Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-19

I oi any utuoulhatlOut OF exercising any O
the professions or pursuits mentioned il
the third article Of the constitution" there
would be no question Of the character o.
the enactment. Il would be an er Doa
fact0 law, because T. would impose pun.
ishment for an act not punishable Al the
time it was committed.
The provisions Of the constitution OF Mis-
souri, accomplish precisely what eEactrnents
like those supposed would accomplish.
| They impose the same penalty without the
/ foTmality Of judicial trial and eonvietion.
for the parties embraced by the supposed
enactments would be incapable Of taking
| the oath prescribed. To them its require
/ ment would be an impossible condition.
| Now, as the State, had she attempted the
course supposed, would have failed, it must
follow that any other mode producing the
same result must equally fail The pro-
visions Of the Federal constitution intended
to secure the liberty Of the citizen cannot
be evaded by the form in which the power
Of the State is exerted. If this be not so, If
that which cannot be accomplished By
means looking directly to the end can be
accomplished by indirect means, the inhi-
bition nay be evaded at pleasure. No
kind Of oppression can be named against
which the trainers Of. the constitution sup
posed they had guarded, which may not De
effected. Take the case supposed BY eoun-
sci, that ofa man tried for treason and ac-
Quilted, or, if convicted, pardoned.
The Legislature may pass an act that IL
the person thus acquitted or pardoned does
not take an cath that he never has COM
mitted the acts charged against him, he
shall not be permitted to hold any Office Of
honor or trust or profit, or pursue any a7o-
cation in the State. Take the case before
us: The constitution Of Missouri excludes,
on failure to take the oath we have de-
scri0ed, large class Of persons within her
borders from numerous Offices and pursuits
II would have beeu equally within the
| power of the State 10 have extended the ex-
clusiOn 80 a. to deprive the parties who
were unable 10 take the oath from any ayo-
cation whatever in the State. Suppose,
again, in the progress Of events, persons
now in the minority in theStata should
obtain the aseeneaney, and secure the con-
troll Of the government, nothing could pre-
vent, if the constitutional prohibition can
be evaded, the enactment of provision re-
curing every person; as a condition of
holding any Office of honor or trust, or of
| pursuing any avOcation in the State, to take
an oath that he had never advocated or adj
yised or supported the imposition Of the
| present eXpurgatory oath. Under this form
| oflegislation the most fragrant invasions of
| private rights in periods of excitement NAV
be enacted, and individuals and even whole
classes, may be deprived Of political and
| civil rights.
A question arose in New York soon after
| the treaty Of peace Of 1888, upon a statute
Of that State, which involved a discussion
Of the nature and character of these expur.
gatory Oaths when used as q means of in
tiicting punishment. The subject was re-
garded as 50 important, and the requirement
! of the oath such violation Of the funda-
| mental principles of civil liberty and the
rights ofthe citizen, thet it engaged the at
tention of eminent lawyers and distinguish
ed statesmen Of the time, and among Others,
Of Alexander Hamilton. We will cite
some passages of a paper left by him on the
| subject, in which, with his characteristic
fulness and ability, he examines the oath
and demonstrates that it is rot only a mode
Of intiictIng punishment but a mode in
violation Of all the constitutional guaran-
ties secured by the Revolution of the rights
and liberties of the people:
"If we examine it." fthe measure re-
quiring the OATH, said this great lawyer,
with an unprejudiced eye, we must ae-
knowledge not only that il was an evasion
| Of the treaty, but subyersion of one great
| principle of social security, to wit: that
/ every man shall be presumed innocent IN
1 I'll he is proved guilty. This wasto inverl
| the order of things, and instead of obliging
the State to prove the guilt in order to in.
tiict the penalty, it was to oblige the citizen
10 shew his own innocence to avoid the
| penalty. 1t was TO excite scruples in the
honest and conscientious, and to hold out q
bribe to perjury. = = 1t was a mode
of inquiring who had committed any ol
those crimes to which the penalty of dis
| qualification was annexed, with this agVra-
vation, that it deprived the citizen Of tbs
benefit of that advantage which he would
have enjoyed by leaving, as in all othei
cases, the burden ofproof upon the prose
cution. To place this matter in a still
clearer light, let it be supposed that, in
stead of the mode of Indictment and trial
by jury, the Legislature was TO declare tha
every citizen who did not swear that h,
had never adhered to the King of Grea
Britain should incur all the penalties which
our treason laws prescribe: would this no
be palpable evasion of the treaty and s
direct infringement of the constitution
The principle is the same in both cases
with only this difference in the conse
| iuences, that in the instance already acted
upon the citizen forfeits part Of his rights
in the one supposed he would forfeit thC
whole. The degree of punishment is al
that distinguishes the cases. In either
justly considered, it is substituting a new
and arbitrary mode of prosecution, to thai
ancient and highly esteemed one recognized
| by the laws and the constitution of the
State-I mean the trial by jury.
"Let US not forget that the constitution
declares that trial by jury in all cases in
which it has been formerly used should re-
main inviolate forever, and that the Legis
lature should at no time erect any new
| jurisdiction which should not proceed ac
| cording to the course of the common law
| Nothing can be more Repayment TO the true
| genius Of the common law than such ar
inquisition as has been metioned into tho
| consciences Of men. If anv oath
with respect to past conduct had been made
! the condition on which individuals whc
have resided within the British lines should
| hold their estates, we should Immediately
see that this proceeding would be tyranni
! cal and violation Of the treaty and vet
when the same path is employed to divest
that right which ought to be deemed still
more sacred, many Of Us are so situated as tC
overlook the mischief
"To say that the persons who will b,
| affected by it have previously forfeited then
| right, and that thefore nothing is taker
away from them, is begging Of the ques
tion. How do we know who are the par
ties in this situation? If il be answered
this is the mode taken 10 ascertain Il, ths
objection returns, il is an improper mode
because il puts the most essential interest,
of the citizen upon q worse footing thar
We should be willing to tolerate where ia
ferior interests are concerned and because
il allowed, 1t substitutes for the es ablisher
and legal mode Of investigating or mes anl
infictiug forfeitures one that is unknown
10 the constitution and repugnant to th,
genius Of law
Similar views have frequently been eK
pressed by the Judiciary in cases involvinf
analogous questions. They are uresenteC
with great force in the matter of Dorsey. e
Porter but we do nordeem it necessary {,
pursue the subject further. The iudgmen
Of the Supreme Court Of Missouri must B,
reversed and the cause remandad, viii
directions TO enter a judgment reYersing
the Judgment Of the Circuit Couft. ant
directing that court to discharge the de
fendant from imprisonment, and suffer hin
10 depart without dav. aud ID IS SO ordered
THE LAWYERS TEST OATH CASE.
I Mr.. Justice Field (having delivered th,
I ,nfnfor of the ,ourt IL The cssa ,f C4,r.