The daily phoenix. (Columbia, S.C.) 1865-1878, May 29, 1867, Image 1
THE DAILY
Daily Paper $8 a Year
'Let oar Just Censure
PHONIX.
Attend the Tme Event."
Tri-Weekly 85 a Year
BY JULIAN A. SELBY
COLUMBIA, S. 0., TUESDAY MORNING, APRIL 2. 1867.
VOLUME III-NO. ll.
i
THE PHONIX,
r-OJSLISHEU DAILY A>I> TB^-WEEBXY.
f P|. GLEANER,
EVEJIY \V E? NES. DA Y SI?U:UNQ.
8Y JULIAN A. SELBY,
CITS PRINTER..
Ortico cm lin ?ii street, a letv rtonrn above
T.ty'or (or Ca;mle:i > street.
TEK MS-IX A1) VA XCE.
srirscniiTtON.
Daily. Paper, ?six months.S4 00
Tri-Wcfckly. " " . 2 50
Weekly, * " <? . 1 50
AOvr.rtauEMxsTS
Inserted ac 7."> cents per square for the first,
insertion, and 50 cents for each subsequent. '
Weekly 7? sonia each ir.certiou.
ag~ A liberal aiecojitU nuuleou the above
).:'?.* miit'n adeertleA/neUte1 are {neerteft. >>v
'".< month ur year.
AGENTS.
W. C. Mooro. Abbeville.
J. lt. Allen, Chester.
Julius Poppe, Anderson C. H.
S. P. Kiuard, Newberry C. ll.
W. T. SitUB, Union.
J. M. Allen, Greenville.
The Ojiln lou of tlie Attorney-G?n?ral
upon thc Ilfconatrnnf lon Act?.
WASIIINOTOX, May 25.-The Attorney
General has prepared tho following opinion
upon the clauses of the Reconstruction
Act with reference to roting and holding
office. The provisions relr.tive to the du?
ties and powers of commanding officers,
etc., will Ire considered in a future opinion:
ATTOKSET-GENEISAL'S OFFICE,
May 'il, 1807.
Tu Hie l'retidenl-Bx%: I have tho honor
t? state my opinion upon tho questions
arising under thc Act of March 2, 1867,- en?
titled "An Act to provide for tho more
efficient governmout of tho rebe;. States,"
and tho Act of March 2:1, 1807, entitled
"An Act supplementary to an Act entitled
'Au Act to provide for tho moro efficient
government of thc rebel States.' " Upon
which quoationa military commanders of
districts in which theso States are com?
prised have asked your instructions.
Tho iir.it and most important of thoso
questions may bc thus stated: Who are
entitled to vote and who are disqualified
from voting at elections provided for or
coming within the purview of theso Acte?
Tho first provision upon this subject is to
bc found in the lift h section of tho Original
Act, and declares tho qualifications and
disqualifications of voters for an election
to be hold for delegate? to a proposed con?
stitutional convention iu each State, and
f..r the election to be held for the ratifica?
tion of a constitution that may l?o framed
Itv such contention. That section pro?
vides that delegates t:> such convention
shall he elected by tho male ( dixons of said
.State twenty-one years old and upwards,
cf whatever race, color, or previous condi?
tion, who havo been resident in said Stato
for ono year previous to tho day of such
(lection, exept such as may be disfran?
chised for participation in tho rebellion or
for felony ?it common law; that the same
qualifications so required for tho election
(?:' delegates shall also be requited Upon
the election for the ratification. This pro?
viso to this section also excludes from thc
right to vote for delegates to a convention
every person excluded from the privilege
of holding office by an amendment to the
Constitution of the United States proposed
by tho thirty-ninth Congress, ano known
as article fourteen.
The sixth section provides thai "until
t he people of th?? said rebid States hull bc
hy law admitted to representation hi the
Congress of tho United States, any civil
governments which may exist therein shall
bo deemed provisional only, and in all re
spouts subject to the paramount authority
i: tho United States at any time to abc,
I sh, modify, control or Strporcodo' thc
. s line, amt iii all elections to any offico
* under such provisional govern mon ts, all
persons shall bc entitled to vote (and nono
ot hors) who arc entitled tn vote under the
provisions of the fifth section of this Act;
and no person shall be eligible lo any of?
fice u nd or ?ny undi provisional govern?
ment who wbuld be disqualified from hold?
ing office um'.ev the provisions of the third
article of the said c institutional amend?
ment:"
It is lo be pbscrvod here that thc qualin
( .items of a Voter are, by the fifth section,
i mited to the election of dclogatea to tho
convention, and to the question whether
ouch convention shall or shall not be held,
and that no qualification is declared for ?i
d rlOj?AtO SO lo he ? b eted, l.'llt by tllOM?Xtll
.- ,?! thc 'ame nualitlcitlions as to a vnh r
aro required iu a!? ejection* In any ellice
under tluM xi.il ing previsions I governments
during their continuance: anuna toe?gi
! ility ni such < lections, em'tain classe ? .o\
excluded.
