The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-12-05
THE CASE OF JEFF. DAVIS.
ARGUMENT UPON THE MOTION TO
QUASI. THE INDICTMENT.
SPEECHES OF R. II. DANA, JR., AND
CHARLES O'CON0R.

Yesterday morning the Circuit Court O
the United States (Chief Justice Cnase anc
Judge Underwood on the bench) resumed
the consideration of the motion to quasi
the indictment against Mr.. Davis.
r. II. Dana, Jr., Esq, for the Govern
ment, said, upon the notice Issued DJ
the bench that motion had been maze
by the defendant for dismissal 0,
the proceedings, he had been called
upon by the United States Government tc
appear in court to state his objections tc
the motion. He found that this court was
now invited to perform function entirely
unknown to it before-to pronounce upon
the voice of the people of the United States
as expressed in a constitutional amend
ment. If he could aid the court IN It's de'
alterations it would be his pleasure to &c
80. The position of his friends on the othel
side was that the third section OF the Iour'
teenth amendment brought the proceedings
against their client TO an immediate close,
The counsel for the Government had done oil
in their power to assist the court to ellml'
nate the effect of that amendment upon this
case, having admitted the facts set forth IN
the affidavit. The question remaining for
consideration was, Is that thirdsection mere
penal statute for the punishment OF lndi-
viduals, or is it an alteration in the polltl-
cal system of the country for the purpose Of
securing the purity Of administration IN
the Government? IF the latter, the mo-
ton before the court at once falls through
If it is penal statute, there will arise the
question whether it repeats the previous
statutes according to the familiar principles
of constructive repeal.
He then proceeded to show that the
amendment was Of the latter and not Of the
former kind. 1t is one of the most import
ant functions of the Constitution to tell
what the offices shall be, and how they
shall be filled. 1t is important to have
those Offices filled by trustworthy persons.
1t is no new thing in our system to intro
duce particular requirements for office
holding into our organic law. There are
certain requirements as to the age of voters
and representatives in Congress, &C.. but
these are not provisions of the criminal
code, and are not part Of system OF
punishment, though they infer from a
fault an unftness to hold office. In
the same manner, Congress has pro-
vided that any person who tries to
corrupt q judge shall not hold certain
Offices underline Government; although there
is already upon the statutes punishment
for this offence. The law of 1862 pre-
ecrihcs punishment upon conviction OF
treason, and also for another and distinct
crime--inciting and engaging in rebellion
Now, if this court had before it man on
trial for treason, which it has motor for
melting to rebellion, if convicted the court
would sentence him according to this sta
tute, and there its functions would cease.
If, in addition to the penalties thus pre-
scribed and executed, q statute should soy
that the person guilty Of either of the
crimes named should be disqualified from
office holding, no action Of the court would
be necessary on that provision ; it would
enforce itself.
He held that it would have been prepos-
ferrous for Congress to have prepared con-
stitutional amendment for the purpose OF
dealing with O few offenders whose offences
are notorious, but committed in the past.
Congress is not charged with the usual pro-
cesses of vindictive punishment, and the
very form of the amendment shows that 1t
was not intended to prescribe punishment,
but to preserve the purity Of office. Nor
did it appear to be benefcent provision of
pardon. Amnesty dwells with the execu-
tive, not with the legislative, department of
our Government. 1t was not such beneh-
cent provision, but the people had simply
said, by the ratification of the amendment,
that man who has sworn allegiance to the
~ O. IL l1.,l ory Wet
it is unfit for office. They then say that
inasmuch as some who have thus rebelled
may afterwards prove their fitness for places
of trust, the National Legislature shall
have the power to relieve them Of the dlsa-
bilities imposed in the third section.
But the ground taken by the defendant
is that the intention Of Congress was to
prescribe lighter punishment for treason,
aud that the previous statutes fixing heavy
punishment for the crime were thereby re-
pealed. lie could see no reasons sustaining
this position. The debates did not show
that there was any such intention expressed
by any member Of Congress when the
amendment Was under discussion, and he
felt confident that none Of the State Legis-
latures that ratified it SO understood its
provisions. 1t would have been, in effect,
saying that while the simple traitor should
auffer death, the man who sWore allegiance
to the general government and then be-
trayed it should 90 free. Such PROPOSE
ton would not have received single vote
in Congress, and the universal voice of the
people would have condemned it. Not one
Of the States Of the Union would have rati-
fed such an mendment; for if there is
unanimity among northern people on any
subject it is against the leaders of the re-
bellion,-traitors in Congress and in Offices
of Federal trust--While they are proud OF
the bravery shown by the misguided masses
who fought for the lost cause"
Mr.. Dana submitted, further, that the
fourteenth amendment was 9 permanent
provision, adopted with q view to future
rebellions. as we'll as to the rebellion re-
Gently subdued. The language therein not
only admits but looks to future rebellion
He com bated the idea held by the defend.
ant that the disqualification to hold Office
must be o punishment. The Supreme
Court decisions quoted to sustain the point
he thought were insufficient. The case Of
Cummins Us. The State OF Missouri had
nothing to do with office-holding but the
punishment inflicted was disqualification
from following certain professions. The
amendment does not prescribe punish
ment because it does not prescribe any
mode of trial or provide for conviction. i
only says person guilty shall not hold GER
tain Offices but court would never enter
upon its records as sentence that person
convicted of treason shall not hold either o.
the offices named. 1t is not q punishment
for it is not judicial sentence. What cour
would sentence a convicted traitor not t.
hold office, unless by two-thirds vote o.
Il. s. tof no Sc 80