The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-05-28


thnm cousy prehensive to persons, and to say
that thoy embrace a officers. large and small coming In
any sense within tho description Of executive or Judicial
ofcer who have at any time during their lives held any
ono nj theae offices would have this inevitable result,
that in the formation Of the Constitution of State by tho
agency of its own people large proporh9n perhaps
nIe wonld be excluded There part of my duty in
attempting to give construction to these nws in which
8nd mvee1f involved in such painful uncertainty as in
determining what officers OUTSIDE sne M
designated come within the Just range OF EXCLUSION
havo Haid that in addition to the class of officers
20 clearly coming within tho terms Of the net indci'
and exeruiive officers of tho State ord to thnec classes
which comprehend mifie Officers and rnnicipal officers
who cleprlv ara not within the terms Of tho ac there
main vast number of officers whose status is in
wav defined Thrae arr known IN ponnnr 1auGuarn bv
cinct officers Their nare is lrinn thnirfuncona aud
duties are for the most mart strictly local. Some Of
them surh sheria and justices Of the County Courts
have jurisdiction over the e.tre county; others are re-
strirtai to the SIMPLEST subdivisions.
have directed nstrart to he preparnd for each OF
+hese States which will exhibit all these officers and the
dues which snner In t. thern and IN" form of oath re-
n,ired. must re-ervc for further consideration. after
te abstracts are made h question whether MI of thn
nr If ALL what classes Of those Offices Within c
aiaaualhcaon As TO all other executive or inaria on.
county officers. incline to consider them as ronnr
under the description Of executive and udicnl.ocera NJ
he State within the nennnp of these laws. deem "
here in reference to that clnas of Officers ndioal
executive. who are. bv the rnle hnve laid down
brought within the oneraton OF acknowledgements to
distinguish class whose duties not ocalizpd who
stand in direct relation to the State, and who, In
nv opnior, cannot prnDerlv be desi7nated as exec.
uve or judicial officers CT State-I mean that class OF
persons who exercise special public duties rather in the
natnre OF occasional nmDovments than general and cnu
timing official duty. This distinction between Office
md emrovncnt and between m officer of State and
an nrent OF State is well established Chief Justice
Tahmnn in Serr and Hawle 149 recognizes 1t in the
Gaze of Commissioners appointed % y ont roads and
canals and other works Of public Improvement The CUES
n
.ayvania, which provided "that the Governor shal!
appoint all officers whose offices 'ra established by
this Constitution or shall be established by law.
and whose appointments are not herein otherwise
provided for" The Chief Justice says: 'It has never
been ascertained nor Is IT. easy to ascertain To what
Offices this power Of appointments extends; sreas pea
shtufion The word oco Is OF very vague and indeh-
mite import Everything concerning the administration
ofiusce or the general interests Sf society NAV oe sup
pcciay fees or ernolumens arc annexed to the office;
hut there ore matters cf temporary and local concern
which, although eomprehendod N the TERN once nave
and when offices Of thnt have been created the Leg
islature has sometimes mnde the appointment In tho Law
which created them sometimes giving Inc sPpGntmetm ts
power of removal to Others ahough the appointment
was left to the Governor The officers of whom am
speaking, are often DESCRIBED IN aets OF Assembly N
sts, CO. as are employed in tho laying out OF
roads and canals, tnd other works of public
nature Yet all Of ese auS es ali ali Of tSs
employments under State uority which, in my opn-
10 :, work no disfranchis rment will name some by
way Of illustration VIZ B,sas s,s o. yi9nr Of
State Universities Directors Of State Penitentiares.
State Directors of Banks or other corporations Special
Commissioners or Agents appointed by he Governor cr
miners of Banks Notaries Of the Public and Co amls-
sioners to take Acknowledgements Of deeds The rule
s1 sa aG11 % Sho operations
Tho next disquaf clsuse is founded on tho oath
Office Tho oatl incidental to tho Office Is not en-
toned in the first dfsqualfyng clauee but the office
alone But In the second clause the oath ude to en-
ter as Necessary element In order to work dsanchlse
ept and 1t Is applied to the same classes of officers
named in the first clause ana ALSO to others NOT ,o
States It B an oath to support the Constitution OF the
United States and is clearly provided by this CLAUSE
that If this oath has been taken BY member OF state
state them such person that oath and engaging
In insurrcction shall be DISTINGUISHED There is some
obscrty in these clauses ana room for aopD 40 M
case of member of State Legislature or any executive
or judicial officer Of any State who had not taken the oath
e Ss hss , oah Is out as an
ne tal thing the breach of which, by insurrccton
against the United Srates violates the trust imposed by
upon the officer But this clause 40 far US the e1ecu
not enlarge the class subject 10 disranchsement The
officer breaking the oath which works Acknowledgement
must also be Judicial or executive oser OF State ac
apprehe1d any practical question viii arise hero sor b!