The fir-t section cf'the supplemental I
Acs provider that thc commanding general j
irs each district shall cause a registration .
i > be Tilade of the male citizens of the j
United States twenty-one years of agi and
upwards, resident in each County or Parish !
in the State or Stales included,inJiis dis- i
iel, which registration shall include only i
iii i-e pi rs'uis who are qualified to vote for
delegates by tho original Act. Thc perron j
i rtVrin ; himself for registration is also ro- j
quired tn take an eal(i, which, for conve-|
11 nee, I now divide into paragraphs or
sections, preserving, as near as maybe,
lite language of tho Act. He must Bwoar
? (I :tii lu as follow.- :
l.-t. That he i- :. citizen of tb . State and
li is resided in said State for - i mutha
.M preceding the lay when he lakes thu
i uh, and JJiat le now resides in the
Count vol -, or in the Parish of - -, in
...dd State.
2d. That he is twenty-one year- nhl,
?Id. That he bus uot oven 'disfranchised
; ir participation in any rebellion or civil
war against the United states, nor for
b lony committed against Ibu laws of auy
State (?r of the United states.
llb. That ho has never been a member
(.;' any State Legislature, nor held any
i -, cntive or judicial office iu any state,
.Liitl nfterwards engaged iu insurrection ur
rebellion against) Iby United states, or
given aid i?v comfort to thu oiiomiosj
ibcreof.
5th. Thal ho has in ver taken an oath as
.. member nf Congress of tin United States,
or ns au officer of Ibo United Stati s, or as
a member of any state Legislature, or
an .xtctiliveor judicial officer nf any .st nie,
to support tho Constitution of thc Unitci
I State?, and r. I tor war. ls cngaxtd in hunr
rcctiou ? or Ti'btUinn against tl ic United
I States, or given aid ajul comfort to ( any
enemies thereof.
Oth. Tlrat ho ?rill faithfully support the
Constitution and ob?)-. thc iaws of the
United States, and wilt, to tim bo?t of his
ability, encourage others to do Sv>.
The second section of this Act provides
that after tho complot ion of thia registra?
tion in any state, ami ofter at least thirty
days' nolico of the .time and places which
the commanding genrral shalt appoint and
direct, an election shall bo held for dele-'
gat us to a convention; aud a rule is given
to fix.the number of.delegates to he elect?
ed, and the apportionment nf these dele?
gate* in proper civil sub-divisions, giving
; to each sub-division representation in ratio
I of thu registered \ ut?M. -
The third section provides that at the
I election tor delegates registered voters
I shall vote fur or against a convention. 1
I Tho fourth section provides for an cloc
I tion to ratify tho constitution that inny be
framed by tho delegates, and the rigl?t to
vote at this election ls contiiied to persons
registered.
Tho sixth section provides lint all elec?
tions in the State* mentioned in said ori?
ginal Act shall, during tho Operations of
such Act, be by ballot; and all officers
making said registration of voters and coif*
dueting said elections shall, before enter?
ing upon the discharge ol their duties,
take an oath proscribed by tho Act of July
2, 1362. cntitleil "An Act to prescribe ail
oath of office."
Tho first consideration which requires
my attention upon the question as to the
right to vote arises upou thu registration
of voters. The question of qualification or
disqualification is fixed by registration.
No power is given to any other board or
any other authority after registration is
completed to chango tho registry. Per?
sons whose names are admitted to regis?
tration aro entitled to vote, subject to tho
limitation hereinafter mentioned, aud none
other. This registration mast bc com?
pleted before thu first day of September,
18f>7. Tho functions of the board as a
board of registration cannot bc extended
beyond that fixed time; but after that thc
duties which romain to bc performed by
tho officers composing this board are limit?
ed to holding and superintending elections
aud making the proper retai ns to the com?
manding general. This brings na to tho
direct question, who aro entitled to regis?
tration*
1st. As to citizenship and residence, no
porsnn is entitled to vote who shall not be
resident tu tho State for ono year previous
to the day of election. It is not necessary
that this previous resilience for a year
should exist?t the time the person applies
for registration. A person in all other re?
spects entitled to voto is entitled to regis?
tration, although lu* has not at that time
beon a resident of tho Stato for a full year;
for we lind in the supplemental Act * that
the oath, as to residence, does not require
the applicant to swear that he has then
boon a resident for a year, hut only re?
quires him to state the number of months
of his residence, contemplating a period
less than, as well as, a full term nf twelvo
months. Therefore, as to such a person
so registered, if it happen at any election
subsequently to be held that tho tims of
j his residence, c muting from the day of
election, does not cover an cutiru year", he
cannot vote at such en ?tion; tor this sup?
plemental Act does not, as to residence,
change the provisions ?f the original Act,
as it is expressly provided by it, as to re?
gistration, that it shall include only those
who are qualified to voto by the original
Act. To carry out the purposes of tin
law in this respect, as to residonce, the
board of registration rdiould note opposite
to thu name of the person whoso residence
has not extended to the foil term tho exact
timo of his residence.
