The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-01-16

/ getting justice and trampling on the rights
of others. Such bills are generally d.
rected against individuals by name. BY
the eighth Henry il was declared that Earl
Kildare and his abettors, confederates, or
adherents should standard be attained and
convicted of high treason, as though every
one of them were properly named rs en-
gagged in fact. So the declaration In
Charles the Second that Earl Caralan
should suffer exile.
If the Sd article Of the Constitution OF
Missouri had stated in terms that Cum
minis was guilty of being in armed hostility
| to the United States, or had said he lett
the State to avoid being drafted, and that
he was therefore deprived Of his right to
preach or teach in the institutions OF the
| land, there is no question that this would
be bill of attainder in view Of the Consti-
| tuition. If the clause, instead OF MENTION
ing his name, had declared all persons
subject to like deprivations, the clause
would be equally open to objection and II
it had declared that all such persons would
be held guilty, provided that by day spe-
Gifted they did not do certain acts, that
would he within the constitutional inhlbl-
ton. In all these cases it would be legls-
Iative Judgment without the form Of secu-
ritv of citizens established by our tribu-
nails. The question presented IS one Oh
form and not of substance. me exlstihg
clause presumes parties guilty, from winch
they cannot release themselves without an
| exploratory oath. 1t IS certain the leSai
result is that what cannot be done directly
cannot be done indirectly. The Constitu-
ton deals with substance, not with sha-
dows. 1t aims at things, not names.
Chief Justice Marshall says an er post
fncto law imposes punishment for an act
not punishable at the time it was COM
mitted, or imposes penalties additional to
those then prescribed, or different testi-
mony. Thatcher Us. Peck makes it an act
of punishment for what was not punlsha-
| BILE at the time the act was committees.
The act to which Judge Marshall makes
reference was passed by the Legislature OF
| Georgia, repeating previous act by which
land had been granted. 1t was decided
the repeating act had the effect OF an er
post .fdcto law.
The clause of the Missouri Constitution
did not in terms define any crime, or de-
clare punishment inflicted, but presumed
the same result as if the crime had Deen
defined and the punishment prescribed. 1t
aimed at some persons who directly or IN
directly had aided the rebellion, or escaped
proper responsibility of citizens in time OF
war, and was intended to deprive certain
persons Of Offices Of trust and emolument.
Such deprivation is punishment; nor is it a
way which is opened by an expurgatory
oath.
Now, some of these were not offences
when the acts were committed. 1t was
not then an offence to avoid the enrolment
or the draft, how much soever it might be
q matter of censure. Some of the acts at
which the Constitution was directed were
offences at the time, but the clause which
prescribes further penalties is within the
nature Of an er post fdctO law. The clause
in question subverts the presumption OF
innocence and perverts the rules of evil
dence, which by the common law are fun
damental. 1t presumes the parties to be
guilty, and declares their innocence can
be shown only in one way, and that by eX-
burgation. Put this clause in the form oil
a legislative act, and it would read BE Il
enacted, ETC., That all persons in armed
hostility to the United States shall, on
conviction, not only be punished as the
law provided at the time of the offence,
but also rendered incapable of holding
offices of trust, honor, or emolument, OF
exercise the Office of teacher or priest
etc.
No one could doubt that this third arti.
Gle, if thus rendered, would be &c pos
tdC'O, because it would be adding new
punishment for an old Oifence-ior an Of
fence not punishable at the time OF the
enactment. It would impose penalties
without the form of judicial proceedings
The Constitution of Missouri imposed al
oath which it was impossible for all 10 take
1t was an impossible condition.
The Constitution of the United State:
cannot be evaded in the form by which the
power of the State is eXerted. If this car
be accomplished yindircct means the con-
stitutional inhibition may DO evaded a
pleasure. Take the case of man tried
for treason, and, if convicted, pardoned
Nevertheless the Legislature might pre-
scribe that, unless he took an oath that 1t
never did the act charged he should never
hold office of honor or profit.
Suppose the minority should get Tho
control of the State Government, nothing
could prevent them from requiring tha
every person, as a condition OF holding
office of honor, profit, or trust, should tait
an oath that he never advocated, advised
or supported the imposition of the present
expurgation oath. Under this provision
the most fragrant violations of justice ma!
be committed, and individuals deprived 0
their civil rights.
A question rose in New York in lis;
upon statute of the State, which in
volved an expurgatory oath as a means o
punishment. The subject was regarded
so important as to engage the atten
ton of eminent lawyers and distinguished
statesmen of the time. Alexander Hamil
ton demonstrated that it was in violation
of the Constitution, which secured The
rights and liberties of the people as tht
result of the Revolution. 1t was wise
axiom that every man is believed to bt
innocent until he is proved guilty. The
reversing of this was to hold out bride
of perjury. 1t deprived the citizen Of The
advantage of leaving the burden OF proc
on his prosecutor. Let us not forget tha
trial by jury should remain inviolable for
ever, etc. The same view was embraced
by the judiciary on analogous questions
The court said, in conclusion, the iudg
ment of the Supreme Court of the State
of Missouri must be reversed, with dircc,
tions to enter Judgment to reverse the
Judgment of the Circuit Court of Pike
county, and also with directions TO sait
Circuit Court to enter IN order discharg
| ing the defendant from imprisonment, ant
permitting him to go without delay.
-~e-
Simon CamerOn-Pen Portrait OF the
New Senator from Pennsylvania, by
n Fellow. RadtcaI-Lette from Con
frrasSman KELLEY.