Varina Davis, Jefferson Davis: Ex-President of the Confederate States of America, A Memoir by his Wife, Volume 2

Chapter 43: visit to New Orleans and admission to Fortress Monroe.

In Vicksburg, where Mr. J. E. Davis was, many of the negroes called with affectionate expressions. A warm welcome was accorded me everywhere, and especially in New Orleans. Here I saw our dashing cavalry officer, General Wheeler, serving in a hardware store. Mr. J. U. Payne, Mr. Davis's life-long friend, came with pressing offers of money and service, which, when our need was greater, he more urgently pressed upon us. It was with difficulty that the milliners and merchants could be persuaded to accept pay for the few articles I could afford to buy to replenish my wardrobe.

After a short stay which demonstrated there was nothing to recover, Mr. Harrison, [757] my nurse and baby, and Frederick Maginnis, the good man mentioned in a foot-note appended to Mr. Davis's letters, and I, proceeded to New York City, where it had been intimated by President Johnson I should find permission to visit my husband. We remained in New York over ten days, but no permit came, and I rejoined my children after a year's absence from them.

A few days after our arrival, a rumor came to Montreal that Mr. Davis was dying. Upon hearing this I telegraphed the President: “Is it possible that you will keep me from my dying husband?” He responded by a permission to go, subject to conditions to be stated at the fort, and sent a telegram from General Miles saying that Mr. Davis was in his usual health.

I left Montreal that night, and with my infant, her nurse, and Frederick went to Fortress Monroe, arriving there at four o'clock A. M. a cold, raw morning, on May 10, 1866, just a year from the surrender of the Confederacy. There was no hotel there then, and we sat in the little open waiting-room until half-past 10. The terror of what the parole would be, the anxiety about my husband's health, and the poor baby being detained in the raw weather without fire, made me very anxious for a messenger from the fort. At last he came in the person [758] of cheery, kind young Lieutenant Fessenden, who snapped his fingers at the baby and made friends with her very soon-children and animals are good judges of people, and my baby saw in him a friendly sympathy that quieted and drew her to him. He handed me the parole not to take deadly weapons to my husband, which I signed, and we went into the casemate assigned to me.

Though covered by ten or fifteen feet of earth and flanked by heavy masonry on one side and earth and masonry on the other two, the rooms were large and seemed to me a Create boon, since I could remain in them so near my husband. I had not been there, however, more than a week before a chill and fever warned me they were not wholesome residences.

In a little while General Miles came in and assured me of “Davis's” good health. He showed the same economy of titles in speaking of my husband from the time I went there until our departure. Sometimes he varied his nomenclature by calling him “Jeff Davis” or “Jeff.”

He asked me if I understood the terms to be that I was to take no “deadly weepons” into the prison, to which I answered in the affirmative. After a little more delay an officer came and walked with me to Carroll Hall, [759] on the opposite side of the fort. There were three lines of sentries, which each required a pass-word of the officer, and at last we ascended a stairway, turned to the right, and entered the guard-room, where three young officers were sitting. Through the bars of the inner room I saw Mr. Davis's shrunken form and glassy eyes; his cheek bones stood out like those of a skeleton. Merely crossing the room made his breath come in short gasps, and his voice was scarcely audible.

His room had a rough screen in one corner, a horse-bucket for water, a basin and pitcher that stood on a chair with the back sawn off for a washstand, and a hospital towel, a little iron bedstead with a hard mattress, one pillow, and a square wooden table, a woodenseated chair that had one short leg and rocked from side to side unexpectedly, and a Boston rocker, which had been sent in a few weeks before. His table-cloth was a copy of the New York Herald spread on the little table. I was locked in with him and sent the baby home with Frederick.

The bed was so infested with insects as to give a perceptible odor to the room. He knew so little of such things that he could not imagine what annoyed him so at night, and insisted it was some cutaneous affection. His dinner was brought after a while by one [760] of the men, and was good enough, had it not been slopped from one dish to another in the carriage and covered by a gray hospital towel. To a fastidious taste, rendered much more so by illness, this was very offensive. Mrs. Cooper had, however, added oysters to the menu that day, and he ate one and nothing else, but his vitality was so low that even this small amount gave him intense gastric pain. The passing of the three sentinels by the doors and window rendered me, though in strong health, so nervous I could scarcely keep my eyes still.

