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 On the 26th March, 1868, another indictment for treason was found against him, which was continued from time to time until November, 1868. During the pendency of these indictments, the 14th Amendment to the Constitution of the United States was adopted, the third section of which provides, that every person who, having taken an oath to support the Constitution of the United States, and thereafter engaged in rebellion, should be disqualified from holding certain offices. Counsel for Mr. Davis then raised the question that Mr. Davis having taken an oath to support the Constitution of the United States as a member of Congress in 1845, the 14th Amendment prescribed the punishment for afterwards engaging in rebellion, and this was pleaded in bar of the pending prosecutions for treason. The reporter says this defence was ‘inspired and suggested from the highest official source—not the President of the United States.’ In other words, it was inspired and suggested by the Chief Justice himself, as shown during the course of the argument and for the sole purpose of evading the trial of the issue of the right of a State to secede, which was necessarily involved in the charge of alleged treason. On the question thus raised, the Court divided, the Chief Justice being of the opinion that the defence set up was a bar to the indictment, and Judge Underwood being of the contrary opinion. On this division, the question was certified to the Supreme Court, where, in the language of the reporter, ‘the certificate of disagreement rests among the records of the Court undisturbed by a single motion for either a hearing or dismissal.’ It is a part of the history of the times, to use the language of a distinguished writer, that ‘the authorities at Washington and Chief Justice Chase himself decided after full consideration and consultation with the ablest lawyers in the country that the charge of treason could not be sustained, and so the distinguished prisoner, who was anxious to go into trial and vindicate himself and his cause before the world, was admitted to bail, and finally a nolle prosequi was entered in the case.’ I repeat that these proceedings are a virtual confession on the part of the Northern people, that they were wrong, on the real question at issue in the war, and therefore that the South was right. At this time, when a few men at the North are broad enough and bold enough to speak of some of the great leaders of the Southern cause as great and good men, and when, just because they were leaders in that cause, these opinions are seized upon, by those who still hate and defame us, as evidence of disloyalty, if not acts of
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