THE PROSCRIPTIONS OF THE FOURTEENTH AMENDMENT.

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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 Many harsh criminal laws are declared "obsolete," although they were never repealed.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 "obsolete" is meant that a statute is inappropriate to the age, or that its penalty is 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.

CHAPTER XXXIV.

TEST OATHS AND PENALTIES.

THEIR OPERATION IN THE ONE-TENTH RECONSTRUCTION PLAN OF HENRY WINTER DAVIS UNFAIRNESS TO UNIONISTS - TEST OATHS DESTRUCTIVE OF TRIAL BY JURY — EFFORTS AT TEST OATH REPEAL MODIFICATION PROPOSED BY THE REPUBLICANS - THE AUTHOR'S BILLS POLITICAL OATHS IN FRANCE AND ENGLAND - THE PURITAN ATTITUDE - NOTABLE CHANGE IN ENGLISH SENTIMENT AND LAW - THE OBLIGATION OF AN OATH OATH-TAKING AND OATH BREAKING THE MISSOURI IRON-CLAD — MISSOURI PERSECUTION OF SISTERS OF CHARITY-THE TEST OATH IN THE SUPREME COURT - THE GARLAND CASE-SENATOR GARLAND'S NOBLE STAND FOR THE REPEAL OF THE TEST OATHS.

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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 gov‐ ernment, 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 wil bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or

PROSCRIPTION OF JURORS.

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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. Bgium 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 disqual cation so obnoxious and harmful as these oaths. They were the clumsy and rotten buttresses of arbitrary power.

Shortly after the reconstruction measures began their baleful operation. the author introduced a bill to eradicate the whole test oath system, nt merely in its application to juries, but to all offices, including that of cor gressman. 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 enforce ment 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:

POLITICAL OATHS DESTRUCTIVE OF FREEDOM.

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"I, A. B., do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or 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."

This modification extended only to the matter of qualifying for office. It did not apply to a jury test, nor in many other matters under Federal jurisdiction. Yet it was an advance toward that concession of equal rights which can alone maintain free republican government.

What a mockery were these war oaths! The history of political oaths is a history of oath-breaking. They were as cheap as those proverbial of the dicer or the custom-house. There is no end to subterfuges in swearing. As the Spanish proverb has it: "He who made the law made also its evasion." Robert, King of France, saw men forsworn upon the relics of the saints in their wagers at law. Being of a religious turn, he caused an empty reliquary of crystal to be used to lessen the guilt of perjury! Where there are changes of political sovereignty, where men have to swear one day to one ruler and the next day to another,—what sort of sanctity can belong to such affirmations? There ought to be empty reliquaries for such oaths. It is a white rose to-day, and a red to-morrow. It is the king, the assembly, the consulate, the monarchy, the republic, the empire, and the republic again.

Talleyrand swore thirteen times to his allegiance, from the pontificate of Clement XIII., on taking priest's orders, down through half a century of revolutions, ending with the accession of Louis Philippe, who was crowned in 1830. The advancement of intellect and the progress of opinion made sworn declarations of political faith and loyalty a shame and scandal, if not a jest, long before our tests. Bentham called those who required them " corrupters of their country." Did not the Saviour reprove the convenient consciences which are solaced by such makeshifts? "Woe unto you, ye blind guides, who say, 'Whosoever shall swear by the temple it is nothing; but whosoever shall swear by the gift of the temple, he is a debtor.""

Too frequent oath-taking creates demoralization; it is barbarism, and should be decreased, if not abolished. All political oaths, whether promissory or retrospective are destructive of freedom. An oath which would turn intelligent, honest men out of the jury-box strikes at the very nerve-centre of society. And yet for years our people were denied trial by a fair jury of selected without reference to their political faith and devotion in

honest men,

former years.

There was a bitter contest in England after the revolution of 1640. It turned upon an oath. It was not merely prelacy, or the wearing of the surplice, or the use of a liturgy, or the Book of Common Prayer, or the sign of the cross, which tried the soul of Richard Baxter and others like him, who