He was bitter at no earthly creature, but expressed supreme contempt for the petty insults inflicted hourly upon him by General Miles, who, he said, had exhausted his ingenuity to find something more afflicting to visit upon him. Among other things, he told me that General Miles never walked with him on the ramparts, in enforced companionship, without saying something so offensive and irritating as to render the exercise a painful effort.

Mr. Davis introduced to me the officers that were in the guard-room-Captains Day and Brewerton, both presentable men, with gentlemanly manners; and it was comforting to hear that our young friend, Colonel Henry A. Dupont was on duty there, for of [761] him I expected every gentlemanly concession and observance consistent with his duty, and was not disappointed. These, and other gentlemen among the officers, were kind and courteous to us, and the friendly regard induced by their considerate conduct toward Mr. Davis has been a constant memory, and still survives through the long years that have intervened.

At first General Miles fixed the shortest period and certain hours for my stay with Mr. Davis. After many applications to spend the evenings with him, he at last consented, but if the General came over to the guard-room and found us cheerfully talking together, whether at seven, at eight, or at ten o'clock, he left the room and sent an order for me to go home. Once or twice he said personally that it was “shutting up time.” I entreated him unavailingly to let me join Mr. Davis in his walks, as he was too weak to walk alone, and would avail himself of my arm, though he would not lean on General Miles.

One day the General sent his orderly for me to come to headquarters, and I went in fear and trembling, lest someone had accused me of carrying “deadly weepons.” He received me civilly, and then said he had sent for me to see the orders under which he had shackled Mr. Davis. To say that my blood [762] ran cold is a faint expression of the thrill that went through me. He opened a large ledgerbook and showed me Mr. Stanton's order to him, to adopt any means that would insure the prisoner's safety. I told him I did not see his warrant in this order. He said, “Mr. Stanton knew I was going to do it, and I thought it necessary.” This is quoted from notes taken immediately after the conversation.

He said he had given Mr. Davis all that a gentleman should require, and I suggested to him that probably some gentlemen were more exacting than those he knew.

Emboldened by his evident desire to explain, I asked him why as much clean linen had not been given as was requisite, and as many changes of outer clothing as Mr. Davis required had not been sent to his cell; he said he thought he had enough. To an inquiry why all reading matter had been forbidden him, General Miles answered that at first he was expected to deprive him of everything except his bible, and afterward, that he had been directed to “give him mental ailment,” which he had done. A proposition so stated I could not dispute. He went on to say that “Davis would not beg, was a sullen prisoner, and when he wanted any favor, if he asked for it, it would be given to him.” I wanted to get a lighter [763] suit of clothes that had been worn but once, when my husband was taken prisoner. General Miles disclaimed any knowledge of them, and added: “I have not got them, and would have no use for them; they would not fit me, you know.” The interview had been so fruitless that I terminated it as soon as possible, and returned to the casemate.

Very soon after my arrival there General Burton called with his cheerful, affectionate wife, and they were, from the first day until the last, most kind and considerate to us, as was Mrs. William Hayes and the other officers' wives in the fort, of whom there were many and all disposed to be friendly.

Mrs. Hayes petted and loved our baby, who returned her affection fourfold. She kindly sent cream every day to Mr. Davis when permitted to do so, and Mrs. Cooper, one of our own dear people, did everything, and more than we could have wished, to comfort and cheer us in our misfortune, in which her kind husband co-operated with her cordially.

General Burton, as I accidentally learned, which statement was afterward verified by him, when deciding upon a casemate for me, was advised by General Miles to put me on the side of the fort occupied by the camp women; he said there was an impropriety in associating me with the families of the officers; [764] but General Burton declined to offer me the indignity, and assigned me a casemate in the row with the officers' wives.

One day an orderly came for me to go to the prison; hitherto an officer had always accompanied me past the sentinels. I thought nothing of it, but when we reached the guardroom the captain on duty apologized for not coming in person, and told me General Miles had said a prisoner's wife had better come over with an orderly and unattended by an officer. It was a small matter to me, but these refined, kind-hearted gentlemen were unwilling to be misunderstood. General Miles, I heard, denied giving the order, and the officers signed a statement to the effect that he had verbally given it before several witnesses after guard-mounting. I think he made no further denial.

We excused much to General Miles, whose opportunities to learn the habits of refined people were said to have been few, and his sectional feeling was very bitter; but that he should not have been moved at the age of twenty-six by the evident physical and mental anguish of his prisoner, and should have devised ingenious tortures for him, we could not understand.

