Staunton Spectator

A strange delusion prevails in regard to the propriety of taking the oath of amnesty. May seem to think that there is no necessity for taking it and that they can take it or not, as happens to suit the fancy of individuals.

This is a dangerous error, and on which should be promptly dispelled.

Under existing laws of the U. States, every citizen of the Southern States, [with very few exceptions] has been guilty of treason. Treason consists not only if waging war against the United States, but giving "aid and comfort" to its [unclear]. "Aid and comfort" are very broad terms. They embrace all who have aided or assisted the Confederate Government, during the war. All who have been in the military or civil service of either Government -- all who have given horses, arms, clothing, food, or money to any of the Confederate soldiers -- every Tunker who has paid $500 to the C. States, to keep out of the service -- every detailed farmer who has raised provisions for the C. S. Government, under contract with it has given aid and comfort to the enemies of the U. S., and has, therefore, technically been guilty of treason, and is liable to its penalties. These penalties are confiscation, imprisonment, and death.

The President of the U. S. influenced by human motives, has offered amnesty, or pardon, to all, except certain specified classes, on terms prescribed by himself. But the other is conditional.--He says you may be pardoned if you will take the oath of amnesty.

That is the condition and the only condition, on which the pardon is promised. Those who do not choose to take the oath, are not entitled to the pardon -- those who do take it, are absolved from the penalties.

It will be seen, therefore, that all who desire pardon, had better take the oath without delay. If they do not, both their property and persons are in danger. They will, at least, be at the mercy of every malicious enemy, until they do take it. The oath squares the account, and relieves the party from all apprehension.

Every man, therefore, who wishes to stand on a safe footing, and to have his life, liberty and property secure from hazzard, had better take it without any hesitation.

If they fail to do so, they may find proceedings instituted against them, in the U. S. Court, and then it will be too late -- the door will be slammed in their faces. Then they will begin to whine and say: "I did not know such would be the consequences; I always intended to take the oath, but was too busy, &." But it will then be too late, and they must take the consequences of their folly. It would be better for them to leave anything else undone to attend to this most important duty.

Let all then take warning in time.--The oath can certainly do no harm. It requires nothing unreasonable, and it will certainly save all who take much trouble and anxiety in the future.

We have thus given our advise to our readers. If they choose to disregard it, well and good. We, at least, have discharged our duty as a journalist.

Staunton, Va., July 7, 1865,

Hon. A. H. H. Stuart,

Dear Sir:--There is a question of great public concern how much discusses, and as you are known to have no personal interest in the matter, we are requested by many citizens to obtain your legal opinion upon it -- namely: "Can a person otherwise qualified and who has taken the oath of amnesty and of fidelity, but who held office under the late Confederate or State governments, vote or hold office under the existing State Constitution." Be pleased to give the point the consideration which its importance demands, and let us know the conclusion of your mind.

I am respectfully your obt. servant,

N. K. Trout, one of

Comr. of Election for Augusta Co.

Staunton, July 8th, 1865

N. K. Trout, Esq.

Dear Sir:--I have had the honor to receive you not of the 7th inst., requesting me, on behalf of yourself and your Associate Commissioners of Election for Augusta county, to give my opinion as to the legal effect of President Johnson's Proclamation of Amnesty, upon the eligibility to office and capacity to vote of persons embraced by its terms.

I regret that i have not access to my library, so as to make a thorough examination of all the authorities bearing on the subject, but as my impressions, founded on general principles are very decided I will state them, in as few words as I can, and fortify them by references to such standard authors as are before me.

It seems to me that if there be any one proposition which has been more firmly established than another, by the terrible struggle through which our country has passed. It is that the Constitution of the U. S. and all laws passed in pursuance thereof, are the supreme laws of the land, anything in any State Constitution or laws to the contrary notwithstanding. As a corrollary to this proposition, it must be conceded, that all proclamation of the President, and other executive action, following up the Constitution and laws of the U. S., and intended to give practical effect to them are of like permanent authority.

If we bear this cardinal proposition in mind it will give much aid in solving the difficulties which surround th subject.

The Constitution of Virginia provides that "no person shall hold any office under this Constitution who has held office under the so-called Confederate government, or under any rebellious State Government, or who has been a member of the so-called Confederate Congress, or a member of any State Legislature in rebellion, against the authority of the United States, excepting those from County officers."

It also requires that every one who shall seek to hold any office under the Constitution of Virginia shall take and subscribe the following oath: "I do solemnly swear (or affirm) that I will support the Constitution of the U. S. and the laws made in pursuance thereof, as the supreme law of the State of Virginia, or in the ordinances of the Convention which assembled at Richmond, on 13th Feb., 1861, to the contrary notwithstanding, and that I will uphold and defend the government of Virginia, as restored by the Convention which assembled at Wheeling on 11th of June, 1861, and that I have not since the 1st of January, 1864, voluntarily given aid or assistance, in any way, to those in rebellion against the Government of the United States for the purpose of promoting the same.

The language of the Constitution and oath, is very broad and comprehensive, and if they be consistent with the constitution and laws of the U. S., the effect will be to disfranchise probably 99 out of every 100 our citizens. For whatever opinions parties may have entertained in regard to the unconstitutionality of secession, and the inexpediency and folly of attempting to dissolve the Union, there is hardly a man to be found, who after the war had been commenced, and his sons and brothers and near relations were forced into it be conscription, did not furnish them with horses, clothing food, money, and other articles necessary to their comfort and thereby incapacitate himself taking the prescribed oath.

We cannot disguise the fact that the object and effect of the provisions of the constitution above quoted, were to impose other and onerous penalties on persons guilty of treason, in addition to those imposed by the laws of the U. S. It matters not what the form of the disfranchisement may be: it is substantially a penalty for an offence.

