Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-05-31

IN.
United States, within the meaning OF the clause
under considerations
Here the term officer is used in its most general
sense and without any qualification as TO Leglsla
five or Executive or Judicial and l 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. 1nasmuch as the
violation of the official oath and the official trust
has relation to fealty to the United States, which
Is broken by rebellion against the United States,
ereason is apparent for including all officers OF
the United States and for making the disfrauchise-
ment moro general and comprehensive as tC
DEMONSTRATING as they do in more direct relation
and trust to the United States than the officers Of
State.
Inow come to consider what is the meaning and
SCOPE of the disqualification, arising upon that
part of the oath which requires the person to
rebellion against the United States, given aid
or comfort to the enemies thereof. | must here
repeat what has been said before, that to work
disqualification, two elements must concur. FIRST.
Holding the designated offices, State or Federal,
accompanied by an official oath to support the
Constitution of the United States anG Second,
Engaging in rebellion against the United States,
or giving aid or comfort to its enemies Both
these must not only concur, but they must con-
cur in the order of time mentioned. FIRST The
Office and the OATH and afterwards engaging IN
rebellion or giving aid comfort. A person who
has held an Office within the meaning of this law,
and has taken the official oath, and who has not
afterwards participated i'll rebellion, may very
safely take this oath and go, too, the person who
has fully participated in the rebellion, but has not
thereto,
oath may with equal safety, take this oath.
My duty here is simply one Of construction. l
do not deem it proper to enter upon any.question
of the constitutionality of this part of this act.
Taking it as granted for the purpose of con-
struction, shat Congress has the right to impose
such an OATH it is not only allowable but impera-
tive, that keep ii view its essential character
istics.
1t is something more than Legislative act, in
derogation of existing right. 1t is in effect
law which takes away an existing right, con-
Of Of TN~f1- tIfInn TrhIa
ut the time they were done, entailed no such con.
sequences. In the late cases before the Supreme
Court of the United States upon the 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
prior participation in the rebellion, the court
SAYS - AS the oath prescribed cannot be taken by
these parties, the act, as against them, operates
as q legislative decree Of perpetual exclusion, and
exclusion. from any OF the professions or any of
the ordinary aVOcatiOns of life for past conduct,
can be regarded in other light than as pun
ishment for such conduct. The exaction of the
oath is the mode provided for ascertaining the
parties upon whom the act Is intended to operate,
and, instead Of essening increases its objection
able character. All euactments OF this kind par
take of the nature Of bills of pains and penalties
The Court further says : The deprivation of
any rights, civil political. previously enjoyed,
may be punishment. The circumstances attend
ing, and the causes OF the deprivation determin-
ing this fact" The characteristics of this clause
of the acts therefore retrospective, penal and
punitive. Of course there be no question
TO the rule of construction which is here TO be ap
piled. Those who are expressly brought within
its operation cannot be saved from its operations.
Where, from the generality Of terms of description
OF for any other reason unreasonable doubt arises,
that doubt is to be resolved against the operation
of the law, and ill favor of the voter. What acts
then within the meaning of the law, make party
guilty of engaging in insurrectiOn rebellion
against the United states, or giving aid and COM
fort to the enemies thereof ? The language here
cOmprehends not only 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 first part of the
sentence covers the case Of domestic war existing
in the form ofrebellion Instruction; whilst the
last part applies to foreign war; The words 81 Civ
ing aid and comfort to the enemies OF the United
States" are the same used in .he constitutional
definition of treason, and the enemies there meant
must be taken to be foreign enemies. These words,
originally found in the early statutes of England
against treason, have received that settled inter
probation in England and American Courts. They
are used in this act without any qualification, and
give them their full force and application when
they made to apply to adherence, or giving
aid and comfort to foreign enemies. Such act
to the breach of the oath, or duty of allegiance,
stands upon the same policy Of disqualification
engaging in rebellion, civil war. A person,
therefore, who gave aid and comfort to our
mics in the war with Great Britain of 1912, and in
the war with Mexico in 1917, would, in that parti
cular come within this clause. In laying down
this rule do not forget that, for certain purposes,
and in 4 certain sense, every citizen in the rebel
States, during the late rebellion, is to be consider
ed public enemy, III respect to the liability of
his property to capture, prize of war; and in
respect to various acts of Congress passed during
the rebellion, which, as to property, declare its IL
ability to capture, forfeiture, or COnfscatiOn,
when used i'll aid of the late rebellion. But wher-
ever in any Of these acts of Congress, these terms
aid and cOmfOrt-are used in any other than the
commonly received acceptation of some qualitica-
tiOn or description is added to make them apply
to the rebellion; nevertheless, although strongly
incline to think that the aid and comfort here
mentioned should be strictly confined to its &C
knowledged legal Interpretation, am not quite
prepared to say that Congress may not have used
1t as applicable to the rebellion. Ishall therefore,
allow j. Cue weight in the next enquiry in giving
construction to the clause now to be considered.
We are now to inquire what is meant by engag-
ing IN lnsurrecton 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.
lake, as an instance, rebel soldier, compelled to
service by force of CONSUMPTION; take as another
instance, the case of a slave, who, by the COM
mand OF his master, or by military order. has serv-
ed 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 have
engaged" in rebellion within the meaning of
that word, as used in this law. But, whilst in
my opinion a cOnscript OF slave forced into tho
ranks or other military service, is not included it
does not follow that other classes than those who
actually levied 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 or
taken up arms. All those who, legislative or other
official capacity engaged in the frtherance of the
common unlawful purpose persons who, in their in
dVlduai capacity, have done any the pur
pose OF promoting the rebellion. may well be said in
the meaning OF the law TO have engaged in rebel
hon. All persons who, during the rebellion acted in
an ohclal capacity, where the duties of office
ry had relation to the support OF the rebellion
members oil rebel legislatures and OF the rebel
TesS and rebel conventions diplomatic agents of the
eDe COlneaeracy, or such other officials whose duties
more especially appertaned to the support the rebel
cause, must be held to within the terms of eXcI-
On discharged official duties incident to war but in
preservation OF order and the administration of law
are not TO he considered thereby engaging i'll the re-
beil0n The interests of humanity require such OIL
Ger Tor the performance of such official time
81 war or instruction well i'll time of peace
ana the performance OF such duties can never be con
sldered as criminal.
cannot bring myself TO the conclusion that Congress
cnd nave meant that such purely civil and necessary
Offices involved the incumbent in the guilt of nsurec-
uon- Nothing but the most cOgent language such as
was used IN the test oath for lawyers could manifest
such purpose The Supreme Court i'll constituting that
test OATH and in reference to the which haye
alluded, uses this language:
" The third clause applies to the seeking and ac-
ceptance, or exercise, not only of offices created
Tor the purpose of more etfectually carrying on
hostiItles, but also of any of those offices which
are required III every community, whether in
peace or war for the administration of Justice and
preservation of ORDER
lind no such purpose in the use of anv of the