As tn citizenship, the qr. dificatiun stated
in tho original Act is citizenship <<f the
state; but tty the first cJauss.first section,
of thc snppli mental Act, registration i- to
be made of malo citizens of tho United
States. As lo tho oath, the applicant ia
indy required to sircar that ho is a citizen
of the Statu. I UU1,of thc. opinion thal
the phras? citizen of tho Stat??, as used :.!
tho oath, is intendid to include ody snell
per-' ?us as are citizens of tbs United Stated
awl citizens of the State, mid that sn alien
who has not been made a citizen of tie:
United Status cannot safely take tho o>?h:
but as tho board o' registration have < dy
the authority to administer tho prosar i1 vi
oath, they cannot require any further oath
or proof as to citizenship; and if an alien
lim made a citizen of the United States
takes the oath, he takes it at his pei il, and
ic subject to prosecution for perjury.
.Jd. As to ?go. No fine is entitled to ro>
, i -1 t a ti ni who is not nt loast twcnly-oii
years of age pu tho day lie applies for :.?.?
gis tra ion. Tu this rcspt-?l qualification a
:o age differ? from qualification as to ru.
side?icc; and the fact that maj >rity must
exi-i ?it the date ot registration hus rela?
tion to thu day?'' registration, anti not t<
the day at subsequent election.
;)tl. Nt M. ns tn disfranchisement! ?.-?..li
consider tor various clauses ut disfran?
chisement according to the order* .ind d:
v i sion into sections bcrcinboforii stated,
and lirsi as to lbs gem ral clause dc daring
disfrniicliisetaeiit. Thc fifth section of tin.
original Act denies thu right to vote t.
such as may bc disfranchised for partici?
pation in tii<% rebellion, or for felony ai
common law. The words here u-*'..!, "ir
ii.' rebellion,1'innsl he taken to mean 'he
ri ci nt rcbelli ni, but tho supplement t1 Ac!
enlarges the disqualification, nod require!
t le- applicant to swear that he has not beer
disfranchised for participation in any re.
hellion or civil war against tho Unite <
Sti.tes, nor for felony committed against
tin laws of any State or the Unitod Stales
V hat, then, works a disfranchisement
nuder these provisions? Whether wc con
sid? i i his'Aisabiliiv .1? at ism < out ni ?arti
ein i tion in a rebellion or the commission ti
felony, the mere fad nf such participation,
or commission ol A felonious offence, doei
not of itself ivork disfranchisement. I
mi:--' he ascertained by tlc-judgment of :
cunt or 1)J A legislativo act passed bj
comp?tent authority, jlfsfranehiscihcii
for felony committed a'/ainst the laws nf ;
Stute or tlio United Stat? s, consequent ?I
ii conviction in the courts either of tin
United states or of a State, ur .b ehin d le
the lau s of eitlo r, would bo fatal nude'
those acts. 1 nm not aware of any law o
lb"' United Slate- which Wolks uiafimi
j chiscmrilt tts to the right nf suffrage
t iree of rho net itself: nor does such Cousu
qnonee follow front a conviction t' .r tr.'axon
j or conspiracy tn commit treason, or for HU
otln i net ot particip?t! in in rebellion. Tbi
provision in the Constitution of the Unite
? States as to treason against tho Unite*
States doe? not deelan? what ?hall be the
? punishment on conviction ut tv?-astin. That
is left fur Congress, with tho limitation that
conniption of blued shall poi follow a? a
consequence! nor any forfeiture except
! (taring the life of tho party. Congress, in
tho exercise of its power, has limited such
! punishment, as the consequence of convic
I lion, to the penalty of death or irtiprison
? ment, and tho manumission of slaves owned
! by tho party, and to the disqualification
from holding suv oltieo under thu United
States.
I am not advised of any statute dow iii
j forco in either of these ten State??, except,
j perhaps, Virginia, which declares disfran
! chisemout as to right uf auftrage bv force
<?f thc act itself. Tho fourth and 3f!h sec?
tions may be considered together. Parties
applying for registration musfswoar that
"I have never been a member ol' any State
Legislature, nor held any executive or
jnthciu! office in any State, and afterwards
i engaged in Insurrection or rebellion against
tho United States, or given aid and comfort
to the enemies thereof; that I have never
I taken any oath as a member of the Congress
! of thc United States, or as nu pincer of the
United Statis, oras a member of any State
Legislatur?', ur as an execntivo or judicial
officer uf any State, and afterwards engag?
ed in ?isrirvecti?n or rebellion against the
Unite.! States, or giwn aid ami comfort to
the emmies thereof."' Those clauses of
tho oath in effect extend disfranchisements
beyond thc provisions of th< original act
ami th? prior clauses of the oath .itself in
thc important particular, that neither con?
viction, nor tuc judgment of a court, nor
express legislative enactment, is required
to establish the fact of disfranchisement.
