The tri-weekly standard. [volume] (Raleigh, N.C.) 1866-1868, 1867-05-30


ton, cannot be saved from its operation
Where, from the generality OF terms or the
: description or for any other reason, a reason
able doubt arises, that doubt is to be resolved
against the operation of law and in favor OF
the voter What acts, then, within the mean
ing of the law make party guilty OF en-
| gaging in instruction or rebellion against
the United States or giving aid and comfort
to the enemies thereof?
The language here comprehends not only
the late rebellion, but every past rebellion
or instruction, which has happened IN the
| United States. So too, it comprehends
! every foreign war in which the United States
! has at any time been engaged. The trst
: part of the sentence covers the case OF the
domestic war existing in the form OF rebel
lion or instruction whilst the last part ap-
plies to foreign war. The words giving aid
and comfort to the enemies of the United
States are the same used in the constitu-
tional definition of treason, and the enemies
there meant must be taken to be foreign enc
mics. These words, originally found In the
early statutes of England against treason,
, have received that settled Interpretation In
English and American courts. They are
used in this act without any qualification
and we give them full force and appreciation
or giving all and comfort to foreign enc
mics Such an act, as to the breach of the
/ oath or duty of allegiance, stands upon the
same policy of disqualification as engaging
in rebellion or civil war.
A person, therefore, who gave aid and
comfort to our enemies in the war with
Great Britain of 1912, and in the war with
Mexico in 1S47, would in that particular
come within this clause. In laying down
this rule, I do not forget that for certain pur-
poses, and in certain sense, every citizen in
the rebel States during the late rebellion, Is
to be considered public enemy: as In re-
spect to the liability of his property to cap
ture us prize of war, and in respect to va
rious acts of Congress passed during the re-
bellion, which as to property declare Its
liability to capture, forfeiture or conhcatlon,
when used in aid of the late rebellion. But
wherever in any of these acts OF Congress
these terms, aid and comfort, are used in any
other than the commonly received accepta-
ton, some qualification or description is adj
ded to make them apply to the rebellion.
Nevertheless, although strongly incline to
think that the aid and comfort here NELL
toned should strictly be confined to its &C
knowletlged legal Interpretation, am not
quite prepared to say that Congress may not
have used it as applicable to the rebellion.
l shall therefore allow its due weight in the
next inquiry, in giving construction to the
clause now to be considered.
We are now to inquire what is meant by
engaging in iusurrection rebellion against
the United States. The force of the term to
engage carries the idea of active rather
than passive conduct, and of voluntary
rather than compulsory action. Take as an
instance a rebel soldier, compelled to service
by force of conscri ption. Take as another
instance the case of 4 slave who by the
command of his master, or by military or
der, has served i'll the ranks, or aided in the
construction of military works. 1t would be
abuse of language to hold that in these in
stances the parties have engaged in rebel
Hon." within the meaning of that word as
used in this law. But whilst in my opin-
ion, conscript or slave, forced into the
ranks or other military service, is not inclu-
ded, it does not follow that other classes
than those who actually levied war and vol
unfairly joined the ranks of the rebels are
to be excluded; taking it to be clear that in
the sense of the law persons may have en-
gagged in rebellion without having actually
levied war or taken up arms All those who
in legislative or other official capacity were
engaged in the futherance of common I'M
lawful purpose, or persons who, in their in
dividual capacity, have done any overt act
for the purpose of promoting rebellion, may
well be said, in the meaning of this law, to
having engaged in rebellion.
All persons who, during the rebellion,
acted III an official capacity, whose duty of
office necessarily had relation to the support
of the rebellion, such as members of rebel
Conventions, and diplomatic agents of the
rebel Confederacy, or such other officials
whose duties more especially appealed to the
support Of the rebel cause, must be held to
come within the terms of exclusion. Officers
in these rebel States who, during the REBEL
ion, discharged official duties not incident to
war, but in preservation of order and the ad-
ministration of law, are not to be considered
as thereby engaging in rebellion. The in
terest OF humanity requires such officers for
the performance of such official conduct in
time OF war or instruction, as well as in time
OF peace. and the performance of such duties
can never be considered as criminal | can
not bring myself to the conclusion that Con-
gress could have meant that such purely civil
and necessary offices involved the incumbent
In the guilt of instruction. Nothing but
the most cogent language, such as was used
in the test oath for lawyers, could manifest
such purpose. The Sup reme Court, in
constituting that test oath and in reference to
the clause to which have alluded, uses this
language: "The third clause applies to the
seeking, acceptance or exercise not onlv of
offices created for the purpose of more effec-
tually carrying on hostilities, but also of any
of these offices which are required in every
community, whether in peace or war, for the
administration of justice and preservation of
order" find no such purpose in the use of
any of the terms of the act now under con-
sideration lam accordingly of opinion that
holding simple Judicial office, or other ex
ecutive office, or such public employments as
are of a purely civil character such as county
offices, municipal offices, and all others, of
like nature, which were not created for the
purpose of more effectually carrying on hos
tilities, and which did not involve the per-
formance of duties and purposes in further
ance of the rebellion, do not, within the
meaning of this part of the oath, fix on the
incumbent the guilt of engaging in the re-
bellion. $50 much for official participants.
now recur to what amounts to indiyid-
ual participation in the rebellion. In the
attempt to arrive at classes of persons, or of
acts intended tn be comprehended in the
matter ofengaging inrebellion, we must have
due regard to the subject matter. A REBEL
ion which extended over eleven States of the
Union, involving more or less millions of