the Constitution Of the United States this oath is re-
quired to taken by tue member OF tho several Stat
Il etslsures and all executive aud judicia officers, both
of the United States md OF The several States and III
those ten Staes the same oath wns required o. to mem
bers of the Iegisatre ahd the executive and judicial
bfaRs St as s e the question who is to uo
ed an officer OF tho United Satcs within the meaning
Ia used Its most general and without any quail
cation as Legislative executive. or JUDICIAL and think
here used L Was intended TO comprehend military Ut
the prescribed oath. Inssmuc the vocation of the
official oath an the official trust las relation to falty t.
the United States which ia broken by rebellion ngains
the United tates the Is apparent for including n
officers of the United Suites, and for making tho dsira
chiscmcnt moro general and comprehensive as TO them
standing they do more direct relation ad trust t.
tho United States than tho officers OF q Sate
now come consider what LIZ tho meanng and scont
of the disqualification arising upon that part OF tho oat
which requires the person 70 state that ne has not en-
gagged In iusurrection rebellion aganst the United
ates or given aid aud comfort to the enemies thereof
must here repu what bus been sad before that to wora
disqualification two elements must concur: FEst-Hold
ing the designated Office State or Federal accompanied
by an official oath to support the Constitution OF The
United tates and deecond-Engaging In rebellion ngains
the United States giving a or comfort to their enc
mics. th those must not only concur, but they nus
concur In the order of time mentioned. First the Officer
and tho oath, and afterwards engaging III rebellion OF
giving aid and comfort person who has held an oitcr
OATH and who has not afterwards participated In re-
belion may safely take the oath; and 80 too tho person
who has fully participated IN the rebellion but has no
prior thereto hold Office and taken the official oat
mnY with safety take the oath.
My duty is simply o.e of construction. Idonot deem
proper TO eptor upon any question OF the constitution
pity Of this part of the act Taking it as granted for the
such an oath, 1t Is not only allowable but imperative
TINT keep in Wow its essential characteristics. It'll
something more than legislative act ia drrogaon of
10 ina layx
existing right consequences Of ncts donc at prioi
time pnd which, ut the time they done cntailed H.
such In the late before the supreme
Court of the United States upon the test oath prescbec
BY an act of Congress to be takon by lawyers to which
the exclusion from tho right TO practice their profes
sion nude to arise upon prior participation in the
rebellion, the Court say: Gas tho oath prcscrlbeL
cannot be taken by these parties tho act as RGnins
tLeu operates Legislative decree Of perpetual cx
any OF tho ordinary nvocaons OF life for past conduct
can be regarded in no other light than as punishment
ior such conduct The eIncon Of tho oath is tho mod,
provided tor ascertainng the parties upon whom tho ac
Intended to operate and instead of csBenng ncrsases
its Objectionable character AL enscments OF this kinc
partake of tho nature OF bills of pains and penalties
Inc Court further soy "The deprivation OF any rights
civil or political. previously enjoyed may be punish
men the circumstances attending and tho causes OF tie
deprivation determining this fact The characteristics
this rauso OF tho act therefore retrospective penal
and punitive Of course there can be no question as t.
the rule of construction which is here be applied.
Those who expressly brought within s operations
generality OF terms OF description. or Tor nnS
other resspn, reasonable doubt arises. tina,
doubt Is TO be resolved against the operations
Of the law and in favor Of the voter. Wha'
acts them within the meaning OF the law, make party
guilty of engaging in insurrecon rebellion against
e United Stat giving aid and comfort 70 the enc.
luies thereuf2 Tho language hero cumprohends not
only rebellion, but every past rebellion which hss
happened in tho United States 3d. too. 1t comprehendt
every foreign In which the United state2 has at any
time been engaged The first purt of the sentence covers
the case OF domestic erlstg In the form OF arebc
lion or insurection, while the last part applies TO TOR
eiRn war The words giving aid and comfort to the
enemies of tie United itatcs" the used in
the constitutional definition Of treason, and the enc
mics thereon must be taken to be foreign enemie-.
These words originally found In the early statute OF
England against treason have received their settled in.
.rpretaaon in England and American courts. They
used in this without any qualification and We givo them
full force and application when they are made to Apply
TO adherence giving aid aud comfort to foreign
miles, Such an act to the breach of oath duty OF
allegiance stands upon the same policy OF disquahhca-
lion as engaging In rebellion or civil wsr. A person,
therefore, who gave did and comfort to or enemies in
the war with Great Britain Of 1914 and In the with
Mexico in lS47 would in TINT particular, wthi;,
this clause In laying down this rule, do not forge!