The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1869-05-11
clearly warranted by the terms OF the amend q,

ment and recognized by the legislation OF
The object of the amendment Is TO exclude
from certain Offices q certain ciise u -, .
Nov II Is obviously impossible 10 90 .his oy :"
sirnnia declaration, whether in the Ionstitu-
tion cr In an net of Congress, tnnt All persons
included within particular oescl ip'Iot sn.,
not hold Office; for in the very mature .! .nlnx'
r. must he nscertained what particular lnol-
,.;dnn1s arc embraced by the definition before
,nv snntence of exclusion can be mace 70 ope
raie To accomplish this ascer tainmeht anu
inenre affective results. proceedihRs, eFIoehce,
decisions and enforcement OF DECISIONS NJ
ior. Sormal are indispensable; and these
ar only he provided for by Congress.
IN M he necessity of this is recogniZed py
tho amendment itself in It's fttn ana maj gee
ton. which declares that oons.e 's s snl''
ha va mover to enforce by appropriate iegisla-
zion tho provisions Of this article. 1nere
,ra indoed other sections than the lhlrd 10
the enforcement of which leg 10 iieSsS
sary: but there is no one which i'oir e!.0I'
renuires legislation in order 20 give erect toit.
Tho ffth section qualities the thlrd 10 the
soma ytent ms It would il the whole amend
r,ent consisted of these Two sections. .
And the final clause of the third section IT.
self is significant. 1t gives 10 oomseS ~ to ,be
ame,dn,nnt These are It's words: " But Con-
press may, by vote or Two thlIds OF etch
House. remove such disability. IakinS the
third section. then, in its completeness with
sonoble uuFstion the conclusion that the IN
tention of the people of the United states In
adopting the fourteenth amendment was 10
crea te disability, to be removed IN proper
cases nv q two thirds vote, and TO be made
lucrative in other cases by the legislation OF
Congress in its ordinary course. Ihls con-
struct,on gives certain erect 10 the undouoteo
intent of the amendment TO insure the exciu-
SION from Office of the designated CLASS OF per
sons if not relieved from their disabilities,
and avoids the manifold evils which must at-
tend the construction insisted upon by the
counsel for the petitioner.
It results from this examination that per-
sons in Office by lawful appointment or
election before the PRONUNCIATION OF the four"
teenth amendment, are not remover tnere-
from by the direct and immediate effect OF the
prohibition to hold office contained IN the thlrd
section, but that legislation by Congress Is
necessary TO give effect TO the prohibition by
providinp for snch removal. And il results,
further that the exercise Of their several
functions by these officers, until removed, Iii
pursuance Of such legislation, is not unlawful.
The views which have been just stated re-
ceiye strong confirmation from the action OF
Congress and of the Executive Department OF
the Government. The decision of the District
Judge now under revision was made III De'
cember 1865, and two months afterwards IN
February 1859, Congress adopted JOINT reSo-
luton entitled "a resolution respecting sns
provisional governments of Virginia and
Texas" In this resolution il was provided
that persons " holding office in the provisional
governments of Virginia and Texas, out
unable to take and subscribe the test-oalh
prescribed BIZ the act Of July 2, 1862, except
those relieved from disability, I" be removed
,herefrom but Z provision was added sus'
pending the operation OF the resointlcn LOT
thirty days from It's passage. The JOINT reso'
luton was passed and received oy inc fresl
dent on the 9th Of February, and not having
been returned within ten days, became 4 Ia"
wi thout his approval.
IL cannot be doubted that this joint resoln-
ton recognized persons unable TO take the oatn
required, to which class belonged an persons
within the description OF the third section OF
the fourteenth amendment, rs hoidlnG once
in Virginia 1T the ate of its passage ana pro-
yided for their removal from othce.
II is not clear whether IL was the Intent OF
Congress that this removal should be effected
in Virginia by the force OF the joint resolution
itself, or by commander of the first military
district II was understood by the Executive
or military authorities as directing the re-
moval of the persons described oF lhii''iS
order. The resolution was published by com
mnnd of the General of the Army, for the m
formation of all concerned, OIL the I'D OF
March, 1869. 1t had been previously puollsnen
bv direction of the commander OF the lrsI
military district, accompanied by an oraer' "
take effect on the 18th of March, 1869, reInoF-
inp the persons described from office. Inc
dale ut which this order WAS TO take effect
WAS after wards changed to the 2lsh OF harch.
1t is plain enough from this statement llat
persons holding office in virginia, ana With'h
The nroh bi ton Of the fourteenth amendment
we're not regarded by Congress or oy the null
tary authority in March 1859 rs having been
already removed from office.
Its unnecessary 10 discuss here the ques-
ton whether the Government OF IrElnia,-
which seems TO have been not provisional, bat
Recommendation transferred from AleHan-
dria to Richmond, became provisional undeT
the subsequent legislation OF Congress or 10
express any opinion concerning the 'aiiultJ VI
The Joint resolution, or of the proceedings
under it, The resolution and proceedings are
referred TO here only for the purpose OF show
ing that the amendment had not been Regarded
by Congress or the Executive, so lar rs repre-
sented by the military authorities, ;.S ellecting
IN Immediate removal OF the oHlccFS uescIiueu
in the third section.
After the most careful consideration, thefS'
fore | find myself constrained 10 the COnc!u-
sion that Hugh w. Shelly had not been re
moved from the office OF Judge at The tune ol
the trial and sentence Of the petitioner, and
that the sentence Of the circuit court OF kock-
bridge county was lawful.
In this view of the case ii becomes uane
cessary TO determine the question relating 10
the effect of the sentence OF judge de CHc,o
exercising the office with the color bat with
out the substance OF right. IL Is proper 10
say, however, that l should have no difficulty
in sustaining the custody OF the SheTlli under
the sentence of L court held by such 4 Judge
Instructive argument and illustration or
this branch of the case might be derived from
an examination OF those provisions OF the Con
stitution ordaining that no person snail De Il
repres en- tatiYe, or senator, or PRESIDENT OF
vice. president, unless having certain pre-
scribed qualifications. These provisions as
well as those which ordain that no senator or
representative shall during his term of ser
vice be appointed to any office under the
United States, under certain circumstances;
and that no person holding any such office
shall while holding such office, be member
of either House, operate on Tie capaciiy 10
take Office. The election or appoln tment ltseil
is prohibited and inyalidated; and yet no IN
stance is believed TO exist where a person has
been actually elected, and has actually taken
the Office, notwi thstandinG the prohibition,
and his acts while exercising It's functions,
have been held invalid
INT II is unnecessary 10 pursue the exami-
nation. The cases cited by counsel cover the
whole ground, both Of principal and au-
thority.%
This subject received the consideration OF
Tho Judges Of the Supreme Court 1T the last
tar,, win reference 10 this and kindred cases
in this District, and am authorized 10 say
that they unanimously concur IN the opln-
ion that person convicted by Il jury anu SEN
fenced in court held by Il Judge de J1icto, act
ing under color of Office, though not ds Jure,
and detained in custody in pursuance OF his
sentence, cannot be properly discharged upon
hdJtds corpus.
1t follows that the order OF the District
Judge must be reversed, and that the petit
TONER must be remanded to the custody OF the
sheriff OF Rcckbridge county.
taylor rs, Skinner, South Carolina. 696
State rs. Bloom, II Wisconsin, III Ef rel.
Bullou rS. Bangs, "a Illinois, Isl.
The Fate of Jeter 5'hflltps-Decision
of Judge Underwood.
Judge Underwood lin Chambers) yesterday
I. ,:siN in rha h,fi. 90 Ga.