Finally, after trying sincerely to propitiate him, my efforts ceased. On the occasion of a [765] dressing-gown having been sent to Mr. Davis by some ladies in St. Louis, General Miles noticed the arrival of the package addressed to me, and the fact also that my man-servant carried white napkins, silver table furniture, and delicate viands of all kinds over to Carroll Hall, the number being limited only by my purse, to tempt my husband, who was slowly dying in my sight, General Miles said to me: “This fort shall not be made a depot for delicacies, such as oysters and luxuries for Jeff Davis. I shall have to open your packages, and see that this is not done.”

I lost all my hard-earned patience and told him I was not his prisoner, and he would not find himself justified by the laws in infringing on my private rights. He looked at me a moment and said, “I guess I couldn't,” and desisted.

A few days after this Mr. McCulloch came to the fort and visited Mr. Davis. I was not present at the interview, but obtained an audience with him at Dr. Cooper's house. General Miles remained in the room, and unwilling to leave the truth untold, or to annoy him, I asked a private audience, but General Miles said he felt he had a right to be present. Then, with an apology to him for plain speaking, emboldened by Mr. McCulloch's gentle, sympathetic manner, I laid the whole [766] case before him. When the matter of General Miles's objection to Mr. Davis having oysters was mentioned, Mr. McCulloch, with a quizzical smile, said: “General, oysters are hardly to be classed as luxuries on the seacoast, are they?” Enough of this sickening retrospect, my memory does not furnish a record of the thousand little stabs he gave his emaciated, gray-haired prisoner. Suffice it to say that he used his power to insult and annoy to the utmost, and in ways previously unknown and not to be anticipated by gentlefolk.

When he was to be promoted to a higher grade, one of his friends wrote to Mr. Davis for an expression of his opinion about General Miles's conduct to him, saying that, from Mr. Davis not having characterized it in his book, it was hoped he would say there had been no unsoldierly persecution of a helpless prisoner. To this Mr. Davis sent a most emphatic assertion of General Miles's unmanly and cruel conduct, and also wrote a letter to a Senator from Mississippi which did not reach him, owing to his being out of town when the confirmation occurred, else it would have been read in the Senate.

Sir Hudson Lowe has received, in the years that have elapsed since Napoleon's death, the execration of all brave men for severities practised on him in St. Helena; but these were [767] far less stringent, and the insults much less overt and degrading to England and to himself, than those inflicted by General Miles upon Mr. Davis. Mr. Davis's silence in his book was, because he did not choose to appeal to a public tribunal to characterize the wrongs he could not, in his old age and broken health, avenge.

One day General Miles came to the prison and said something not recalled with sufficient clearness for repetition, but of such an insulting character that Mr. Davis sprang at the bars, and as General Miles recoiled, he said, “But for these, you should answer to me, now.”

My husband sank daily, until I feared he would not live through the month. There was unavoidable noise in changing guard during the night, which wakened him at each relief. His eyes had always been intensely sensitive to a light while sleeping, and the light burned brightly all night in his room, and the tramp of the sentinels was torture to him. In his nervous condition the shifting of the foot of an officer in the guard-room kept him awake. They did their best to be quiet, and he did his best to bear the noise, but it was a weary struggle for life and a slow sinking into death, which would have been welcome but for the charges he was waiting to rebut [768] before a lawful tribunal on earth. Dr. Cooper exhausted his skill to support the sinking frame which had borne up so bravely, but nothing seemed to give relief.

I went to Washington to gain a personal interview with the President, with whom, though we had been in the same city at intervals for fifteen years, I was not acquainted. My object was to obtain from him permission to take the lamp out of Mr. Davis's room, and other little ameliorations of his sufferings. Our old friend, Dr. Thomas Miller, invited me to his house, and I asked by a respectful note an audience from the President. He sent me a verbal message of a discourteous character, in which he suggested that I should personally see the Republican Senators and importune them as best I might. This course was, however, not contemplated by me.

Mr. Reverdy Johnson, Mr. Voorhies, and Mr. Saulsbury, always quick to espouse the cause of the helpless, went to him and remonstrated rather sharply. Under this pressure he appointed an hour to see me. General Grant also set an hour for an audience, but the President was so late in giving audience after my card was sent up that General Grant, after waiting an hour, courteously left his aide-de-camp to explain that he had an engagement he must keep, but would be glad [769] if he could serve me in any way, and Mr. Davis never forgot the courtesy, nor did I. Senator Wilson called with kind words of sympathy also, as did my dear friends, Montgomery Blair and Mrs. Leigh. This was my first and last experience as a supplicant.

