ipsper purporting TO. be, such being sworn
to before aanotary publican officer only
authorized by recent statute to administer
an oath; and being, moreover; unauthenti-
Gated by the notariai seal. The last pro-
position General Wells sargued at consider
able length. There was no affidavit here,
| he held, and consequently the case shonld
be dismissed. -ag
IS judge Onld wanted the gentleman's au-
thority for the statement that an affidavit
was necessary to obtain a writ of habeas
I,coqpuS. ....-....rs,,,. 5.
at the proper time. eely.. sees IN:
4 Mr.. j Johnson said that the practice of
this court, was to conform as nearly as
| possible to thatof the State courts. There
certainly an affidavit was not essential 10
General w ellis replied that the practice
was identical only in ciui! cases.
Judge Ould wanted to know if habeaS
corpus was criminal case He thought
fit civil remedy for criminal offence.
General Wells then proceeded with bis
snreech.4 closing at about 8 P. NJ. The
court then adjourned until this morning at
10 O'clock 81 ---. 49,
A Swiss Inventor, it is reported, has. ad- ad-
dressedletters to several European Govern
ments. and to our, own, stating that ne has p
discovered d motive power which super
cades steam. He asks sl0, ,000, 900 for his y:
secret. and thinks he will get.it. i,
zi,st, IL ssssH
Largo numbers, Of bones Of On extinct