The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-02-03
UNITED STATES DISTRICT COURT.
APPLICATION OF CHURcHWBLL COMBS
FOR A WRIT OF H4BEAS CORPUS. s
SPEECH OF JUDGE OULD.

preme Court is discussing a cognate ques-
tion at this time" - ~ rzefz19:s9?ze9
Mr.. Johnson: sstYes, sir; Isaw the tele-
gram but that will not interfere with this
case. Your Hehor can hear the argu-
ments and reserve your, decision for fu-
ture day." - q 90 80 ~. 8
Judge Ould, athalfpast 10 O'Clock, pro-
ceeded with his argument. In his opening
remarks he reviewed the circumstances of
the case, so as to bring its present position
clearly before the court. a4 a2s'gz,ssz.a
He then stated that he should lay down
the following propositions:
l. It appearing by the petition and re-
turn that the prisoner has not been, and is
not now, in the military or naval service
of the United Statos, it is not competent
for the civil or military authorities of the
United States to hold or detain him for
any offence against the laws of the State
of Virginia. s7,2& =
| 2. Under the same facts it is not COM
petent for the military authorities of the
United States to hold or detain the pri-
soner for any offence. -
8. The acts of the Congress called the
reconstruction acts, so far as they purport
toigive any authority to the civil or mill
tary tribunals to hold or detain a person
not in the military or naval service Of the
United States for an offence against the
laws Of Virginia, are. unconstitutional and
void. r -,
4. Said acts, SO far as they purport to
give any authority to the military authori-
ties to hold or detain such person for any
offence, are unconstitutional and void. -
S. 1t appearing by the petition and re-
turn that the offence for which the petit
toner was imprisoned was committed be-
fore the passage of the said reconstruction
acts, that said acts do not, in their true
meaning, give any right to the military
authorities to take cognizance of said
offence; and if they do, to that extent
they are in violation of the provision of the
Constitution in relation to er post .facto
laws, and are therefore unconstitutional
and void. - . 6zs
He argued that an affidavit was not ab-
solutely necessary to sustain an appllca-
tion for writ of ha5eas corpus, and that
even writ was not necessary, as motions
had been frequently made in open court.
He quoted from Chitty's Blackstone, Sd
volume, pages 1926; Kent's Commenta-
ries, part 4, page 80; 4th Cranch, page rs,
SC. All that is necessary is that the court
shall be satisfied that there is probable
cause to believe that party is illegally in
confinement. His second position was
that if an affidavit were absolutely neces-
sary it had in this case been waived by
filing the return to the writ.
The sufficiency of the affidavit was to be
determined at the time the writ was
awarded. In the case of Philpot the
court decided that the Judge was right in
awarding the writ without an affidavit, and
the facts recited in the return showed that
the Judge was right in issuing it.
In this case the affidavit was made be-
fore R. T. Daniel, Jr., notary public
for the .city of Ricbmoid, and fecited that
the facts alleged in the petition were true {;
and the learned gentleman contended that
this affidavit came under the meaning Of
the act of 1856-the first act which ever
mentioned the word affidavit: s..,, st.
The counsel on the other side said that
there was no official seal to this affidavit,
and that notary public has no power to
administer an oath for cases in the Fede-
raj courts; but the speaker contended
that where an affidavit was necessary to
the foundation of suit, it need only show
that It is an oath taken before proper
person, such as to make it conform to the
practice of the courts in obtaining pro-
cesses. ~ -. 4 g-3
There are many bills now in the clerks
Office upon which the afidavits were
sworn to before a justice of the peace.
Outside the jurisdiction of the court the
affidavit requires the signature of COM
missioner regularly appointed by the Co.
vernon, but in this State notary public
had the same right to administeran oath as
Justice of the peace, and both Chief
Justice Chase and your Honor have en-
tered orders making the practice of the
United States courts conform as nearly as
practicable to the usages of the State
courts. *. - .,.
/ If on an Indictment for murder, would
not the Government call it an affidavit IN
the sense required by law? g.e.g
He thought that he had proved that in
the case now before the court the prisoner
had no opportunity to make an affidavit of
| a different character if it had been neces-
sary before the matter was waived by the
Government in the return which it made
to the writ; and lastly, he contended that
it aoas an affidavit es
In regard to the question of Jurisdiction,
he was at a loss as to how to proceed. The
statute of 'S9, as old as the writ itself, de-
clares that not only the court, but the
individual members themselves, shall have
jurisdiction in any case. The power to
issue writ is distinct from. the power to
proceed under it.; hnd read frofn Chief
Justice Taney's decision in Booths case
frecited in LIST Howard, 5l9-2l), showing
that the power to issue extends to any case
where person is confined under law
of the United States. e...-sg, -..s
No State court would have the right to
try this case, for the moment return was
made stating that he was held by the uni
ted States Government that moment the
authority of the court would cease.
Is it to be said, in this nineteenth CEN
tury, that in, the case Of illegal imprison-
ment no redress can be had? he had no
need to cite the authorities to confirm his
position, In what some call the best days
Of the Republic legislators have trampled
upon law and suspended this writ, but
have ever daredito destroy it.
It is affirmed in this petition that the
prisoner is confined by the assumed autho-
rity of an officer of the army ofthe United
States. and the return states that he is q
prisoner by authority of an act Of Con-
The Attorney for the Government says
that You shall not hear this case; but
when you granted the writ you decided
the suficiency of the writ. Il. h.
The prisoner is before the court without