The President was civil, even friendly, and said, “We must wait, our hope is to mollify the public toward him.” I told him that the public would not have required to be mollified but for his proclamation that Mr. Davis was accessory to assassination, and added, “I am sure that, whatever others believed, you did not credit it.” He said he did not, but was in the hands of wildly excited people, and must take such measures as would show he was willing to sift the facts. I then responded that there was never the least intercourse between Mr. Davis and Booth, or an effort to establish it, and remarked that, “if Booth had left a card for Mr. Davis as he did for you, Mr. President, before the assassination, I fear my husband's life would have paid the forfeit;” to which the President bowed assent, and after a moment of silence remarked, now this was all over, and time was the only element lacking to Mr. Davis's release.

I remarked that, having made a proclamation predicated upon the perjury of base [770] men suborned for that purpose, I thought he owed Mr. Davis a retraction as public as his mistake. To my astonishment, he said that he was laboring under the enmity of many in both houses of Congress, and if they could find anything upon which to hinge an impeachment they would degrade him; and with apparent feeling he reiterated, “I would if I could, but I cannot.”

While we were speaking, a Senator wellknown now, but of whom I had never heard, insisted upon an audience and was admitted. He was a lop-sided man who stood on one leg by preference. He declined to sit, but stood quite near me, with one leg twisted around his stick, and threatened the President in such a manner as would have been thought inadmissible to one of our servants. The President met his threats with rising color but a stolid calm which was not defiance, nor was it indignation. It was a very painful sight to me, and I tried not to hear. At last the Senator left, and the President said, “I am glad you saw a little of the difficulty under which I labor; trust me, everything I can do will be done to help Mr. Davis--has he thought of asking pardon?” I answered “No, and I suppose you did not expect this.” He said he did not, and added “just now I cannot withdraw the proclamation.” [771] He kindly hoped the pardon granted to J. E. Davis had covered our property also. I could not press him further. It was a new phase of humanity to me, I felt sorry for a man whose code of morals I could not understand. And so we parted, with kind words and courteous manner on his part, and much sympathy for his miserable state on mine.

Some weeks passed and Mr. Davis became gradually worse, he ate less, and slept little; he had never become accustomed to the unavoidable noise made by relieving guard during the night watches, and he had become so emaciated that the largest part of his thigh measured less than an ordinarily stout man's upper arm. I appealed to Dr. Cooper for a medical opinion, and he wrote the following letter:

This was sent to Washington-covered by a stronger letter written by Dr. Cooper, of a private nature, which we did not see.

General Miles was about this time relieved from Fortress Monroe, to which he had been sent apparently for the specific duty of jailor to Mr. Davis, and the relief was great to us. General Burton received permission, if he thought it consistent with Mr. Davis's safe keeping, to give him the parole of the fort by day — which the General gladly did.

As soon as our friends knew they could visit Mr. Davis, they came almost every day. Our great General Gordon, Preston Johnston, [773] and numbers of other friends came to dinner in the casemate, and chairs being scarce, they sat on candle-boxes, and talked of their and our past, and toasted in silence the glorious dead and less happy living heroes. But the sufferer's improvement was almost imperceptible, and life came back slowly into his exhausted, emaciated body. Leaning on my arm, and sitting on the ramparts every few minutes of his walk, he could not accomplish a hundred yards at first, but gradually his muscles strengthened; but his sleep being broken, his improvement was checked. He now had every comfort that I could furnish in his little prison, but still became more and more wasted, and had not ceased to stagger like a drunken man.

In a month or six weeks it was communicated to General Burton that if he thought it was safe to offer his prisoner the parole of the fort, he could do so. It was not in General Burton's kindly, generous nature to hesitate, where he confided in the honor of a man for the time subject to his authority. The full parole of the fort was granted, and then four rooms off the end of Carroll Hall were set apart for us, with a kitchen at the back, and we were as comfortable as people could be who could “not get out.”

Excursion parties came to the fort still to [774] peer at Mr. Davis, and one day a vulgarian inquired of Frederick the whereabouts of “Jeff.” He answered with a bow, “I am sorry, madam, not to be able to tell you where he is. I do not know such a person.” She insisted that he did, saying, are you not his servant? “No, madam,” he answered, “you are quite mistaken, I have the honor to serve ex-President Davis.”

