The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-12-04

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| BIO one that preacribes additional punish
ment for crimes committed before Its pas,
sage. The conclusion is Irresistible that II
the punishment prescribed Is cumulative
this is an er post fucto law. =.
But if the punishment is exciu 1s, u e
last expression,of the national WIZ On ths
subiect-it gives the whole punishment anu
utilities all conflicting acts. Then the con-
clusion that it is er post fdcto ls escaped;
For although punishment may ne lnnlcteo
T by new law for offences already commit
ted, if the new law prescribes iighter
| punishment it is not an er post Jdcso law.
Otherwise. il is a bill of attalnder, or as
least bill of pains and penalties winch is
legislative declaration by which 8 ilener
punishment is fixed for an offence slreauy
committed. Now, if this SECTION IS con
| strued exclusively, the sting OF OH oi nv
tainder is taken away, and 1t Is nia''er ~ "
mercy instead of q matter OF wrath ne
asked the court to put the benencent coll
struction upon it. :.
Trne. there is no distinct provision in
The Constitution that no man shall De pun
iabed twice for the same offence but there
ia a principle in the Anglo-saxon heart,
and acknowledged everywhere, which for
hids snch q monstrous thing. 1t is not
less than q constitutional provision. How
ever slight the punishment may be, when
man receives that he goes free. Jefferson
Davis has been punished, and Is now under-
going punishment. The law under which
he is punished is its own Interpreter and
executioner, and the District Attorney has
nothing to do with it. The punishment, he
repeated, is now being inflicted by the
voice of the American people, who have
tried him and pronounced the sentence that
he shall be disqualified from holding any
office, State or Federal. ~ 49,.
Further, this law is g special provision,
and supersedes oil general provisions with
reference to general object. Before this
combination all general statutes, whatever
they are, must pass away and not be con-
sidered. 1t is also o constitutional proVl-
sion. These other enactments are statutes
at large made under the Constitution this
is a specific provision of the Constitution
itself. If there is any discrepancy between
this and the general act, OF if both meet the
case, but in a different manner, the sta
tute goes down and the Constitution pre-
walls. It says that the punishment shall
be deprivation, from office; the statute
saws imprisonment. IF you enforce the
statute you 90 further than the Constl-
tuition provides. But if he was wrong in all
this. and if the constitutional amendment
is to be degraded into statute and stripped
of its force, he would insist still, that being
the last legislative expression Of the will OF
the people, it should prevail. He quoted
Leach's Crown cases volume l, p. I'll, Rex
Us. John Davis to prove that where statute
makes an offence punishable as o felony,
and another inficts milder punishment,
the latter must prevail. Again, every sta
tute repeats all statutes repugnant thereto
without repeating clause. I'll Pickering,
Commonwealth Us. Berry Kimball, 1873, &C..
Pickering, Nicholas Us. Squirrel
Another position taken was, that 1t was
the design Of the Lawmakers to make dis
qualification from Office the only punish
ment for engaging in the late rebellion:
Nobody even suggested the punishment Of
any but the leaders, and very few of them.
In the language Of Burke 8" You cannot
bring an indictment against q nation" II
allWho engaged in the rebellion were tried,
where could jury be found How could
a man be convicted without perjury |?
Everybody was on either one side or the
other. How, then, could impartiality be
secured All this was seen, and the plan OF
selecting for punishment those who had en-
ioyed the confidence Of the people, and led
them into rebellion, was settled upon. In
this view it was benefcent enactment;
otherwise it was monstrous. ....
When Judge Guild concluded, Mr.. Dana
inquired what course the court would take
in reference to the session.
The Chief Justice said there would be no
recess. The court would sit until half-past
3 o'clock, and then adjourn until to-mor-
row.
Mr.. Dana said the counsel for the United
States had had no opportunity TO confer,
and as the motion had been on a point IN
expected to them, and probably toothe
court, they desired time to look over au-
thorities. This was an entirely new propo-
sition in law, for which there Is no prece-
dent, Such case could not arise under
any but written constitution. 1t was ma
tural. under these circumstances, that time
should be desired for reflection. a-Fs
The Chief Justice inquired about what
agreement had been made in regard to the
number of speeches on either side.
Mr.. O'Conor said that Juge Ould and HIM
self were the only speakers On the side OF
Mr.. Davis.
Mr.. Beach asked that he and Governor
Wells might be heard for the Government
that afternoon, and Mr.. Dana to-day.
This proposition was acceded to, and the
court took recess for an hour.
Before the recess the Chief Justice
thought proper to say that the court had
not been surprised, as intimated by Mr..
Dana, at the ground taken by the defend
ant. The course of the argument was anti
cipated, as it was expected that the point to
be urged was the common principle Of con-
structive repeal. ,-~..l ,'l'
After recess, ......s,. .s.,- .n.s.-. ....
DIr. Beach said the main point of the de-
fence, as he understood il, was that the
third section of the fourteenth constitu-
tional amendment repealed the acts under
which the indictments against Mr.. Davis
are found, because of the incompatibility of
the penalties prescribed by the two. The
question is, whether or not there has been
such change of punishment by the con-
stitutional amendment as to repeal the act
of 1870. The proposition which he pro-
posed to submit was that change of pun
ishment in order to, operate by Implication
as o repeal of prior Law declaring another
punishment for the same offence, must be
such punishment as affects the judgment
of the court. The distinction was illus
= - IL