The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-01-19

acts untitled them for kheir cahng,e but Sberl
cause it was thought heir ac6 were del exv
ing of punishmentsiRspo way but b. depriv
ing them of citizenS6f The couf did notj
agree that less than the depriyAtion of ne,
liberty and property was mo SnnfliA Ame1G all
all, a disqualification from holding ofie6 as
an impeachment may be a punishment, alsgl
the preventing attorneys practising in the |
federal courts. By the statutes nine and
ten Of William ILL, any person speaking
against the Christian religion, or speaking
or writing against the divine spirit, was ha-
BILE, for the first offence, to be rendered IN
capable of holding offices OF trust or profit,
and FOR the second, to prison. Statute tive,
George III for eoat ., against ~ the kings
legacy. deed or gift, or vote at election for
parliament, with penalty of $500. Black
Stone says the loss of liberty consists in the
loss of lands, or profit of Isnds for life, and
disabilities from holding Offices of honor or
emolument. Among the Romans the loss
of liberty was disability of all privileges
and naemhefs of the family or eitizenship;in
France deprivation of citiil rights and the
right to vote for officers, or to be guardian,
| or trustee, or to be an employee in schools or
seminaries of learning. The theory on
| which our institutions rests is that all men
have certain inalienable rights, among which
| Mere life, liberty and the pursuits of happr
ness. Thus all places of honor and position
are open to every one, and all are 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 consideration of the
constitutional question. The constitution
contains what may be deemed a bill of
rights. 1t says: No state shall pass bill
of attainder or er post facto law. A bill OF
attainder is Legislative act which involves
punishment without trial. If less than
death, it is bill of pains and penalties; it
assumes the guilt of the parties without the
punishment in accordance with its own idea
Of the offence. Justice Story says bills OF
this kind were mostly passed in England,
during the rebellion in England, orthe gross
substance of them, forgetting justice and
trampling on the rights of others. Such
bills are generally directed against the IN
dividaals by name. By Henry the Eighth
it was declared that Earl Kildare and his
abettors, confederates or adherents should
stand, and be attainted and convicted of high
treason, as though every one of them were
properly named as engaged in the fact. 30
the declaration in the time OF Charles the
Second that Earl Carolan should suffer exile
If the third article of the constitution of Mis-
souri, had stated in terms that Cummins was
| guilty of being in armed hostility to the Uni
ted States, and said he had left the state to
| avoid being drafted, and that he was there
fore deprived of his right to teach in the in
| stitutions of the land, there is no question
that this would be a bill of attainder, in the
view of the constitution. If the clause, instead
of mentioning his name had declared all per
ns~subieet to like privations, the clause
would be equally open TO objection and il
| it had declared that all such persons would
be held guilty, provided that By a dayespeci
fed they did not do certain acts, that would
| be within the constitutional inh ibiton IN al
| these eases; It would be Legislative iudg
ment without The. form of security of citizens
by our tribunals. The question presented
is one of form and not of substance. The
existing clause presumes parties guilty from
which they cannot release themselves with
out an expurgatorv oath. Ii Is certain tbs
legal result is, that which cannot be done
directly cannot be done indirectly. The
constitution deals with substance, not witt
| shadow. 1T aims at things, mot names
Chief Justice Marshall says an ez post fact
law imposes punishment for an act not pun
| ishable at the time it was committed, OF
imposes penalties additional to those then
} prescribed or different testimony.
Thatcher versus Peek makes titan act o
| punishment for what was not punishment a
the time the act was committed, The act tC
| which Judge Marshall makes reference wa,
passed by the legislature of Georgia, repeal
ing previous act by which land had been
granted. 1t was decided that the repeating
| act had the effect OF an eE post f1cto law
The clause of the Missouri constitution did
not in terms define any crime or declare
punishment inflicted, but presumed the
same result as if the crime had been defined
and the punishment prescribed. 1t aimed
at some persons who had directly or ind
rectlv aided the rebellion or escaped the
proper responsibility of citizens in time OF
war, and was intended to deprive certain
persons of offices of trust and emolument.-
Such deprivation is not punishment, nor Is
it way which is open bw an eXpurgat0ry
oath. Now, some of these were not offences
when the acts were committed. 1t was not
then an offence to avoid the enrolment o.
the draft. how much soever it might be a
matter of censure, Some of the acts al
which the constitution was directed were Of
fences at the time, but the clause which pre-
scribes further penalties is within the nature
of an er post frcto law. The clause in ques
ton subverts the presumption OF innocence
and perverts the rules Of evidence which by
the common law are fundamental 1t pre-
sumes the party to be guilty and declares
their innocence can be shown only In one
way, and that by expurgation. Put this
clause in the form of legislative act and il
would read, Be it enacted, &c, that all per
sons 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 be rendered incapable of holding
Offices of trust, honor or emolument or ex-
ercise the Office of a teacher or a priest, &c
No one could doubt that this third article i
thus rendered would be &c post .fdcto, be
cause it would be adding new punishment
for an old offence. For an offence not pun
ishable at the time of the enactment it would
t impose penalties without the form of judicia
proceedings. The constitution Of Missouri
imposed an oath which it would be imposs
2 BILE for all to take. 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 indirec
means the constitutional inhibition may be
evaded at pleasure. Take the case OF, tht
2 man tried for treason, and if convicted anC
t pardoned, nevertheless the legislature NIGH
prescribe that, unless he took an oath thai
f he never did the act charged, he should new
Y err hold Office of honor profit. Suppose tha
? the minority should get the control of the
r state government, nothing could proven
them from requiring that every person, as q
Y condition of holding offices of honor, profit
Y or trust should take an oath that he never
| advocated advised or supported the imposi