In legal parlance, disfranchisement under
these clausen of tho oath, results from
matters en ,-ais; but in one respect these
clauses limit the generality of the original
act as to the disfranchisement. The ori?
ginal act contemplates disfranthisemont
nuder these clauses that does not arise
from participation in rebellion aloue. but
other elementa must concur-that is to say,
holding certain offices, or taking oftlcial
oaths hy certain officers, and afterwards
participating iu rebellion against the
United States. The consideration of these
two clauses leads to two distinct subject
matters of inquiry: First. What offices 01
officers arc comprehended? Second. What
acts amount tu engagement in insurrection
or rebellion agaiust the United States, 01
giving aid ami comf?irt to the onemi?s
thereof/ I will first consider what office01
offices are comprehended. As to som?
offices, there is no room for doubt. Mern
hors of State Legislatures and momberso:
Congress are clearly enough designated
The question might, however, arise, whe
thor a convention held in a State for th?
framing or amendment ul its constitution
would answer tho description of * Stat?
Legislature within the meaning of tho act'
Such a convention, although it is clothe?
with legislative power, cannot properly bi
I denominated a State Legislature; ami ii
the acts now under consideration, a con
venti<?n and a legislature are expressly dis
tingnished, for they require a consfitutioi
to bo framed by "a convention, and the;
require the Legislature of the same Stat'
to aib.pl tho constitutional amendment
Wheo, then, in the sanm a ts they agait
use tl.g phrase, "Legislature of the state,
they inuit bc understood to uso it in th
same sMise and as distinguished from ;
constitutional convention; but as to tho*
legislative bodies which passed what ar
called ordinances of secession, by whatcvc
name they may have been called, I am n
opinion that their member:; are properl
comprehended within this diequalirvin
elaine, /or I qan imagine no o?iirial legisla
tive p.. mon in which uie tbuy of nllegi&hc
was more ?.stluctly violated,
t The. next, the more difficult, inquiry ii
I who is t?i bo consider: d an otiiei r ol th
United States, or an executive ?o' jmlici.
officer of arv State, within tho meaniu
of these clause*!? Various classes \
ofiiecra are here intends*). Stete ofiicei
an 1 PVdoral officers, and i XC Sift ive or ji
I dicial officers. No legislative nQiccr i
men;?One.1 lexcepl n fufrniuer . t a Stal
I .cg Ls lature or member of (Saneress. 1><
script ions usod ns to oilier olfieers are n
te Stale oliict-rs, that they must he jud
cial ur executive, and us to a Feder,
officer, tho terms "judicial" or "oxo?;i
tive"' aro n.'t express. He in ilcscrib''
s Uh ply as an o fib . r of tho United State
It has been shown ihat. Federal ottloci
sud Stato, o&curs ar? classified separate
in thc (axises ol thc Act nuder ixinsidor;
lion. I ii. m ii profitable and coudrier,
to a clear order lo follow this classife.
lion, I shall accordingly iir?t considi
what Stiiie oificers are inclndeu iu tl
loriii" i \ .MI!ive or judicial. This pbrat
:- twice used in UICHC ?dieses, with il
supu-. i bid'tle-iiiiiyil'^M, "hi. upy ...:..:?
"In any State,* in vin- Ur?t claiiov, und
any Si?:-- l:i thc second clause. 1 ihii
tho Controlling t> rm of description,
lb':-.- is any r'-pugu...?.;y, ITt&the terni
mus: i e talo n to bu ttK- last, for that
u.-ed ri Ibu first clause ?indothers beeide
lt ?s fhc same term ?.:' ? ription used
tho Act of Congress ol 1<?I), df?l?lii
what State officers arc rcqnircd total
thc oath lo support tTieCiit'isfitntion pf t!
"Jllitl ?1 Slate-," jud in ill . third section
thc constitutional amendment. Doth u
the Kamo terina ?d'?I? ?eripti?>n-"oxeesui
and judicial officers of ibo State.'' T
term- are so general and indefinite th
they fail lo express with sufficient certai
tv a ihtoignatlon o. tin pt rsons intend
tb bo r< ached, lt i- lo ho rl'gn tted, in
mattel of so much importance, that t
rule ol designation adop'tcd as to inc
burs of Congress and ota Slate Legis
inn had not been followed np. If tl
wore impracticable, thal some moro di
nile general rules had not bc? n dec lan
j IP uncertainty becomes manifest in t
application of " tho law, and thia une
t.iiniy nuces? sit ates construction. T
necessity for construction, which arh
from lin;generality of Ibo law, cannot
better stated than in the language
Plowdeii: "Though Ibo word? be gene?
thry are to be reduced '.<> n partlculai
bv exposition ma le according lethe
tent nf the Act. Those statutes wb
comprehend all things in tho letter,!
