Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-01-24

ali arc protected equally under the law
| Any deprivation of rights for past conduct
is punishment, and cannot otherwise be
defined.
The court then proceeded to the copsid
Grafton of the constitutional question:
The Constitution contains what may be
deemed a bill of rights for each State. 1t
says no State shall pass bill OF attalnder
or er most fdctO law A bill of attainder is
Legislative act which involves punishment
without trial. If less than death it is bill
of pains and penalties. 4 bill of attainder
includes pains and penalties. 1t assumes
the guilt of the parties without the safe
guard of trial, and it fixes the degree OF
punishment in accordance with its own
| idea of the offence Justice Story says bills
of this kind were most passed in England
during the rebellion in England, or the
gross substance of them, forgetting justice
and trampling on the rights OF Others
Such bills are generally directed against IN
dividuals by name. BY the Eighth Henry
it was declared that Earl Kildare, and his
abettors, confederates or adherents, should
stand and be attained and convicted of
high treason as though every one of them
were properly named as engaged in fact
So the declaration in Charles the Second,
that Earl Carolan should suffer exile.
If the third article of the Constitution of
Missouri had stated in terms that Cummlns
was guilty of being in armed hostility to
the United States, or had said he left 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 Con
stitution. If the clause, instead of men
tioning his name, had declared all persons
subject to like deprivations, the clause
would be equally open to objection and
if it had declared that all such persons
would be held guilty, provided that by a
day specified they did not do certain acts,
that would be within the constitutional in
hibition. In all these cases it would be
Legislative judgment without the form of
security Of citizens established by our tri-
bunals. The question presented is one of
form and not of substance. The existing
clause presumes parties guilty, from which
they cannot release themselves without an
expurgatory oath. It is certain the legal
result is that what cannot be done directly
cannot be done Indirectly. The Constitu-
ton deals with substance, not with shad-
ow.s. 1t aims at things, not names.
Chief Justice Marshall says an &c posi-
fttct0 law imposes punishment for an act
not punishable at the time it was committed,
or imposes penalties additional to those
then prescribed or different testimony
Thatcher IS Peck makes it an act Of pun
lshment for what was not punishable at the
time the act was committed. The act to
which Judge Marshall makes reference was
passed by the Legislature of Georgia, re-
pealing previous act by which land had
been granted. It was decided the repeal
ing act had the effect of an er post fidctO
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 been
defined and the punishment prescribed
It aimed at some persons who directly or
indirectly had aided the rebellion, or es-
capped proper responsibility of citizens IN
time of war, and was intended to deprive
certain persons Of offices Of trust and emOl-
ument. Such deprivation is punishment !;
nor is it a way which is opened by an eX-
purgatOry 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 fuctO law. The clause
in question subverts the presumption of
innocence and perverts the rules of evil
dence, which by the common laws 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-
purgation. Put this clause in the form of
a Legislative act and it would read: BE it
enacted, etc., That all persons in armed hos
tility TO the United States shall, on convic-
ton, not only be punished as the law pro-
vided at the tine of the offence, but also
rendered incapable Of holding offices of
trust, honor, or emOlument, or exercise the
office of q teacher or priest, etc.
No one could doubt that this third arti-
Gle, if thus rendered, would be &c post .facto,
because it would be adding new punish
ment for al old offence-for an offence not
punishable at the time of enactment. 1t
would impose penalties without the form of
judicial proceedings. The Constitution of
Missouri imposed an oath which it was i'm
possible for all to take. It was an impos-
sible condition.
The Constitution Of the United States
cannot be evaded in the form by which the
power of the State is eXerted. If this can
be accomplished by indirect means the con-
stitutional inhibition may be evaded at
pleasure. Take the case of man tried for
ICdSOII, tbl't IL COllNICGSSt, pdIOOucU NC-
vertheless, the Legislature might prescribe
that, unless he took an oath that he never
did the act charged, he should never hold
office of honor or profit.
Suppose the minority should get the con-
troll OF the State government, nothing could
prevent them from requiring that every
person, as a condition of holding office of
honor, profit or trust, should take an oath
that he never advocated, advised or sup
ported the imposition of the present expur-
cation oath. Under this provision the most
fragrant violations of justice may be COM
mitted, and individuals deprived of their
civil rights.
question rose i'll New York, in 1888,
upon statute of the State, which involved
an expurgatory oath as Il means OF punish
ment. The subject was regarded so impor-
tant as to engage the attention of eminent
lawyers and distinguished statesmen OF the
time Alexander Hamilton demonstrated
that it was in violation of the Constitution,
which secured the rights and liberties of
the people as the result of the Revolution
1t was a wise axiom that every man is be-
lieved to be innocent until he is proved
no &c IL