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Maine, in the first and best impulses which led him to discountenance the Force bill upon the South, and to contend for a general amnesty, might have given us a wonderful effulgence of national glory. Perhaps the South itself is somewhat to blame for a change in the policy of this great Republic, for it is well known, and it was proved by the writer in a debate with Mr. Blaine, in the House of Representatives in the early part of 1876, that Mr. Blaine himself authorized the Committee on Rules, of which the author was a member, to report a bill of general amnesty from that committee. He was, as Speaker of the House, ex officio chairman of the committee. No excuse can be rendered, or ever has been rendered, for his precipitate retreat from the high ground which he then occupied. In proof of this, the record is presented. Moreover, had the same distinguished gentleman voted for the resolution which the writer offered, or assisted to make the vote unanimous in the House of Representatives, unity might have been given to the general sentiment of the country as to the purposes, objects, and situation of the government as between the sections. Here are the proposed resolutions reproduced from the Congressional Record:

"Resolved, That the people of the United States constitute a nation in the sense, to the extent, and for the purpose defined in the Federal Constitution. That the government of the United States is a Federal Union, and was formed by the people of the several states in their sovereign capacity; that the rights and powers of the United States Government are defined and limited by the Federal Constitution, and these rights and powers cannot be enlarged or diminished except by an amendment to the Constitution. That the rights of states have the same sanction of security in the Constitution as the rights and powers of the Federal Government; and that local domestic government by the several states, within the limits of the Constitution, is absolutely necessary for the preservation of the liberties of the citizen and the continuance of a republican system of government. That the doctrine that any state has the right to secede from the Union is in conflict with the idea of a perpetual union, as contemplated by the Constitution, and should be regarded as being forever extinguished by the result of the recent conflict."

The above resolutions form a compend of our republican system. They were intended to smother the incipient ambition of some Republican members who were eager to start a debate on "States Rights," in order to call off the attention of the Democratic majority from certain personal derelictions. A Republican member from Indiana had introduced a resolution giving a different interpretation to the Constitution; whereupon the writer obtained the floor to propose the above. It was carried by the convincing vote of 150 to 40. Many Republicans voted for it, in spite of the call of Mr. Blaine to vote them down. As Mr. Blaine was then a representative man, and openly aspiring to the Presidency, it is singular that he should have repudiated the doctrine that local domestic government of the states within the


THE PROSCRIPTIONS OF THE FOURTEENTH AMENDMENT. limits of the Constitution is absolutely necessary to preserve individual freedom and perpetuate republican government.

As an example of the constantly recurring issues growing out of the question of amnesty, it may be remarked that the pardoning power has frequently been before Congress and the courts for consideration. In fact, almost while writing this chapter, an opinion of the Attorney-General in relation to the appointment to a high office abroad of one who had been pardoned for participation in secession, and who had not received the two-thirds vote for amnesty provided by the third section of the Fourteenth Amendment, is recorded. It was rendered on a question of disability to hold office. Had such disability been removed by the pardon, or had the Fourteenth Amendment, which was ratified after the pardon had been issued, revived the disability? But the question is still open, and is undergoing, and will undergo discussion, though not as to whether it would not be wisest to comply if possible with the Constitution as to amnesty, for to that all prudent men will agree.

It is an axiom of the courts that their province is to declare the law, not to make it. But the reports are full of evidence that enlightened judges seldom enforce laws of extreme harshness, against the public sentiment of the day, when their rigors may be escaped by construction. Many harsh criminal laws are declared "obsolete," although they were never repealed. Punishments that would shock the civilization of this age are prescribed in unrepealed statutes, but no court will give its sanction to them. They are "obsolete." Is it against public sentiment to-day, that an ex-Confederate general or senator takes a seat in Congress, or in the Cabinet or on the Bench of the United States? Is there any public sentiment that would exclude an ex-Confederate soldier from participating in this government in any way? Has not full and complete amnesty gone forth to the South from the people of this Union? Have not the people declared for the common brotherhood of a re-united nation, with equal rights and privileges for all its citizens? If by the word "obsolete" is meant in law, a statute inappropriate to the age, a penalty too harsh for enforcement, then, surely, the proscriptions of the Fourteenth Amendment are "obsolete." They have no place in the hearts of the people; they may be swept away as dead matter without a murmur of regret. The last sentence of the third section of the Amendment might well be construed by a learned and unprejudiced court, as in no way limiting the well known effect of an executive pardon, but, on the contrary, as vesting in Congress a power of grace for cases wherein executive clemency might be refused. If this relic of our civil strife is not obsolete on the statutes, as it is in public sentiment let the construction of the courts shroud its harsher features with the cobwebs of their darkest alcoves.




N the discussions of the various plans of reconstruction, and especially that of Henry Winter Davis, on the 4th of May, 1864,-the requirement of a test oath in respect to uninterrupted loyalty to the general government, was predominant among the measures for state rehabilitation. It was an effective device for the repression rather than for the maintenance of governments in the South of republican form. This proscription was enacted on July 2, 1862. It should have had no force after peace came. It is known as the "iron-clad" oath. It reads as follows: "I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority, in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or



purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God."

