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


officers, executive or judicial, that they are
clearly within the meaning of the law
Now, changing the inquiry from an af
firmative to a negative process: such
officers as usually pass under the descrip-
ton municipal do not come within the pur-
view of the act-such as officers of cities
towns, villages, or subordinate municipal
divisions, whether their functions are exc
cutive and judicial, or, as is sometimes the
case, where the same officer acts in both
capacities. Outside of these two repre-.
sentative classes, the first Of which is clearly
within, and the last of which is clearly
without the puryew of these clauses
we find in each of these States host oil
officers whose status is in some way to be
determined. 1t is impossible here to pro.
coed by way Of enumeration, and to distin.
guish by name all those who are included
and all those who are excluded. All that
can be done is the reestablishing Of some
fixed rule. / feel under the necessity oil
circumspection here in saying who are in
cluded within the disfranchisement, rather
than in saying who are not included for
where there is doubt, according to the rule
Of construction which has been referred
to-, that doubt must be solved in favor
of rather than against the right of
the voter. The exclusion is all-com-
prehensive as to time, and applies not
only to those who were in Office when the
rebellion commenced, but to those who
held the prohibited Offices at any time pre-
vious, although they may have ceased to
hold such office an indefinite number of
years prior to the rebellion. 1t is founded
on the idea Of breach Of official trust
due to the State as the author or donor of
the trust. 1t is founded on the idea of q
breach of trust, not arising merely from
allegiance az citizen, but from duty to
the State in a direct official relation to that
State, and through that to the Federal Co.
vernment. SO far as this act designates
| by name the persons who violate such a
trust, it is to that class to whose keeping
the trust is especially confided that is to
say, the persons who were clothed with
the legislative power. Whereas in this
| instance there is a purpose of exclusion on
| a common ground, and one class is desig-
| mated as coming within the purpose, and
| other classes are left indefinite, and only to
be ascertained by construction. 1t is al
| lowable to find the indefinite class by the
rule Of assimilation. We see, then, in this
law purpose of exclusion as to the three
great departments of State-legislative,
judicial, and executive. We see further,
that as to the legislative department, made
up of a legislative body composed of mem
bers and various officers appertaining to
such body as legislature, the exclusion
is only of the higher functonaries of that
body-the MEMBERS and is not carried to
its subordinate officers. The terms of eX-
clusion are, not "the members and officers
of State legislature" but simply "the
members of a State legislature" As,
therefore, the exclusion in the legisla-
tive department has effect only on
the highest class in that depart
ment, it is safe to say that the
same policy of exclusion attaches rather
to such officers that exercise func
tons of important trust in the executive
and judicial departments than to those
whose functions and duties are merely
limited and subordinate. | have already
called attention to the comprehensiveness
Of these exclusions as to time. Now, TO
declare them equally comprehensive as 10
persons, and to say that they embrace all
officers, large and small, coming within
the description Of executive or judicial
officers, who have at any time during their
lives held any one of these Offices, would
have this inevitable result: that in the
formation of a constitution for State by
the agency of its own people large pro-
portion, perhaps majority, of the most
intelligent and capable of the people would
be excluded. There is no part of my duty
in attempting to give construction
to these laws in which / find myself
involved in such painful uncertainty as in
determining what officers outside of the
classes already designated come within the
Just range of exclusion. | have said that,
in addition to the class of officers who
clearly come within the terms Of the act
as judicial and executive officers, and to
those classes which comprehend militia
officers and municipal officers, who clearly
do not come within the terms of the act,
there remains vast body of officers whose
status is in some way to be defined.
These are known in popular language by
such terms of description as county,
township, and precinct officers" Their
name is legion. Their functions and du-
ties are for the most part strictly local.
Some Of them, such as sherilts and
justices of the county courts, have
jurisdiction over the entire county;
others are restricted to the smallest.
civil subdivisions. | have directed alb
stracts to be prepared for each of these
States, which will exhibit all those
offices, and the duties which appertain to
them, and the form of oath required. l
must reserve for further consideration, af-
ter the abstracts are made, the question,
Whether all Of them, or, if not at all, what
classes of these officers, come within the
disqualification AS to all other executive
or 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 it proper here, in refer
ence that class of officers, judicial or exc
cutive, who are, by the rule | have laid
down, brought within the operations
of dislranchisement, to distinguish
class. whose duties are not local
lied, who stand in direct relation to the
State, and who, in my opinion, cannot pro-
perly be designated as executive or judi
cial officers of the State. | mean that class
of persons who exercise special public du-
ties rather in the nature of occasional en-
Payments than general and continuing
official duty. This distinction between
office and employment, and between an
officer of State and an agent of State,
is well established. Chief Justice Thigh
man, in 3 Serge and Rawle l49, recognizes
it in the case of commissioners appointed
to lay out roads and canals and other works
of public Improvement. The question
arose upon section in the Constitution of
Pennsylvania which provided that the Co.
varnor shall anpOint all officers whose