Year: 1867




leads to two distinct subjects matter of en-
quiry. First, what officer or officers are
comprehended. Second, what acts amount
to engaging in insurrection or rebellion
against the United States or giving aid or
comfort to the enemies thereof


l will first consider what offices or officers
are comprehended. AS to some officers, ,thereis
no room for doubt. Member of the State Leg
lslature, and members of Congress are clearly
enough designated. The question might,
however, arise whether a convention held in
a State for framing an amendment of its con-
stltution, would answer to description of a
State Legislature within the meaning of the
act. Such a convention, although it is cloth
ed with Legislative powers, cannot properly
be denonlinated State Legislature, and in
the acts now under consideration, q conven-
tion and legislature are expressly distinguish
ed from each other, for they require the con-
stitution to be framed by a convention, and
they require the Legislature of the same State
to adopt the constitutional amendment
When then in the same acts they again use
the phrase Legislature of the State" they
must be understood to use it in the same
sense, and as distinguished from a constitu-
tional convention, but as to those legislative
bodies which passed what are called ordi-
nances of secession, or by whatever name
they may have been called, I am of the opin-
ion that their members are properly compre-
hended within this disqualifying clause, for
I can imagine no official legislative position
in which the duty OF allegiance was more
distinctly violated.


The next and more difficult inquiry is who
is to be considered an officer of the United
States or a judicial or executive officer of
any State within the meaning of these clauses.
The various classes of officers are here in
6a1 in1S
cial officers. No legislative officer is men-
toned, except member of the State Legis-
lature or member of Congress. The des-
cription used as to other officers are as to
State officers that they must be judicial or
executive, and as to a Federal officer, the
terms executive or judicial are not expressed.
He is described simply as an officer of the
United States.


1t has been shown that the Federal officers
and State officers are classified separately in
the clauses of the act under consideration.
I deem it profitable and conducive to clear
order to follow this classification. 1 shall
accordingly first consider what State officers
are included in the terms Executive or
judicial" This phrase is twice used in these
clauses, with the superadded description, "in
any State in the first clause, and of "any
State }" in the second clause. I think the
controlling term of description, if there is
any repugnancy in the terms, must be taken
to he the last, for that is used in the first
clause and to others. Besides, it is the same
term of description used in the act Of Con-
gress of 1889, declaring what State officers
are required to take the oath to support the
constitution of the United States, and in the
third section ofthe constitutional amendment
both use the same terms of description, e" Ex-
ecutive and judicial officers of State" The
terms are SO general and indefinite that they
fail to express with sufficient certainty q
designation of the persons intended to be
reached.


1t is t., be regretted in matter of so much
Importance, that the rule of desi gnation
adopted as to members of Congress and of q
State Legislature had not been followed up,
or if that were found impracticable, that
some more definite general rules had not been
declared. The uncertainty becomes manifest
in the application of the law, and this un-
certainty necessitates construction. The ne
cessity for construction, which arises from
the generality of the law, cannot be better
stated than in the language of Plowden:
Though the words be general, they are to be
reduced to particularly by an exposition
of the mode according to the intent of the
act of those statutes which comprehend all
things in the letter which the sages of the
law have expounded to extend but to the
same thing. Those which generally prohibit
all people from doing such an act, they have
been interpreted to permit some persons to
do it, and those which include every person
in the letter they have adiudged to reach
some persons only, are all founded upon the
intent. and collected by considering the cause
and the necessity of the act, and comparing
one part with another, and sometimes by
foreign circumstances"


deem it proper here to fix some clear
ideas of the general intent of the acts, and
by what rule of construction, strict or liber-
al, that intent may best be arrived at. The
intent, as expressed, is to enable the people
of each of these States to frame a constitu-
tion for the State by the exercise of the
right of suffrage. There are clauses of the
act giving the right by general terms of de-
scription to the people generally, and espe-
cialy to those who have never enjoyed the
right before.


There are other clauses of the act, which
by general terms takes away this right cf
suffrage from those who havenjoyed it. The
rule of construction as to the clauses which
give the right must be liberal, and as to
them the general terms are not to be restrict
ed, but as to those clauses which derogate
from the existing right. the rule of constrrc-
ton must be strict that none should be ex-
cluded, who are not clearly within letter and
intent.


begin then with the inquiry whether the
officers of the militia of State, or those
embraced within these terms of description,
and have no doubt that they are not, (cer-
tainly Congress, as to the officers of State,
was not content to use the term at large and
without qualification, but as we see intend
ed to qualify the usual words to manifest
that intent,) would have been adopted, and
the terms would have been the judicial and
executive, the civil or military officers of the
State. Accordingly we find when that was
the purpose as we see it was in the third
section of tile Constitutional Amendment
known as article 14th, Congress expressed
that purpose very clearly. That section pro-
vides that no person shall be Senator or
Representative in Congress, or Elector Of
President and Vice President, or hold any
Office. civil or military under the United
States, or as member in any State Legisla-
ture, or as Executive orjudicial officer Of the
State to support the constitution of the Uni
ted States; shall have engaged in insurrec-
tion or rebellion against the same or given
aid and comfort to the enemies thereof


This third section is expressly referred to
more than once in these acts. It is made in
n go l. L. Il --.-- y o