The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1869-05-11

I allegation that the trial was not fairly con-
Quoted, or that any discrimination was made
against him, either in Indictment, Trial, or
| sentence, on account Of color.
| It was not claimed that the grand jury by
| which he was indicted, or the petit jury ng
| which he was tried, was not In all respects
lawful and competent: nor was 1t alleged
| that Hugh W. Shelley, the judge who presided
| nj the trial and pronounced The sentence uiu
| not conduct the trial with fairness ana up
| rightness.
| One of the counsel for the petitioner, indeed,
| upon the hearing in this court, pronounced IN
| eulogium upon his character DOM rs Il ihlh
| and n magistrate, TO deserve "h!ch ihisHt
| well be the honorable aspiration OF any Judge.
| But II was alleged, and was admitted, that
| Judge SheGrv. in December, 1919. rs n mem
| Der of the Virginia House OF Delegates, look
| an oath to support the Constitution Oh the
| United States, and, also, that he was u mem
| Der Of the Legislature Of Virginia III $50, uu-
| ring the late rebellion, and rs sucn Notcu LOT
| 1nnasurcx 10 sustain the SC called Confederate
| States in their war against the United states /;
| and il was claimed In behalf OF the Peltion-
| or that he thereby became, and was nj the
| time of the trial of he petitioner, disqualified
| 10 hold any Office civil or military, under the
| United States or under any State; and it was
| spcciallv insisted that the petitioner was emit
| tied to his discharge upon the gTonnc OF thc
| incapacity OF Shelley, under the fourteenth
| amendment. to act as judge and pass sentence
| of imprisonment.
| iron this showing and argument 1t was
| held nv the District Judge that the sentence OF
| Cesar Griffin was absolutely hilii tnAI ms
| imprisoument was in violation OF the ConSt-
| tution Of the United States and IN order LOT
| his discharge from custody was made accord
| ingly. .,
| The general question TO be determined on
| the appeal from this order is, whether or not
| the sentence of the circut court OF RockbTldSe
| county must he regarded rs nudity because
| Of the disability 10 hold any Office under Inc
| State of Virginia imposed by the fourteenth
| amendment on the person VINO III lacI pre-
| sided rs Judge in that court.
| 1t NAV be properly horne in mind that the
| disqualification did not exist At the Tune tha'
| Shelley became Judge.
| When the dictionaries of the State govern
| mant existing in Virginia ut the commence
| ment of the late civil war took part, together
| with ma jority OF the citizens OF the stare, III
| rebellion against the Government OF the
I'nited States they ceased 10 constitute :; STATE
| government for the State Of Virginia which
| could bc recognized as such by the National
| Government. Their example OF hostiii'S 10
the Union, however, was not lolloWed
| throughout the State. In many counties the
| local authorities and maiorities Of the people
adhered TO the National Government; ana
| representatives from these counties soon tlter
q ssemhlpd in convention n Wheeling and or
raniZod n government for the State. This go
yernment was recognized as the laWllll 60
yerument Of Virginia by the executive ana
legislative departments Of the National Go
yerument and this recognition was conClu-
siye upon the judicial department..
The government of the State thus recoS-
niZed was in contemplation OF law the gov
eminent OF the whole State OF Virginia,
though excluded, rs the Government OF the
United States was itself excluded, from the
greater portion Of the territory Of the State.
II was the Legislature of the re organized
State which gave the consent Of Virginia 10
! the formation Of the State Of West Virginia.