Early in the civil war period, political test oaths became a pre-requisite in all matters of public business and engagements. During the reconstruction period these oaths, and especially the "iron-clad," permeated like a fatal leprosy all attempts in the South to reform the codes of states and the courts of justice. Long years after the war a fair jury trial was well-nigh impossible in the Federal courts in that section, because of such oaths being required of jurors. Before the enactment of the "iron-clad" oath, namely on June 17, 1862, an act "defining additional causes of challenge and prescribing an additional oath for grand and petit jurors in the United States Courts," was passed by Congress. This act established as causes of disqualification for such jurors, on which they might be challenged: First, "Without duress and coercion to have taken up arms, or to have joined any insurrection and rebellion, against the United States." Second, "to have given, directly or indirectly, any assistance in money, arms, horses, clothes, or anything whatever, to or for the use or benefit of any person or persons whom the person giving such assistance knew to have joined, or to be about to join, any insurrection or rebellion, or to have resisted, or to be about to resist with force of arms, the execution of the laws of the United States, or whom he had good ground to believe had joined, or was about to join, any insurrection or rebellion, or had resisted, or was about to resist, with force of arms, the execution of the laws of the United States, and to have counseled and advised any person or persons to join any insurrection and rebellion, or to resist with force and arms the laws of the United States." This act prescribed an oath or affirmation expressly negativing these disqualifications. It authorized the United States District Attorney, or his assistant, to move, and the court in their discretion to require, the clerk to tender that oath to each and every juror summoned to serve as such, and to every talesman also. Any person declining to take the oath was to be discharged by the court from serving on the grand or petit jury, or venire, to which he was summoned.

The 3d of June, 1879, found the author still appealing to Congress for that relief from such tests which did not come until some years after, when Judge Thurman's bill became crystallized into law. Any complete indictment of the party of reconstruction must contain this count, to-wit: it made a just or fair jury trial impossible. It is one of the comprehensive remarks of DeTocqueville on our institutions, that "the people gave legislative and executive power, as well as franchises, to jurors." He associated public freedom with the sacred right of trial by jury, and in their union he found the democracy of America. Therein is the directing power of our government, shining through all its forms. In thus defining the "spirit of the laws," he followed the eulogy of Montesquieu and the unstinted praise of

Coke and Blackstone upon the jury system. Alas! for the great hiatus in our history, when his unstinted eulogy was bitter irony. But we had the free jury system when the philosophic Frenchman wrote his volume.

Wherever this system has been transplanted it has grown. It has rarely, if ever, been given up where once planted. France got it out of the very stones and bayonets of the barricades of 1830, and still holds it. The writer has seen its utility exemplified even in Algiers among the indigenes. Belgium in 1830 rose in insurrection when it was interfered with; that country was severed in twain for its vindication. The jury system is both the cause and proof of civilization and liberty. Indispensable to the democracy of the jury-box is the removal of physical force, supple servility, and proscriptive laws. Yet, to advocate a repeal of these political oaths, with a view to the restitution of fair jury trials and fair voting, was long accounted disloyalty by the party that prescribed such impossible tests. There was no disqualification so obnoxious and harmful as these oaths. rotten buttresses of arbitrary power.

They were the clumsy and

Shortly after the reconstruction measures began their baleful operation, the author introduced a bill to eradicate the whole test oath system, not merely in its application to juries, but to all offices, including that of congressman. It provided—" That the act of Congress entitled 'An Act to prescribe an oath of office, and for other purposes,' approved on July 2, 1862, and so much of the provisions of section 1756 of the Revised Statutes of the United States, and all other sections thereof, which provide for the enforcement of the provisions of said act of July 2, 1862, be, and the same are hereby, repealed; and that no person shall hereafter be required to take the oath therein prescribed as a condition precedent to the holding of any office or to serving as a juror, or to the acquirement of any right under the laws of the United States."

In a speech which the author made on Feb. 1, 1871, on the subject of "Familiar and Frequent Oath-Taking," he discussed the general question. This subject was suggested by Jeremy Bentham's queries: "The oath implies neither faith given nor faith received. Why, then, require it? Why take it? Why this farce? Judges and legislators amuse themselves with destroying it." There was then pending a bill which prescribed an oath to be taken by persons who participated in the rebellion and were disqualified from holding office by the Fourteenth Amendment. That bill became a law on Feb. 15, 1871. It was a Republican measure. It was a partial measure, intended to melt down somewhat the iron-clad oath. It relieved from taking the iron-clad oath only those whose disabilities had been removed by Congress, while for those who were innocent entirely of the rebellion, strange to say, that iron-clad oath remained long after in force to test their loyalty in the past! The following is the oath as modified by that bill and embraced in section 1757 of the Revised Statutes :

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