Show CO CONTESTED ELECTION TEnni tory TonY or UTAH geo OCO H R maxwell vs TS geo Q cannou cannon I 1 L of ig paine baine counsel for sitting member before the Committe 6 ws elections of the house of of the united 3 states washington e CONTINUED to the act 2 1862 1852 which prescribed the bile oath of bf office known as th fron iron clu ciu nad ead d path it yas was objected edged in tho iho ho senate that that it virtually y piras proscribed albed in violation idi atlon of the constitution a deiv new q qualification U alif allf leation for fon senators and aud represent representative active f in iri congress but the tha reasons urge urged dIn in support of this enactment embrace ed 00 no claim or pre pretense tense tenge that congress had any aay constitutional power to nix fix or alter the qualifications of senators or representatives otherwise than thin ts aa a punishment for crime after trial cod conviction convict vict afi anti and se Ben ber sentence tence tonce according 3 to 6 law tiie the debate ba this bill in the house or of representatives covers less lesa than a calu column an mid nud wid a half of the congressional congressi si onal 0 be it contains no allu sio sion slon a to t ds uis constitutional question the bill having been reported by mr wion chairman of the committee m a the judiciary mr phelp i ut Missouri said U hope the gentleman from iowa will permit this substitute to bo be printed whited tiie tile the point that strikes me trl tri n it is 19 this thatis that it affords no opportunity for far repentance men dlen may have gone into the rebel service and may have since returned to their allegiance and yet it is proposed to render them forever ineligible to hold any office und erthe government of the united states stales it appears that tilis this 1 important 0 tant bill ivis was not even printed me before birre it passed the house mr wilson replied as follows ithe the substitute reported is not so sd bovero sotero esthe as the orli original final section em am i braced inthe in the amendment offered by tile tiie gentleman from tennessee the substitute applies only to persons who have voluntarily engaged in this rebellion that exception was rot mot made in the section of the amendment offered by the gentle gentie i man from tennessee now sir air the solo object of this bill is to keep out of office under the government of the united states men who have taken up arms against tile the united states and who have endeavored to destroy the ho government under which we live I 1 do not believe in repentance coming ito sao men of this kind who have used the official positions they have held heid h heretofore 0 for tor the purpose of overturning the government I 1 believe belleve we ou ought ht to legislate in some degree against this mlis rebellion we have havo not been able to 16 pass any thorough confided con fisca tion or emancipation act liet or anything or of tile the kind this bill 1 is very plain in its provisions anid arnd for the purpose of determining Wh whether ether ather the house is disposed to ont ent enact any measure which shall deal with those rebels as they should be dealt demand the previous question on tile the third reading ot of the bill the bill was im immediately med mad lately passed mr trumbull chairman of the judiciary committee of bf the senate took charge or of the measure in that body senators salisbury davis and carlisle raised the question que stion atlon whether the bill did not involve an unconstitutional attempt to prescribe additional qualifications for senators ai and aud uld tid representatives in congress the point polut was presented presentia on the of br june 1862 by mr davis in this form he said that abere there were certain qualifications necessary to make a man eligible to a seat in tile the senate or ff house ouse of re representatives that these qualifications cat ons could bould not be enlarged by an act of congress could not be diminished by an act of congress that whenever any citizen came up to tile tiie constitutional rule and measure ume ure he was entitled to a seat if he was wab elected according to the forms of the constitution and that congress by prescribing another oath for him him to take dlf dif different from froin that which tile the constitution prescribes or by adding to the qualifications of a member of either house could not place a single obstacle in the way of his taking his seat mr davis referred to repeated decisions of the two branches of the legislature of kentucky to the effect effect that the qualifications of members of the legislature which were fixed by the state constitution could not be changed by a statutory provision imposing an oath a against g dueling upon members as a condition for foi admission sion slon to the legislature mr trumbull in ili reply said mid that a law of the state of new bow york providing that persons convicted of a certain cartain offense onne me should hold no office in that state had been adjudged