At another time, when I wanted him to ask some of our special friends among the officers, and notably General Burton, to see him wed my maid, he said, “Please excuse me, I will send them as much cake and wine as you choose, but cannot receive people as guests who hold Mr. Davis a prisoner.” What this judicious, capable, delicate-minded man did for us could not be computed in money, or told in words; he and his gentle wife took the sting out of many indignities offered to us in our hours of misfortune. They were both objects of affection and esteem to Mr. Davis as long as he lived.

Our sister, Miss Howell, came to the fort and remained with us, much to Mr. Davis's delight. The Right Reverend Bishop Lynch, Father O'Keefe, from Norfolk, the Reverends William Brand, Barton, and Minnegerode, the latter our beloved pastor, came often to see Mr. Davis, as well as charming [775] people from Baltimore, Richmond, Norfolk, and the surrounding country; they generally remained to dinner, and left in the evening boat; wine and delicacies of all kinds were pressed upon us by our friends. The Bishop of Montreal sent green chartreuse from his own stores, and to this powerful digestive stimulant the little Mr. Davis ate was due. He could only sleep when read to, and many times the day broke on me as he slept under the sound of my voice, with my hand on his pulse; at times it would stop, and then he was wakened and a glass of chartreuse given him, with one of half a dozen things kept ready for him to eat. Dr. Cooper said the walls of his heart were so weak, that a sound sleep might prove his death if too long continued; and so he came back slowly into life, though reduced to a walking skeleton. Never during this extreme torture and harrowing anxiety did his dignity give way, or his high bearing quail before the torment. He was too refined and dignified to be abusive, and too proud, in General Miles's delicate phrase, to “beg.” He suffered as only men of his temperament can, but held aloft the standard of Confederate fealty and Christian virtue.

In the meanwhile, Mr. Charles O'Conor, with every effort in his power, pushed on the [776] trial; and Mr. John Garrett, whose first impulse was sympathy with the sorrows of mankind, has most accurately related his efforts to secure my husband's release; and for both Mr. Davis has always since felt the most sincere gratitude and affection. Want of space has forced me unwillingly, in his case as in that of many others, to condense their statements, but I quote them as they are, only changing a few words.

In May, 1866, an indictment was procured against the ex-chieftain, in the United States District Court of Virginia, held in Richmond. On June I Ith, of the same year, on motion of Mr. Boutwell, the House of Representatives, by a vote of 105 yeas to 19 nays, resolved that Mr. Davis “should be held in custody as a prisoner and subjected to a trial according to the laws of the land.” Mr. Davis, in the meantime, was exceedingly anxious to meet the questions arising on any indictment which might be presented. The Constitution of the United States guaranteed to every citizen a speedy trial, and he was anxious to receive the advantages and enjoy the rights of a just, equal, and fair trial. It was not written, however, that he should be tried for treason. Even President Johnson and General Grant saw the mistake of his capture, and Chief Justice Chase understood the impolicy [777] of his trial. Little by little, as reason returned, Northern men like Greeley and Gerrit Smith came forward to do a great act of justice, looking toward his honorable liberation.

In 1867, as the May term of the United States Circuit Court in Virginia approached, the counsel for Mr. Davis, encouraged by his devoted and faithful wife, determined to make one grand effort for his trial or unconditional discharge. The Chief Justice, the Attorney-General, and the Secretary of War were opposed to an early trial. Many efforts were then made with President Johnson to procure the pardon of Mr. Davis. He said, he made it an inflexible rule, “never to grant a pardon on petition, unless it was accompanied by an application from the individual seeking the executive clemency.” Mr. Davis, on the other hand, always said, “to ask for pardon was a confession of guilt,” and that such an application would prejudice his case.

As soon as it was known that the Government would not try him, a movement was set on foot to secure his release on bond. Mrs. Jefferson Davis heard that Mr. John W. Garrett, then president of the Baltimore & Ohio Railroad, possessed great influence over Secretary Stanton, and determined, if possible, to obtain his aid in securing her husband's [778] release. In this respect, she could not have selected a more influential person to accomplish her end. Mr. Garrett and Mr. Stanton were always warm personal friends. President Lincoln and Secretary Stanton expressed in the warmest terms their appreciation of the aid which he had often rendered them.

