The New York herald., 1867-05-27

citizen but duty she State IN erect oicia relation
70 NINA STATE and through that ~ The federal govern
mont SO far This act desgastes by name the per-
sons who violated such trust - is that class 70 wse
keeping the trust s especailv condded-that IS 70 say
the persons who clothed the legislative power
Where as IN this instance purpose Of eIcAs'on on
within tho purpose and or classes e Indefinite
eniy be ascertaned by construction aowa-
sion wo see then ia this law purpose of exclu-
sion as 70 the tn great departments OF
siate-leslslative, j.o lcM and executive We . see
made Of legss tive body, composed OF mem
bers and various. officers appertaning TO such .
higher funconarie Of that body-tha members-and u
is not carried to iv subordinate officers The terms Of
exclusion not "the members and officers OF State
Legislature bat simply .'the members Of State
Legislature AZ therefore, the exclusion in the less
lave derartin ent has effect only upon lhe ~ n'enes.
class IN that department. " is sale 10 say the same
policy Of excl usion attaches rather such officers as
exercised isu ctons of important trust IN the executive
and judicial departments than those whose iunctons
and duties merely limited and subordinate. +
have al eady called attention TO the comprehensive
ness OF these exclusions 10 time Now, 70 ceciare
them equa y comprehensive as persons, and 70 say
that they embrace ali officers large and small coming IN
cal ofcs rs who have as any tmo during their lives
held an OF these Offices would have this inevitable re-
suit at in the formation Of the constitution TOT sale
by tho agency Of its people large proportion per-
hapss majority OF the most Intelligent and capable OF
tho people would be excluded.
1hcre no part Of my duty IN attempting 70 give con-
ssrsction 10 these laws In which nnd myself involved
in such painful uncertainty as in determining what
within the just range Of exclusion have said that in
addition 70 the caes Of officers who clearly come within
the terms Of the act as judicial executive officers OF
ahe State those classes which comprehend mtia
officers and municipal officers, who clearly are not
within the terms OF the act there remain vast body OF
officers whose status s in some way 10 be dehned
These arc known In popular language by such terms OF
description as county, township, precinct officers Their
the most part strictly local Some OF them, such
as sherns and justices OF the county courts, courts,
are restricted to the smallest subdivision. have
directed abstracts TO be prepared for each OF the
which appertain to them and tho oath required. must
for further consideration after the abstracts are
made the question whether all Of them, or not al!
what classes OF these officers within the disqualif
cation As TO all other executive judicial officers
who are not in popular language, characterized as
county officers incline to consider them as coming
under the description OF executive and judicial officers
Of State within the meaning Of these laws deem 1t
proper here that OF officers judicial
or executive, who by the rule have laid down
brought within the operation Of disranchlsement, 70
distinguish class whose duties localized, who
stand In direct relation to the State, and who,
| in my opinion, cannot properly be designated
as executive or Judicial officers OF State.
that Of persons who exercise special public
duties, rather in the nature Of occasional empoymens
than general and continuing official duty This ds.nc-
ton bet ween Office and employment and between an
officer Of state and agent OF State is well estab.
| lsbed. Chief Justice TIlghman. In Sergeant and
Rawe 149, recognizes in the case of Commissioners
appointed to lay out roads, canals other works OF
| public improvement The question arose upon sec.
| 'rhat the Governor shall appoint all officers whose
Offices established by this constitution or shall be
established by law, and whose appointments are not
ays:-'t has never been ascer,aned, 1t easy TO
ascertain 10 what Offices their power Of appointment
extends speak OF offices created by law since the
making OF the constitution. The word offices Is Of
very vague and indefinite import. Everything con-
cerning the administration Of justice or the
general interests OF society may be supposed to
be within the meaning Of the constitution, especially
Rut ma n
which, although comprehended in the term ''oice,"
have not been thought 70 be embraced BY the consttu
ton and when Offices OF that kind have been created,
the Legislature has sometimes made the appointment in
the law which creates them, sometimes given the power
TO The Governor Ths officers Of whom am speaking
Of described in Of Assembly by the Of
the laying out Of roads and carals and other works
public nature for all ohese perform duty or IN other
/ cannot enumerate all Of the employments under
State auth9rity which, In my opinion work NO disfran-
chsement will name some by way or ILLUSTRATION,
viz-Boards Of commissioners Of public works, direc
tors Of State aylums visitors Of State universities d.
Of State psneutiares State directors Of banks
appointed by the Governor other State authority
perform special Duties examiners OF banks notares
public and commissioners cxnowledgmcnts Of
deeds The rule laid and these illustrations will
perhaps be SUFFICIENT TO determine who come within It's
operation.
The next disqualifying clause is founded the oath
OF Office The oath, incidental to the ONCE, Is not
mentioned in the first disqualfyng clause but the Office
alone But in The second clause the oath Is made
enter necessary element in order 70 work dsifan-
chisemen and = is applied to the same Glasses OF ON
named in the first causetbat Is TO officers OF the United
States 1t Is oath TO support the constitution Of the
United States; and it Is clearly provided by this clause
hat II this oath has been taken by member Of
State Legislature by executive or judicial officer
engaging in nsurrection shall be disfanchised There
is obscurity in these clauses and room for doubt
would uids arise IN the case Of member Of State
Legislature or any executive or judicial officer
OF any state who had not taken an oath TO support the
constitution Of the United States. l incline 10 the
opinion that this oath is put an essential thing the
breach Of which, by insurrecon ngains. the United
States. violates the trust imposed by It upon the officer
But this cause far the Judicial officers
of State concerned does not enlarge the class SUBJ
jcct TO nchisement Tho officer breaking the cath
which works disfranchisenent also be judicial
executive officer of State according to tue rule herein
before established do not apprehend any practical
question will arise here; for by tho constitution Of tae
United Sates this oath is required 10 be taken by the
members OF The several State Lcrisaturc and all execa
tive and judicial officers both OF the United States and
or the several Sates and in thess ton states the samc
oath required TO members OF the Legislature and
the executive ana judicial officers of the State Tins
brings to the question Who 10 to be considered " an
officer OF the United States" within the meaning
OF the clause under considerasionf Hero the
term officer is used in It's most general sense,
and without any qualifications as TO Legislative or
executive judicial; and I think, here used,
il was intended to com prchend military ~ we'll as civil
officers Of the United States VINO had taken the pre-
scrbed OATH Innsmuch the violation Of tho official
oath aud the official rust has relation 70 feay TO the
United satcs which s broken By rebellion against the
United States the reason is apparent for including all
officers OF the United sta.es and for making the dsfan
chsement general and comprehensive to them,
standing they DO in direct relation and trust 10
tha United oasses than the officers OF State
consider what she meaning and scope Of the
disqualification arising upon that point Of the oath which
requires the person 70 state that he has not engaged
insurrection rebellion against the United states
|, gwen aid or comfort 70 the enemies thereof
must here repeat what has been said before that TO
X disqualification elements FIRST,
holding the designated Office, State federal accom-
PANIED by ohcal oath 10 support the constitution
o the United States; and second, engaging In rebellion
against the United States or giving aid or comfort 70 LIS
ueni6s Both these must not only concur, but they
sust concur the order OF time mentioned; nrst the
or giving aid or comfort person who has held
OF lce within the meaning Of this Law and taken the
on bfsi orth and who has Afterwards participated
vbehon may safely take this oath and so too, the
per who has fully participated IN tho rebellion, but
has mot prior thereto held an ofce and taken tho
oflc vi cath, may with equal safety take this OATH
Ny duty here IL simply Of construction l do not
decrn VT proper enter upon any question Of the