The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-05-27

tors of State asylums, visitors of State
universities, directors Of State peniten
tiaries, State directors Of banks and other
corporations, special commissioners Oh
agents appointed by the Governor or Other
State authority to perform special duties
as examiners of banks, notaries public, and
commissioners to take acknowledgment o.
deeds. The rule laid down and these
illustrations will perhaps be sufficient tc
determine who come under its operations
The next disqualifying clause is founded
on the oath of office. The oath, as Incl
dental to the office, is not mentioned in the
first disqualifyiDg clause, but the office
alone. But in the second clause the
oath is made to enter as necessary ele.
ment in order to work disfranchisement
and it is applied to the same classes of of.
ficers named in the first clause, and also tc
others not named in the first clause-that
is, to officers Of the United States. 1t i:
an oath to support the Constitution of the
United States, and it is clearly provided by
this clause that if this oath has been taken
by member Of State legislature, or by
an executive or judicial officer of any
State, then such person violating that
oath and engaging in Instruction shall be
disfranchised. There is some obscurity in
these clauses, and room for doubt whether
disqualification under the first clause
would arise in the case Of member of a
State legislature, or any executive or jul
dicial officer of any State, who had not
taken an oath to support the Constitution
of the United States. ! incline to the
opinion that this oath is put as an essential
thing, the breach of which by insur-
rection against the United States violates
the trust imposed by it upon the officer.
But this clause, so far as the executive or
judicial officers of the State are concerned,
does not enlarge the class subject to dis
The officer breaking the
oath which works disfranchisement must
also be judicial or executive officer of
the State, according to the rule herenbe-
fore established. do not apprehend any
practical question will arise here, for by
the Constitution of the United States this
oath is required to be taken by the men,
bers of the several State Legislatures and
all executive and judicial officers, both of
the United States and of the several
States and in these ten States the same
oath was required as to the members of the
Legislature and the executive and judicial
officers of the State. This brings me to
the question, Who is to be considered an
officer of the United States" within the
Of the clause under consideration ?
Here the term officer is used in it's most
general sense and without any qualifica-
ton, as legislative, or executive, or judi
cial, and / think, as here used, is intended
to comprehend military as well as civil
taken the prescribed oath, inasmuch as the
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. The reason is apparent
for including all officers of the United
States and for making the disfranchse-
ment more general and comprehensive as
to them, standing as they do in more direct
relation OF trust to the United States than
the officers Of the State.
| now come to consider what is the
meaning and scope of the disqualification
arising from that part of the oath which
requires the person to state that he has
not engaged in instruction or rebellion
against the IGited States, or given aid or
comfort to the enemies thereof. | must
here repeat what has been said before, that
in the work of disqualification two elements
must concur-first, holding the designated
Office, State or Federal, accompanied by an
official oath to support the Constitution
of the United States; and second, en-
gaging in rebellion against the United
States, or giving aid or comfort to its enc
mics. Both ofthese must not only concur,
but they must concur in the order of time
mentioned. First, the office and the oath,
and afterwards engaging in rebellion or
giving aid or 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 in a
rebellion, may very safely take this oath !;
and so, too, the person who has fully parti-
cipated in the rebellion, but has not prior
thereto held an Office and taken the Off
cial oath, may with equal safety take this
oath. Ny duty here is simply one of con-
struction. do not deem it proper to en-
ter upon any question OF the constitution
atty of this part of the act.
Taking it as granted, for the purpose of
that Congress has the right
to impose such an oath, it is not only
allowable, but imperative, that | keep in
view its essential characteristics. 1t is
more than legislative act in
derogation Of an existing right. 1t is, in
effect, law which takes away an existing
right as consequence of acts done at a
prior.time, and which at the time they were
done entailed no such consequences. In tine
late case before the Supreme Court of the
u nited States upon the test oath prescribed
by an act Of Congress to be taken by law
yers, by which the exclusion from the right
to practice their profession was made to arise
from 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 a legislative
decree of perpetual exclusion, and exclu-
sion from any of the professions or any of
the ordinary avocations Of life for past
conduct can be regarded in 10 other light
than as a punishment for such conduct.
The exaction Of the oath is the mode pro-
yided for ascertaining the parties upon
whom the act j. intended to operate, and
instead of lessening, increases its objection
able character. All enactments Of this
kind partake of the nature of bills Of pains
and penalties" The court further says
the deprivation of any right, civil or politi-
cal, previously enjoyed may be punish
ment, the circumstances attending and the
causes of the deprivation determining this
fact. The characteristics of this clause OF
the acts are therefore retrospective, penal,
q md nrimitiye OF course there can be no
question as to the rule of construction
which is here to be applied. Those who
are expressly brought within its operations
cannot be saved from its operations. Where,
from the generality of terms of descrip-
tion, or for any other reason, reasonable
doubt arises, that doubt is to be resolved