Staunton spectator. [volume] (Staunton, Va.) 1849-1896, 1865-10-24

I.of the Constitution which provides that
"Each House shall be the Judge Of the e,ec-
s tons, qualifications and returns of its own
members"
1t must be obvious to every careful reader that
this clause was not intended to confer any legis.
latiye power on Congress. Congress is a body
which consists of two Houses, and all legislative
81 power must be exercised by the two houses con-
lcurrently The function here provided for, is to
be exercised by sseach House, acting separately
and for itself The Senate judges of the election,
qualifications and returns of its members with
4 out interference by the House, and uice versa.
is also clear, that the function to be performed
is strictly judicial ssEacL House, is the ssudge,
i SC. Chancellor Kent, Fl Com. p. 234,] in COM
menting on this clause, says ssAse each House
acts in these cases in judicial character, its de-
csion, like the decisions of any other court, ought
to be regulated by known principles of law, and
strictly adhered to for the sake of uniformity and
certainty y
This provision may, therefore, be regarded as in
no wise modifying the previous clauses which pre-
scribe the qualifications of members. 1t merely
provides that each house shall constitute the tri-
bunal which is to judge of the elections qualifca-
ton and returns of its members. The Constitu-
ton having prescribed the qualifications of Sem
ators and Representatives, .seach house, is to de-
eide. judicially for itself, whether the persons
claiming to be members possess the Constitutional
!
and returned according to law.
| maintain, therefore, that all the House of
Representatives rightfully do, under this
clause, is to enquire and judicialy decide wheth-
er its members possess the required qualifications,
of age, citizenship and residence, and whether
their elections ana returns have been made in
pursuance of law.
The primary object of every written Constitu-
tion is to define the powers of the government.
and SO to regulate their exercise by the several
departments, that neither shall encroach on the
appropriate domain of the others, nor invade the
| reserved rights of the people.
| The exercise Of the power claimed by Congress
to prescribe new tests of eligibility involves, not
merely the power to curtail the rights of the peos
pie in makingstheir choice Representatives, Of but
| also practical limitation Of the prerogatives of
| the Executive and Judicial departments.
1t will be observed thatthe President is clothed
by she Constitution with the power of appoint-
ment with no other limitation or restriction than
the advice and consent of the Senate. He is re-
strained in making his selections by no qulifcs-
tions of age, citizenship, or residence.
The whole field is. open to him.. Tho widest
latitude is allowed him in making his selections.
The check of the advice and consent of the Senate
was regarded as sufficient safeguard against In
discreet appointments. vt
But how would the matter stand in regard to
Presidential appointments, in the Southern States,
if the test oath be regarded as Constitutional p
Which is 10 be the rule of action for the Presi-
dent, the Constitution, which gives him the lar
gest liberty TO make his selections, or the act of
July 2d, 1862, which would restrict him within
the narrowest possible limits =
The President has given practical answer to
this question by the appointment OF Governors
Sharkey, Perry, and Parsons, neither OF whom
could take the test oath, in preference to any
persons of more obscure position, or flexible
science.
hes 1oJ
in regard to the attempted restriction of ESecu-
tive prerogatiye, and, as q representative of the
people, / desire to tender similar issue in be-
half of popular rights.
& It requires no great forecast to see that the
power claimed by Congress in the Act of July Cd,
1862, is fraught with danger. In the language of
Mr.. Madison, it tends to "subvert the Constitu-
fon." 1t may Abe made subservient TO the views
of one faction against another" Qualifcat ons
founded on artificial distinctions may be devised
Ly the stronger to keep out partizans of % weaker
faction"
If we admit the power to prescribe new euali-
fcations of eligibility, where the limits of the
power I? If we leave the landmarks of the or
ganic law. who can tell where our wanterings
are to end If we forsake the solid ground of
the Constitution, who will be sponsor that We do
not fall into conyulsions, anarchy and civil war2
Concede the constitutional right as claimed,
and what is to prevent the dominant party from
perpetuating its power, by DISTINGUISHING all op-
posed to it 2 They have only ssto devise artif-
eial distinctions by test oaths, to keep out par
tizans of weaker faction.''
What is the right of suffrage worth, if you are
prohibitedfrom voting for the men of your choice?
How long would the people of the north submit
if in the yeissitudes of the party strife the Dem
ocrats were to obtain the ascenIency in Congress.
and use their power to disfranchse the Republi- !.
canss We have seen enough, both North and
South, of the exercise of questionable powers to
make us look with distrust on every departure
from the fundamental law as established by the
fathers of the Republic.
There is yet another view Of this subject to
whic respectfully ask you attention.
The President is invested by the Constitution
with full power to pardon ey cry offender against
the laws of the United States. The only limit OIL
This power is in the case of impeachlnents In
every other case the power is absolut, and un-
| restricted.
Let us now enquire what is the legal effect Of
such parton.
Bacon, VOL 5, p 295, says s.It seems agreed that
pa don Of felony, even after aaindcr so
far clears the party from the infamy and all otber con-
sequences thereof that he may have action again st
any who shall afterwards call him traitor feon for
the pardon makes him, as it were, man,
All the more modern authorities sustain this
view of the law. | might multiply citations al
most Indefinitely, but will content myself with
q few passages from some Of the most approved
authors
Russell on crimes vol 2l p. 975, says 1T is uow
settled that pardon, wbe tfer by the King or of
Parliament, removes not only the punishment but all
tegat disabilities consequent On The crime
Bishop on Grim. Law vol |, sec 7l3, lays ,wn the
law thus "Thc effect of fall pardon is absolvc the
party from all legal consequences of his crime and of
his conyiction-direct coatcral-including the pun
ishment pecuniarY penalty, ,chaecer else he lap
has prouided.'s
In the volume entitled "0pinions Of the Attor-
| ney Generals" (yol. l.,tp 573l Mr. Attorney
General Clifford says. eThe elementary writer's
who have treated on this provision of the Consti-
tuition, have regarded it 1.-THE power of parlon)
as general and unqualified power, reaching from
the highest to thelowest offences, and as including
in it's scope, the authority to remit fines, penal
ties and forfeitures which may in the last resort
be exercised by the President. That it was said
by Judge Story that no taw abridgs the Consti-
tutiona! poseer Of the Erecutioe department. inter
rupt the right to interfere by pardon These views
are sustained by Chancellor Kent and Rawle on
the Constitution. !" t@$ @
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