The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1869-05-11
ing DEGREES and judgments as utterly null and

ing DEGREES and judgments as utterly null and
without effect.
But this ground OF distinction seems to the
.court unsuhstantial. 1t rests upon the ial.
lacy already commented on Inc hinen,'ineI ;
makes no such distinction as is supposed. II
does not deal with cases, but with persons.
The prohibition Is general. NO person IN Ine
prohibtiye category can hold ONCE. ~ up
plies to MI persons and to all ofcers nnuer .ne
United States or any State. Ii, upon true
constructions II operates as removal Oh !
Judge. and avoids nil sentences in criminal
cases pronounced by him after the prornuiga-
ton Of the amendment, il must be held 10 nave ~,
the effect of removing all judges ana AL OH
GERS. and annullng all their oflicia! acts after
that date.
The literal construction. therefore, is the
ONLY one upon which the order OF the learned
District Judge discharging the prisoner cau pe
sustained, and was, indeed, rs appears lroIh
his certificate, the construction upon when
the order was made. He says expressly : tue
right Of the petitioner TO his discharge appe"Li
cd 10 me 10 rest solely on the incapaclty OF Tue
said Hugh W. Shelley to act,' lthat Is, ns
Judge) land so 10 sentence the PFlsohei III
der the fourteenth amendment.
Was this 4 correct CONSTRUCTION
Tn the examination OF questions OF this sol |
great attention is properly PAID 10 the d :;
ment from Inconvenience. Ihls argument ~
&c trua cannot prevail over plain WORDS OF
clear reason. But, on the otEer nihu, u I'm :
struction which must necessary a.'or
great public and private mlschlei mus heNei
ha nreferred TO n construction when VIII occa-
80 - neitter or neither in o great degree, vi
less the terms Of the instrument aDsoluleiJ
require such preference. . .,,o
lot IL then, be considered what conse-
ouences would spring from the llterai inter
probation con'ehueo ioi IA '
TONER. r.l s.o... of
The amendment applies to all lne SUITES VI
| the Union, TO all offices under the Chlten
States or under any State, and 10 All PEI sons
Of 1rnhi
| Tine present and future. The offences lot
| which exclusion from Office is denounced are
not merely engaging in instruction CT reoei-
lion against the United States, but the giving
of aid or comfort to their enemies. lhey are
offences not only of civil. but OF foreign war
Now. let il be supposed that some of the
persons described in the third section, during
the war with Mexico, gave aid and comfort TO
The enemies of their country, and, neVcrthe'
less held some office on the 18th OF MY, 1868,
or subsequently, is IL 4 reasonable CONSTITUTE
ton of the amendment which will make it
anrnl every official act of such IN officer?
But let another view be taken. 1t is well
known that many persons engaged IN IN late
rebellion have emigrated TO States Whlch ha-
hered to the National Government, and it is
not to be doubted that not q few among them,
rs members of Congress. or officers OF the
United States, or rs members OF State Legs
latures, or rs executive or judicial officers OF 4
State had before the war taken an oath 10
support the Constitution Of the United States.
In their new homes, capacity, integrity, MT
ness, and acccptability, may very possibly
have been more looked to than anteCedents.
Probably some of these persons have been
elected TO Office in the States which have re.
ceiyed them. 1t is not unlikely that some
of them held Office on the 2Sth July, 1865.
Must MI their official acts be held TO be null
under the memorable exigencies Of the amend
mpnt
But the principal intent of the amendment
was doubtless, to provide for the exclusion
from office, in the lately insurgent States, OF
all persons within the prohibitive Description
Now, it is we'll known that before the
amendment was proposed by Congress, GO
vernments acknowledging the constitutional
supremacy of the National Government had
been organized in all these States. In some,
these governments had been organized
through the direct action or the people, en-
couraged and supported by the President. as
IL Tennessee Louisiana, and Arkansas and
in some, through similar action, i'll pursuance
of Executive proClamations, as in North Caro-
lima, Alabama, and several other States. In
Virginia such Il State government had been
organized, rs has been already stated, soon
after the commencement OF the war; and this
government had been fully recognized BY
Congress rs we'll rs by the President.
This government, indeed, and all the others
except that of Tennessee, were declared by
Congress 10 be provisional only.
But in all these States all offices had been
flied before the ratification OF the amendment
by citizens who ut The time of the ratitica-
ton were actively engaged IN the perform
ance of their several duties. Very many, II
not u majority Of these officers, had, in one or
another of the capacities described in the
third section, taken an oath TO support the
Constitution, aud had afterwards engaged in
the late rebellion and most, If not al, OF
| them continued i'll the discharge OF their
functions after the PRONUNCIATION of the
amendment, not SuppOsiug that by its opera
| ton their Offices could be vacated without
some action of Congress.
| If the construction now contended for be
given to the prohihitiye section the effect
must be TO annul al Official acts performed
by these officers. No sentence, no Judgment,
no decree, no acknowledgment of Il deed, no
record of Il deed, no shcrilrs or commission
| cr's saIe-in short, no official acts of the
least validity. 1t is impossible 10 measure
| The evils which such 4 construction would add
| 10 the caiamities which have already fallen
| upow the people OF these States.
| The argument from Inconvenience great rs
| these against the construction Contended Tor
is certainly one of no light weight.
! But there is another principle which, IN de-
termining the construction OF this amend
| ment, il entitled 10 equal consideration with
| that which has Just been stated and illustra-
ted. ] / may be stated thus: Or two conStruc-
t!ons, either of which is warranted by the
| words of IN amendment of L public act, that
| is 10 be preferred which best harmoniZes the
amendment with the general tenor anu splfIt
of the act amended
| This principle orbiGs 4 construction OF the
| amendment, not clearly required by lis terms,
| which will bring il into conflict or disaccord
| with the other provisions OF the Constltu-
ton
And here it becomes proper 10 examine
| somewhat more particularly the character OF
| the third section of the amendment.
The amendment itself was the first OF the
series of measures proposed or adopted by
Congress with Il view 10 the re organization
| OF State governments acknowledging The con-
| stitutioual supremacy OF the National Gov.
ernment in those States which had attempted
| TO break up their constitutional relations WIN
| the Union and to establish an independent
All citizens who had, during Its earlier
stages, engaged III or aided the war against
| the United States, which resulted inevitably
| from this attempt, had incurred the penalties
| OF treason under the statute OF 1899.
| But by the act of July II, 1852, while the
civil war was fragrant, the death penalty for
| treason, committed by engaging in rebellion,
was practically abolished. Afterwards, III
December 1868, full amnesty, On conditions
which now certainly seem 10 be moderate, was
| offered by President Lincoln in accordance
| with the same act OF Congress; ana after or.
gauiZed resistance TO the United States had
ceased, amnesty was again offered, IN accord,
| auce with the same act. by President Johnson
| in May 1865. In both these offers OF amnesty
extensive exceptions were made.
| In June 1866, little moro than year later,
| The fourteenth amendment was proposed, and
| was ratified in July 1865. The only punitive
| section contained in il is the third, now under
| consideration. 1t is not improbable that one
| Of the objects Of this section was TO provide
| for the security of the nation and OF indiri.
duals by the exclusion of q class Of citizens
| from office but it can hardly be doubted that
| its main purpose was 10 inflict npon the lead.
ing and most influential characters who had
| been engaged III the rebellion exclusion from
Office rs punishment for the offence.
| Its true that in the judgment OF some en-
Iinht en- iurists It's legal effect was 10 remit