Balkinization: Another Error in Griffin's Case

Another Error in Griffin's Case

Gerard N. Magliocca

In Griffin's Case, Chief Justice Chase said that an Act of Congress was required to enforce Section 3. He then elaborated on that view in the following passage, which I will quote verbatim:

The views which have been just stated receive strong confirmation from the action of congress and of the executive department of the government The decision of the district judge, now under revision, was made in December, 1868, and two months afterwards, in February, 1869 [15 Stat. 344], congress adopted a joint resolution entitled “a resolution respecting the provisional governments of Virginia and Texas.” In this resolution it was provided that persons, “holding office in the provisional governments of Virginia and Texas,” but unable to take and subscribe the test oath prescribed by the act of July 2, 1862 [12 Stat. 502], except those relieved from disability, “be removed there from;” but a provision was added, suspending the operation of the resolution for thirty days from its passage.
The joint resolution was passed and received by the president on February 6, and not having been returned in ten days, became a law without his approval.
It can not be doubted that this joint resolution recognized persons unable to take the oath required, to which class belonged all persons within the description of the third section of the fourteenth amendment, as holding office in Virginia at the date of its passage, and provided for their removal from office.
It is not clear whether it was the intent of congress that this removal should be effected in Virginia by the force of the joint resolution itself, or by the commander of the first military district. It was understood by the executive or military authorities as directing the removal of the persons described, by military order. The resolution was published by command of the general of the army for the information of all concerned, March 22, 1869. It had been previously published by direction of the commander of the first military district, accompanied by an order, to take effect on March 18, 1869, removing the persons described from office. The date at which this order was to take effect, was afterwards changed to March 21.
It is plain enough from this statement that persons holding office in Virginia, and within the prohibition of the fourteenth amendment, were not regarded by congress, or by the military authority, in March, 1869, as having been already removed from office.

I have discovered that this statement by the Chief Justice was erroneous. An article in The Baltimore Sun, dated January 12, 1869, states the following. I will quote the entire article.

Removals in Virginia Under the Fourteenth Amendment

RICHMOND, Va, Jan 12.--Removals from office under the fourteenth amendment continued with rapidity. About one hundred officers of courts have been removed in the last three weeks--Robert Howard, clerk of the City Court, was removed to-day, and Andrew Washburne appointed to the vacancy.

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Thus, the Chief Justice was wrong in saying that "persons holding office in Virginia, and within the prohibition of the fourteenth amendment, were not regarded . . . by the military authority, in March 1869, as having been already removed from office." The military authority was enforcing Section Three in Virginia in the absence of an Act of Congress in December 1868/January 1869.

Posted 11:25 AM by Gerard N. Magliocca [link]