The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1867-05-29

omcer oI any state, WHO hau not taken ali
oath to support the Constitution of the
United States. 1 incline to the opinion
that this oath is put as an essential thing,
the preach or which by insurrcction against
the United States violates the trust i'm
posed by 1t upon the officer. But this
clause, so far rs the executive or judicial
officers of the State are concerned, does
not enlarge the class subject to disfran-
chisement. The officer breaking the oath
which works disfrauchisement must also
DC Judicie! or executive officer of the
State. according to the rule liereinbefore
established. l do not apprehend any prac-
teal question will arise here, for by the
Constitution of the United States, this
oath Is required to be taken by the men,
bers OF the several state Legislatures, and
all executive and judicial officers, both OF
the United States and of the several
States; and in those ten States the same
oath was required as to the members Of
the Legislature and the executive and Judi
cial officers of the State. This brings me
to the question, Who is to be considered
IAN officer of tho United States" within
the meaning of tho clause under consider
alton: Here the term officer is used in its
! nlDst general sense, and without any quail
hcation, as legislative, or executive, or ju-
dicial, and think, as here used, is intend
ed to comprehend military as we'll as civil
officers OF the United States, who had
taken the prescribed oath, inasmuch as
the violation OF the official oath and the
official trust has relation to fealty to the
! United States, which is broken by rebel
lion against the United States. The rea-
son is apparent for including all officers of
tho United States, aud for making the dis
franchisement moro general and compre-
hensivc as to them, standing as they do in
more direct relation of trust to the
United States than the officers of the
State.
1 now como to consider what is the
meaning and scope Of the disqualification
arising from that part Of the oath which
requires the person to state that he has
not engaged in insurrection or rebellion
against the United States, or given aid or
comfort to the enemies thereof I must
here repeat what has been said before,
that, III the work Of disqualification, two
clements must concur-hrst, holding the
designated Office, State or Federal, accom-
panied by an official oath to support the
Constitution Of the United States and
second, engaging in rebellion against the
nlted States, or giving Aid or comfort to
it's enemies. Both of these must not only
concur, but they must concur in the order
OF time mentioned. First, the Office and
the oath, and afterwards engaging in re-
Dellion, or giving aid or comfort. A person
who has held an office within tho meaning
of this law, and has taken the official oath,
and who has not afterwards participated
IN o rebellion, may very safely take this
oath; and so, too, the person who has fully
participated in the rebellion, but has not
prior thereto held an office and taken the
ofhcial:oath, may, with equal safety, take
tins oath. My duty here is simply one OF
construction. do not deem it proper to
enter upon any question of the constitu-
'lonallty OF this part OF tho Act.
Taking it as'grantcd, for the purpose of
construction, that Congress has the right
to impose such an oath, it is not only al
lowable, but imperative, that L keep in
view it's essential characteristics. 1t is
something more than a legislative Act, in
derogation OF an existing right. Ii s, in
effect, law which takes away an existing
night as consequence OF acts done ut 4
prior time, and which, ut the time they
were done, cntailed no such consequences.
In the late case before the Supreme Court
of the United States upon the test oath
prescribed by all Act of Congress to be
taken by lawyers, by which the exclusion
from the right to practice their profession
was made to arise from prior participation
III tie rebellion, the court says: "As the
oath prescribed cannot be taken by these
parties, the Aot as against them operates
az legislative decree OF perpetual eXclu-
SION, ana exclusion from any OF the pro-
fessions or any of ,he ordinary avocations
OF life, for past COZ Iluct, can be regarded
in no other light than as punishment 10!
such conduct. The cxaction OF the oatE
is the mode provided for ascertaining the
parties upon whom tile Act is intended 10
operate, and, instead of iesscnipg, in
croasos its objectionable character. AL
chactments Of this kind pnrtake of the
nature III bills of pains and penalties
I The court further says tho depiivation Of
amy right, evil or political, previously ell.
joycj, may be punishment, tue circum-
stances attending and the causes of the
deprivation determining this fact. The
I characteristics OF this clause of the Acts
ARE therefore retrospective, penal and pri-
mIfiNc. or course, there can be no Quns-
tiou no 10 the rulo vi construction which j.
here to be applied. Those who are ex-
| pressly brought within its Upera.ianS can
not be saved from its operations. Where
| from the generality of terms OF dcscrip-
! ton, or Tor amy other reason, q reasonable
doubt arises, that doubt is to be resolved
against the operation Of the law and in
favor OF tho voter. What Acts, then. with
! IN the meaning of the law, make Il party
guilty OF engaging III insurrection or re-
bcllion against the United States, or giving
! The language here eomprchends not only
| or insurrectiOn which has happened in the
United States. SO, too, it comprehends
every foreign war in which the United
states hss nj any time been engaged. Iht
) first part OF the sentence covers cases OF
domestic war existing III the form OF rebel
! hon or inanrrcctlon, whilst the last part
/ applies to foreign war. The word5 giving
MD and comfort To the enemies ui sue
: United States are the same Used I'll tii1
/ constitutional definition oil treason, ana
. the enemies there meant must De taken 10
/ be FOREIGN enemies These words, orig-
naliy found in the early statute OF Eng
land against treason, have received that
settled Interpretation III English and Ame-