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as established, that the defendant had so held office and taken oath ; and the motion was so altered as to ask the court to quash or dismiss the indictment, and the proceedings thereon, or to afford other proper relief.
The case for the defendant was opened by Mr. Ould, and for the Government by the United States Attorney and Mr. Wells, on Thursday, Dec. 2; and Mr. Dana closed for the Government, and Mr. O'Conor for the defendant, on the following day. The positions taken on the opposing sides may be stated substantially as follows:
Mr. Ould, for the defendant, contended that the amendment inflicted a punishment upon all persons coming within the description in the third section. That disqualification for office was recognized as a criminal penalty. — Ex parte Garland, 4 Wallace, 333; Cummings v. Missouri, ib. 277; Dorsey's Case, 7 Porter 293; Barker v. People, 3 Cowen, 686. Although the words in the amendment are, “insurrection or rebellion," and the charge in the indictment is levying war," they describe the same offence; and the court must be held to know that the allegation in the indictment referred to the great historic fact of the late insurrection and rebellion. He contended, both from the language of the amendment and the circumstances of its adoption, that it was solely retroactive, and intended to close up the late Rebellion by an act of partial amnesty, made by the whole people. [To an inquiry by Mr. Dana, whether they considered the persons not described by the amendment as still subject to the laws for the punishment of treason, Mr. Ould replied that they did so consider.] He cited authorities to the point, that when a new statute is made, inflicting a different penalty from that inflicted by prior statutes for the same offence, whether the penalty be less or greater, the prior statutes are repealed. He contended that the same rule should be applied to the present amendment. The amendment executed itself, and all the parties coming within its description were now suffering the punishment of a disqualification for all office. The people must be considered as intending to substitute this for all existing penalties.
Mr. Beach, United States District Attorney, argued, both upon principle and authority, that the doctrine respecting the constructive repeal of penal statutes was confined to cases of the enactment of penalties enforced by judicial proceedings, and forming parts of the decree of a court, to be executed by its authority. Governor Wells argued the point, that, from the circumstances at the time of its passage, as well as from the language of the amendment, it must relate only to the tenure of office, and could not have intended to grant a partial amnesty to the chief offenders, leaving the others under the full operations of the laws.
On Friday, Mr. Dana made the closing argument for the Government. He said the great question was, whether this amendment was a mere provision of criminal law to punish individuals for offences, or a permanent addition to our organic political system for the purpose of securing fidelity in the administration of office. The latter view was the more probable one in the case of a constitutional amendment. Mere penalties are usually and best arranged by statutory enactments. The Constitution establishes many disqualifications for office, as of years, place of birth, &c.; showing that the whole people are not willing to leave the entire discretion with the voters of a locality, or with a mere majority. The President must be a native, senators and representatives of certain ages, with certain places of residence, &c. Congress also has established such disqualifi
in the most complete manner. Treason, which requires a levying of war, carries with it the penalty of death, or of imprisonment not less than five years, and fine not less than $10,000; while engaging in “insurrection or rebellion” is punished by imprisonment not exceeding ten years, or fine not exceeding $10,000, or both. He cited also cases to show that the Judicial Department of the Government had held this distinction, and had treated several cases of insurrection with armed force as not “ levying war.” — United States v. Hoxie, 1 Paine, 265; United States v. Hanway, 2 Wall. Jr., 139, and Grier J. in the Prize Causes, 2 Black, 635, and said that the tendency was to consider that the term “ levying war” had received rather too extensive a construction in the earliest cases. The true construction of the amendment, therefore, is, that in the opinion of the people it is not safe that certain offices shall be filled by persons, who, having once filled them, have broken the oath by joining in insurrection or rebellion, whether they have or have not actually levied war against the United States, in the sense of the Constitution. The amendment does not contain one phrase by which the Constitution defines treason, and the indictment does not contain one of the descriptive phrases of the amendment. The construction contended for by the defendant would be a surprise on the American people who adopted the amendment, and on the Congress which proposed it.