sag* s of thc law have expounded to
(end ;.> but some things. Those thu
Which glin lally prohibited all people fr
lining such an act, they have intcipre
to permit some persons t > do; and th
which Include every pi rson lu the 'etl
they have adjudgi "i reach -m?- rsi
only all f.jU?oe I Uj.oli tb?, inti nb
is cultcefed by c.!.-id' ring the catiae :
necessity of. tho act, and comparing i
part willi another, and sometimes fy
reign circumstances." 1 deem it pro
here lil lix -?une clear ideKS "I the geln
Intent Of these Acts, and by what righ
i construction, strict or liberal, tu?t intent
I may best l>e arrived at. The'intent,'as 1
i expressed, is to ?nable tho people of each |
I of these ?States to frame a constitution Tor
; tho State br the exercise of the r?ght of
'suffrage, Tl.ero aro claus's of the Act
i giving tho right, by general terms of do
! scrlption, to the people generally, and
j especially ta those who have never enjoyed
? the right*before. There aro'other clauses
of the Act, which, by general tertrts, tako
away this right of suffrage fiom those who
have always enjoyed it. The rule ? ? con?
struction ks to tile clauses Urbich givo the
right must bc liberal, and as to them tho
general terms are not tobe restricted. Uut
as to those clauses which, derogate from
tho existing right, tho rule of construction
. ninst bc strict, that none should bo ex?
clude.1 who are not clearly within the let*
ter and intent.
1 begin, then, with tho inquiry, whether
officers of tho military of the State ere
embraced within these terms .if descrip?
tion? And I have no doubt they are riot.
Certainly Congress, ns to thc officers of a
State, was not content to uso the terms nt
largo and*without qualification. If Con?
gress had intended to quality, the usual
words to manifest that intent woul t have
been adopted, and thc ternn would havo
been "thc judicial and o^entivo, thc civil
or military, officers of tho State.' Accord?
ingly, we lind Mint when that was pur?
posed, as wo seo it was in the third section
of the constitutional amendment, in arti?
cle fourth. Congress expresses that pur?
pose vcr clearly. That soction provides
that no person shall bc a Senator or Rep?
resentative in Congress, or elector of Pre?
sident or Vicc-Pres.'dent.or hold anyofiice.
Civil or military, under thc L'uitcd" States
or under any State, who, as a member of
any State Legislature, or as an executive
or iudicial officer of any State, took an
oath to support the Constitution of the
United States, and shall have engaged in
insurrection or rebellion against the same,
or given aid and comfort to tho enemies
thereof. This third section is expressly
referred to moro than once in these Acts.
It is nnflejn fact, a part of these Act.?.
Its languajw is followed word for word in
those disqualifying clauses as far as was
practicable, except in tho particular in
which one is made to apply to eligibility,
and the other to the right to vote. When,
therefore, wo lind that Congress, in de?
claring what persons shall be disfranchised
from lending any office, expressly includes
military as well as civil otiicers, as in tho
third section of the amendment, and in
providing what persons shall be disfran?
chised from votmg who held anyofiice,
omit to mention military officers, we can?
not escape tho conclusion that military
officers were not hero within their contem?
plation. It is impossible to imagine a case
m which the construction from laws in
?yiri innteria has a moro cogent applica?
tion, for it is evident here that the law?
maker, in framing a disqualification for
voters, took special cognizance of the third
section of the amendment, and weighed it
word by word, following it literally for the
most part, and rejecting deliberated the
very word intended to embrace a military
officer, lt must be borne in mind that wc
are here considering the class of military
officers who wero such prior to the rebel?
lion, when tho office was lawful, and who
were officers of the militia; not that class
who became military officers during the
rebellion. As to this last ciass, they all
come under that other clause of disquali?
fication which applies to participation in
rebellion.
Having tite inquiry tims circumscribed
to civil officers, the q nest ion recur-, what
civil officers ?ire io bc brought witbiu the
terms*'4exeeutivc or judicial officers of a
State?" They clearly include, so far a?
executive officers are concerned, all such
officers as an- generally known hy Mu- pro?
per description of State otiicers, or nfiicori
of State, lu one souse, and in a populai
sense, a description of the t-xceittiv\?
officers of a State is ap? lien ble to a well
known das- -the Governor, Lieutenant
Governor, Auditor, Treasurer, Secretary
and Stale . tticials proper, who exorcist
executive functions at thc seat of Covern;
ment.
I nm ?i"t prepared tn ?jay thr.t only thea*
?.roper Statu official.- conic within ihn
:< rm of description, nor nm I prepared, a
lo the judicial officer- of the State, t
limit the description t J judges of court*
whose jurisdiction extends over Hie entire
State. I must content m\ -Ml in saving ?>
these officers, executive or judicial, thal
they are clearly within thc meaning ol'flu
law'. Nov.. changing tin- iinpiiry from ?I
affirmative to n negativ? process, sue]
officer- as usually pass under the iWserfp
tion municipal do not como wit ?un si.* pur
view of th.- Act? such as officers of ci;ita
towns, villages or subordinate ninnicipa
division?, whet hov their ftiuetion* atc exe
?.ulive and judicial, br, as i- sometime:
M?e cuse, wnere the same officer sets i:
both capacities. Outside these uv,
ivpres; ntative classes, th first of which i
clearly within, mid tito last of which i
clearly without, th... pur-view of the*?
