The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-11-21

with the judiciary. The exercise of this
power, however, is regulated by the Con-
gress, and in the absence OF these re2uia-
tlons the courts cannot act. 1t is especially
important and necessary that the tribunal
for the trial shall be specified by law, and if
the proceedings are not as thus pre-
scrioed they cannot be regular legal
proceedings. The courts may decline to
act unless the mode of proceeding
is laid down. Now, there is no mode OF
proceeding prescribed under the third Sec
ton of this amendment. There is an inter-
dict; but where is the law authorizing this
court TO try whether any individual falls
into the category therein prescribed or not !?
Where Is the law giving any court that
power What is the process to be en-
ployed? How shall the result be announced
Never was such an enormity heard of rs
that court should take up and try pro-
vision of this kind without any regulations
concerning that trial. There was never a
case where congressional legislation was
more necessary.
Mr.. Neeson further argued that the fact
that no penalty is prescribed is an evidence
that further legislation is necessary. If
there is a penalty, the trial should take
place before a jury the accused should
have the right TO cross-examine witnesses
and TO appeal. None of these rights are
secured in proceeding like this. Certain
II, then, it is evident that the provision is
not yet operative, else there would be regu-
lations by which the law can be enforced
in harmony and anarchy averted. There
was palpable absurdity, too, in the reply OF
the petitioner to the return. The discharge
of Griffin is urged because Of Judge Shelf
fey's total incapacity. Suppose this court
decides him disqualified that judgment
would not vacate his Office. Another judge
might decide him qualified. Which de-
cision would be final? This absurdity
also will be avoided when Congress comes
to legislate on the subject.
He then spoke of the difficulty of de-
Gliding what incapacitates the judge or
other officer under the third section. What
constitutes aid and comfort to the enemy
What is meant by engaging in rebellion
Are these questions to be left to the deci-
sions of hundred different judges on hd-
jeaS corpus cases These positions were de-
Tended and illustrated at length, and numer-
Gus authorities cited in support thereof !;
among them the Supreme Court decision
Groves Us. Slaughter, Is Peters, 4l9.
1t was also contended that the acts of q
Judge de tdcto, if within the rightful juris-
diction of the Office he exercises, are as
valid and binding as the acts of judge
de jHre, though not available for the benefit
Of the de fdCtO officer. If the court has
Jurisdiction of case, the acts of the per-
son exercising the Office Of judge are
binding though he is personally in
capacited. The speaker wished it distinctly
understood, however, that he believed
Judge Shetfcy to be both a de facto and
de jure judge, This third rule promotes
Justice and the claims of humanity, and
never operates to the injury of an inno
cent man. Public authority is nothing but
the distribution in detail Of the powers Of
government. All the community is bound
to obey public authority as proclaimed
through its recOgnized instrumentalities.
When, therefore, one fills an office by pub
lie appreciation he must be o6cyed and re-
spected as the incumbent Of that office. If
anybody could gainsay it, what would pub
lie authority be? Government would be
dissolved il every malcontent we're allowed
to assail public officers ; and upon the peace
able the consequences would fall. Public
policy, necessity, and humanity, therefore
demand this rule aud its enforcement
everywhere. ! Kent, l6S; Angel and
Ames on Corporations, section 2S7; Burr
rs. Mcdonald, 3 Grattan, 2l5; Bank OF
North America Us. McCaul, 4 Burney,
81 and other authorities and decisions,
were cited 10 demonstrate the universally
Of use ard application of this general doc
trine. English authorities were also cited.
In Blackstone, 397 and note, the doctrine
is declared that the pardon Of a king dc
t0Cto has the same effect as the pardon Of
d king de jwe, and that treason may be as
we'll against king de .tactO as against q
king lie jure. Bacon's Abridgement,
29l-'2-'3, was also quoted to show that the
judgment of q de tacto judge was binding.
Reaflirmed English decisions were also
quoted to show that the title of man to hold
an office shall not be called in question in
an action to which he is not a party.
Cooke rs. Halsey, l6 Peters, ~
Mr. Nelson's fourth proposition was that
the title or right to hold 9 judicial Office,
on whatever ground it may be questioned,
cannot be impeached in o collateral pro-
ceeding. 1t may be impeached directly by
quo lrarr0nt0 or information instituted and
prosecuted by public authority, but in no
mode by individual suitors or litigants. The
title of a public officer can only be i'm
peached in the mode prescribed by law.
This may be by q'to ,carranto proceeding,
by trial, or by the modern information in
the nature of quo ,oarrnnto. This PROPOSE
ton was dwelt upon at length, and fortified
by the citation Of numerous decisions Of the
Supreme Court.
At o'clock the court adjourned. Mr..
Neeson, rot having concluded his argument,
was allowed one hour on Monday morning,
until which time the case was continued.