, 1862-07-24

any arrest, without any prssentmsDt 81 grand
jury, without any trial BY petit juFy-wiIhOut,
indeed, any trial at all in any court This would
be to deprive them Of their property In the very
face Of the provision requiring that Il shall only
be dope "by due process OF Law, !" which, ell com
mentators and ell lawyers agree, means proceed
ings according to the course Of common law
am aware that this will seem strange to some
people who think that % we are at war with the
rebels, we ought Of course to be able to enactany
law We pleased, inhicting upon them punishment
betting their crimes. Such people, however,
will do well to remember that our Government is
not one Of absolute powers-k IL In no respect
omnipotent or restrained only by its own senseof
pTOpriety or policy. On the contrary, its powers
are limited to those expressly delegated 70 It and
are not to be implied from any supposed neces.
sity that they ought to have been conferred, or
that Il was intended to confer them. Besides
this, the powers actually delegated are also dis.
tFibuted and divided to and among the several
departments Of the Government which ere to ex-
erciss them These, TOO, must coniine themselves
severaly 10 their functions. as hxed BY the terms
Of the grant Congress has its part, the PEesi-
dent has bis part, and the Courts theit part. Now
Congress, for instance, has no power to punish
anybody, (exeeptiOr contempts) and today, u We
had half . dozen Of the worst rebels Gagged here
in this chamber, we could inlict upon them no
punishment We could not order the Sergeant
alarms TO hang or behead them, no matter how
certain We might be Of their guilt. Nay, more
the President himself and all his army could not
lead them away from this hall toexeeution. The
only way they could BE- punished at all would
be to deliver them over 10 the judges proper
judgea-becaussn no one judge might have Alright
TO try all Of them. Nay, It Is possible every one
Of them might have to be tried BY his separate
Judge, in his separate court and district There,
again, the functions Of the judges, In sch cases,
are limitsd-a jury shares them, and It's members
are the exclusive judges Of the facts, whils after
the condemnation and Judgment. the sheriff or
marshal would be the on'y person having the
right to execute the judgment.
may also further remark that Il is 10 this I'm
itaton Of the powers Of the Government, and their
distribution after the manner Of the Constitution,
that its great merit consists. On those accounts
We love, cherish and revere Il; and because L
has such features We are now at war with all our
force and treasure to defend and preserve Il
Had we no Constitution limiting is powers, de
hnng its agencies, fixing the boundaries Of their
rights and duties under II, nobody would In 4
/ hand for Il; and n you make Il usurp poWeFs
not granted a all, not granted to the usurping
department., then our war ior i is great mis-
take, Il not great Wiekedpe1a
Again; this & further guarded aghinst IN The
ninth section Of the rst article and third clause,
as follows;
"NO bin Of uttaIndsr or sz pot JaaiO law shall
/ be passed" 30 t.fe - s.if. l1f s.l.
A bill Of attainder was.a mode Of proceeding
resOFted to in England, as well as in some Of the
United .tates during the Revolution, 70 condemn
and punish traitors, BY PaFliament or the Legis-
lature, 10 cases where they were out Of thereach
Of the process Of the courts; nay, indeed, IN
many cases even amer they were dead. In such
cases the law-making branch Of the Government
supplied the want Of due process Of law BY blend
ing together in one statute the law and the ap-
plication Of the law 70 particular persons named
therein, or to class Of persons BY description.
Bills Of attainder condemned the accused 70
death, Gf not dead alFeady) forfeited their o.
tates and corrupted the inheFiaable blood Of their
children and heirs, 40 that no one could take any
estate either from or through them. Bills, how
ever, like the one under consideration, uh1h
docs not propose 10 inlict capital punishment,
/ or corrupt the blood Of the offenders, but i'm
posed other penalties Of lesser gradel were called
hBilIs Of pains and penalties" -.
Il NAV Be said the latter are not within the
/ prohibition. and therefore allowable here. II Is
true thew are not within the letter Of Il but be-
| Ing equally within the mischief which waA that
the legislature should In any case attempt 70
usurp and exercise the functions Of the court
and constituting the 9TH amendment IN connection,
| I have no doubt they are also prohibited. ln-
deed. no one can come to any other conclusion
but that the convention which framed the Con-
stitution intended to remove every possibility Of
the usuPbation, By Congress- cf the power ~
punish anybody without "due process Of law" |
Besides. to grant our power Of passing bills |
Of Mains and penalties Is 10 nullily the whole ef
/ Iect Of the clause, inasmuch as Il Is easy, BY
passing several Of these against the same person,
70 make their aggregate Tesultpreeisely the same
/ Is bill Of attainder. Such aeonslTuction would
defeat the provision instead q making i avail.
| As intended. We are not leli, however, without
authority a. % this point, u any were needed 10
give force 10 the reason adduced for II because
Judge Story, 10 his Commentary on the Consttn'
ton, at section l,844, says;
WBut in the senseoI the Constitution, L seems
that bills Of attaindeF include bills Of pains and
| penalties; for the Supreme Court has said, A
Bin Of atainder may affect the life an individual
or may confscate bis property, OF both
And for this hs cites Fletcher %. Peck,
Cnheh's Reports, 1888; kents Commenla-
Fies sec. 10, p. $50; and this was vel shown ~
the honorable Senator from California.
This, then, being, in the language Of the sn-
preme Court, . bill Of attaindeF, and 10 the
pains and penalties, is clearly within the prohi-
bition contained In the clause read and nothing
which can say Is so opposite as the remainder
Of the section quoted from Judge Story, and
from il all may see the view taken Of such laws
as this by 4 jurist so eminent-one, too, sitting
calmly In his closet and free from al those ex-
citing influences which, in troubled times like
01ss, are 50 apt to warp our Judgments and blind
our reason to the truth:
"Bills Of attainder. as they are technically
called, are such special acts of th6 legislature as
inflict capital punishmenis upon persons sup
posed to Be guilty Of high offences, such as tfea'
son and felony, Eithoueany conviction in the or
binary course Of judicial proceedings u an