The legality of the writ of garnishment.
Monday was the day set aside by the Confederate Court
for the argument of the interesting question of the legality of the writ of garnishment, to which Messrs. James L. Pettigru
, Wm. Whaley
, and Nelson Mitchell
The court-room was crowded.
gives the following report of the day's proceedings:
, asked of the court, as the return made by him was the same in substance, almost the same in form, as that of Mr. Pettigru
, that the two demurrers be taken up together.
, District Attorney
, made no objection, but suggested as a matter of form, he should hear the argument of both of the counsel before called upon to reply.
, also proposed, if convenient to the court, that the demurrer filed by him, though somewhat different in form from the other two, be taken up with the subject matter at the same time.
interposed no objection, but asked that he might hear Mr. Mitchell
, also, before replying.
notified the court that he had asked the assistance of Attorney-General Hayne
, who would be heard on the same side, in behalf of the Government
Mr. Wm. Whaley
opened the argument to the court by saying that it was with feelings of profound respect that he approached the discussion of this question — respect for the Legislative Assembly
from which the law has emanated, respect for the tribunal in which it is to be administered — at the same time that he approached it with feelings of no common emotion, so far as he himself was concerned.
He stood before the court as one who had been served with a process which he believed before God to be wrong, according to the dictates of his own conscience, and according to the laws of the land.
When he said laws of the land, he meant laws of the land in contradistinction to this act of the Congress of the Confederate States, and when any one is forced to assume a position of that kind, amidst the roar of cannon and the clash of arms, when our citizens are now upon the banks of the Potomac
, ready to seal with their blood the revolution which we have inaugurated, and which, from 1854 to the present moment, he has diligently tried to accomplish.--With all these circumstances around him, and in the position which he had always occupied, both politically and as a member of the bar, he trusted the words that would flow from his lips would be received as coming from a sincere and honest desire to act according to the best of his judgment and convictions of right and duty.
With these preliminary remarks, Mr. Whaley
proceeded with his argument, and laid down the course he would pursue.
The discussion of the nature and character of the act.
The effect of the act and writ upon those called upon to give information to the Receiver.
The effect of the act upon those called upon to pay over and surrender all the debts, money, and goods in their possession to the Receiver.
He would contend that the writ of garnishment is contrary to the writ of sequestration.
That the whole proceeding is contrary to the laws of the land and void under the laws of nations.
As the questions which have brought out this brilliant array of legal talent involves considerations of more than ordinary importance, we have deemed it proper to postpone an extended report for the present, with the view of laying these arguments before our readers in full in another issue.
, followed, and after a brief explanation of the position he occupied, proposed to show: First, That there is no reality in this process, that it wanted vitality, that it is a writ not found in Common Law nor in anything having a legal obligation upon himself or any member of this community.
Therefore it was the solemn duty of all who took that view of the subject, to bring it to the test and sanction of the law. He proposed in the first place to impeach this law itself.
It is not a law, has no validity or existence.
He contended that it was not on the statute books of the State
It has the symbols and seal and everything else but the true royalty of law, the authority under which his Honor was to sit here and administer justice, under the State
which recognizes sovereignty in its true principle.
contended that the writ was not conformable to the act, and that the act was derived from no grant in the Constitution
, and was also contradictory of common right.
He urged that he was called upon by the process to disclose the rights even of lunatics, women, and infants; that the most sacred confidences engendered by natural ties were to be violated; that nowhere, at any time, had it been judicially decided
that such power was included in the war-making authority.
If stet pre ratione voluntas
was the code under which the court sat, the advocate was silent, save as to the clearest interpretation of that despotic will; but it was not so.--The Confederate jurisprudence was one of strict construction.
The question was, did such a power lie in the clause of the Constitution
He showed that the treaties of the United States
(expressive of the law, which, so far as consistent with all altered relations, was now ours.) declared such sequestration unlawful and unjustifiable; moreover, that the law of 1781 contains a request of Congress to the several States that they would pass laws relative to the sequestration of alien rights.
He based his objections on ground of technical objection, of the construction of the law and the conformity of the writ of the law, of that to the Constitution
and the contradiction of common right.
Mr. Attorney Miles
replied with a most felicitous allusion to the absence of the District Attorney
, Major James Conner
In eloquent terms he alluded to that gentleman, illustrating with Roman virtue the field and forum; he further said that he would pursue the argument on no technical ground.
It might have been enough when the learned jurist who first moved this opposition stated that he had nothing to show, to have received this ore tenus
as a return; it were possible to show that a demurrer was no remedy whereby to quash a writ, but he met the grounds of constitutional and legal right.
will begin his argument this morning, and be followed by Mr. Hayne
in reply, when the case will be submitted to the Judge