The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-03-26

tIon. There 1s q resicuum of Judicial
power in the Constitution not yet evoked,
but that power is to be defined by nets of
Congress. The complainants in this case
are both citizens of this State, and
to give Jurisdiction there must be q plain
that the parties are citizens
of different States, but there is none.
[Conkling's Treatise, pages S44, 345, 353,
354.l If your Honor finds that in this case
you have no jurisdiction, power drops from
your hand, and you cannot proceed. The
gentlemen who drew up the bill of Mr..
Chahoon made the fatal omission of not
stating the grounds of jurisdiction. But
suppose that objection gotten over. Some
of the gentlemen have claimed that the
court has jurisdiction under the fundn-
mental conditions. Well, suppose it had,
your Honor can have no jurisdiction until
a law is passed by Congress giving it to
your court. Even then your jurisdiction
would only be to proceed at common law.
There is not shadow of ground bere for
equity Jurisdiction. Every offence alleged
here to have been committed is criminal
one-the barricading the Mayor, etc., arc
all criminal offences, for which Mr..
Ellyson might be indicted under the
State laws. Equity has no jurisdiction
in criminal matters. Justice Story Laws
down that chancery court cannot take
jurisdiction in o stay of mandnn.us,
indictment, or in cases of corporations
and boroughs. 1t would be opening q
new and unknown jurisdiction to the court.
The ground is, taken by the other counsel
that jurisdiction should he taken to prevent
a multiplicity Of suits. Why, these would
not be suits, but indictments. II every
man in Richmond had barricaded Mr.. Cha
hoon, and hustled and assaulted him, it
could not be tried in court of equity. Sup
pose you enjoin the Council, and another
and another ia appointed, you would only
have to 60 on granting injunctions. Suppose
you enjoin Mr.. Ellyson? Why, he stili re-
mains in his office. You do not try the title
to the office by enjoining him. 1t was held
by Judge Chase in the Cesar Griffin case
that you might release every prisoner
sentenced by an Illegal Judge, but
that does not remove the judge. The title
must be tried by quo ,oaTanto. and enioin-
ing the parties is fruitless until that is
done. 1t is the only form of procedure BIZ
which title to Office can be tried. II is q
writ in the name Of the public, and where a
public officer is injured by being kept from
his office he can use it in the name of the
public to secure it. Il7th Connecticut Re-
ports, p. 5s9.l The court must turn away
the parties to this cause.
The plaintiff in this case is bound to show
that he is the Mayor of the city Of Rich.
mond-not the Mayor de .fdct0, but that he
is the Mayor of rig ght. He never was, n;
Mayor, United States officer, but he was f
State officer by military appointment. Upon
the States admission military autho
rity ceased, and having ceased, haG
no power to continue an officer in Office
and, lastly, the new Constitution never in
tended to continue them in Office. The re
construction acts provided that the lcca
civil tribunals mi ght try offences and adju
dicate cases. This these tribunals did, no
under military law, but under the laws o
Virginia and as officers of the State will
the military power hanging over them
When the commander appointed men t
Office they became officers Of the State
not officers of the United States. Th'
commander had the power to abolish
or supersede State Government, but wal
not directed to do so, and where person!
remained in Office they we're officers of tb,
State. They were recognized Throughout
as officers of the State, with the power
Of the State to remove or suspend then
taken away and given to the military com
mander. Mr.. Chahoon was an officer O
the State, and took an oath to support il:
Constitution. It had been asserted thai
Virginia was not yet admitted fully 4:
long as there was contested election
or some member Of Cor-ress had broker
his leg and couldn't 60 there. If the
counsel will look at the act admit
ting Virginia they will see that it declares
that Virginia, having performed certain
acts, " is admitted to representation in Con
cress '-is nou admitted. True she was
admitted under certain conditions, which
were never submitted to the people of Vir'
ginia, but were agreed to by some Of ou!
friends who went to Washington. They
may or they may not be maintained. Cir
cumstances may never arise to test them
But whether they remain in force or not
they do not in the slightest degree affect
this case. How, after his own authority had
expired, could General Candy say whether
officers should continue in Office or not . il
was a most unfortunate action in General
Candy, conscientiously no doubt, but with
bad effects. Respectable and intelligent as
he may be, a soldier and a gentleman, he
committed serious error. The trainers ol
these laws differ with General Candy in
their construction of them. Mr.. Daniel
read from Mr.. Bingham's speech in Con
gress to show that the Reconstruction Com
mittee never intended, in framing these
acts, that military appointments should
continue in the State after its admission
The House also held this view, and voted
down the proposition to continue these az
pointments. If the commander had know
that Mr.. Chahoon WAS ineligible to th'
office he held, (being commissioner Of tn
United States,) would he have continue,
him! 1t is supposed NOT. The gen
tlemen seem to have found out thu
the new Constitution does not prohibi
United States officers from holding Stat
Offices, and yet the Code, which is continues
by the schedule, and is not repugnant t
the provisions of the Constitution, provide
in direct terms that they shall not.
The Constitution does not continue an,
one in office either by intention or accident
The Convention which framed il did not in
tend to continue those officers who were th
appointees of the military authority, anc
might have been swept away at breatl
from the same authority. Mr.. DANIEL wen
on to argue the distinction between the
Offices and the officers and that while some
of the first were continued by the Constitl-
ton, the latter were not. The Convention
did not intend to legslate on this subject
for it knew that the General commanding
had power to appoint and remove, and
the Convention had no control over them
The enabling act had left the mass
of these office-holders in possession, merely
requiring them to give bond for the exc,