Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-09-02
The Enforcement Act-Its I'm
cOnstitutiOnality. -,-


COLUMBIA, Aug. 10, 1S70.-Hon. A.
O P. Nicholson-Dear Sir: We have,
with some care and attention, considered
the question submitted to us by you, for
our opinion. That is, ''What is the legal
effect of the Fourteenth Amendment of
the constitution of the United States,
upon those who were supposed to be OBJ
n0xious to its provisions, but who were
pardoned by the President before its rati-
fication 2" In considering this propo-
sitiou we will discuss also its legal effect
aud consequences as 10 all who were
actually intended to be included in its
terms and provisions, and who have been
neither psrdoned nor, taken the amnesty
oath, for il they cannot be punished
under the act Of Congress, enacted to en-
force it because the act is unconstitutiOn-
al or for any other cause, much less would
you be liable to be punished by it, who
had been pardOned, although you may
have taken an oath to support the Con-
stitution of the United States, and
have engaged in the rebellion; but,
as matter of fact, you never have been
guilty of levying war against the United
States, or of adhering to her enemies,
giving them aid and comfort, in the legal
acceptation of these terms. .a
This question has been heretofore ably
and deliberately investigated by Col. w.
B. Reese and the Hon. Z. H. Ewing, in
many of its aspects, and however fully
we may agree with the most of the views
expressed by them, still, we do not think
the subject is exhausted. They have not
examined the question from a Republican
standpoint, and it may, therefore, be said,
that their construction is not the correct
one; but to meet this objection, we will
undertake to examine the question from
Republican point of view.
Then, what is the legal effect and true
construction of the Fourteenth Amend
ment to the Constitution of the United
States, and what is meant by appropriate
legislation, p" etc., We admit, for the sake
of the argument, and for that only, that
this amendment, like all other amendments
to the Constitution of the United States,
was properly submitted by Congress to the
States for ratification, and was constitu-
tionally adopted by the requisite number
of States, freely and voluntarily, and is
legally aud constitutionally as much an
integral part of the. Constitution of the
United States as any of the other amend
ments heretofore adopted and made part
of that instrument itself. This is all that
can be demanded by the most ardent and
Jealous Republican.
We will further admit, for the sake of
the argument, that by its ratification, it
was attempted to disquslify all persons
from holding any Office, either State or
Federal, by those who had taken an oath
to support the Constitution of the United
States, in the discharge of any executive
or judicial Office, and afterwards engaged
in levying war against the United States,
or of adhering to her enemies, giving
aid and comfort In short, al persons
who, after taking such oath, had been
guilty of treason.
Now, does this amendment accomplish
this object, and vest Congress with power
TO carry it into effect by legislation
This depends purely upon the proper
legal and constitutional construction
of the amendment itself, and the
act of Congress passed for its enforce
ment. Now, what is the true and legal
construction of this amendment and act
of Congress
l. The right to vote and hold Office,
having once vested, cannot be taken
away, except by educ process of law. y
Therefore, any disqualification to vote or
hold Office is a punishment for crime, and
can only be inflicted by 'due process of
law 1t is unnecessary to discuss the
question, as to whether such disqualified
ton is a punishment or not, because, il
has been fully decided by the Supreme
Court of this State, In the case of the
State va Staten, 6 Cold, that it is a pun
ishment, and SO held by the Supreme
Court of the United States in the case Of
Cummins VS. Missouri, in 4th Wallace, il
which all the authorities concur. If THU
amendment, then, authorized the infiictior
of pew and distinct punishment, upor
the class of persons therein indicated,
what was its legal effect upon exist
ing laws furnishing the same crimes
differently There was no such pun
Ishment, as disqualification for Statt
offices, annexed to the crime o.
treason, for levying war against tn
United States, or for sdhering to he
GOtnlGS. ElNlllG alN anu NOAhlOA q
the time of its ratification.
2. This amendment, then, by intiict
ing a new and distinct punishment upol
the class of persons therein mentioned
operated as a repeal and abrogstion, 81
far as they are concerned, of the thel
existing laws, and all of the punishment
inflicted by them-it snuulled all pain
and penalties heretofore imposed upol
persons guilty of treason, in their condi
ton. There is no principle of law bette
settled than this 'sThat every law tina
changes or alters the punishments or in
hicts a new and additional punishment Z
those already in existence, or intiicts
greater punishment than the law anneXe
to the crime or Offense when committed,
repeats and abrogates the then existin
law, ana the punIshments they annex +
their infractioD Cool. Lin. 262 ct seq.
Wal. 393. The law was so held b
Chief Justice Chase in the case of Pres
dent Davis, and he held that from thi
cause, the Indictment should D
dismissed, that the new and dis
tinct punishment of disqualification
repealed the punishment of the crime 0
hChoOu Abl W ulN1 uO W DC luhlOtONs puN5
Underwood dissented, and the case wen
TO the Supreme Court of the United States
and was there dismissed by order of tn
Attorney General The Supreme Coul
OF this State held, in the case of the Stat
VS. Davidson, 2 Cold, 1874, ''that all law
existing prior to the adoption of tn
amendment of the State Constitution
emancipating slaves, and which wer
alone applicable to them as slaves, wit
their punishments, were repealed, an
operated as full and complete pardon
and entitled parties guilty of such OF
fenses to their discharge" In the case G
the State VS. Roberts it was held that ''b
the common law the repeal of statut
creating an offense obliterates it from th
statute books, and no conviction can
had afterwards" In the case of Richart
son VS. State, the Supreme Court agai