chulees, WOiilld in each of tin in Si.it' .- i
host ' ? officers wh<is?- status i- in -.'im
?.iy 'tv, be determined, lt ImposMb?
lie.ru to proceed by way of enumeration
and lo distinguish by mum ni! those wb
arc included and all thoru who ar. ? xehtd
ed. AU that can Le done is the rc-estal
fishing ?if .-.inn- fixed rule. ? feel un i?
the necessity of circo iusp?rat ion lure i
saying wno afc included within tl.? dis
f ft nell i s? nient, rather than iii saying wh
..ie not included; for where there i- donbl
according to the mle of constiuetio
which has been referred to, that ilonl
mu-* be solved in favor . ?; rather ilia
ngainst the right of ibo voter. The ? *
elusion is all-comprehensive ns t" lim?
and applies not only to those who were i
office when the rebellion commencod, bu
to ; lu s? who held Mn prohibited offices a
any Hmo pri vions, although tiny ma;
hare ccasud tn hold such Office an indi ?
nile number of roars prior to th?- rebe!
li .-.i. lt :- founded on the ??I M of hreac
of officiel trust due to tho Slut? as th
authur or donor of th" ti v.st. It is fount
eil .'ii tie idea of a breach trust. n<
arising merely from allegiance as a ciiizei
hui from duty to thc stat - in ,i lirei
official relation to tii.it Sta?" and throng
that to the Federal Government. So IJ
a.-this Aei designates by hume the pei
sirt s who violate such a trust, it is to tin
class to whose '.?' ?-ping the trust is csp?
ciallv confided that i? t?> say, the ncr?oi
who' wu.- clothed with tho legislativ
power. Whereat*, in th** instance, lhere
a purpose of exclusion on a comino
giouud, md one class is designated a
coming within tho purpose, mid ''tin
classes ar?' left Indefinite, ami univ to I
ascertained by const ruction, it is all?)?
ai'le to Hud the indefinite class br tb?
rale of assimilation. Wo soo, then, in thin
law, iv purposo of exclusion as to the three
(rreat departments of a State - legislative,
judicial slid executive. We see, further,
that SB to the legislative department, ni ai ie
up or a le gislativo body composed or mem?
bers and various officers appertaining to
such body as ? legislature, the exclusion
is ouly of "the higher functionaries of that
body-tho members-and is not carried to
its subordinate officers. Thc terms of ex
clneton are, not "thomombers and officers
of a State Legislature," but simply "tho
members of a State Legislature." At,
therefore, tho exclusion in tho legislative
department has effect only on the highest
dhus in that department, it is safe to say
that thc same policy of exclusion attaches
rather te? snob officers that oxerciso fane?
tient <>f importai t trust ia the executive
and judicial departments than te> thoso
whose functions and duties aro merely
limited and subordinate. I have already
called attention to the comprehensiveness
of tbeso exclusions as to time. Now, to
declare them equally" comprehensivo as to
perenna, and to say that they embrace all
officers. largo and ?mall, coming within the
description of executive or Judicial officers,
who have at any time dining their lives
held any one of these offices', would have
this Inevitable reenlt, that in tho forma?
tion of a, Constitution for n State by the
agency of its own people, a large propor?
tion, perhaps a majority, eif thc most intel?
ligent and capable of tho people would be
excluded. There is no part of my duty in
attempting to aire construction to these
luvvs in which I lind myself involved in
such painful uncertainty as In determin?
ing what officers outside of tho classes
dosignated come within the just rango ot
exclusion. I hare said that, in addition tor
tho class of officers who comoclearly with?
in tho 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 a vast body of officers whoso
status is in some way "to bo defined. Those
are known in popular language by such
terms of description as .'County, town
sln*]> ami precinct officers." Their name is
legion. Their functions and dillies are for
the most part strictly local. Some ot them,
such as sheriffs and justices ol tho County
courts, have jurisdiction over the entire
County; others arc restricted to thc small?
est civil sub-divisions. I havo directed
abstracts to be prepared tor each of these
States, which will exhibit all those offices,
and the tin*les which appertain to them,
and the form Of oath required. I must
reserve for future consideration, after thc
abstracts arw made, tho question, whether
all of them, or, if not all, what classes ol
these officers, como within the disqualifi?
cation? As to all other executive or judi?
cial officers who are not, in popular lan?
guage, characterized as County officers, I
incline to consider them a? coming undei
the description of execntive and judicial
officers of a State, within the meaning ol
those laws. I deem it proper here, in re?
ference to that class of officers, judicial 01
executive, who are, by tho ruh; 1 have laiti
down, brought within the operations ol
disfranchisement, to distinguish a class
whose duties are not localised, who utan?!
in direct relation to thc State, and who, it
my opinion, cannot properly bo designate?!
as executive or judicial officers of the St ate
I mean that class of persons who exercise
special public duties rather in tho naturi
of occasional employments than genera
and continuing official duty. This Sistine
tion between office and employment, ant
between ?,n officer e.f a State and an ngenl
of a State, is well established. Chief Jus
tioo Tjlghman, in 8 Serge and Itawlo 149
recognizes it in the case of commissioner!
appointed to lay out rost?s and canals nm
other works of .public improvement. Tin
question arose upon a section in the Con
stitution of Pennsylvania which provide'
that the C i vernor shall appoint all officon
whoso offices aro "established by tbii
constitution, cr shall bo ? stablish?* tl bi
law, mu? whoso appointments are nu
herein otherwise provided for." Th?
