The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-29

sioners or agents appointed by the Governor or
other State authority to perform special duties,
as examiners of banks, noJaries public and
commissioners 10 take acknowledgements of
daeIs and LAWYERS. The rule laid down and
these illustrations will be, perhaps, sufficient
tn determine who come within its operations.
The next disqualifying clause is founded on
oath of office. The oath as incidental to the
otfice is not mentioned in the first disqualfy-
inc clause but the office alone; but in the
second clause the oath Is made to enter as a ne
caSSarv element in order to work diSfranchise-
mont and il is applied to the same classes of
officers named in the first clause. and also to
others not named in the first place, that is to
officers of the United States. 1t is any oath TO
SIInDort the Constitution of the United States
and 1T is clearly provided by this clause that if
This oath had been taken by member of a State
LEGISLATURES or by an executive or judicial Off
Ger of any State, then such person violating
that oath and engaging in Instruction, shall be
disfrauchised. There is some obScurity in
these clauses. and room for doubt whether dis
qualifications under the first clause would arise
in the case of member of State Legislature
or executive or judicial officer of any State who
had not taken an oath to support the Constitu-
tion of the United states. L incline to the
opinlon that his oath is put IA an essential
thin0 the breach of which by instruction
AGAINST the United States is violation of the
trust imposed by it upon its officers; but this
clause, so far as the eXecu I've or Judicial oth-
GERS of State are concerned, does net enlarge
the close subject to diSfranchlsement, who must
also he n iudicial or executive officer of State
according to the rule heTeinbefore established.
do not apprehend that any practical question
will ari7e here. for by the Constitution of the
United States this oath Is required to be taken
nv the members of the several State Legisla-
lures. and all executive and judicial officers
both of the United States ana OF the several
States and in these ten States the same oath
was required rs to members OF the Legislature
and the executive and judicial officers of the
State.
This brings me to the question, who is TO be
considered an officer OF the United STATES
within the meaning OF the clause mere under
consideration Here the term othcer is used IN
its most general sense and without any quail
tication-is legislative, executive or Judicial
and I think as here used it was intended 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 ofhclal
oath and the official trust has relation to
fealty to the United States, which is broken by
rebellion against the United States.
The reason is apprent for including all OIL
GERS of the United States anG for making TINS
Acknowledgement more general and comprehen-
sive as to them, standing, as they do, III more
direct relation and trust to the United States
than officers of a State. now como TO con-
slider what is the meaning or scope OF dlsquall-
tication arising upon that part of the oath
which requires the person to state that he mas
not engaged in instruction or rebellion against
| the United States, or given aid or comfort TO
| the enemies thereof / must repeat what has
been said before, that to avoid dlsquallflcatlons
/
! designated office, State or Federal, accompa-
MED by an official oath TO support the constitu-
! ton of the United States; and second, engag-
/ ing in the rebellion against the United States,
| or giving aid or comfort to its enemies; both OF
/ these must not only concur, but they must con-
! cur in the order of time mentioned-tirst, the
| office and the oath, afterwards engaging i'll the
/ rebellion. or giving aid or comfort. y person
! who has held an office within the meaning OF
/ the law, and has taken the official oath, and
who has not afterwards participated in the re-
bellion, may very safely take this oath, and so,
| too, the person who has fully participated In
the rebellion, but has not previous thereto held
an office and taken official oath, may with
/ equal safety take this oath. My duty here is
simply one of construction. | do not deem II
| proper to enter upon any question of the con-
stitutionality OF this part of the act, taking it
| as granted for the purpose of construction
| that Congress has a right to impose such an
/ oath; it is not only allowable, but imperative
that keep in view Its essential characteristics
! 1t is something more than legislative act in
derogation OF existing right; it Is, in effect, an
act which takes away existing rights as a con-
sequence of acts done at a prior time, and
which, at the time they were done, entalled no
| such consequences as the late case before the
| Supreme Court of the United States. UpOntht
test oath prescribed by act of Congress, to
be taken by lawyers, by which the exclusion
| from the right to practice their profession
| made to arise upon proof of participation III
the rebellion, the Court says: AS the oath pre-
act rs against Them operates as a legislative de-
cree of total exclusion from any of the profes.
sions. or any of the ordinary avocations of life
for past conduct can be regarded in no other
light than punishment for such conduct
EXaction of the oath is the mode provided foI
ascertaining the parties upon whom the act is
| intended to operate, and, instead of lessening
increases its Objectionable character. All en-
actments of this kind partake of the nature OF
bills of pains and penalties.
The Court further says: The expiration OF
any rights, civil or political, previously enjoyed
| ing and the causes of the deprivation deter
mining this fact, and the characterize cS of this
claim. ON this the acts are therefore RETROSPECT
tive, penal and punitive. OF course there can
be no question to the need of construction
| which is here to be applied. Those who are
| expressly brought within desperation cannot
| be saved from its operation, Where, from the
generality of terms of description, or for any
other reason, a reasonable doubt arises, that
doubt is to be resolved against the operation of
the law and in favor of the voter What acts
then, within meaning of law, make a party
( guilty of engaging in inSurrectiOu or REBEL ION
against the United States or giving aid and
4 comfort to enemies thereof? The language here
cOmprehends not only late rebellion, but every
past rebellion or instruction which has hap.
pent d in the United States. So, too it com
prehenGs every foreign war in which the
| United States has at any time been engaged
| The first part of the sentence covers the ease OF
| domestic war existing in form of rebellion OF
InSurrectIOn. W hist a part applies to TO eign
| war, the words giving aid and comfort to the
enemies of the United States are the same, and
| in the constitutional definition of treason and
the enemies there meant, must be taken TO be
foreign enemies. These words. originally
found i'll the early statutes of England agains
treason, have received that settled interpreta.
! ton in English and American courts. They
are used in this act without any qualification
and we give them full force and application
| when they are made to apply to adherence OF
| giving aid an1 comfort to foreign enemies
Such an act as the breach of the oath or duty
| of allegiance stands upon the same policy OF
disqualification as engaging in rebellion or civil
war. \ person, therefore, who gave aid and
comfort to our enemies in the war with Great
Britain of 1872, and in the war with Mexico in
| 1917, would, in that particular, come within
this clause, i'll laying down this rule [ do not
forget that for certain purposes and in a GER
| tain sense every citizen in the rebel States
during the late rebellion is to he considered a
/ public enemy as in respect to the liability OF
| hlssprcperty to capture prize of war. and in
| respect TO various acts of Congress passed dur
| ing the rebellion, which, as to property. de-
clare Its liabil ty to capture. forfeiture or con-
! hscation when used in aid of the late rebellion.
1 but wherever in any of these acts of Congress
these terms, aid and comfort are used in any
other than the commonly received acceptation
some qualification and description Is added 10
make them apply to rebellion. Nevertheless.
although L strongly incline TO think the aid
and comfort here mentioned should strictly he
confined to its acknowledged legal inter
probation. l am not quite prepared to
4t,,N