Treating it as penalty two questions present themselves.

1st. Is it competent for a State Government to impose penalties for an offence against the U. S. in addition to, and different from those which the Congress of the U. S. has thought proper to impose and

If such penalties be imposed, how far will the pardon of the offence, by the President, granted in pursuance of the constitution and laws of the U. S. operate to relieve the parties from such penalties.

The constitution of U. S. , ARt. III, Sec. 3, declares that "Treason against the United States shall consist only in levying war against them of in adhering to their enemies giving them aid and comfort. No person shall be convicted of Treason, unless, on the testimony of two witnesses to the same overt act, or by confession in open court."

3d, "The Congress shall have power to declare the punishment of treason, but no attainder of the treason shall work corruption of blood or forfeiture, except during the life of the person attained."

It seems to be an established principle that in those cases in which the constitution of the U. S. has conferred power on Congress to legislate on any subject affecting the general interests; that power is exclusive in its character, and it is not competent of the State Legislature to assume jurisdiction over the same subjects. The Supreme Court so held in regard to the subject of naturalization, 2 Wheaton, 209, and in regard to the regulation of commerce between the States, in Gibbons vs.. Ogden, 9; Wheaton 1, and so of the Bankrupt laws.

If was maintained in regard to those subjects, that unless the power of Congress to legislate was exclusive, endless confusion must ensue from conflicting legislation between the States and U. S. and among the States themselves.

The clause which I have quoted shows that Congress has the "power to deduce the punishment of treason." Following the doctrine settled in analagous cases of naturalization,. and the regulation of inter-States commerce, I am warranted in assuming that the power to declare the punishment of treason is vested exclusively in Congress. If it were not so, there would be no uniformity in the system of penalties. An offender would be punished in Virginia by one set of penalties, in other States by others, which would be subversive of all our ideas of justice and right.

The subject of treason against the government of the U. S. properly belongs to that government, and I submit that when in the exercise of its legitimate functions. Congress declares what the punishment of the offence shall be, it is not competent for any State constitution or law to add to or take from the penalties prescribed by Congress.

I wold also here suggest (for it would extend this letter too much to discuss the question) whether the penal provisions of the constitution of Virginia, is not of questionable validity, under the clause of the constitution of the U. S. which prohibits a State from passing any ex post facto law. An ex post facto law is defined to e one "which renders an act punishable in a manner in which it was not punishable when it was committed." 6, Cranch, 188.

The constitution of Va., was adopted on 13th Feb. 1864,and when it denounces the penalty of disfranchisement against all who held office at any time under the Confederate government, even as early as 1861, it seems to me in conflict with the prohibition above alluded to.

I come now to the consideration of the second question above stated.

The constitution gives to the President, Art. II, Sec. 2, clause 1, the power to grant reprieves and pardons for offences against the U. S., except in cases of impeachment.

I take it this power is plenary as well as exclusive. The President is the only person who can grant the pardons embraces the whole offence, and all its incidents and consequences. Bacon says in his abridgment, Vol. 5, page 293, that "it seems agreed that a pardon of treason or felony, even after an attainder, so far clears the party from the infamy and all other consequences thereof, that he may have an action against any one who shall thereafter call his traitor or felon; for the pardon makes him, as it were, a new man."

In Denning's case, 10 John's, 483, it was held that a person sentenced to the State prisons for life, and afterwards pardoned, is restored to his rights and duties as a parent and becomes entitled to the custody of his infant children who had been, on account of his civil death, placed under care of guardians.

Now it seems to me that where a case is clearly embraced, by the terms of the President's proclamation of amnesty, the guilt of the party with all its penalties and consequences, is removed.--He is made, as it were, a new man, and is restored to every right that he would have possession if had never been guilty of that offence. So far as he is concerned, all laws imposing penalties are inoperative. He is taken out of the sphere of their influence. A pardon is an entire thing. It reaches through the whole subject to which it is applied. It sweeps away, and blots out every consequence of the commission of the offence. It regenerates and make a new man of this offence.

To maintain the competency of State Constitution, to impose disfranchisements or other penalties of the offence of treason, which the pardon of the President cannot remove, you must hold that a State can abridge the constitutional powers of the President. The Constitution of the U. S. gives the President plenary power to pardon. There is but one limitation to it, and that is in cases of impeachment. Now, can it be possible that while the President, by pardon, has power to relieve from the penalty of confiscation, imprisonment, or death, he cannot absolve from the minor penalties sought to be imposed by State authority? Does not this involve the right of a State to trench on the prerogative of the President of U. S., and reverse the fundamental principle that the Constitution and laws of U. S. are the supreme law of the land? To allow a State to curtail the power of the President to pardon, to absolve from all the consequences of the offence, is practically to assert the supremacy of a State over the U. S. authorities? The consequences might be most disastrous. Each State might prescribe its own limitations to the power of the Executive, and the whole policy of the Federal Government might be frustrated. There would be no uniformity in the punishment in different States, and the prerogative of the Executive would be rendered worthless.

I take it when the President grants a pardon, it removes every vestage of the offence, and in the language of Bacon "all the consequences thereof."

Those views have been hastily thrown together, (for you informed me a prompt answer was requested,) but I believe they embody, in substance, the true doctrine on the subject.

Hence I conclude that all persons who have been specially pardoned, or who have been absolved by the terms of the amnesty are restored to all their rights a citizens, precisely to as great an extent as if they had never committed any offence, and may thereof, be elected to office or vote for officers, notwithstanding the prohibitory clauses in the Constitution of Va., said clauses being in conflict with the Constitution of the U. S. and therefore of no effect.

Respectfully, your ob't serv't,

Alex H. H. Stuart.