constitutional by the courts he had in mind the case of barker vs the people 3 cowen co wen to which I 1 will presently ask sk the attention of tile the committee mr saulsbury stated that the constitution of alabama prescribed the qualifications of attorneys at law in that state and that an act of the legislature pio pro providing viding that duelists should not practice o as attorneys in tile the courtl courts or of that state was waa adjudged unconstitutional and void this was the substance of the whole argument on this point in the senate vindication of tila tho measure was presented in the following words 1 now sin aln having replied to these a suggestion which I 1 think are untenable I 1 will state what I 1 think the object of the bill is i s it 1 h to prevent persons who have been engaged in the rebellion from here after holding office under the government ern ment I 1 by requiring that the they y shall take an oath specifically stating that they have not been enga engaged in armed hostility against th this is government voluntarily I 1 think we had better pa such a bill its as that I 1 know my friend from kentucky and I 1 should hope my friend from delaware does dom nob mat wish any persons to exer exercise else eise official duties under this government who have voluntarily waged war wan against lt it I 1 never wish to see a person admitted as a senator or dr a depre i tentative senta tive who has voluntarily taken up arms to fight against this government and if 1 I 1 can prevent ft ft no such man ever shall have a seat in this body orin the tho other of oi hoid hold any office of honor profit or of trust under this government it vi will 11 ll be observed i tha that E these consideration sare saro substantially the same saine with those which had been beah ul urged in at support of the measure by mr ih the house of representatives senta tives ten ghi days later on the day das or of june 1862 tile consideration of the thet bill was resumed in the it ima wan wap after A short debate 0 o am amended ee dedas as not to apply toole vice president deiA dela or to senators bena tors 0 or r representatives in congress or to any other othen officers for whom an ot oath util of office is prescribed in the tile constitution ution of the united states and the bill thus amended was passed by the th senate on the same day but the conference committee on tim this bill struck out out jut the amendment amend men t and their depatt was finally adopted adopt e d without dehate debate de liate in the senate the grounds upon which thi law was vindicated although not stated with much vare naro or oc precision pre casion cl sion siou anre are nevertheless clearly enough disclose by the debates it was enacted as a war measure ml asure the ironclad bath dath was adopted as the couff countersign which fili should ouid orld in time of war exclude domestic enemies from the civil i administration of the government in the tho same manner and for jile tile samu reason that the military countersign was e employed in to exclude those el limies from the military lines of the army it was enacted as a measure of defence fe lice ilce ngai agal against list hn armed enem enemy Y ill in time lime of wara warn war aud and lid ild iid was an a i neb necessary essary and a as ai i justifiable as any other othen war measure not specifically marked ed out in the boxt of the constitution the c ase ese aso cited by mr trumbull was that of barker v the people 3 cowan an ati examination of this thia imse case will i how that while it was not an authority esen even elen in lil favor of the constitutionality of the oath loath or of office act it was very far indeed from being an aut authority hority bority in navor havor of the contestant in the ca cae now before this committee barker was indicted and tried in the city of newyork new york tork in 1822 for sen fen dinga challenge to fight night a duel due under the statute of november 5 1816 which provided that any person who should engage in buelin dueling 1 should be beamed guilty of a bubli public c of tense rense and being conil convicted eted thereof should hould t be incapable of hol hoi ting or being elected to any post of profit trust or emolument civil or military under tinder that state the jury found barker guilty and the judgment of the court was that buor for the offense aforesaid as charged in the first second third and fourth counts of the said indictment whereof he ilo is convicted lie he be incapable of holding or being elected to any post of profit tru trust s t or emolument civil or military under the state of new york the state constitution in force at tilo tile time of the passage of the act or of november 5 1816 was that which was adopted on the of atril arril april 1777 the only provisions w which lich itch it contained touching the tile subject of qualifications for rffie e were these that chancellors and judges of the supreme court t hould during their terms of office hold no other