Chief Justice said: "It has nevor beet
ascertained, nor is ir t::9y to ascertain, ti
what offices this power extends. I spoal
of ofiiues created by law since the mauin;
of thc Constitution. Thu word office is o
very vague and indefinite import. J?very
thing cHicerniDg the administration o
justice in th ? -genual interest of society
may he supp "fled t > 1? within thomcnninf
of ?he Constitution, especially if feus oi
emoluments are annexed to the office; tm
ihire are malters ot temporary miel loca
.'.-... (.i'll which, although c >nipreben?le?l ii
the tenn 'ofti 'e.* have not boen thought t',
be embraced fe,- the Constitution; au;
winn offices of tli;.: kind have boen treat
eii. the Legislature bas s imetimes madi
?he appointment in tb? law which create?
i bein, sometimos giving the nppointiAen
to other- than tb? Governor, and tome
times giving tho power ?>i removal t<
? .tilers, all bongil the appointment was lof
lo :!..' Governor/' The officers of whom
am speakin r are often described in Acts ti
Assembly hy the-nami of cnmmissioiicrs
siicb, foi inst anco; usare employee! in th
laying out of roads and canals apel ollie
works ul a public nat uro, Yet all the?
p< rform :.. <luty, or, in ot hi r words, OXIT
ei-.e their Office I cannot enumerate all o
the employments under siaio authority
?vhich, in my opinion, work no diefran
cbisement. I will name some, bv wayei
illustration, vi&: Boards of ?ximiuiseioner
. .. public wot ks. ?liri ? tot * ol State asylums
visitors of State universities, directors o
State penitentiaries, Stat.- directors o
banks and other corporations, special com
missioners or agents appointed by th
Governor or other state authority to pei
form special duties aa examiner; of bank?
notaries public and commission! rs to tak
acknowledgment ol deeds. Tho mle (ai
duwil and these illustrations will, per h apt
hu sufficient io determine abo come muk
its operations.
Thc tif'Xt (liseptalifyin , clause i* fonude
on the o ith of office. The oath, as in,
dental O' ibo office, ia ii"', mention, d i
the first disqualifying clause, but/thooffic
alone. Hut in tin second clause, the oat
is m ide ri? enter as n necessary ciernen
in ord'r te? work lisfran? !u.-< nient, and?
is applied to the s ine classes nf otticei
named in tb? tirst claus-that is. t
"th, i rs < r Die I'nited States, ftisano.it
to support the Constitution of th? Unite
States, and it is clearly provided by tin
lian-"?: that, if this oat ii lias bc? ll taken b
;.. member of a ?late Le-gbdaturu, or bj a
executive <>r judicial officer of any Stab
Iben snell pi ison violating that oath, an
engaging in insurrection, -nail be di-frat
chiscd. L'hcro is s?ime obscurity in the?
el Hist s, and room for doubt wbetbor ?ii'
qualification under tho first clause would
uiii" in th" CUM' of a member of a State
I^K?daturc, or any executive or judicial
officer of any State, who had not taken an
oath to support the Constitution of the
Usitod Staten. I incline to tho opinion
that thin oath ia put as an essential thing,
thc breach of which by insurrection against
the United States violates the trust im?
posed by it upon the officer. But this
clause, so far as the executive or judicial
oflicers of tlie State are concerned, does
not enlarge the class subject to disfran?
chisement. The olliccr breaking the oath
which works disfranchisement must also
be a judicial or executive officor of the
State, according to the rulo heroinbeforo
c stubhshod. 1 do not apprehend any prac?
tical question will arise here, for by the
Constitution of tho United States! this
oath is required to be taken by thc mem?
bers of thcBovoral State Legislatures, and
all executive and judicial officers, both ot
tho United States and of the several
States; and in theso ten States the samo
oath was rcejuired as to thc members ol'
the Legislature and the executive and Judi?
cial officers of the State. This brings me
to tho question, Who is to bo cousidorad
"an officer of tno United states" within
tho meaning of tho clause under consid?r?
