Staunton vindicator. [volume] (Staunton, Va.) 1860-1896, 1867-06-07

and comfort to foreign enemies. Such an act,
as to the breach of the oath or duty of allegi-
ance stands upon the same policy of dis,
qualification as engaging in rebellion or civil
war. A person, therefore, who gave aid
and comfort to our enemies in tie war with
Great Britain in 1912 and in the war with
Mexico in 1917 would, in that particular,
come within this clause. In laying down this
rule I do not forget that, for certain purpo7
SEES, and in a certain sense, every citizen in.
,the rebel States, during the late rebellion, is
to be considered public enemy as in respect
to the liability 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, declare its liability to
capture, forfeiture, or conGscation, when
used in aid of the late rebellion. But when
ever, in any of these acts Of Congress, these
terms, "aid and comfort" are used in any
other than the commonly received accepta-
ton, some qualification OF description is add
ed to make them apply to the rebellion
Nevertheless, although I strongly incline to
think that the ''aid and comfort" here men,
toned should strictly be confined to it's ac-
knowledged legal Interpretation, | am NOT
quite prepared 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 tho
clause now to be considered.
We are now to inquire what is meant by
engaging in insurrection Or rebellion against
the United Stases. The force of the term to
engage carries the idea of active rather than
passive conduct, and Of voluntary rather than
Of compulsory action Take as an instance.
a rebel soldier compelled to service BY force
Of conscription 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 in the construction OF mil
itarv works. It would be an abuse of Ian
guage to hold that in these instances the par
ties engaged in rebellion within the meaning
of that word as used in this law. But whilst,
in my opinion, conscript or slave forced IN
to the ranks or other military service is not
included, it does not follow that other classes
than those who actually levied war and yolun-,
tar;ly Joined the ranks of tire 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 legisla-
tive or other official capacity, were engaged
in the furtherance Of a common unlawful pur-.
pose, or persons who, in their individual ca
pacity, have done any overt act for the pur-
pose of promoting the rebellion, may be we'll
said, in the meaning of this law, to have
engaged in rebellion" All persons who
during the rebellion acted in an official ca
pacity where the duties Of Office necessarily
had relation to the support of the rebellion,
such as members of the rebel Legislature
and rebel Congress. and rebel conventions,
diplomatic agents of the rebel 0onfedera5y,
or such other officials whose duties more es-
pecially appertained 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 III the
preservation of order and administration of
law, are not to be considered as thereby en-
gagged in rebellion,
The interests Of humanity require such Of.
| fcers for The performance Of such official con-
duct in time of war or instruction as we'll as
in time of peace, and the performance of such
duties can never be considered as criminal
I cannot bring myself to the conclusion that
Congress could have meant that such purely
civil and necessary offices involved tbs H.
cumbent in The guilt. Nothing but the most
cogent language, such as was used in the test
oath for lawyers, could manifest such pir-
pose. The Supreme Court, in constituting
that test oath, and in reference to the clause
to which I 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 efectually
carrying on hostilities, but also of any Of
those offices which are required in every.
community, whether in peace or war, for the
administration of justice and preservation of
order" [ find 20 such purpose in the use
of any of the terms of the act now under con-
sideration am accordingly Of opinion that
holding a simple judicial Office or other ex-
ecutive offices, or public employments, as are
of purely civil character, such as county of
fees, municipal Offices, and all others of like
nature which were not created for the pur-
pose of more ehectually carrying on HOSTILE
| blCS, dllls WHiCu uli uOt luFO1fC tuC pCliOi-
nance of duties expressly in furtherance Of
the rebellion, do not within the meaning o,
this part of the oath, fix on the incumbent
the guilt of engaging in the rebellion. So
much for official participation.
now recur to what amounts 20 individrs
al participation in the rebellion. In Che at
tempt to arrive at classes of persons or of acts
intended to be comprehended in the matter
of engaging in rebellion, we must have due
regard 70 the subject matter. Undoubtedly,
although every rebellion against the United
States is comprehended, it is the late rebel
lion which, almost if not altogether, can be
said to be the proper subject matter-a re-
belffon 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 au-
thority, which, as to ali these people for a
time and as to most of them during its con-,
tinuanee, excluded them from al protection
under the lawful government. The obliga-
tons of allegiance when thus separated from
the corresponding right Of protection and the
breach of that allegiance are necessarily mod