The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-12-05

Law by WHICH tHty couiu Do -,
wasnot to besupposed that the sovereign WIN
of the people in introducing this new pun
| ishment intended also to leave the subjects
| of this new punishment liable to be pro-
| ceeded against under the preceding laws.
When this section, in its prospective aspect,
/ is examined, it will be seen how the exist
| ing laws would operate upon it. AT the
time when any person shall hereai-
| ter engage in instruction or rebel
lion there will be existing precedents
before the offence will be committed de-
| nouncing against them the punishments.
| It will be unlike case for the punishment
of q particular offence, as larceny, stating
that such an evil shall be visited upon the
offender by the judgment of the court.
Mr.. O'Conor proceeded at great length
TO argue the case in advocacy of the vari-
| rious propositions laid down by his associ-
| ates, and then proceeded to the considera-
ton of treason, and said, Treason, as it is
| understood in the common law, consists,
| primarily and essentially, in recent fraudu-
lent combinations and conspiracy. The
| Constitution defines treason expressly by
essentially negative terms, and declares
| that it shall consist only in le7ying war
against the United States, or in giving aid
and comfort to their enemies. There
could be no other form of treason than
| by giving aid, etc., to q foreign enemy.
maintain that it is no violation of
oath or fidelity to the United States
| to refuse obedience to some particular
law of it on the part of one that should re-
sist the magistrate who attempts to arrest
] him for some offence by the regular process
of the law, though he obtain forty, fifty, or
one hundred men to help him in it. 1t is
a great crime, and is punishable. 1t is no
Instruction nor rebellion. Treason, ac
cording to the English definition, which is
repudiated by the Constitution Of the United
States, exists in multitude of acts. Chief
Justice Marshall has said that there need
not be so much as any instruction; that
| the gathering together of moderate num-
Der Of men armed, without moving or act
ing at all, was levying war; and the coun-
sci on the other side have suggested that
perhaps this is too stricta Interpretation
and maybe it is.
The indictment found against Mr.. Davis
was then reviewed at length by Mr.. O'Conor
in an able manner, and received at his
hands O severe dissection as to its legal
merits and it's decided weaknesses.
Judge Ould having go well opened the
case, it had devolved upon Mr.. OConor
merely to answer the objections raised by
the counsel for the Government. To these
objections he had addressed himself, and
believed he had omitted to notice none. He
might well stop here, but there were one or
two points spoken Of by Judge Ould which
might we'll be dwelt upon at greater length.
lie called the attention Of their Honors to
the fact that the construction which he and
his associates asked the court to give the
constitutional amendment was wise, just,
polite, and in accordance with the views of
al the most enlightened publicists that had
addressed themselves to the subject. When
an instruction has reached a certain
magnitude it must be considered as
being withdrawn from the scope of the &C
ton of the civil and municipal law. He
did not mean to deny the right Of the civil
authority to resume its sway, but the con-
tending rebels, after they are vanquished,
ought not 10 be indicted, resistance having
ceased, or be subjected to imprisonment
or other punishment prescribed by civil
law. When an instruction rises to the
dignity of @ territorial civil war, so that a
large portion of the territory Of Govern
ment is entirely Withdrawn from its power,
when there is no protection for the life or
property of the people except such az the
rebels themselves may afford, and when
this state of things shall have con-
tinued long, there is an unseemli-
ness in applying the action of the civil
law when the instruction is at an end. One
of the effects of such q civil war is that all
the innocent and all the loyal are not merely
beyond the reach of the Goyernrn ent to
protect them, but are outlawed and placed
beyond recognition as citizens. AS con-
sequence, the right Of prize arises, and ii Is
only necessary that an owner of property
be resident in the rebel territory, and the
property of that Individual may be seized,
and, without judicial proceedings, confs-
Gated as reward for those who support the
Government. Aside from indictments for
treason, murder, and the like, the most dis
astr0us consequences may. ensue from an
attempt to enforce in all their Vigor the civil
and municipal law. It is held by the prose
cution that no matter how long or how etfec-
lively the resistance may be, the civil law
resumes its sway and takes cognizance
u AUTO hS SOOu 40 pShNS 40 ~
stored. The late war existed four years.
If the civil law resumed its sway after four,
and under it the rebels ore punished, why
should it not after rebellion Of forty or q
hundred years. in that view Of the case q
grandson or q great-grandsou OF Jefferson
Davis, who had never lifted hand in the
struggle, might be indicted and convicted
of treason. Never has there been Go
vernment so barbarous and SO bereft Of
shame as to adopt such q policy.
Again, u territorial civil war renders ne
cessary the observance Of the laws Of war,
which are the laws OF honor and chlvalry.
Thus the cartel is agreed upon whereby the
rebel is recognized as a belligerent soldier.
How revolving to every sense OF honor and
self-res pect would it be for q commanding
general, who has thus treated his enemies,
70 seize the gentleman commanding the OPP
oosite forces to deliver him as he would q
thief or pickpocket into the custody of g.
magistrate, and have him hung as o traitor
by common eZccutloner.
But if the civil law is displaced there
must be an adequate substitute. That sub
stitute was provided in the rules and usages
IF war, and it is vain in counsel to say that
the victor cannot avail himself Of stern
military law, for if it is just i. can be
used. 1t is only against the leaders, how
ever, that either civil or military punish
ment is available, and against the leaders
it is seldom practicable to prosecute for
their part in such q rebellion Us that Of '6l-
'65. Everybody in Virginia knows that
civil war did exist, and that Jefferson Da-
yis was at the head of it. No witness could