Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-19

i
4 the same oath which is exacted of every
| officer of the Government, civil or militry.
| This oath lIas two aspects, one Of which
/ looks to the past conduct of the party, and
1One to his future conduct; but both have
reference to his disposition to support or
to overturn the Government In whose func-
tions he proposes>to take part. Tn Sub
stance. he is required to swear that he has
4 not been guilty of treason to that, Govern
ment in the past, and that he will bear
faithful allegiance to it In the future. That
fidelity'to the Government under which he
lives, and true and loyal attachment to 1T,
and q sincere desire for its preservation,
are among the mostessential qualifications
which should be required in a lawyer, seems
to me to be too olearfor doubt, The histo-
Z, ry OIL, the Anglo Saxon race shows that for
! ages past the members of the legal profess
sion have been powerful for good or evil In
the Government. They are, by the nature
i of their duties, the moulders of public sem
| timent on questions of government, and
are every day engaged in aiding in thecon-
| struction and enforcement of the laws.
From among their members are necessarily
selected the Judges to expound the laws
and the Constitution. To suffer treason
able sentiments to spread here unchecked is
to permit the stream on which the life of
the nation depends to be poisoned at its
source. Inilustfation of this truth | ven
ture to affirm that if all the members of the
legal profession in the States lately in in
/ sllrrection had possessed the qualification
of a loyal, faithful allegiance to the Gov
ernment, we should have been spared the
horrors of that rebellion. If, then, this
4 qualification be so essential to lawyer, it
| cannot be denied that the statute under
consideration was eminently calculated to
secure that result. lf' yu'tlas r.r49 .i 2
The majority of the Court, however, do
not base their decision on the mere absence
of authority in Congress and in the States
to enact the laws which are the subject of
consideration, but insist that the Constitu-
tion of the United States forbids in prohib-
itOry terms the passage of such laws, both
to Congress and to the States. The provis-
ions of that instrument, relied on to slIs-
tain this doctrine, are those which forbid
Congress and the States respectively from
Ilpassing bills of attainder and er post tdcto
laws. 1t is.said that the act of Congress
and the provision of the Constitution OF the
State of Missouri under review are in con-
flict with both these provisions, 7and are
therefore void. will examine this prop
osition In reference to these two clauses of
the Constitution in the order in which they
come in that instrument. First, in regard
to bills of attainder, am not aware OF any
judicial decision by Court of Federal ju-
risdiction which undertakes to give def
| milton of that term. We are, therefore,
compelled to reeur to the bills of attain
der passed by the English Parliament, that
we may learn so much of their peculiar
characteristics rs will enable us to arrive at
a sound conclusion as to what was intended
to be prohibited by the Constitution. The
word "attainder" is derived, by Sir Thomas
Tomlyn in, his Law Dictionary, from the
words ''dttipCt0" and "attinctlrG," and is de-
fined to be the stain or corruption of the
blood Of criminal capitally condemned.
Theimmediate, inseparable consequences,
by the common law, of the pronouncing of
the sentence of death, and the effect of this
corruption of the blood, was that the party
attainted lost all Unbeatable quality, and
could neither receive nor transmit any
property or other rights by inheritance
This attainder or corruption of blood, as a
consequence of the judicial sentence of
death, continued to be the law of England
in all cases of treason, to the time when
our Constitution was framed, and, for aught
that is known to me, is the law of that
country on condemnation for treason at this
day. Bills Of attainder, therefore, or acts
Of attainder, as they were called after they
we're passed into statutes, We're laws which
declared certain persons attaintedand their
blood corrupted, so that it had lost all in
heritable quality. Whether it declared
other punishmentso or not, it was an act of
attainder if it declared this. u,o.T 3 / s,,
This also seems to have been the main
feature at which the authors of the Consti-
tuition were directing their prohibition, for
after having, in article first, prohibited the
! passage of bills of attainder lin section niue
| to Congress and in section ten to the States),
there still remained to the Judiciary the
power of declaring attainders., Therefore,
| to still further guard against this odious
form Of punishment, it has provided in Sec
tion three, article three, concerning the Ju-
dietary, that while Congress shall have
power to declare the punishment of treason,
no attainder of treason shall work corrup-
tioh of blood or forfeiture except during
the life OF the person attainted. 3 1E ilHa
This, however, while 1t was the chief, was
not the only popularity of bills of a5-
tainder which was intended to be included
within the constitutional restriction. Upon
an attentive examination of the distinctive
| features of this kind of Legislation, i think
| it will be found that the following. eOmr
prise those essential elements,of bills of at,
tainder, in. addition to the one already men
toned, Which distinguished them from
other legislation, and Which madeit them so
obnoxious to the statesmen who organized
our Government: :-First-They were con-
| victions and sentences pronounced by the
/ ILegiSlatiVe Department of the Govern
ment, instead of the Judiciary. Second
| The sentences pronounced aud the punish
ments inflicted were determined by no pre-
| vious law or fixed rule. Third-The inves-
| tigatioh into the guilt Of the accused, if
any such were made, was not necessarily
or generally conducted in his presence or
that of his counsel, and no recognized rule,
| of evidence governed the Inquiry. TSee
Story on the Constitution, section 1,344!T
| It is no cause of wonder that the men who
had Just passed successfully through des-
perate struggle in behalf of civil liberty,
should feel detestation for legislation Of
which these were the prominent features.
The framers of our political system had
| fully appreciated the necessity of keeping
separate and distinct the primary depart
ments Of the Government. Mr., Hamilton,
| i'm the seventy-eighth humber Of the Fed
| erdIist, says that lie agrees withithe maxim
of Montesquieu that there is no liberty if
the power and judging be not separate from
| the Legislative and Executive powers; and
Others of the ablest numbers of that pub
| lication are devoted to the purpose of
showing chat in four Constitution these
| powers afeso justly balancedand restrain-l
ed that neither will probably be able to,
make much encroachment upon the other,
| Nor was it less repughant to their views Of
| the security Of personal rights that0ahyr
| person should be condemned without a
hearing, and punished without,a law pre-,
ylously prescribing the nature and extent
| of that punishment. They, therefore,
struck boldly at all this machinery of legs