Restoration of Civil Law

September 6, 1866


Judge Lyons made a decision that restored civil law as the supreme law in Virginia. After a Mr. Brittingham was arrested by military authorities for shooting a "negro" man, he was tried and convicted in a military court. Brittingham states, and Judge Lyons agreed, that he was a civilian at the time of his arrest, citing President Johnson's peace proclamation, thus removing jurisdiction from the military court and placing it back in the civil system.


Restoration or Civil Law--An Important Case Discharge from the Penitentiary, by Judge Lyons, of a Gentle men Confined there Under Sentence of a Military Commission. One of the most important questions which have arisen since the close of the war come up in Judge Lyons's Court on yesterday, and the result of the decision of the learned Judge is that under the President's peace proclamation civil law is once more supreme in Virginia. The facts of the case as set forth in the application for a writ of habeas corpus are as follows: 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 negro man by shooting. He was tried by a military commission, and sentenced to imprisonment in the penitentiary, in which, at the date of the application, he still lay. It appears that immediately after the shooting referred to Mr. Brittingham reported all the facts of the occurrence to the commanding officer at Fortress Monroe. An investigation was ordered, and Mr. Brittingham was acquitted of all blame and permitted to return to his home. After this acquittal had been granted, Mr. Brittingham was arrested by order of the Freedmen's Bureau and sentenced to the penitentiary, as above stated. The applicant claimed that he was a civilian at the time of the arrest, trial, conviction, and sentence; that he was not subject in any way to military law, and that as the President had proclaimed the return of peace and the restoration of civil authority 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 a civil court tor inquiry and investigation. Accordingly, on yesterday young Brittingham was brought before Judge Lyons, and his application heard through his counsel, General Henry A. Wise. Mr. Marmaduke Johnson, in the absence of Mr. N. A. Sturdivant, attorney for the Commonwealth, acted in his stead. The defence submitted that Brittingham, not being attached to the military service or subject to the military laws of the United States, could not legally have been tried by a 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 a military commission should undertake to try and punish a 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 conceded that the accused was a 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 a fact, which was decided in the affirmative by the court. The Judge thought that all courts of limited jurisdiction should prove that they had jurisdiction in the cases tried before them. A military commission being a court of limited jurisdiction, must he 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, he 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 a 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 examination. He had been sent as a felon to a felon's cell, and had already suffered under the grossest injustice three months. That three months, when the accused knew that he was detained illegally and unconstitutionally, was a greater punishment upon him than one thousand times the full amount of his sentence if a guilty man or rightly convicted. He had suffered sufficiently, and the defence hoped that he would be unconditionally discharged. The court decided that under the statutes it could only order that the prisoner be released from the penitentiary and turned over to a magistrate. The court had to take notice of the fact that a homicide had been committed, and on this account the accused must be examined in pursuance of the regular course of the law. True, it was alleged that the homicide had been committed in self-defence, but then this must be proven, and that before the proper court. He would therefore order the prisoner to be turned over to the Mayor of the city, who could examine 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.
About this article

Contributed By

Nat Berry




“Restoration of Civil Law,” Reconstructing Virginia, accessed July 17, 2018,