The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1872-03-27

The Ku Knux Aor IN THE SUPRHAE
poURr. gour renders are already
nware, the 6fst attempt to bring the un-
constitutional features OF the Ku Klux
Act before the Supreme Court for review
has resulted in failure, the court de-
cliuing to take oognizanoe OF tho case
which was presented for its oonsidera-
ton. The case came up upon o certifi.
Gate Of division of opinion from the Cir
Quit Court of the United States for the
liminary motion to quash tho indictment
against DR.. Avery, who WAS afterwards
tried and con voted under the provisions
of this Act, aud sentenced. we believe,
to the Albany Penitentiary. the two
United States Judges. Bond and Bryan,
before whom the case was tried, differed
| in opinion us to the validity of certain
| counts in the indictment A division Of
opinion being certified to the Supreme
Court, for the purpose Of obtaining its
| decision upon tho point, the courS held
that 81 motion to quash falls within tho
principle which excludes all matter uf
discretion from tho jurisdiction to re-
view" Technical as this ruling may
appear to the minds OF layncn unac-
quainted with the nicoties of legal prac-
tice, and the loop.holes which enable au
appellate tribunal to escape from the
necessity of deciding question which
it does not wish to consider, it is no part
of our present purpose to call in ques-
ton its soundness. We simply desire
to call attention to it's practical effect
upon the fortunes aud happiness of the
people of South Carolina
In regular course, the constitutional
questions which are involved in DR..
Avery's case, and in those OF the other
parties who have been convicted under
this Act, can now only come up upon IA
writ of error to final Judgment, which
will postpone the hearing of the 1nes-
tions about two years. We are aware
that there is also pending IN the Su.
preme Court, at the present time, All ap-
peal from decision Of the same jndges
refusing prisoner, held under the
same Act. discharge upon writ Of
hd6eas corpus. but it Is impossible to be
| sanguine of q more favorable result in
this than in the one already disposed of.
The writ of ha6eas corpus was sued out
for the purpose of testing the legality of
| an arrest under the Act, and served upon
Col. Merrill, the military officer com
manding at Yorkville. Col. Merrill
made return that the body of the pri-
soner was no longer in his custody, hav-
ing been turned over to the United
States Marshal, and this return the
court held sufficient. An appeal being
prayed to the Supreme Court, it is cou-
tended, on tho part of the Government,
that the only question which will | Q pre-.
sented for the consideration of that tri-
bunal, will be the right of the military
to make arrests. and that it does not
touch the question OF the right of the
United States Marshal to arrest, in
whose aid the soldiers may net as mill
tary posse, and much less the right of
the courts TO try and convict under the
ACT for any of the numerous offences
which it creates. Here again it is obvi-
| GUS that an opportunity IL afforded the
Supreme Court, if so disposed, to avoid
tue responsibility of passing directly
upon the constltutionaiiiy of the Ku
Klux Act in its more important features
by narrowing the question before them
80 az to exclude the constitutional ques-
tion altogether. We do not say that
this will bu done. but if it should occur,
it will surprise nobody.
La the meantime, the condition of the
people of South Carolina, particularly
In tho Districts Which have been de-
clared by the Presidents proclamation
to be Ill n state Of "rcbellion," " is
simply deplorable When the Ku KIn1
Act was pending in the Senate, tue un-
constitutionaIity Of many of lis Prov.
aions was pointed out. not merely by
Democrats, but by leading Republican,
lawyers and jnrists, like Judge Trum-
bull, aud by leading Republican jour.
mails. like tho New York Nation md tho
EUening Post After it hud passed, the
hope WAS foudly INDUCED by Il few that
the President, at whose urgent request
and entreaty tho Act had been passed,
would yet lind no occasion to bring its
extraordinary machinery into play, by
outluwing any portion o! the Southern
country. Thut hope vanished with his
two proclamntions Of October lust-the
first giving the insurgents" in nine
| Counties of South Curolinu Zone County.
ns afterwards discovered. being named
by mistuke) five days in which to lay
down their arms and dispense; and the
other, declaring said Counties to be nn-
der martial law, before the "insurgen's," +"
had thero been any to dispense, could,
in tho more remote portions OF those
Counties by any course Of mail or tele-
| vruuh have recpiypi iha notico con.