The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-05-27

| do not forget that, for certain pur
poses, and in q CERTAIN sense, every citi
zen in the rebel States, during the late re
bellion, is to be considered apublic enem
as in respect to the liability OF his pro
perty TO capture as prize Of war, and i
respect to various acts of Congress passe'
during the rebellion, which, as to pro
perty, declare its liability to capture
forfeiture, or confscatiop, when used II
aid of the late rebellion. But when
ever, in any Of these acts of CON
gress, these terms, " aid and comfort" ar
used in any other than the com
monty received acceptation, some quail
fication or description is added to max,
them apply to the rebellion. Neverthe
less, although | strongly incline to thinl
that the laid and comfort" here men
toned should strictly be confined to it,
acknowledged legal Interpretation, / am no
quite prepared to say that Congress may
not have used it as applicable to the rebel
lion. | shall therefore allow it 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 insurrection or rebellion
against the United States. The force o
the term to engage carries the idea o
active rather than passive conduct, and o.
voluntary rather than of compulsory &C.
compelled to service by force of con
scription. Take as another instance
the case of slave who, by the com.
mand of his master, or by military
order, has served in the ranks or
aided in the construction of military
works. 1t would be an abuse of language
to hold that in these instances the parties
engaged in rebellion within the meaning OF
that word as used in this law. But whilst,
in my opinion, q conscript or slave forced
into the ranks or other military service is
not included, it does not follow that other
classes than those who actually levied war
and voluntarily 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 engaged in the rebellion without
having actually levied war or taken arms,
/ all those who, in legislative or other official
capacity, were engaged in the furtherance
ola common unlawful purpose, or persons
who, in their individual capacity, have done
any overt act for the purpose of promoting
the rebellion, may be well said, in the
meaning of this law, to have "engaged in
rebellion" All persons who during the
| rebellion acted in an official capacity where
the duties of Office necessarily had rela-
tion to the support of the rebellion, such
as members OF the rebel Legislature and
rebel Congress, and rebel conventions, di-
plomatic agents of the rebel Contederacy,
or such other officials whose duties more
especially appertalned to the support OF
the rebel cause, must be held to come
within the terms of exclusion. Officers in
those rebel States who during the rebellion
discharged official duties not incident to
war, but in the preservation of order and
administration Of law, are not to be consi-
dered as thereby engaged in rebellion.
The interests of humanity require such
officers for the performance of such official
conduct in time of war or insurrection as
well as in time of peace, and the perform
ance Of such duties can never be con-
| sidered as criminal. | cannot bring my
| self to the conclusion that Congress could
| have meant that such purely civil and
necessary offices involved the incumbent
in the guilt. Nothing but the most cogent
| language, such as was used in the test oath
for lawyers, could manifest such purpose.
| The Supreme 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 only of Offices
created for the purpose of more eitcctually
carrying on hostilities, but also of any OF
those offices which are required in every
community, whether npeace 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 I'M
der consideration. am accordingly OF
opinion that holding simple judicial
Office or other executive Offices, or public
employments, as are Of purely civil cha
racter, such as county Offices, municipal
| offices, and all others of like nature which
were not created for the purpose of more
eilectually carrying on hostilities, and
which did not involve the performance oil
duties expressly in furtherance of the re.
bellion, do not, within the meaning Of thi,
part Of the oath, fix on the incumbent the
guilt Of engaging in the rebellion. 81
much for official participation.
/ now recur to what amounts to indivi-
dual participation in the rebellion. In the
attempt to arrive at classes of persons or
Of acts intended to be comprehcnded in
the matter of engaging in rebellion, we
must have due regard to the subject mat
ter. Undoubtedly, although every rebel
| lion against the United States is compre-
hehded, it is the late rebellion which, al
most if not altogether, can be said to be
the proper subject matter-a rebellion
which extended over eleven States of the
Union, involving more or less millions OF
the people, continuing for more than four
years, and maintained by vast military
authority, which, as to all these people for a
| time, and as to most of them during its
continuance, excluded them from all
protection under the lawful govern
ment. The obligations Of allegiance when
| thus separated from the corresponding
right of protection and the breach OF that
allegiance are necessarily modified. I'm
der such circumstances the obligation is
less stringent, and breach of that obliga.
ton less reprehensible than in cases OF
temporary or local insurrection. Nor must
We forget that throughout these rebe
States there were large classes Of theil
population more or less opposed to the re
belious movement, and who were yet more
or less necessarily involved in its support
l have already said that the language useC
in this act as to participation carries The
idea of voluntary participation, and
am satisfied that these considera
tons, growing out of the nature oil
the rebellion, induced Congress to use
the word "engage in the sense of volun-
tary participation. When an insurrection
| by its continuance and power, takes the
form of de tacto government, and pre-
scrbes and enforces laws over people with
in its territories, individual rights anC