The tri-weekly news. [volume] (Winnsboro, S.C.) 1865-1876, 1866-06-02


Imposed as consequence of silcnce Can
Ingenuity make distinction between a
punishment inflicted in this mode, as q con-
sequence of a refusal to take the oath, by
closing one of the avenues TO wealth and
fame, and positive pecuniary mulct? If
there is difference, / think il entirely in
favor Of the latter, so far as the amount or
weight of the penalty could effect the deci-
sion of the case. On page 38l: With
great Difference to the opinion of others who
may differ from me, think that the requi-
stion by the legislature, in substance and
effect, requires the applicant for license to
give evidence against himself; and that if
not within ;he le tier. is at least within the
words Of the prohibition-th very foundn-
tion OF which is that overy one is presumed
TO be innocent till the contray appears.
He then refers TO the Constitutional pro-
vision that the crime or offcnse must he
asccrtained by due course Of law, and says: !:
The term "due course of law'' hns a settled
and ascerrnined ing, and was intended
to protect people against privations of their
lives, liberty, or properly, in any other
mode than through the intervention ofthe
judicial tribunals of the country. But law
seeks. to ascertain fact exulted into n
crime and punished in particular manner
NOT by Lhe judgment of compel ent
Court, hut by the admission of The offender,
and constituting his silence as evidence of
guilt. .r.
In case of Greens vs.. Briggs, Curtis,
Circuit Court, reps. 1876. Judge CARTS. of
the Supreme Court of the United States.
presiding in the Circuit Court, defines what
is meant by the law of the land He says
Certainly this does not mean any act, which
the Assembly may choose 10 pass. If il did
the legislative will could inflict forfeiture
of life, liberty, or property without trial
The exposition Of the words as thoy stand
in mdgma chdrtd, rs well as in tho American
Constitution, has been thnt they reonire
'due process OF law" and in this necessari
ly implied aad concluded the right o answer
to and contest the charge; and the conse
quent right to be discharged from it. unless
it is proved. Lord Coke, in giving an in
depreciation Of these words in magma charfa
Just. 90 81, says they mean "due process
Of law" in which is included presentment or
indictment, and being brought in to answer
thereto. And the jurists Of the country
have not relaxed this Interpretation. 1T
follows. says he, speaking of the case be .
fore him. that n Inv which would preclude
the accused from answeringt to nad contes :
ing the charge, and which should
condemn Him to fine and forfeiture unheard,
1t he failed to comply with the requisition
Ito give security would deprive him of his
liberty or property-not by the law of the
land, but by an arbitrary and unconstitu-
tional exertion of legislative power.
Judge Pitman, in the same case, refers to
the fact that the statute under consideration
rendered my one engaged in selling spirit.
GUS liquors an incompetent juror. and au
thorized the question to be propunded to
him. and says:
This law authorizes the court to require of
the juror who may be challenged on this ac-
count il is true, the law says she may
decline TO answer" but what then? Is the
fnct to be proved by other evidence? no; ;
this silence is considered as sufficient proof,
md he is excluded accordingly. lie is.
therefore. compelled to answer, if he does
not wish to be excluded rs unworthy to sit
as juror, or does not wish to be considered
as concerned in n Traffic which may bo con l.
sidered as infamous. The maxim Of the
common law recognized by the Constitution
is that every man is presumed to be limo.
cent until he is proved to be gailty. The
whole spirit of this law appears to me to be
Mt variance with the rights of property as
well as person. The Legislature has no
right by an not TO conascate the property of
the citizen it may BE forfeited for n lola
tion Of faw, but this may be done without
affecting the rights Of the owner thereof to u
jury trial.