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


had declared that priests and clergymeI
within the State Of Missouri we're guilty O
these acts, OF should be held guilty Of them
and hence should be subjected to the lik,
deprivation, the clauses would be equally
open TO objection, And further, If ;hese
these clauses had declared that all such
priests and clergy men should be held
! guilty, and be thus deprived, provided they
did not BY a day designated do certain
specified acts, they would be no less within
] the inhibition Of the Federal constitution.
] In all these cases there would be the
/ legislative enactkleut creating the depriva-
! ton, without anyof the ordinary forms and
! guards provided for the security of the citi-
I zen 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 supposed
and the case actually presented is one Of
form only, and not Of substance. The eX~
isting clauses presume the guilt of the
priests and clergymen, and adiudge the
deprivation Of their right to preach or teach
unless the presumption be first removed by
they assume the guilt and adiudge the pun
ishment conditionally. The clauses sup
posed differ only in that they declare the
guilt, instead Of assuming it. The depriva-
tion is effected with equal certainty in the
latter case as it would be in the former, but
not with equal directness. The purpose of
the law-maker iE the case supposed would
be openly avowed in the case existing, it
is only disguised The legal result must
be the same, for what cannot be done di-
| rectly cannot be done indirectly. The con-
stitution deals with substance, not shadows.
It's inhibition was levelIed at the thing, not
the name. 1t intended that the rights Of
the citizen should be secured against de-
priyation for past conduct by legislative
enactment, however disguised. If the in
hibidon can be avoided by the form Of the
! enactment, its insertion in the fundamental
law was a vain and futile proceeding.
We proceed TO consider the second clause
Of what Mr.. Chief Justice Marshall terms
"a bill of rights for the people of each
State" the clause which inhibits the pas
sage Of an eI post facto law. By an Il post
fdcto law is meant one which imposes a
| punishment for an act which was not pun
lsAhuAG al tue liLuE II Vas EOullllLtCuf OF
imposes additional punishment TO that thea
prescribed, or changes the rules Of evidence
by which less or different testimony is re-
quired 10 convict than was then exacted.
In Fletcher vs.. Peck, Mr.. Chief Justice
! Marshall defined an eI post factO law to be
Zone which makes an act punishable in a
manner in which it was not punishable
when il was committed" "Such law"
said that eminent Judge, "may infict pen
alties on the person, or may inflict pecuni-
airy penalties which swell the public treas
ury. The legislature Is, then, prohibited
from passing a law by which mans eitate,
or any part Of il, shall be seized for crime
which was not declared by some previous
law to render him liable 10 that punish
ment. Why, then, should violence be done
TO the natural meaning Of the words, for
the purpose Of leaving 10 the legislature the
power of seizing for public use the estate
Of an individual in the form of law an
nulling the title by which he holds the
estate? The court can perceive no sufh-
cient grounds for making this distinction.
The resembling act would have the effect Of
an er post fJctO law 1t iorfeits the estate OF
Fletcher for a. crime not committed by him
self, but by those from whom he purchased.
This could not be effected in the form Of an
Fl post factO law or bill of attainder Why,
then, is it allowable in the form of law
annulling the original grant"
The act Of which reference is here made
was one passed by the State ofGeorgia re-
pealing previous act under which land
had been granted. The repeating act di-
vesting the title of the grantees did not in
terms define anv crimes or infict any pun
ishment or direct any judicial proceedings
| yet, inasmuch as the Legislature was for
| hidden from passing any laws by which a
/ mans estate could be seized for crime
| which was not declared by some previous
| law to render him liable to that punish
ment, the Chief Justice was Of opinion that
the repeating act had.. the effect fan er pos
| facto law, and was within the constitutional
| inhibition.
Now, the clauses in the Missouri consti
/ tuition which are the subject of considera
| ton do not in terms define any crime ol
! declare that any punishment shall be in
flicted, but they produce the same result
| upon the parties against whom they are
! directed as though the crimes were defined
and the punishment declared. They as
7
| who are guilty of some Of the acts desipna
| ted. They would have no meaning in the
! constitution were not such the fact They
are aimed at past acts, and not future facts
They were intended to operate upon partie,
! who, in some form or manner, BY action ol
words. directly or indirectly, had aided Oh
countenanced the rebellion or sympathizec
| with parties engaged in the rebellion, OF
| had endeavored to escape the proper re
| sponsibilities of a citizen in time Of war
And they were intended to operate BY de-
| priving such persons Of the right to hold
| certain Offices and trusts, and to pursue
their ordinary aud regular avocations
| This deprivation is punishment nor is il
any less so because q way is opened fol
escape from it by the expurgatory oath
| The trainers Of the constitution Of Missouri
knew at the time that whole classes Of indi
! viduals would be unable 20 take the oath
| prescribed. To them there is no escape
! provided To them the deprivation wa,
| intended tobe and is absolute and perpetual
| To make the enjoyment Of right dependent
| upon an impossible condition is equivalent
| % an absolute denial ofthe right under any
/ condition, and such denial enforced for a
a past act is nothing else than punishment
| imposed for that act 1t is a misapplication
of terms to call it anything else.
Now, soms Of the acts to which the ex
| purgatory oath is directed were not ofienses
at the time they we're committed. It wa;
no odense against any Law to enter or leave
the State of Missouri for the purpose O.
! avoiding enrolment or draft in themilitary
service, however much the evasion of such
service might be the subject of moral cen
sure. Clauses which prescribe a penalty
for an act of this nature are within the
terms Of the definition Of an sr post feet,
law. They impose a punishment for az
act not punishable at the time il was com.
mitted Some Of the acts at which th,
cath is directed constituted high offenses q
the time they were committed. to Whict
upon conviction fne aud imprisonment o,
other heavy penalties were attached. Tn,
clauses which provide a further penalty fol
these acts are also within the definition o
an ~ post f1ctO law They impose addition
al punishment 10 that prescribed when tn
act was committed. And this is not all
The clauses in question subvert the pre-
sumptions Of innocence and alter the rule
| Of evidence which heretofore, under tht
universally recognized principles of tn
common law, have been supposed 10 b,
fundamental and unchangeable. They as
sumo that the parties are guilty; they cal
upon the parties 70 show their innocence
and they declare that such innocence cal
be shown only in one way, by an inquisi
ton in the form Of an eTpurgatory oath in
TO the oonsciences of the parties.
The objectionsl character Of these clause
will be more apparent if We pat them int,
the ordinary form Of a legislative act
Thus. il instead Of the general provision
In d. l.ar,sfiIntinr lie l,r, rer,tinr, hnl ma