“ Upon one occasion,” Mr. Garrett said,

Charles W. Russell, formerly of Wheeling, Va., came to my office at Camden Station and sent in his card. Being at the moment very much engaged, I detained him for an hour, but hastened to see Mr. Russell as soon as I could, and to my astonishment found him accompanied with a lady who was closely veiled, and who was the wife of Jefferson Davis. After assuring them that I had not known any lady was waiting, I asked the occasion of Mrs. Davis's visit. She replied that she had just arrived from Fortress Monroe, where her husband was so closely confined that unless he could be quickly released he would die; that she had been informed I possessed great influence with Mr. Stanton, and had come to beg my active aid for the release of Mr. Davis. She asked me to go to Washington with her, but that, I assured her, was impolitic; I would go alone, ascertain the prospect, and report to her. She was stopping with Mr. John S. Gittings. During [779] our conversation Mrs. Davis said that she had received a message from Mr. McCulloch, on his way from Fortress Monroe, that she could rely on his aid in the matter. I went immediately to Washington, saw Mr. McCulloch, and told him that I had come to see Stanton about the release of Mr. Davis. Mr. McCulloch was thunderstruck, and said it was useless to see Mr. Stanton, and that Mr. Davis's release was impossible. I told him what Mrs. Davis had said about his aid. Finally we called in the Attorney-General, Mr. Stansberry. Our errand was stated by Mr. McCulloch, and the Attorney-General remarked, after talking the matter over, that he had seen stranger things than that done; that he could see no objection to my making the effort. I told them that, notwithstanding their unfavorable opinion, I would see Stanton and make an effort for the release of Mr. Davis. We learned at the office that the Secretary of War was sick, and had refused to see anyone; but, nevertheless, I asked my colleagues to wait, until I returned from my visit to Mr. Stanton. I immediately drove to his house, sent up my card, and was promptly admitted. He was lying on a lounge, too ill to rise. I stated frankly the matter that had brought me to disturb his repose. As I expected, Mr. Stanton exhibited [780] much anger, but I told him that two at least of the cabinet were willing for the release; that the President only waited his order for release; that the country would approve such action; and lastly, Mr. Davis's health was failing, and that his death in prison would be most embarrassing to the United States. Our discussion was long, and often sharp, for I was not to be, set back by anything short of a positive refusal, and that I should have combated before the President. At last he remarked that he would raise no objection to the Attorney-General arranging for the release. With this answer I returned to Mr. Stansberry; the preliminaries were arranged, and the name of Horace Greeley was suggested by me and accepted by Mr. Stansberry as one of Mr. Davis's bondsmen. It was decided that Mr. Charles O'Conor, one of Mr. Davis's counsel, should come to Washington and arrange the terms. Reporting the result of my interview to Mrs. Davis, it was arranged that William Prescott Smith should go to New York for Mr. Greeley, and bring him to my house, and thereupon the release of Mr. Davis was arranged.

Mr. Shea wrote a letter, of which I give the substance, which will more accurately relate the circumstances of Mr. Davis's release than I could:

In accordance with the programme arranged between Mr. Garrett and the counsel for Mr. Davis on May 1st, petition to the United States Circuit Court was presented to Judge Underwood, at Alexandria, Va., to grant the writ of habeas corpus.

Judge Underwood issued the writ to Mr. Shea, who took it to Richmond and placed it in the hands of United States Marshal Underwood for service.

The writ was served on General Burton, the commander of Fortress Monroe, by Marshal Underwood and Deputy Marshal W. A. Duncan, on May 10th. General Burton had previously received the following orders from Washington: [790]

General Burton, in the interview with the Marshal, at first decided to deliver Mr. Davis to him on the following morning, but afterward determined to obey the writ of habeas corpus literally, requiring him to produce Mr. Davis before the Richmond court.

The trial of Mr. Yefferson Davis, Richmond, December 3, 1867.

Robert Ould, counsel for Mr. Davis, argued that the fourteenth amendment punished Mr. Davis by disfranchisement, and this punishment was chosen by the voice of the American people as a merciful substitute for the penalties of death and confiscation contained in the Constitution of the United States; that the punishment of Mr. Davis commenced upon the date of the adoption of the fourteenth article, and he therefore could not now be punished in any other way; that the latest expression of the will of the people, in their Constitution, was the law, and repealed all former provision made for those who engaged in rebellion; that the fourteenth article was that latest expression, intended expressly for and covering the cases of all engaged in the late rebellion; and that no man could be punished twice for the same offence.

