New-York tribune., 1867-05-27

& LASS of ofcers who clearly come within tho terms OF
the act as uecal and executive OceIs Oh NV state ana
~ thosS Classes which comprehend MiRti1 officers and
Muncipai officers who clearly arc nVt Hl'v the teI VI
G CO., sone Vay 70 be defined These arc known pop-
ior Language by such terms or de icrpCn az county,
T0wnship and Precinct oiheers Ineir name IS ieEion
6eiT functions and duties for fhe most part st,y
local Of them such as frTlifs and justices Oi te
Comfy Courts have jurisdiction the entire county
others are restricted TO tho smallest snb,dvision
have directed abstracts TO b. prepared for cach o he
states which Will exhibit aD these Offices and the duties
which appeTtaiu TO them, ana the oath Iedut nSso o
reserve Tor further considers IOn after the absI's V
made, the question whether allol Ineh 81 a dcoton
classes Of these officers come within the dslail' H,oi @
As 10 all other executive or judicial 0ceIs WlO SIo o
~ popular language, characterized az county an Of
incline TO consider them 81 coming unueI Wy m nnaU
executive and Judicial Officers of STATE "lt' .o 10
ing OF these laws. deem Il proper mere III IeeI'hv. , 70
that class OF officers judicial or executive WHO e Dy %
acknowledgements distinguish class whose Inles arc
not localized who stand i'll direct lelaCn !" 5nG o,j
md Vhn opinion. cannot properly NC u'sibil.'"
az t Ioss of rrrSons who exercise special public
duties rather in the nature of occasional cmpoymons
than general and continuing OrlCal dllS Ihls
tion between office and employment and an oilcer 9
state and an agent of Stale is well established Cmef
Justice Tilghmin, in Sargent, ana kaNle IY ~
il i'm the case Of Commissioners appointed to lay ont
roads canals, and other works of public improvement
The question arose upon section IN INC III VI
Penusy yvama, which provided "that the Goyefh9I S M
appont an officers whose offices established by ths
CONSTITUTIONS shall he established oy law. anu VIZ
appoints are not herein otherWs1 pl"aceut cept,jncd
The Chief Justice says, 1t has never been ;sccllIcu
is it easy to ascertain to what Offices thc M law w
appointment extends SPEAK OF octs ere" Tio ~ Sv"rJ
since the making of the Constitution. Inc ,ir Woiu
thing concerning the administration o JasC15 W hc
general interests of society, may he SUPPOSED 10 pC
If fees or emoluments are annexed 10 the Office
But there matters of temporary ana ocal conIcI, &
which, although cOmprchcnded IN the term once nave
not thought 10 be embraced by the tohstnu'On'
and when offices of that KIND nave Deen .ieato, L. ~
islaure has sometimes made the appointment IN he law
which creates them sometimes gwen the power ~
mOval Others-although the appointment Was ell to
the Governor The officers of whom am speaking are
described in acts Of Assembly by te name o 'oI. %
ayinc ont of roads and canals oiEer works of public
nature All these perform duty or, IN otIci WoIus'e
ercise an Office cannot ehnmeIate an ol uc oIV3 l
mens under State authority when III my ollloi, Wuih
no danchisement will name some by way oI l.Ins @
tratiOn, viz: Boards OF Comni,soncIs oi nnu
Directors Of State Aylms Visitors OF state Unyerses
Directors Of state PenitentiarieS state Directors o
other corporations special ~ ~ t r
pointed by the Governor other state authority 10 PCT
form special duties examiners OF banks notaIe3 pun
lie, and commissioners to take ~ ol ~ ,s
The rule laid down and these illustrations WIZ peId
be sufficient determine who come within IT'S operation
The next diS0ualifyng clause is founded ON the "' ol
office. The oath, incidental To the once iS o ith-
toned IN the first disqualtyng clause Dul he ooe n'
But i'm the second clause the oath IS made 10 enter as
necessary element in order TO work dlsrancmsementi
first clause and also to Others not named IN me st
clause; that is to officers 9i me C1,fa ~ & sd s,St
And il clearly provided 10y this clause that II TINS oath
has been taken by member OF State Legislature or 10y
an executive or judicial officer Of any state then such
person violating that oath, and engaging III nsurl'goh
clauses and for doubt whether disqualification under
the first clause would arise in the ease oi inenpti o
state Legislature any executive or judicial oihCcr
az anv state who had not taken oath tO support The
Constitution Of the United states. incline 10 the opu
that this oath is put rs an essential nng me bIeach
of which by insulrectiOn against the United states yo
lates the trust imposed by II upon the officer But tins
clause, far as The executive or lGulcd octIS oI Il
State are concerned does not enlarge the class subject tO
dsfranchsement. The officer breaking the oaih winch
works Acknowledgement must also be ludcid OF eNeeu
tive officer of state according 20 the rule hercnbefoic
