The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1867-06-04

blity of his property to capture as prize of war,
and in respect to various acts OF Congress passed
during the rebellion, which as to property, de-
clare its liability to capture, forfeiture or COINS
cation. when used in aid of the rebellion. But
where ever. in any other than the commonly re-
ceiyed acceptance, some qualification or descrip-
ton is needed to make them apply to the rebel
lion. Nevertheless, although am strongly in
cIiued to think that the aid and comfort here
mentioned should strictly be conhned to It's
acknowledged legal Interpretation, l am not
oui,e nrepared to say that Congress may not
have used it as applicable to the rebellion. I
shall therefore allow it due weight in the next
INQUIRY, in giving construction to tie case now
to be considered.
We are now to inquire what is meant by en-
gaging 10 instruction or rebellion against the
United States The force of the term "to en-
gage" carries the idea of active rather than pas
sive conduct, and Of voluntary, rather than COM
pulsory, action. Take as an instance a rebel
soldier compelled to service by force of conscrip
ton. Take as another instance the case of
slave, who, BY the command of his master, or by
military order, has served in the ranks or aided
10 the construction of military works. 1t would
be an abuse of language to hold that in these
instances the parties have "engaged" in rebel
lion Within the meaning of the word, as used IN
| this law; but whilst, III my opinion, consoript
or slave forced into the ranks or other military
service is not included, it does not follow that
other classes than these, 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 law, persons may have engaged
| 10 rebellion without having actually levied war
or taken arms. All those who, in legislative or
other official capacities, were engaged IN fur
therance of a common unlawful purpose, or per-
sons, who, 10 their individual capacity, have
done any overt act for the purpose OF promoting
rebellion, may we'll be said, in the meaning OF
this law, to have engaged in rebellion.
All persons who, during the rebellion, acted
10 an official capacity, whose duties OF othce ne
cessarily had relation to the support OF the re-
bellion, such as members of rebel Legislatures,
and the rebel Congress, and rebel Conventions,
and diplomatic agents of the rebel Confederacy,
or such other officials whose duties more espe-
cially applied to the support of the rebel cause,
must be held to come within the terms OF ex-
clusion. Officers in these rebel States who,
during the rebellion, discharged official duties
not incident to war, but in preservation OF order
and the administration of law, are not to be con-
sidered as thereby engaging in rebellion. The
interest of humanity requires such othcers Tor
the performance of such official conduct 10 time
| va
peace aud the performance of such duties can
never be considered as criminal | cannot
bring myself to the conclusion that Congress
could have meant that such purely civil and ne
cessary 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 Supreme Court, in constituting that test
oath and in reference to the clause to which
have alluded, uses this languages: "The third
clause applies to the seeking acceptance or ex-
ercse not only of Offices created for the purpose
of more efectually carrying on hostlities, but
also Of any of these Offices which are required
in every community, whether in peace or war,
for the administration ofjustice and preserva-
ton of order" inl no such purpose in the
use of any of the terms Of the act now under
consideration. | am accordingly of opinion that
| holding simple Judicial office, or other execu-
tive Office, or such public enployments as are
of purely civil character, such as county off,
ces, mt nicipal offices, and all others, of like
ture, which were not created for the purpose
of more efectually carrying on hostiities, aud
which did not involve the performance OF du-
ties and purposes 10 .urtherance of the rebellion,
do not, within the meaning of this part OF the
oath, fix on the incumbent the guilt Of engaging
in the rebellion. So much for official partici-
pants.
l now recur to what amounts to individual par
ticipation in the rebellion In the attempt to ar
rive at classes of persons, of acts intended to
be comprehended in the matter Of engaging in
rebellion. must have due regard to the subject
matter. A rebellion which extended over eleven
States of the Union, involving more or less mil
lions of their people, continuing for more than
four years, and maintained by vast military
army, which, to all these people for time and
as to the most of them during it's continuance,
| excluded them from all protection under the law
full government,-the obligations of all citizens,
| when thus separated from the corresponding
| right of protection, and the breach of that allie
| glance. necessarily modified under such Cir
cumstances. The obligation is less stringent and
breach of that obligation less reprehensbe
than in cases of temporary or local insurrection.
Nor must we forget that throughout these rebel
States there were large classes of their popula
ton more or less opposed to the rebelious move
ment aud who were yet more or less necessarily
involved in its support. have already said that
the language used in this act, as to participants,
carries the idea of voluntary participation, and
am satisfied that these considerations, growing
out of the nature of the rebellion. induced Con-
gress TO use the word "engage'' in the sense OF
voluntary participation. When an nsurrection,
by its construction and power. takes the form of
de Jdcto government and prpscribes and en-
forces laws over the people within its territory,
individual rights and obligations undergo modifi
cation, and the rightful aud displaced authority,
when 1t again comes into place, must i'm a mea-
sure accommodate its action to circumstances
and consider many things as rigLtfuly done which.
III a mere instruction, would have no c,lor of
Legality. This principle is recognized by all
civiliz nations. has been especially enforced in
England by statute and by the decisions of Court,
as early as the reign of Henry the VII. Obedi.
ence to the de tdcto government, established un-