R. H. Dana, Esq., counsel for the United States, said that Mr. Ould's proposition was, in the nature of things, entirely new, and was unexpected to the Government counsel, and he expected also to the court.

Chief-Justice Chase said the argument of counsel was not unexpected to the court, it having supposed, after the announcement [792] of this motion to quash, that it was based on the fourteenth article, that this line of argument would be pursued.

Time was given the Government counsel to confer, and the Court took a recess at noon.

After reassembling, Governor H. H. Wells and District Attorney Beach for the Government, replied, contending that the fourteenth amendment merely created a disability, and not a penalty, which is the subject of judicial sentence, and was not inconsistent with the act against treason. The amendment was permanent and prospective, and could not be reasonably construed to repeal existing punishments for past and future treasons. The Court then adjourned. Dana closes to-morrow for the Government, and O'Conor for Mr. Davis.

Mr. Charles O'Conor said:

If the Confederate Government had raised the black flag, and had not given quarter, there would have been no objection to resorting to extreme measures, and to executing the leaders and commander-in-chief. He referred to the case of Wirz, who had been tried and executed for alleged inhumanity to prisoners. It was a matter of notoriety that civil war existed, and that Jefferson Davis was the head and front of it. What, then, is the fact to be put on trial? It would [793] be impossible to find an impartial jury to try the case, if it were put on trial. A conviction of Jefferson Davis could only be procured by a course so ignominious as packing a jury.

The war was over, and the Government had in its hands half a dozen rebel belligerents, and it was ashamed to put them on trial. What was the mean office assigned to the judiciary in this matter? It was to require it to get a jury of twelve men to find a verdict of guilty against them. He called the attention of the court to the sixth amendment of the Constitution, which said, “ the accused shall enjoy a speedy trial by an impartial jury, in the vicinity where the crime was alleged to have been committed.”

He referred to the execution of the parties tried for treason in England after the war in 1746, where the accused were carried to a distance from their homes and tried by a jury of strangers, and said it was with a knowledge of these atrocities fresh in their minds that our ancestors framed the constitutional provision quoted. They did not forbid indictments for treason in-so many words, but they rendered them utterly impossible. In framing that Constitution they never intended that a territorial civil war should be followed by indictments for treason. In the view he [794] had presented he came back to the conclusion with which he started, that the third section was wise, just, and politic. He referred to the amnesty of Charles II., which was not an act of amnesty, but one of oblivion.

After hearing the argument the Court stood: For quashing the indictment, Chief-Justice Chase; against it, John C. Underwood. The division was certified to the Supreme Court, that the question may be considered and decided by it.

We left Fortress Monroe on Saturday morning, May 4th, and at half-past 5 o'clock in the afternoon the steamer reached the wharf at Richmond. Mr. Davis said to me on the way, “I feel like an unhappy ghost visiting this much beloved city.”

A great concourse of people had assembled. From the wharf to the Spottswood Hotel there was a sea of heads-room had to be made by the mounted police for the carriages. The windows were crowded, and even on to the roofs people had climbed. Every head was bared. The ladies were shedding tears, many of them. Mr. James Lyons and his beautiful wife had come for me, and Mr. Davis accompanied General Burton. When he reached the Spottswood Hotel, where rooms had been provided for us, the crowd opened and the beloved prisoner walked through; [795] the people stood uncovered for at least a mile up and down Main Street. As he passed, one and another put out a hand and lightly touched his coat. As I left the carriage a low voice said: “Hats off, Virginians,” and again every head was bared. This noble sympathy and clinging affection repaid us for many moments of bitter anguish. When Mr. Davis was released, one gentleman jumped up on the box and drove the carriage which brought him back to the hotel, and other gentlemen ran after him and shouted themselves hoarse. Our people poured into the hotel in a steady stream to congratulate, and many embraced him. Before our dear pastor, Mr. Minnegerode, left us, we united in a private thanksgiving to Almighty God, who had delivered Mr. Davis safely out of all the pitfalls set for his feet. We thought it best for us to leave Richmond that night and take the steamer to New York. When we reached the boat we bade an affectionate farewell to General Burton and to Captain Brewerton, with both of whoin we were loath to part, and sailed for New York, reprieved, but not free.