established. do not apprehend any practical question
will arise here for by the Constitution oi the tfq
this oath is required TO he taken 10y the inets o
the several state Legislatures. and all executive and judi
cial officers poth OF the Onlttd sleS ana VI ,Ie N'
states: and in these ten States the same oath was re-
quired to members Of the Legislature and The eAcc
the question: Who to be considered an ohcer oi the
United States within the meaning Of The clause under
consideration Here the term ohCer u'eu Ihl's uos, gen
cTal and without any GudllncaJons, as legislative
Intended 10 COMPREHEND military as well ciy officers
Of the United states who had taken the prescribed OATH
the official trust has relation 20 fcalty 20
the United states which is broken by rebellion against
the United States the reason is apparent for ncuding an
officers the United states and Tor making the disiIan
chisemeHt general and comprehensive az 70 tcl,
standing they do in more direct relation ana uust 20
the United States, than the officers of a state
now come consider what Is the meaning ana scope
of the disqualification arising upon that point o the oah
which requires the person to state that ne mas not en-
gagged III msuiectlOh OF rcbcHon asd!nsl .e s
States gwen aid or comfort 10 the enemies thereof
repeat what has been said before that Work
disqualification elements must concur FTst Hold.
ing the designated Office State Federal accompanied
United states and Second Engaging in rebellion against
the United States or giving and or comfort TO IT'S enemies
Both these only concur, but they must concur
in the order of time mentioned first the Office and The
OATH ana Afterwards engaging ~ Ifu,I'on, or sNs u
meaning Of this law and taken the official oath, and
who has NOT afterwards participated m rebellion may
safely take this OATH and So too the person who has fully
participated in the Rebellion but has not prior thereto
held Office and taken the Official oath may, with eqna!
safety take this oath My duty here j. simply one OF
construction. do not deem proper To enter upon any
question Of the cOnSttutOnay of this part Of the act
taking granted for the purpose Of construction that
Congress has right 10 impose such an oath. II Is
not only allowable, but imperative that keep IN view
its essential characteristics IL something more than
legislative act in derogaon Of an existing right is in
effect law which takes awaV an existing rght az a
consequence OF acts done at pnOr uine ana which at
the time they done entailed such consequences
In the late cases before the supreme Court OF the United
States upon the test oath prescribed by an act OF Con
from the right to practice their profession was made to
arise upon prior participation IN the Rebellion the Court
say As the oath prescribed cannot he taken by these
persons, the act against them operates legislative
decree of perpetual exclusion from any OF the professions
be regarded in no other light than punishment
for snch conduct The exacon Of the oath is the mode
creases ifs obectionaGe Character An enartnnsnis
Of tIe Kind parfaE@ Of The nature Of bills OF
pains and penalties" The Court further say "The de-
privatiOn of any rights civil or political previously en-
ioyed may be punishment the circumstances attending
ana the causes Of the deprivation determining this fact
The characteristics Of this clause Of the are there
fore retrospective penal and pentve. OF course, there
bo question as 10 the rule Of construction which Is
here to be applied Those who are expressly brought
within It's operations cannot be saved from its operation
Where from the generality OF terms, Of description,
doubt is to be resolved against operation the law
and in favor OF the voter What acts then within the
meaning OF this law make party guilty OF engaging in
msurrecOn rebellion against the United States, Of
giving aid comfort to the enemies thercOt The Ian
guagc here cOmprchends every foreign In which the
United states has at any time been engaged. The first
part OF the sentence covers the OF domestic
sting IN the form OF rebellion or nsu1econ while the
last part applies 10 foreign The words giving aid
comfort to the enemies Of the United States" the
used In the Constitutional definition Of treason and
the enemies here meant must be taken 10 he foreign
emies These words originally found in the early
OF England, against treason, have received that settled
Interpretation IN the English and the American Courts
They used in this act without any qualifications and
give them full force and application when they are
made 70 apply 10 adherence giving and and comfort
In fll hTs.4 lGft tIaa
OF duty of allegiance stand upon the policy Of dis
qualification enjoying in rebellion civil war per-
therefore, who aid and comfort