?t ion? lloro the term officer is used in its
most general sense, and without any quali?
fication, as legislative, or executive^ or ju?
dicial, and I think, a 5 here used, is niteud
cd to comprehend military as well as civil
officers of the United States, who had
takon tho prescribed oath, inasmuch as
the violation of the official oath and thc
official trust hos relation to fealty to the
United States, which is broken by rebel?
lion against tho United States. The rea?
son is apparent for including all officers of
tho United States, and for making thc dis?
franchisement moro general aud compre?
hensive as to them, standing an they do in
n.oro direct relation of trust to thi
United States than the officers of the
State.
I now como to consider what is thc
meaning and scope of tho disqualification
arising from that part of tho oath which
requires the person to state that he has
not engaged in insurrection or rebellion
against thc United States, or given aid or
comfort to thc enemies thereof. I must
here repeat what has been said before,
that, in the work of disqualification, two
elements must concur-tirst, holding tho
designated office, State or Federal, accom?
panied by au official oath to support thc
Constitution of the United States; and
second, engaging in rebellion against the
United States, or giving ?id or comfort to
its enemies. Both of these must not only
concur, but they must coucnr in the order
of time mentioned. First, the office and
the oath, and afterwards engaging in re?
bellion, or giving aid or comfort. A person
who has held an omeo within tho meauing
of this law, and has taken thc offisial oath,
aud who has not afterwards participated
in a rebellion, may very safetv take this
oath; and so, too, the person who has fully
participated in the rebellion, but has not
prior thereto hold an office and taken the
ofticialToath, may, with equal safety, tako
this oath. My duty here is simply ono of
construction." I do not deem il proper to
enter upon any question of thc constitu?
tionality of this part of the Act.
Taking it as'grantod, for the purpose of
construction, that Congress has the right
to impose such an oath, it is not only al?
lowable, but imperative, that I keen in
view its essential characteristics. It is
something more than a legislativo Act, lu
derogation of au existing right, lt ia, i:i
effect, a law which takes away an existing
right as a consequence of acts done at a
prior time, and which, at tho time they
were done, entailed no such consequences.
In the late caso before tho Supremo Court
of tho United Slates upon tue test oath
prescribed by au Act of Congress to be
taken by lawyers, by which the exclusion
from the right to practice their profession
was made to arise from prior participation
in tho rebellion, the court alys: "As tho
oath prescribed cannot be tauen by these
parties, tho Aot as against them operates,
as a legislative decree of perpetual exclu?
sion, and exclusion from any of tho pro?
fessions or any of ?ho ordinary avocations
of life, for pastcocd'uct, can bo regarded
in 110 other light thau as a punishment foi
such conduct. The exaction of the oath .
:s Ibo mode provided for ascertain in g the.
parties opon NY, hom ll.e Act is iuteudsd to
noc?ate, and. instead of lessening, in?
creases its ubjectionabli- character. All
enactments of this kind partake of the
nature of bills of pains and penalties.'-'
foo court further says tho deprivation of
any right, civil or political, previously en?
joyed, may bs punishment, the circum?
stances attending and the causes of the
deprivation determining this fact. Tho
characteristics of this clause ut the Acts
are therefore retrospective, penal and pri?
mitive, of course, tin re can bi- no qm .
ti-.U un tU the rubi of OOUStl'UCtiOll which i>
liereto bs applied. Those who aro ex?
pressly brought whhiuita uperalians can-,
nul he savod from its operations. Where,
from t?o-generality ol terms of descrip?
tion, or for any other reason, a reasonable
ilutibt arises, that doubt is to bc res? Ived
agaiust the opel..lion of the law aud in
favor of tho voter? What Acts, then, with?
in the moaniag of thc law, make a parti
guilty of engaging in insurrection or re?
bellion against the United Stales, or giving
aid and comfort to tho enemies then
Tho language here coruproheuds put only
Hie late rebellion, but every past rebellion
or insurrection winch has happened 111 tin
United States. So, too, it comprehends
every foreign war in which tho United
Statua h*s al any lime been engaged. -lb./
lirai part ??f tho sentence covers cases ol
domestic war existing in Ibo form of r? bel
liuii or insurrection, whilst Ibo last part
applies to foreign war. The words "giving
ina and comfort (-. the ciiciuiea ol the
United Slates''are tho same used in the
constitutional dciioltioii of treason, and
tin- enemies there meant must bo taken to
lie foreign enemies. Theso words, origi?
nally fourni in the carly statute.* of Eng?
land against treason, haye received that
settle)! interpretation m bnglish ami Ame?
rican courts. They aro used in tins Act
without ?my qualification, and wc (rive
tliein lull fore? and application when they
are made to apply lo lulhereiico or giving
aid und c. infori to foreign enemies.' Such
an Act. as to the breach of the oath or
dut* ol allegiance, stands upon th? sam?
policy ?>f disqualification as engaging in
ribei'lion or civil war. A person, there?
for? . wlio gav. aid and cm.fort to our ena
inii * iii th? war with Urea! Britain in 1813,
and io thu war with Moaieo ill 1*17, would.
11 that particular, come withiti ibis clause.
In laving down Ibis mle, 1 do not folget
that, for certain purin"" -, and in a ? ci tam