Year: 1866

TERTIARY, BY JUDGE LYONS, OF OESTLE-
MEN CONFINED THERE UNDER SENTENCE OF
4 MILITARY CoNNIssIoN.-One of the most
important questions which have arisen
since the close of the war came upin Judge
Lyons's Court on yesterday, and the result
Of the decision of the learned Judge is,
that under the Presidents peace proclama-
ton civil law is once more supreme in
Virginia.


The facts of the case az set forth in the
application for a writ of habeas corpus are
as follows:


In January last, Mr.. W. F. Brittingham,
Of Elizabeth City, Va, was arrested by
order of the military authorities, charged
with having caused the death OF a ne
gro man by shooting. lie was tried by
military commission, and sentenced
to imprisonment in the penitentiary,
in which, at the date of the application,
he still Law. It appears that Immediately
after the shooting referred to Mr.. Britting-
ham reported all the facts of the occur
renee to the commanding officer at Fortress
Monroe, An investigation was ordered,
and Mr.. Brttingham was acquitted OF all
blame and permitted to return to his
home. After this acquittal had been
granted, Mr.. Britingham was arrested by
order of the Freedmen's Bureau and SEN
fenced to the pcnitentiary, as above stated.
The applicant claimed that he was a CIVIL
ian at the time of the arrest, trial, convic-
ton, and sentence that he was not sub
jcct in any way to military law, and that
as the President had proclaimed the return
of peace and the restoration OF CIVIL au-
thority he was entitled to a trial IN the
civil courts for any offence that he might
have committed. He therefore prayed that
a writ of habeaS corpus be issued requiring
the superintendent of the penitentiary TO
produce him before civil court Tor In
quiry and investigation.


Accordingly, on yesterday young Brit
tingham was brought before Judge Lyons,
and his application heard through his coun-
sci, General Henry A. Wise. Mr.. Marina
duke Johnson, in the absence of Mr.. N. A.
Sturdivant, attorney for the Common
wealth, acted in his stead. The defence
submitted that BrittiDgham, not being at
tached to the military service or subject to
the military laws of the United States,
could not legally have been tried by
military court, and therefore, having been
illegally detained, ought to be discharged
from custody.


Mr. Johnson thought that the defence
should prove that Mr.. Brittingham was not
connected with the military service of the
United States.


Mr.. Wise thought, to the contrary, that
when in times of peace military commits
sion should undertake to try and punish
man, it was the part of the United States
to show by what right they did so, and
therefore to prove that the man tried was
not a citizen and not subject to military
trial. In the present instance, it was con-
ceded that the accused rds citizen in the
very charges that were preferred against
him.


Here the question arose as to whether or
not the records of the trial conceded that
to be fact, which was decided in the af-
tirmative by the court. The Judge
thought that all courts Of limited jurisdic-
ton should prove that they had jurisdic-
ton in the cases tried before them. A mill
tary commission being court Of limited
jurisdiction, must be prepared to show that
they had jurisdiction in the cases which
they tried.


Mr.. johnson said, then if such was the
decision of the court, lie thought that the
prisoner should be released without further
discussion and turned over to the civil
courts.


General Wise thought that he should be
released unconditionally and without
further examination. The young man had
been tried before q military commission
having no jurisdiction in time of peace,
when the civil courts within the limits OF
the Commonwealth were in session, and
when he had been discharged after an ex-
animation. He had been sent as tclon to
fclon's cell, and had already suffered
under the grosscst injustice three months.
That three months, when the accused
knew that he was detained illegally and
unconstitutionally, was greater punish
ment upon him than one thousand times
the full amount of his sentence if a guilty
man or rightly convicted. He had suf-
fcrcd sufficiently, and the defence hoped
that he would be Internationally dis
charged.


The court decided that under the sta
tutes it could only order that the prisoner
be released from the penitentiary and
turned over to magistrate. The court
had to take notice of the fact that homi-
eide had been committed, and on this ac-
count the accused must be examined in
pursuance of the regular course of the
law. True, it was alleged that the homi-
eide had been committed in selt-deience,
but then this must be proven, and that
before the proper court. lie would there
fore order the prisoner to be turned over
to the Mayor Of the city, who could ex-
anime the case, and, as he thought just,
send him to the authorities Of Elizabeth
City or release him.


In pursuance of the order of the court,
young Brittingham was carried to Mayor
Mayo, who bailed him in the sum of $500
for his appearance before him this morning.


The EIGuTH-STREET SHOOTING AFFAIR."
The case of William Somcrville and Will