The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1869-05-14

any intermediate proceeding whatever,
upon all persons within the category OF
prohibition, and as depriving them at
once and absolutely of all official au
for the petitioner suggested that the
amendment must be construed wi. b
reference to the act of 1867, which ex-
tends the writ of hdbedS corpus to a
large class of cases in which the preVi-
GUS legislation did not allow to be
issued. And 1t is proper to say few
words OF this suggestion here.
The Judiciary Act of 1859 expressly
denied the benefit of The writ of hGbe1S
corpus, to prisoners not confined under
or by color of the authority OF the
United States. Under that act, no per-
son confined under State authority
could have the benefit of the writ. AT
forwards, in 1888 and 1912, the writ was
extended to certain cases. specially de.
| scribed, OF Imprisonment under State
process; and, in 1867. by the act to which
the counsel referred, the writ was still
further extended "to all cases where
any person may be restrained of liber-
OF any treaty or law of the United
States" And the learned counsel was,
doubtless, correct in maintaining that
without the act of 1867 there would be
no remedy by hG6eGS corpus in the case
of the petitioner, nor, indeed, in any
|
the Constitution of the United States,
except in the possible case of an i'm
prisonment not only within the pro-
visions of this act, but also within the
provisions Ofsome one of the previous
acts of 1883, 1888 and 1912. But If. in
saying that the amendment must be-
| construed with reference to the act, the
counsel meant 10 affirm that the exist
ence of the act throws any light what
| ever upon the construction of tho
amendment, the court is unable to per-
| ceive the force of his observation. 1t is
not pretended that Imprisonment Tor
| shooting with intent to kill is uncon-
stituttonal, and it will hardly be aftirm
ed that the act of 1867 throwns any light
| whatever upon the question whether
such imprisonment In any particular
case Is unconstitutional. The case of
unconstitutional Imprisonment must
be established by appropriate evidence
1t cannot be inferred from the existence
OF remedy for such u case. And,
surely, no construction, otherwise I'M
| warranted, can be put upon the amend
| ment more than upon any other pro-
vision of The Constitution, to make u
case of violation out of acts which,
| otherwise, must be regarded as not only
constitutional, but right.
WecOme then to the question of con :
| struction. What was the intention oil
the people of the United States in adopt
| ing the fourteenth amendment? What
| is the true scope and purpose OF the
Prohibition to hold office contained in
the third section? The proposition
maintained in behalf of the petitioner,
| ia that this prohibition, Instantly, Gu
the day OF its PRONUNCIATION, vacated all
homces- held by persons within the Gate
CORY OF prohibition, and made all OIL .
| clal acts performed by them since that
| day null and void. One of the counsel
sought to vindicate this construction of
the amendment upon the ground that
| the definitions of the verb ITO hold, !"
given by Webster in his Dictionary, are
| to stop; to coDtine; TO retain;" OF which
definitions, the author says that ITO
| hold rarely or never signifies the first
act OF seiZing or failing on, but the acc
| OF retaining thing when seized on or
continI d." The other counsel seemed
to be embarrassed by the difficulties OF
| the literal construction, and sought 10
establish n distinction between SEN
| fences in criminal cases, and Judgments
and DEGREES in civil cases He admit,
ted, indeed, that the latter might be
valid when made by court held by
Judge within the prOhibltiVe category
| of the amendment; but insisted that
the sentences OF the same court IL Grim
inal cases must be treated as utilities.
The ground of the distinction, if we
correctly apprehend the argument, WAS
found in the circumstance that the act
of 1867 provided II summary re-
dress in the latter class of cases;
while in the former no summary RENE
dy could be had, and great incOnven-
ience would arise from regarding de-
crees and judgments as utterly null and
without effect. But this ground of dis
tinction seems TO the Court unsubstAn"
iial. II rests upon the fallacy already
commented on. The amendment makes
no such distinction rs is supposed. 1t
Il nf lint with
sons. The prohibition Is general. No
person in the prohibitive category can
hold Office. 1t applies to all persons
and to ali offices under the United
States; or any State. If upon true
construction, it operates as removal
OF IA Judge, and avoids all sentences in
criminal cases, pronounced by h!m AZ
ter the PRONUNCIATION of the amend
ment it must he held TO have the effect
of removing all judges and all officers,
and annulling all their official acts alter
that date. The literal construction,
therefore, is the Ouly one upon which
the order of the learned District Judge.
dischurging the prisoner, can be sus-
tanned; and was, indeed, as appears
from his certificate, the construction
upon which the order was made. lie
saws expressly "the right OF the paiI-
toner to his discharge appeared to ma
to rest solely on the incapacliy OF the
said Hugh w. Shelley TO act Chat Is AS
Judged and 10 sentence the prisoner un
der the fourteenth amendment"
Was this a correct constructioo? II
the examination of questions OF this
sort, great attention is properly paid to
the argument from Inconvenience.
Ibis argument, IL is true, cannot pre-
vail over plain words or clear reason.
But. on the other hand, Il construction,
which must necessarily occasion great
public and private mischief, must never
be preferred to a construction which
| will occasion neither, or neither IN SO
great q degree, unless the terms OF the
| instrument absolutely require such
| preference. Let IL then be considered
what consequences would spring from
| the literal INTERPRETATION commended for
in behalf OF the petitioner. The amend
ment applies to all the States OF the
Union, to all Offices under the United
States or under any State, and TO all
| persons in the category of ProhlOltlon,
and for all time present and future.
The offences, for which exclusion from
Office is denounced, are not merely en-
gazing in instruction or rebellion
against the United States, but the Civ
ing OF aid or comfort to their enemies.
Tnev are offences not only OF civil, but
; Of foreign war. Now, let 1t be suppos
| i'd that some of the persons, described
| Ia the Third Section, during the war
Aith Mexico, gave aid and comfort to
| the enemies of their country, and, new
ertheless, held some Office on the 2Sth
of July, 1868. or subsequently. Is il
reasonable construction of the amend
ment which will make 1t annul every
official act Of such an officer?
But. let another view be taken. 1t is
we'll known that many persons, en-
| rahalliO1 have emil