The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-01-15

| mentioning his name, had declared all persons
subject to like deprivationy tnof clause would
be equally open 10 objection, and II it had de-
oiared that all such persons would be held
guilty, provided that by day specified they did
| not do certain acts that would be within the
| constitutional inhibition. '
IN all these cases 1t would be the legislative
Judgment without the form of security OF citi-
zens. established by our tribunals The ques-
| tlon presen ted is one of form and not OF sub
| stance. The existing clause presumes the par
| ties guilty, from which they cannot release
1 themselves without an expurgatory oath. 1t
is certain the legal result is, that what cannot
be done directly cannot be done Indirectly
The Constitution deals with substance and not
with shadow. IL aims at things, not names
Chief Justice Marshall says an eE post Jdcto law
| imposes punishment for an act not punishable
aWthe time II was committed, or imposes penal
ties additional to those then prescribed on diff
ierent testimony. Thacher against Peck, makes
1t an act of punishment for what was not
punishable AZ the time the act was committed.
ence, was passed by the Legislature Of Georgia,
repeating apreVious act by which land had been
IL was decided that the repeating act had the
effect of an post Jdcto 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 directly or indi-
rectly had aided the Rebellion, or escaped
proper responsibility of citizens in time of war,
and was intended to deprive certain persons of
=.
Sucn deprivation is punishment, nor is it a
way which is opened by an expnrgatory oath.
acts were committed II was not then an Of
fense to avoid the enrolment or the draft, how
muchsoever IL might be q matter of censure.
Some of the acts at which the Constitution was
directed were otfenses at the time, but the
clause which presoribes further penalties is
wlth1n the nature Of an ear post JdctO law. The
clause in question subverts the presumption of
Innocence, and perverts the rules of evidence,
which, by the common law, are fundamental.
II presumes the parties to be guilty, and de-
clares their innocence can be shown only in
one way, and that by expurgation.
Put this clause in the form OF a legislative
act, and 1t would read, "Be II enacted, &C., that
all persons in armed hostility to the United
States shall, on conviction, not only be pun
ished as the law provided at the time of the
oftense. but also rendered incapable of holding
Offices of trust, honor or emolument. or eXer-
cising the office of a teacher or priest" &c.
NO one could doubt that this third article, if
thus rendered, would be post 5dctO, because it
would be adding new punishment for an old
ohense, for an offense not punishable at the
time OF the enactment it would impose penal
ties without the form of judicial proceedings.
The Constitution Of Missouri imposed an oath
which it was impossible for all to take. 1t was
an impossible condition. The Constitution of
the United States connot be evaded in the form
by which the power of the State is eXerted. II
this can be accomplished by indirect means the
constitutional inhibition may be evaded at
pleasure. Take the case of a man tried for trea-
son, and, If convicted, pardoned. Never theless
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.
the State Government, nothing could prevent
them from requiring that every person, as a
condition OF holding office OF honor profit,
should take an oath that he never advocated,
advised or supported the imposition or the pre-
sent expurgation oath.
Under this provision the most hagrant viola
tions of justice might be committed, and indi-
yiduals deprived OF their civil rights. a ques-
tion rose in New York in 1888, upon statute of
the State which involved an expurgatory oath
as means of punishment The subject
regarded so important as to engage the atten-
eminent LAWYERS distinguished
statesmen of the time. Alexander Hamilton
demonstrated that it was in violation of the
Constitution, which secured the rights and liber-
ties of the people, as the result of the revolu-
tion. 1t was q wise axiom that every man is
believed TO be innocent until he is proved
guilty. The reversing of this was to hold out q
bribe to perjury. 1t deprived the citizen of the
advantage OF leaving the burden of proof on
his prosecutor. Let us not forget that trial by
jury should be inviolate forever, &c;
The same view was embraced by the Judiciary
on analogous questions
The Court said, in conclusion, that the judg-
ment of the Supreme Court of the State of Mis-
souri, must be reversed, with instructions to en-
ter judgment to reverse the judgment of the
Circuit Court OF Pike county, and also with
directions to said Circuit Court to enter an order
discharging the defendant from imprisonment,
and permitting him to go without delay.
instructed to deliver the opinion of the COURT in
the matter OF the petition, e1 parte, of A. H.
On the Goth of July, 1862 Congress passed an
act prescribing the form of an oath to be taken
by officers elected under the Constitution of the
dent.
on the 9th of July, 1866 Congress passed a
supplementary act embracing attorneys and
counsellors. 1t provides that no person shall be
admitted TO the bar of the Supreme Court of the
United states, or at any time after the 4th of
March next be admitted TO the bar Of any cir
cult court or district court of the United States,
or the Court of Claims, as an attorney or coun-
sellor, or be allowed to appear by virtue OF any
previous admission of any special power Of
attorney, unless he first takes and subscribes
the oath prescribed in the act to prescribe an
an oath OF office, approved July I'd, 1862, which .
said oath so taken and subscribed shall be pre-
served among the files of such court; and that
any person who shall falsely take said oath
shall be guilty of perjury, and on conviction
jury, and the additional pains and penalties
prescribed in said act.
AT the December term, 1850 the petitioner was
admitted as All attorney OF the Court, and sub
scribed the oath required. By the rule, the
attorney, as a condition Of being admitted to
the bar, must have praeticed in the highest
court OF the State in which he lives and his
public and private character must be fair. In
1861, the State of Arkansas, OF which Mr.. Gar
land was citizen. attached itself to the So
called Confederate States; the petitioner fol-
lowed the fortunes of that State, and was one
OF the represen tRtiVeS in the lower House and
was in the Senate of the Confederacy at the
time OF the surrender of the Confederate forces
In July, 1865, he received full pardon of all
offenses committed by him.
He now produces this pardon and asks per-
mission TO continue practice as an attorney,
without taking the oath which he is unable TO
take by reason OF the office he once held in the
Confederate Government.
He says the act of July, 1865, is unconstitu-
tional and void, but if legal, that he is relieved
by the pardon of the President.
The Court proceeded to examine the charac-
ter of the oath in question, saying, as it can
not be taken by all attorneys IL operates as a
perpetual declaration OF exclusion from one OF
therefore, must be regarded as punishment.
In the exclusion is imposed punishment for
q ITnn Affn fnFnBn nWynG m ami