Mr. O'Conor, in answer to the argument upon the injustice and absurdity of the result of this construction, said that it was the established practice of nations, and might be said to be a principle of public law, that, in a great political rebellion, only the leading characters were punished, while the undistinguished mass were left untouched. Such had been the course of our Government in this Rebellion; and the people, in adopting this amendment, trusted the mass of the offenders to this practical immunity, while they protected the chief offenders, who needed the protection, by providing the milder penalty of disqualification. He contended that this disqualification was a punishment, in the strictest sense of the term; that the amendment in that particular executed itself; and that all the parties embraced within its terms were now suffering the punishment. No criminal process was necessary, as, whenever such persons applied for office, they would be excluded by the proper authority, upon such evidence as would show that they came within the terms of exclusion. It was competent for the people, in their sovereign capacity, in making their organic laws, to impose a penalty upon classes, without judicial process, although, if done by a legislature, it would be in the nature of a bill of attainder, or of pains and penalties. He contended that the charges in the indictment were fully covered by the terms of the amendment; that "insurrection” was the generic term, and included all the stages of the Rebellion, and that the levying of war was but the highest and latest stage in the proceeding. The court must know the history of the country, and should judicially recognize that the offences charged in the indictment, with the dates of their commission, made them a part of the late insurrection and civil war. He departed from the position taken in the opening, by admitting that the third section of the amendment was prospective and permanent, and accepted the logical consequence that the people intended, in future insurrections as in the past, to enforce no other punishment upon persons described therein than the disqualification provided, trusting to the practice of nations, that the inferior offenders would not be subjected to the penalties of treason.
After a brief consultation, the following certificate of division of opinion was made by the court:
“At this term of the court, begun and held at Richmond, in the said district, on the twenty-third day of November, one thousand eight hundred and sixtyeight, and continued until this day, a motion was made on behalf of the defendant to quash or set aside the said indictment, and to dismiss the same and the proceedings thereof.
“And upon that motion it appeared that the said Jefferson Davis had previously to the offences charged in the said indictment taken an oath, as a member of Congress, to support the Constitution of the United States. The question arose, whether, by the operation and effect of the third clause of the Fourteenth Amendment of the Constitution, the defendant is exempted from liability to indictment or prosecution for treason in levying war, participating or engaging in the late Rebellion. And upon that question the opinions of the judges were opposed. And thereupon the said point is, upon the request of the said defendant, stated under the direction of the said judges, and certified under the seal of the said Circuit Court to the Supreme Court of the United States at its next session."
The certificate, with an exemplification of the record, was filed in the Supreme Court at the beginning of the December Term.
CALIFORNIA. UNITED STATES DISTRICT COURT. - United States v. The Ethan Allen. In this case a libel of information was filed by the District Attorney of the United States against the barque Ethan Allen, charging that the master of the vessel took on board at Sydney, Australia, thirty-five more passengers than is “the proportion to the space occupied by them, and appropriated for their use on board said vessel, and unoccupied by stores or other goods, not being the per sonal baggage of such passengers," as provided in section 1 of the Act of Congress, approved March 3, 1855, entitled “ An Act to regulate the carriage of passengers in steamships and other vessels." Thereupon the vessel was taken into custody by the marshal. Exceptions were filed to the libel, and the following opinion has been rendered, sustaining them :
HOFFMAN, J. The exceptions filed by the claimants to the libel of information present two questions.
1. Is the fine, which, under the first section of the Act of March 3, 1855, the master of a vessel, on indictment and conviction, may be sentenced to pay, a lien on the vessel, and recoverable in a proceeding in rem ?
2. Can such action against the vessel be maintained before the amount of the fine and the liability of the master have been fixed by his trial, conviction, and sentence ?
The section referred to provides that, for certain violations of its provisions, the master “ shall be deemed guilty of a misdemeanor," and on conviction thereof shall be fined fifty dollars for each passenger, &c., and may also be imprisoned not exceeding six months.
The fifteenth section of the same Act provides that the same “ amount of the several penalties" imposed by the foregoing provisions shall be liens on the vessel, &c.