The weekly North-Carolina standard. [volume] (Raleigh, N.C.) 186?-1869, 1867-06-05

poses, and in certain sense, every citizen in
the rebel States during the late rebellion, is
to be considered a public enemy as in re-
spect to the liability Of his property to cap
ture as prize Of war, and in respect to va
rious acts of Congress passed during the re-
bellion, which as to property declare its
liability to capture, forfeituretor con6cation,
when used in aid of the late rebellion. But
wherever 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 or description is adj
ded to make them apply to the rebellion.
Nevertheless, although strongly incline to
think that the aid and comfort here men,
toned should strictly be confined to its &C
knowletlged legal Interpretation, am not
quite prepared to say that Congress may not
have used it as applicable to the rebellion.
1 shall therefore allow its due weight in the
next inquiry, in giving construction to the
clause now to he considered.
We are now to inquire what is meant by
engaging in iusurrection or rebellion against
the United States The force of the term to
engage carries the idea of active rather
than passive conduct, and of voluntary
rather than compulsory action. Take as an
instance a rebel soldier, compelled to service
by force of CONSUMPTION. Take as another
instance the case of slave who by the
command of his master, or by military or
der, has served in the ranks, or aided in the
construction of military works. 1t would be
abuse of language to hold that in these in
stances the parties have engaged in rebel
Hon." within the meaning of that word as
<l,s lorr DIT =
ion, a conscript or slave, forced into the
ranks or other military service, is not inclu-
ded, it does not follow that other classes
than those who actually levied war and vol
unfairly Joined the ranks of the rebels, are
to be excluded taking it to be clear that in
the sense of the law persons may have en-
gagged in rebellion without having actually
levied war or taken up arms. All those who
in legislative or other official capacity, were
engaged in the futherance of common un-
lawful purpose, or persons who, in their in
dividual capacity, have done any overt act
for the purpose of promoting rebellion, may
well be said, in the meaning of this law, to
having engaged in rebellion.
All persons who, during the rebellion,
acted in an official capacity, whose duty of
office necessarily had relation to the support
of the rebellion, such as members of rebel
Conventions, and diplomatic agents of the
rebel Confederacy, or such other officials
whose duties more especially appealed to the
support of the rebel cause, must be held to
come within the terms of exclusion. Officers
in these rebel States who, during the REBEL
ion, discharged official duties not incident to
war, but in preservation of order and the ad-
ministration of law, are not to be considered
as thereby engaging in rebellion. The in
terest of humanity requires such officers for
the performance of such official conduct in
time OF war or instruction, as well as in time
of peace, and the performance of such duties
can never be considered as criminal. I can
not bring myself to the conclusion that Con-
gress could have meant that such purely civil
and necessary offices involved the incumbent
in the guilt of instruction. Nothing but
the most cogent language, such as was used
in the test oath for lawyers, could manifest
such purpose. The Supreme Court, in
constituting that test oath and in reference to
the clause to which 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 effec-
tually carrying on hostilities, but also of any
of these offices which are required in every
community, whether in peace or war, for the
administration of justice and preservation of
order" 1 find no such purpose in the use OF
any of the terms of'the act now under CON
sideration. lam accordingly of opinion that
holding a simple Judicial office. or other ex-
ecutive office, or such public employments as
are of a purely civil character, such as county
offices, municipal Offices, and all Others, OF
| like nature. which were not created for the
purpose of more effectually carrying on hos
| tilities, and which did not involve the per.
Torrance of duties and purposes in further
ance of the rebellion, do not, within the
meaning of this part of the oath, fix on the
incumbent the guilt of engaging in the re-
bellion. So much for official participants.
now recur to what amounts to individ.
| ual participation in the rebellion. In the
attempt to arrive at classes of persons, or Of
acts intended tn be comprehended in the
matter of engaging in rebellion, we must have
| due regard to the subject matter. A REBEL
| ion which extended over eleven States of the
Union, involving more or less millions Of
their people, continuing for more than foul
years, and maintained by vast military
army, which, as to all these people for a
time. and as to the most of them during its
| continuance, excluded them from all protec-
ton under the lawful government the obi
cations of all citizens, when thus separated
from the corresponding right OF protection,
and the breach of that allegiance are neces-
sarily modified under such circumstances
| The obligation is less stringent, and q
breach of that obligation less reprehensible
than in cases OF temporary or local insured
ton. 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 its support.
have already said that the language used in
this act, as to participants, carries the idea
| of voluntary participation, and am satisfied
that these considerations, growing out of the
nature of the rebellion, induced Congress to
use the word engage in the sense OF vol
untary participation. When an insurrection
by its construction and power, takes the
form of de facto government and prescribet
and enforces laws over the people within it,
territory, individual rights and obligations
undergo modification, and the rightful and
displaced authority, when it again comes in
to place, must in a measure accommodate it
action to circumstances and consider many
things as rightfully done, which, in mer'
insuTection, would have no color of legality
This principal is recognized by all civilized
nations, has been especially enforced in En-
gland by statute and by the decisions o
Of Courts as early as the reign of Henry tn
VII Obedience to the de tacto government
established under an usurping monarch, ha.
been held not to involve subject in tn
guilt of treason to the lawful King. Giving
due weight to these well established pfinci