The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1867-05-29

liability of his property to capture as q
prize OF war, ana in respect to various
Acts OF Congress passed during the rebet
lion, which, as to property, declare it's lis
tion, when used in aid Of the late rebcllion!
But whenever, in any Of these Acts Of Con
gress, these terms, 'aid and comfort, . are
used in any other than the commonly re-
ceived acceptations, some qualification or
description is added to make them apply
to the rebellion. Nevertheless, although
strongly incline to think that the "aid
and comfort" hero mentioned should
strictly be confined to it's acknowledged
legal Interpretation, 1 am not quite pre-
pared to say that Congress mag not have
used it as applicable to the rebellion.
next inquiry in giving construction to the
clause now to be considered.
We are now to inquire what is meant by
engaging in insurrection or rebellion
against tile United States. The. force Of
the term to engage carries tho idea of ac-
tive rather than passive conduct, and OF
voluntary rather than of compulsory ac-
tion. Take as an instance n rebel soldier
compelled to service by force of conscrip-
tion. Take as another instance tho 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 military works. 1t would be an abuse
Of Language to hold that in these instances
the parties engaged in rebellion within tho
meaning OF that word as used in this law.
But whilst, In my opinion, q conscript or
slave forced into the ranks or othor militia
ry service, is not included, it does not fol-
low that other classes than those who ac-
tuaily levied war and voluntarily joined
tho ranks of the rebels are to be excluded.
Taking it to bc clear that in tho sense OF
the law persons may have engaged in the
rebellion without having actually levied
war or taken arms, all those who, in leais
lativc or other official capacity, were en-
gagged in the furtherance Of q common un-
!aWfui purpose, or persons who, in their
individual capacity, have dono any overt
act for tho purpose of promoting the rebel
non, may well be said, in the meaning of
this law, ito have engaged in the rcbul-
hon." All persons who, during the rebel
lion, acted in an official capacity where the
duties OF Office necessarily had relation to
the support OF the rebellion, such as men,
bers of the rebel Legislatures and rebel
congress, and rebel conventions, diplo-
matte agents of the rebel Oonfodcracy.
or such other officials whose duties more
especially appcrtaiIed to the support of
inc rebel cause, must be held to come
within the terms of exclusion. Officers in
those rebel States who, during tho rebel.
non, discharged official duties not incident
TO war, but i'll the preservation of order
and administration of law, arc not TO he.
lion.
The interests of humanity require suel,,
olhcefs Tor the performance of such ottit:ial
conduct In time of war OF ins,lrrection. az
well as In time OF peace, and the perform
anee OF such duties can never be consider
ca as criminal. cannot bring myself to-
the conclusion that Congress could have
meant that such purely ciYil and necessary
offices involved the incumbent in tho ruilt.
Nothing but the most cogent Language.
such as. was used i'll the test oath for.
lawyers, could manifest such n purpose.
Inc supreme Court, i'll constituting that
test oath, and in reference to the clause to
which have alluded, uses this language:
"The third clause applies to tho sceliro
acceptance or exercise, not only of offices
created for the purpose OF more eitcctuallv
carrying on hostilitics, but also of anv of
thoso offices which arc required i'll eyorv
community, whether i'll peace or war, for
the administration of justice and preserva-
tion OF order? l find no such purpose in
inc use of any Of the terms OF the net now
under considcratioa. l nm acCordinglv of
opinion that holding simple judicial
once or other. executive Offices, or public
employments, rs are of purely civil cha
facter, such as County Offices, municipnl
otices, and all others of like nature which
were not created for the purpose of more
eliectunlIy carrying on host ilitics and
which did not involve the performance of
duties expressly in furthernnce of the re-
ociilon, 90 not, within tho meaning of this
part OF the oath, Fix on the incumbent the
guilt of engaging i'll the rebellion. So
much for official participation.
now rccur to what amounts 10 indivi-
dual participation in tho rebellion. In the
attempt to arrive at classes Of persons or
of acts intended to be comprehcndcd in
the matter Of engaging in rebellion, VIC
must have due regard to tho subject mat
ter. Undoubtedly, although every rcbcl-
lion against the United States is compre-
hcnded, it is the late rebellion which
almost, il not altogether, can bo said to be
the proper subject ma;ter-a rebellion
which extended over eleven States of the
Union, involving more or less millions of
the people, continuing for moro than four
years and maintained by vast military au-
time, and rs to most Of them during its
continuance, excluded them from all pro-
lection under the lawful Government The
obligations OF allegiance when tins scpa-
rated from the corresponding right Of pro-
lection and the breach OF that allegiance
are necessarily modified. Under such cir
cumstances, the obligation is less strin-
gent, and breach OF that obligation less
reprehensible than in cases of temporary
or local insurrection. Nor must we forget
that throughout these rebel States there
were large classes of their population
more or less opposed to the rebellious
movement, and who were yet more or less
necessarily involved in it's support.
have already said that tho Language used
IN this act as to participation, carries the
ldea or voluntary participation, and L am
satisfled that these considerations, grow
ing out OF the nature of the rebellion in
duced Congress to use the word ''engnge"
IN the sense of voluntary participation