Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-22
!, JANUARY q, 1867,

functions, eXerci|es the powers and Office
of Judge. 1t assumes, in the language of
the text books, judicial magistracy. 1t
pronOunces upon the guilt. of the parties
without any OF the forms or safeguards of
trial. 1t determines the sullicie cY of the
proofs produced, whether cOnformable to
tine rules of evidence or otherwise. ltiiXes
the degrees of punishment In accordance
with its own notion of the enormity Of the
olfense. "Bills of this sort, y says Mr., JUS
tice Story, shave been usually passed i'll
England in times OF rebellion, or gross sub
serViency to the crowE, or Vt violent politl-
cal excitement-periods in which all ma
tions are most liable, as well the free as the
enslaved, to forget their duties and trample
upon the rights and liberties of others."
These bills are generally directed against
b individuals by name, but they may be di-
rected against q whole class. The bill
against the Earl of Kildare, passed in the
reign of Henry VIII, enacted " that all
such persons which be or heretofore have
been comforters, abettors, partakers, con-
federates or adherents of the said late Earl
in his or their false or traitorous acts and
purposes shall in likewise stand, be at
tainted, adjudged and convicted of high
treason, and that the same attainder, judg-.
ment and conviction against the said COM
forters, aiders, abettors, undertakers, con-
federates and adherents shall be as strong
and efIectual in the law against them, and
and every one of them, as though they and
every one of them had been specially, sin
guarly and particularly named by their
proper names In the said act"
These bills may intlict punishment abso-
lutely or may inflict 1t cOnditiOnally. The
bill against the Earl of Clarendon, passed
in the reign of Charles III, enacted that the
Enrl chn ol nd ha
forever banished from the realm, and that
if he returned or was found in England, or
in any other of the Kings dominions, after
the lst of February, 1867, he should suffer
the pains and penalties of treason, with a
provisO, however, that if he surrer dered
himself before the said 1st day of Febru-
ary for trial, the penalties and disabilities
declared should be void and of no effect.
"a British act of Parliament to cite the
language of the Supreme Court of Ken
lucky, might declare that if certain indi-
viduals failed to do given act by named
day they should be deemed to Re and treat
ed as convicted felous and traitors, and the
act would come precisely within the deiini-
tion of bill of attainder, and the English
Courts would enforce it without Indictment
or trial by jury" If the clauses Of the
third article of the Constitution of Missouri,
to which we have referred, had in terms
declared that Mr.. Cummings was guilty, or
should be held guilty, of having been in
armed hostility to the United States, or of
having entered that State to avoid being
enrolled or drafted into the military service,
and thereafter should be deprived of the
right to preach as u priest of the Catholic
Church or to reach in any Institution of
learning, there would be no question but
that the clauses would constitute bill of
attainder within the meaning of the Fed
eral Constitution. If these clauses, instead
of mentioning his name, had declared that
priests and clergymen within the State of
Missouri were guilty of these acts, or should
be held guilty OF them, and hence should
be subjected to the like deprivation, the
clauses would be equally open to objection.
And further, if these clauses had declared
that all such priests and clergymen should
be held guilty, and be thus deprived, pro-
vided they did not by a day designated do
certain specified acts, they would be no less
within the inhibition of the Federal Con-
stitution. .f .r-.
In all these cases there would be the ley
islatve enactment creating the deprivation.
without any of the ordinary forms and
guards provided for the security of the cit
izen in the administration of justice by the
established tribunals.
The results which would follow from
clauses of the character mentioned do fol-
low from the clauses actually adopted.
The difference between the last case sup
posed and the case actually presented is
one of form only, and not of substance.
The existing clauses presume the guilt OF
the priests and the clergymen, and adjudge
the deprivation of their right to preach or
teach unless the presumption be first re-
moved by their eXpurgatory oath. In other
words they assume the guilt and adjudge
the punishment conditionally. The clauses
supposed differ only in that they declare
the guilt, instead of assuming it. The de-
privation is effected with equal certainty
in the latter case as 1t would be in the form
er, but not with equal directness. The pur-
pose of the law-maker in the case supposed
would be openly avowed; in the case eX-
isting it is only disguised. The legal re-
suit must be the same, for what cannot be
done directly cannot be done indirectly.
shadows. Its inhibition was levelled at
the thing not the name. l intended that
the rights of the cit zens should be secured
against deprivation for past conduct by
legislative enactment, however disguised.
If the inhibition can be avoided by the
form of the enactment, its insertion in the
fundamental law was vain and futile pro-
ceeding. . .
We proceed to consider the second clause
of what Mr.. Chief Justice Marshall terms
"a bill ofrights for the people of each State q
the clause which inhihits the passage of an
er post tdcto law. BY an eJ post GdCtO law is
meant one which imposes punishment for
an act which was not punishable ut the
time itwas committed, or imposes addition
al punishment to that then prescribed, or
changes the rules of evidence by which
less or different testimony is required to
convict than was then exacted. In Fletch-
er .. Peck, Mr.. Chief Justice Marshall de-
fined an er pos Jdcto law to be zone which
makes an act punishable in manner in
which it was not punishable when it was
committed" "Such q law" said that emf
nent Judge, "may inflict penalties on the
person, or may inflict pecuniary penalties
which swell the public Treasury. The
Legislature is, then, prohibited from pass
ing law by which mans estate, or any
part of it, shall be seized for crime which
was not declared by some previous law to
render him liable to that punishment.
Why, then, should violence be done to the
natural meaning OF the words for the pur-
pose of leaving to the Legislature the pow
or of seizing for public use the estate of an
individual In the form of a law annulling
tho title by which he holds the estate? The
Court can perceive no sufficient grounds
for making this distinction. The rescind-
ing act would have the effect of an er post
facto law. 1t forfeits the estate of Fletcher
for o crime not committed by himself, but
by those from whom he purchased. This
could not be effected in the form of an er
post Jdcto law or bill of attainder. Why,
then, is 1t allowable in the form of law
annulling the original grantp T 81
1T Tho nnt t0 which rafarauaa ie horn Ynofla