Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1871-12-30

q
writ Of habeas corpus.
Capt D.. L. Smoot, assisted by Attorney
General Taylor, appeared on behatfof the Com
monwealth, the prisoner being represented by
his counsel, Nlessrs Stuart Fisher and Whit
tlesey Mr., Fisher opened for the defence and
insisted that the prisoner being Il citizen Of the
United States, could only be tried upon in
dictmcnt before the Grand jury. The iursdlc
ton of the Court is ascertained by the Tact that
the Judges Of the H. S. Court have jurisdiction
to grant the writ where any person is deprived
| of his liberty contrary to the laws and the Con
stitutiun of the u. s. There arc two PROPOSE
tons to be considered. He WAS not here 1ur
the purpose of manufacturing political brolls
! but as Counsel ior the prisoner, whom he he
lievcd illegally detained. The first question Is
as to the jurisdiction of the Court. Under the
9th amendment to the Constitution OF the L.
S. a citizen cannot be tried for felony or other
infamous offence except upon indictment be-
fore the Grand Jury. That this party was not
so tried appears by the record.-(Ihe Attorney
| Gcneral-''We admit that. Mr. Fisher. con
tinung, read from the code the punishment
inflicted for subornahon OF perjury, arguing that
whereas by the terms Of the statute the offence
was Il misdcmeanor, yet the punishment in
hicted elevated it to that higher grade OF crime
known in the law as an infamous offence. At
common law perjury was so considered; and the
disqualification of the party convicted, OF the
right to vote, by the terms OF the statute.
carried it to that higher grade which brought
I; it within the jurisdiction of this Court to de
eide the question IT'S to whether this party has
been tried in accordance with the Constitution.
| The law says that no person shall be convicted
| of an Infamous offence, unless joy prcscntucnt
and indictment, or by due process uf law. Mr.
| Fisher quoted from the speech OF Mr. Lawrence
! in relation to assessment OF land by jury,
where the principle here nyrlved WAS discussed
at length.
| Mr.. Whittescy thought there were but
three questions involved: lsL Is the Of
fcuce Of which Moore is convicted an in
famous offence? I'd. Whether the party has
been convicted by due process of law? 3D. The
jurisdiction of the Court. As TO the first qles-
ton, is it in fact one of the crimes referred to
by the Constitution Of the L. )? AS to whether
or not this was an infamous crime he cited !
| Phillips Evidence. 1t is not the punishment
| affixed to the crime that aSccrtanS its nature,
but the character of the offence. The very Sug
ecstion of the crmen taisi carries with it IN in
tcrprctation Of the offence Mr.. W. also cited
= Phillip IN support Of the position he assum-
ed. In the ancient statutes upon the offence ul
the crimcn falSi in our country, 1t WAS an IN
famous offcucc, and the 9Th amendment was
rule Tor interpreting the powers OF the Courts.
The language ofthe 9th amendment peculiar.
and the words ''othcrwiSe infamous offence
must be construed to make a distinction be-
tween capital ard Infamous Offences. An offence
was not infamous on account Ut the punishment
Going to the pcnltentlary Is not necessarily IN
famous nor are other puulshments, but 1t Is
the incidents attaching to the offence, such a.
those under ourstatut qualification to vote
and hold of1icc-which make the offence OF the
crimcn talSi an Infamous offence. 1t is prlncl-
ple Of law that summary convictions III derOga-
ton to the common law must be construed
strictly because in derogation Of his common
right. and the Court should look narrowly
rgdly and strictly into laws of this class 1t
may be considered that the Commonwealth
Attorney has been exercising doubtful right,
and that question should he looked at by the
Court. As to the term due process OF law,
it is laid down in Howard that reference Tor
the exposition for this phrase must be had to
the Constitution itself. Kent says that this
phrase in the Constitution means the same III
this country as Magma Charta does for England.
The Constitution has made a new rule tor the
INTERPRETATION of judicial power, Which no Court
can 90 beyond or override, and when the Con
stitution says that no person shall be held Tor
q capital or otherwise infamous crime except
by rrcScntmcnt or Indictment. it settles the
question fnrcyer:and when theC Commonwealth
Attorney proSccutcs an infamous offence merely
bv information he violates the Constitution and
sets it at naught The 9th amendment is
prohibition to the courts to try any person
charged with an infamous offence except in the
manner therein specified. It's language and
tenor arc to the same effect and the Constitu-
ton is the supreme law of the land There is
new provision adopted into our Constitution,
which was never adopted before, viz: that the
Constitution Of the L. S. should bcthc supreme
law. The particular section was the offspring OF
the lcancd,Judge, and theCOnstitution of the |.
s. being now the Supreme law of the land and
Of the State it becomes binding upon the .ju
dietary of this State. He could see no mode Of
cvading this logic. and if there wasany question
cffccting persons on account OF color, the OK
press ratification Of the 18th amendment by
the State closed the question. There is but one
more point that the Court desired to hear, and
that is the question OF jurisdiction. The decision
of Chief Justice Marshall was made anterior
to the notification laws, when the lurlsdlc-
ton Of the L. S. Judges in habeas corpus was
very restricted The notification difficulties
were the cause OF the first extension OF the power
of the judges, and subsequently the Canada
troubles caused further extension, but the
point made is that for long time the decision
of Chief Justice Marshall has been regarded as
good law at the time rendered, but does not
apply, and has no force under recent amend
ments The first exercise of the power WAS
under the operation OF the fugitive slave, law
when parties seeking to recover slaves
were illegally arrested, they invoked the writ
against illegal arrests, and what was law tor
that occasion, in his opinion, should certainly
be law for this. Mr.. W. also argued as to the
scope of the legislation Of 1867, which he claim.
cd was Ola most comprehensive character and
could not be possibly widcucd. He had bcen,
unable to find any case where the question OF
the legaIi,y Of the restraint Of the liberty OF
the citizcu was concerned. where the polut OF
jurisdiction had been raised. If such il point
was tcnablc it certainly would have been raised
and We would have heard oi'it but such case
is unknown.
The Attorney General replied that some Of