The Reconstruction Acts
May 28, 1867
The Dispatch believes the Attorney General's letter to the president may have been too timid.However, he made very good points which are unobjectionable.People who swore to the United States before the Civil War and after may need to be treated differently.
The Reconstruction Acts -- The Attorney - General's Opinion. Many learned divines hold that the Bible may be read most profitably without the aid of commentaries. We suppose that all who have read Mr. Stanbery's opinion will hold that the reconstruction acts themselves may be more easily understood than his comments upon them. The Attorney - General is too timid. He speaks not "as one having authority." It is true his opinions are not absolutely binding upon the courts or registers; yet he was expected to pronounce a definite judgment upon the propositions submitted to him. This he has not done. We shall condense his opinion into a short compass. 1st. Mr. Stanbury gives us, in the first point that we shall notice, a good specimen of the "argument from consequences." Notwithstanding his clear admission that the acts recognize a difference between members of a Legislature and members of a State Convention, and notwithstanding that the latter are not disfranchised in terms, he includes the latter among the disfranchised; not because the language of the acts justifies such inclusion, but because he "can imagine no official legislative position in which the duty of allegiance was more distinctly violated." 2d. He concludes that militia officers are not disfranchised. Mr. Stanbery says, in connection with this point, that persons who "became military officers during the rebellion" "come under that other clause of disqualification which applies to participation in the rebellion." This is a careless statement, and will mislead some people. The more fact of holding any sort of office under the Confederate Government does not disfranchise or disqualify any man; nor does Mr. Stanbery mean to say that it does, he means, of course, that if such persons had before the war taken an oath as an officer to support the Constitution of the United States, then the holding of such Confederate office would disfranchise them, he says distinctly elsewhere, as we shall show, and as every one knows, that it takes both acts to disfranchise any man. 3d. Municipal officers are not disfranchised. Our city officers are, therefore, safe enough. Judge Lyons escapes, as we said in the first article we ever wrote upon the subject. 4th. While members of the Legislature are disfranchised, officers of the Legislature are not. This decision settles the question as to Messrs. Davis and Bigger, the Clerks of the two Houses of the Legislature, and also as to the Public Printer and other legislative officers, if such there be. 5th. The Attorney-General decides that all executive and judicial officers of a State who are not, in popular language, characterized as "county officers," are disfranchised; while as to those who are thus characterized, he is not yet ready to express an opinion. Sheriffs, clerks, justices of the peace, coroners, commissioners of the revenue, &c., must wait a while before they can be informed as to their political condition. 6th. Commissioners of the Board of Public Works, Visitors of the Virginia Military Institute and of the University of Virginia, Directors and Officers of the Asylums for the Insane and for the Deaf and Dumb and the Blind, Directors of the Penitentiary, Bank Directors, Railroad and Canal Directors, Notaries Public, Commissioners to take acknowledgment of deeds, &c., are not disfranchised. We have repeatedly reminded our readers that it requires two acts to disfranchise any man. Upon this point the Attorney - General says: "I must here repeat what has been said before, that to work disqualification two elements must concur: First, holding the designated office, State or Federal, accompanied by an official oath to support the Constitution of the United States; and second, engaging in rebellion against the United States, or giving aid or comfort to its enemies. Both these must not only concur, but they must concur in order of time mentioned -- first the office and the oath, and afterwards engaging in rebellion or giving aid or comfort. A person who has held an office within the meaning of this law, and has taken the official oath, and afterwards participated in a rebellion, may very safely take this oath; and so, too, the person who has fully participated in the rebellion, but has not prior thereto held an office and taken the official oath, may with equal safety take this oath." Mr. Stanbery's statement that persons are disfranchised who adhered to the enemies of the United States or gave them aid and comfort in the war of 1812, or the war with Mexico, is true enough, but not by any means important. We do not suppose that any such persons can be found now. Perhaps he intended to give Massachusetts and Ohio a hard rap over the knuckles, seeing that there was said to be a great deal of "moral treason" in those two States during the Mexican war. After showing what officers are disfranchised if they have ever engaged in rebellion or given aid and comfort to the enemies of the United States, the Attorney - General tells us what is meant by "engaging in rebellion." We quote: "I am of opinion that the holding of a simple judicial office, or other executive office or public employment as are of a purely civil character, such as county officers, municipal officers, and all others of a like nature, which were not 'created for the purpose of more effectually carrying on hostilities,' and which did not involve the performance of duties expressly in furtherance ot the rebellion, do not, within the meaning of this part of the oath, fix on the incumbent the guilt of engaging in the rebellion." Which is a liberal and praiseworthy construction, aud sustained by sufficient arguments. We quote again: "Mere acts of common humanity and charity cannot be considered as involving the party in participation in the rebellion So, too, are forced contributions by the rebel authorities, or the compulsory payment of taxes in aid of the rebel cause. But wherever an act is done voluntarily in aid of the rebel cause, it would involve the person, and it must work disqualification under this law. Voluntary contributions in furtherance of the rebellion, or subscriptions to the rebel loans, and even organized contributions of food, joining, or necessary supplies, except of a strictly sanitary character, are to be classed with acts which disqualify." But it must always be remembered that none of these acts disfranchise a man unless before the war he had as an officer taken the oath to support the Constitution of the United States. Perhaps the most important and decisive feature of Mr. Stanbery's opinion is the declaration that the registers are bound to accept every man's oath as true. If he swears he is qualified to vote, why, then, he is qualified, and his name must be registered. We quote: "It is impossible to resist the conclusion that the oath itself is the sole and only test of the qualifications of the applicant. When, therefore, a person applies to the board for registration, the power of the board is confined to the administration of the prescribed oath, and if the applicant takes that oath, his name must go on the register. The board cannot enter upon the inquiry whether he has sworn truly or falsely. That inquiry must be reserved for the court which may afterwards have jurisdiction to try him on the indictment for perjury." Such is the substance of this long opinion. The registering officers will profit by it, we trust. We see but little that is objectionable in it. Its faults are a want of clearness of statement, the omission to settle some points at all, and a half-way decision upon others. We leave it with the reader.
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“The Reconstruction Acts,” Reconstructing Virginia, accessed October 16, 2018, https://reconstructingvirginia.richmond.edu/items/show/615.