Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-05-14

court there is another, not only reasol
able, but very clearly warranted by tn
terms Of the amendment, and recognize
by the legislation Of Congress.
| Tho object Of the amendment is t,
exclude from certain offices a certain
class of persons. Now, it is obviously
impossible to do this by simple declar.
alton whether in the constitution or il
the act of Congress, that all persons in
cluded within particular description
shall not hold office. For, in the very
nature of things, it must be ascertained
what particular individuals are embraced
| by the definition before any sentence o.
exclusion can be made to operate. To
accomplish this ascertainment and ensure
effective results, proceedings, evidence
decisions, and enforcement of decisions
more or less formal, are Indispensable
and these can only be provided for by
Congress.
Now, tho necessity OF this is Iscog-
nized by the amendment Hself, in its
fifth and final section, WHICH declares
that Congress shall have power to en-
force, by appropriate Legislation, the pros
visions of this article." ass
There are, indeed, Other sections than
the third, to the enforcement of which
legislation is necessary; but there is no
one which more clearly requires legisla-
ton In order to give effect to il The
fifth section qualities the third to the
same extent as it would if the whole
amendment consisted of these two sec
tons.
And the final clause of the third Sec
ton itself is significant. 1t gives to Con-
gresS absolute control Of the whole opera
ton of the amendment. These are its
words: "But Congress may, by vote of
two>thirds Of each House, remove such
disability" Taking the third section
then in its completeness, with its final
clause, it seems to put beyond reasonable
question the conclusion that the intention
Of the people OF the United States, in
adopting the fourteenth amendment, was
to create disability, to be removed in
proper cases by two-thirds vote, and to
be made operative in other cases by the
legislation of Congress in its ordinary
course. This construction gives certain
effect to the undoubted intent of the
amendment to insure the exclusion from
Office Of the designated class of persons,
if not relieved from their disabilities, and
avoids the manifold evils which must at
tend the construction insisted upon by
the counsel for the petitioner.
II results from this examination that
persons in office by lawful appointment
or election before the PRONUNCIATION of the
fourteenth amendment, are not removed
therefrom by the direct and immediate
effect Of the prohibition to hold office
contained in the third section but that
legislation by Congress is necessary to
give effect to the prohibition by providing
for such removal. And it results further
that the exercise of their several func-
tons by these officers until removed, in
pursuance Of such legislation, is not uu4
lawful.
The views which have been just stated
receive strong confirmation from the ac-
ton Of Congress and of the executive de-
partment of the government. The dee
cision Of the District Judge, now I'M
der revision, was made in December,
1868, and two months afterwards, in
February, 1869, Congress adopted
a joint resolution entitled "a resOlu-
ton respecting the provisional gov
ernments Of Virginia and Texas" In
this resolution it was provided that per-
sons holding Office in the PROVISIONAL
governments of Virginia and Texas" but
unable to take and subscribe the test
oath prescribed by the act of July 2,
1862, except those relieved from disabil-
ity, "be removed therefrom;" but a pro.
vision was added suspending the opera
ton of the resolution for thirty days from
its passage. The joint resolution was
passed and received by the President on
the 9th of February, and not having
been returned in ten days, became a law
without his approval.
1t cannot be doubted that this Joint
resolution recognized persons unable to
take the oath required, to which class
belonged all persons within the descrip
ton of the third section of the four.
teenth amendment, as holding office in
at the date of its passage, and
provided for their removal from Office
1t is not clear whether it was the in
tent Of Congress that this removal
should be effected in Virginia by the
force of the joint resolution itself, or byaI
the commander of the first military dis
trict 1t was understood by the execu-
tive or military authorities as directing
the removal of the persons described by
order. The resolution was pub
lished y command Of the General Of the
army for the information of all concern
ed, on the 22d of March, 1869. 1t had
been previously published by direction
of the commander of the first military |
district, accompanied by an order, to
take effect on the 18th Of March, 1869,
removing the persons described from
Office, The date at which this order was
to take effect was afterwards changed to
the 2lst of March.
1t is plain enough from this statement
that persons holding Office in Virginia,
and within the prohibition of the four
teenth amendment were not regarded by
Congress, or by the military authority,
in March, 1869, as having been already
removed from office.
1t is unnecessary to discuss here the
question whether the government Of Vir.
ginia, which seems to have been not pro-
Visional but permanent, when trans,
ferred from Alexandria to Richmond,
became provisional under the subsequent
legislation of Congress, or to express any
opinion concerning the validity of the
Joint resolution, or of the proceedings
under it. The resolution and proceed
ings are referred to here only for the
purpose of showing that the amendment
had not been regarded by Congress, or
the Executive, so far as represented by
the military authorities, as effecting an
immediate removal of the officers de-
scribed in the third section.
After most careful consideration, there
fore, l find myself constrained to the
conclusion that Hugh W. Shelley had
not been removed from the Office of
Judge at the time of the trial and sem
tence of the petitioner, and that the
sentence of the Circuit Court of Rock
bridge county was lawful.
In this view Of the case, it becomes
unnecessary to determine the question
relating to the effect of the sente nee of
Judge de fdctO, exercising the Office with
the color, but without the substance Of
right. 1t is proper to say, however, that
| should have no difficulty in sustaining