office except that or of member or of Con congress congles gres that the first judges of the county courts should in like manner hold no uther other office except that of state senator ur or member of congress that sheriffs and coroners should not hold their offices for more than four years in succession that sheriffs s should during their official terms hold no other office that minister of the gospel ts peI pel and priests should bo bre ineligible to office that the to n cerk supervisors orr orf assessor constable al and collectors and all oth otar r officers then eligible eli gibe by the should always continue to be so t ej J 1 IP e in the manner directed by the exis existing titi m or future ture acts of legislature that no member of tb eState should bo be dis franchised or deprived of any or of the rights or privileges secured to the sub subjects i acts or of the state by that constitution unless by the law or of the land laud or the judgment of his hig peers the chancellor pronounced the tile the court of errors ho he cited the section of the acton ael acl of the ath of november 1816 to suppress dueling which prescribed that the persons persona convicted shall shail be incapable of fiol holding dinci or eing being elected to any post of krofl profit t trust or am emolument 0 lume D t civil or military under this state and lie he said that thab the object objection lon ion i then made was that this punishment nt was wag inconsistent stent with the constitution eligibility to office he be said gald was not declared deel deci aredas as a right or principle by any express terms of tile the constitution ution lut but it resulted as s acus a just t deduction from we the express powers and provisions of the system the basis odthe of the principle was lute libert ilbert liberty of the electors and the appointing authorities to choose and to appoint any person who was not made ineligible by tho the constitution i t tj mee office ibe therefore rd belonged not r specially ppe chili chiji calli toj nim mia lectors electors lec tors ai enjoying the ie r right ight of suffrage i it belonged equally to all persons whomsoever not excluded by isy ane constitution n he hb therefore conceived oncel ved it to be entirely clear that thie thic re could not establish ta blish arbil arbitrary exclusions fram 0 office heet beet or er any general fig regulation 0 ula uia tion requiring q ri P qualifications which the constitution u tion had not required if nor corb example thail it t should be enacted V by y liw law that all ph physicians or all persons of a particular par titular religions sect should be ineligible to public abile trusts or that all persons not possessing a certain alno aino amount of property should be excluded 0 or that ahafi a friem member of the assembly asem ly must be a freeholder any ana auy any such regulation would woula bean or anait gemp t ot oc the conati and tt would woula be so because should it pre prevail valli it would be in effect effect an alteration of the constitution 1 itself ja ut the fhe q question afes t I 1 on b before 6 the court was not at all of this character the legislature had made no suph general regulation tily they had prescribed that incapacity to hold public trust should be the punishment of a particular crime and the question was ey had power to prescribe sueh suell incata city or not nol the power pa a r of the legislature in the pu punishment iti of crimes he held not to be a special grant or a limited authority to do any particular thing or to act in any particular manner it was a part ot of the legislative power of this state mentioned mention bd in the first section of the constitution it was the sovereign power or of the state to p maintain social order by laws for fon the due punishment of ahnes erimus brimis cr imis leis rh nen nes it was a power to fahe zahe tife une ad one tiber tibe ty ly and a nd aj the rights when the sacrifice was necessary feces a to t the tie lie thao peace order and safety spry of the eo community m this general authority was vested in the legislature ai nid ald aid d ws as etwas it was one or of tile the most ample of their powers its due exercise was among tile tiie highest of their duties when an nender render of was imprisoned he was deprived of most of the rights of a citizen and when lie he buffered ered death all ills liis rights were extinguished the legislature had power to prescribe imi imprisonment or death as the punishment of any of fence the rights of a citizen were thus subject to the power of the state in the pun punishment ishmer t of C erlmer crimes r I 1 n 1 e q a and nd the restrictions of the constitution upon this as upon all the tho t h a general powers powe rs of the govern ment were that no citizen should be deprived of his rights unless by the law of the land or thea the judgment of llis liis peers and that no person should be deprived of life liberty orTro or property perty without due process of law TO re BE CONTINUED |