[76] appointing one Girardi, then acting as captain, to command a brigade, and one Mahone to be a major-general; fighting a battle near Petersburg in company with R. E. Lee and others, and another at Five Forks, all of which things were done traitorously, unlawfully, maliciously and wickedly. The various historic acts styled crimes, in this lengthy document, were proved before the grand jury by the following witnesses summoned for the purpose: R. E. Lee, James A. Seddon, C. .B. Duffield, John Letcher, G. Wythe Munford, John B. Baldwin, Charles E. Wortham, and Thomas S. Hayward. On the finding of this indictment the trial was continued until the 2d day of May, 1868, then to the 3d day of June, and then again until the fourth Monday in November, when it was arranged that the Chief-Justice should be present. This date was again changed to the 3d of December in the same year. During this delay the fourteenth amendment to the constitution was adopted and became a part of the organic law of the land. The third section of that article reads as follows:
No person shall be senator or representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States; or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof; but Congress may, by a vote of two-thirds of each house, remove such disability.As soon as the amendment was adopted the counsel for Mr. Davis determined to move to quash the indictment against him upon the ground that, as he had in the year 1845 taken the oath to support the Constitution of the United States as a member of Congress and had afterwards engaged in insurrection and rebellion, as charged in the indictment, such crime, if crime it was, had been already punished by the penalties and disabilities denounced against and inflicted upon him thereafter by the third section of the fourteenth amendment of the constitution. General Bradley T. Johnson has written that he had it from Messrs. O'Conor and Ould that this point was suggested by the Chief-Justice.