To he formation Of that State, the consent OF
4 q! ~ r-lt4 SNF
the STATE OF Virginia, and OF Congress, was
indispensable. II either had been wanting,
no new State within the limits of the old could
have been constitutionally formed; and It'll
clear that if the government Instituted n
Wheeling was not the government OF the
whole State of Virginia no new State has
ever been conslitutionai!y formed within her
ancient boundaries.
l. cannot admit Of question, then, that the
government which consented 10 the formation
of the State of West Virginia remained, in all
national relations, the government OF Var
GINA, although that event reduced 10 very
narrow limits the territory acknowledging lis
jurisdiction, and not controlled by lnSurSent
force. Indeed, it is we'll known historically
that the State and the government OF Nr-
ginia, thus organized, was recognized ny the
National Government. Senators ana repre-
sentatiyeS from the State occupied seats in
Congress and when the iusurGent force
which held possession OF the principal part OF
| the territory was overcome, and the govern
Inent recognized by the United States was
transferred from Alexandria 10 Richmond, it
| became in fact, what il was before III law,
| the government OF the whole Stale. As such
| il was entitled, under the Constitution, 10 the
same recognition and respect in national rela-
| tions as the government OF any other State
| TWAS under This government that Hugh
w. Shelfey was on the I'D OF February 1856,
| duly appointed Judge of the circuit court OF
! Rockbridge county, and he was in the regular
| exercise Of his functions rs such when Griffin
| was tried and sentenced.
| More than two years had elapsed after the
| date of his appointment when Disqualification
| OF the fourteenth amendment by the requisite
| Number Of States was officially promulgated
! by the Secretary Of State on the 18th OF July,
| 1865.
| That amendment, in its third section, or
dams that - no person shall be 4 senator or
representative i'll Congress, or elector OF Pre-
Sident and Vice President, or hold any office,
! civil or military, under The United States, o!
| under any State. who, having previously
| taken an oath rs Z member OF Congress. or rs
| an officer of the United States, or aS i member
| of any State Legislature, or as an executive
| or judicial officer of any State, 10 supper: the
| Constitution of the United States, shall have
| engaged in iLsurroction or rebellion against
| the same, or given ana or comfort 10 the enc
| micS thereof
Aud it is admitted that the Office held by
| Judge Shenty ut the time Of the trial o!
| Griffin was IN Office under the Stale of Virgil
MIA. and that he was one OF the persons 10
| whom the prohibition TO hold oiice pro
| nounced by the amendment applied.
| The question 10 be considered, therefore, is
! whether, upon Il sound construction of the
amendment, il must be regarded rs operating
| directly, withoutany intermediate proceeding
| whatever upon al persons within the cate
CORY Of prohibition, and us depriVinE them 1t
once and absolutely OF al o!!!c!al Authority
| and power.
One of the counsel for the petitioner sug-
| gested that the amendment must be construed
| with reference 10 the act OF 1867, which eX-
| tends the writ of Ag5sdS corpus 10 4 large class
| of cases in which the previous legislation did
| not allow it 10 be issued. And it IS proper 10
say 4 few words OF this suggestion here.
The Judiciary act of 1889 expressly denied
the benefit Of the writ OF huJeaS corpus 10 pri-
| soncrs not confined under or BY color of the
| authority Of the United States. Under that
! acs no person confined under State authority
could have the benefit OF the writ. After
| wards, IL 1888 and 1872, the writ was cX-
tended TO certain cases, specially described, OF
| Imprisonment under State process; and III
| 1867, by the act to which the counsel referred,
| Tie writ was still further extended TO ali
cases where any person may be restrained 0!
liberty in violation of the Constitution, or o.
| any treaty or law Of tie United States"
And the learned counsel was doubtless cor
! rect in maintaining that without the act OF
| 1867 there would be 40 remedy by huLcaS cor
| IttS i'll the case OF the petitioner; nor, indeed,
| in any case OF Imprisonment in violation OF
]
! the possible case o! IN imprisonment not only
| within the provisions Of this act, bat also
| within the provisions Of some one OF the pre-
| vious acts OF 1888, 1885, and lS42.
| But if, in saying that the amendment must
| be construed with reference to the act, the
| counsel meant 10 affirm that the existence OF
| the act throws any light whatever upon the
construction Of the amendment, the court is
unable 10 perceive the force Of his observa-
| ton.
| 1t is not pretended that imprisonment for
| Shnnrinr with In kill is