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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that inflicted by prior statutes for the same offence, whether the penalty be less or greater, the prior statutes are repealed.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

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cations, as in the case of a person attempting to corrupt a judge, and of certain frauds upon the revenue. The Act of 1862, revising the penalties for treason and insurrection, has a distinct section declaring all persons guilty of" those offences disqualified for office. It does not say convicted of, and it is clear that the disqualification would form no part of a sentence for treason, and could not be executed by the court. He argued, that if that section had formed a subsequent chapter, it could not have been held to have repealed the prior penalties. The argument, that the amendment was a political and not a criminal provision, gained strength from the fact, that, instead of pardon by a President, the whole subject of remission is left to the law-making department. He also pressed the absurdity and gross injustice of the results of the construction contended for on the other side. Those persons who had held office, and taken an oath of allegiance and broken it by treason, were to be the subjects of amnesty, and only disqualified for holding like offices again, without the consent of two-thirds of Congress; while those who had simply committed treason, were left to the full penalties of the law,- to death, or fine and imprisonment, with a permanent disqualification not remissible by Congress. It divided the whole people into two classes, office holders and non-office holders; the former, being the most influential and responsible, were to suffer a light penalty; while the latter, often the mere instruments of the former, were to suffer all the punishment. He also contended that the amendment was permanent, and prospective as well as retrospective; that the language favored that construction, and that it was most probable in the case of so solemn a public act. If so, the interpretation asked for by the other side was still more intolerable, for it offered immunity from all criminal proceedings to the most influential and dangerous class. Mr. Dana denied that disqualification to hold office had been decided to be necessarily a punishment. Where it resulted from the accident of age or birth, its disadvantages were as serious as when it was the consequence of a fault. It was entirely competent for the people to declare that persons found in certain predicaments should be deemed unfit to hold certain offices. The public good might require such a provision, whether the person's being in the given predicament was or was not the result of misconduct; and, if the result of misconduct, there was no reason why the parties should not be also punished criminally by the usual penalties for the usual objects. He contended that in Ex parte Garland, and Cummings v. Missouri, the majority of the court said nothing inconsistent with this position; but, on the contrary, seemed to admit it, and to think it necessary to show that the disqualifications imposed in those cases did not touch the tenure of office, but the ordinary pursuits of life. He further argued, that the amendment did not necessarily cover the offence for which Jefferson Davis was indicted. He was indicted for treason in the shape of levying war. Nothing short of levying war is treason. Congress has repeatedly applied the terms, insurrection and rebellion, to acts that stopped short of levying war. By the Act of 1795, c. 36, the provision respecting insurrection is, that the President shall issue a proclamation requiring the "insurgents" to retire peacefully to their homes, before a time named; and it is not until after that time that he can use the militia or land and naval forces against them. In the Prize Causes, 2 Black, 635, it was decided that, in case of an instant levying of war, the President might use the land and naval forces at once. The Acts of 1862 recognize the distinction

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.

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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 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.

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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 personal 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.

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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.

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If the fine imposed by the first section was the only fine or penalty mentioned in the Act, it might be supposed to have been the intention of Congress to secure its payment by making it a lien on the vessel.

The Act known as the Passenger Act contains various provisions for the safety, health, and comfort of passengers.

For violation of these provisions two kinds of punishment are denounced. For certain offences mentioned in sections 1 and 6 the master is declared guilty of a misdemeanor, and, on conviction, is to be fined, and may also be imprisoned.

For the violation of the provisions contained in the second, third, fourth, fifth, seventh, and fourteenth sections, the master and owners are to forfeit and pay specified amounts, to be recovered by suit in any United States court within the jurisdiction of which the vessel may arrive, &c.

It is plain that the provision of the fifteenth section, by which the penalties imposed by the Act are made liens on the vessel, applies only to these penalties, for which both the master and owners are liable; and the collection of which it was intended to secure by authorizing a proceeding directly against the vessel.

In sections 1 and 6, the punishment of the master is spoken of as a ""fine," while section 15 declares to be liens only the "penalties" imposed by the Act.

It would seem, therefore, that Congress intended to distinguish between the "fines" which, on conviction of a misdemeanor, the master might be sentenced to pay, and the "penalties" which, in a civil action, are made recoverable from the owners, as well as the master. The offences for which the master is made criminally liable are wilful violations of the law, in which the owners may have no complicity.

The infractions of the Act, for which the owners are made responsible in a civil suit, relate to houses over passage ways, to ventilators, camboozes or cooking ranges, water closets, &c., and other arrangements for the comfort and health of the passengers, which it is the owner's duty to provide.

For the omision to do so, the owners and the vessel are justly made responsible.

I think it clear, therefore, that these, and these alone, are the penalties which, by the fifteenth section, are made liens on the vessel.

If this view be correct, it is unnecessary to consider the second point raised by the exceptions.

It may be observed, however, that the only mode by which the liability of the master to a fine, and the amount of the fine, can be ascertained, is that prescribed in the Act, namely, his indictment, conviction, and sentence.

Until this liability has thus been judicially established, it cannot be said legally to exist; and certainly the court cannot, in a civil action against the vessel, determine how many passengers in excess of the legal number a jury might have found the captain to have taken on board, or what would be the amount of the fine the court by the verdict of the jury would have been called on to impose.

Even if the master were first convicted and sentenced, it would be anomalous to hold the owners responsible, through their vessel, for the amount of a fine imposed in a proceeding to which they were not parties, and of which they may have had no notice.

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