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


! ton of Missouri mus. be regirded e. penal
tiel They constitute punishment We Dc
nos agree with the counsel Of Missouri that
I 'to punish one IL 10 deprive him Of life,
I liberty. or property, and thai % take from
I him anything less than these Is no punish
meLt Et AL The learned counsel does
not use these terms @lile, liberty, and pro-
I perry a. sc0mprehending every right known
10 the law He does not include under
liberty freedom from outrage on the feel
ings ss well as restraints on the person. He
does not include under properly" those
estates which one may acquire in profess
sions, though thev are often the source Of
the highest emoluments and honors.
Ths deprivation Of any rights, civil or
political, may be punishment, the circum-
stances attending and the causes Of iepriva-
ton determining this fact. Disqualifica-
ton from ofice msy be punishment a. in
cases Of conviction upon Impeachment
Disqualification from the pursuit Of a law
ful avOcation or from positions Of trust, or
from the privilege Of appearing il the
courts or getting as executor administrator,
or guardian, may also, and often has been,
imposed az punishment By the statute Of
9 aud 10 William Ill, if any person edu-
Gated in or having made profession ofthe
Christian religion did, by writing, print
ing, teaching, or advised speaking deny the
truth Of the religion or the Divine authority
Of the Scriptures, he was for the first offense
rendered incapable 10 hold any Office OF
place Of trust, and Cor the second he was
rendered incapable Of bringing any action,
being guardian, executor, legatee, OF pur-
chaser Of lands, besides being subjected 10
imprisonment without bail By statute 2
George l., cOntempts against the Kings
title were punished by incapacity 10 hold
public Office or place Of trust, to prosecute
any suit, 10 be guardian or executor, 10
take any legacy or deed Of gift, and to vote
az any election for members OF Parliament,
and by forfeiture Of five hundred pounds TO
any one who would sue for the same.
Some punishments," says Blackstone,
consist in exile or banishment, by abiura-
ton Of the realm or transportation others
in loss Of liberty by perpetual or temporary
imprisonment. Some extend to confsca-
tion by forfeiture Of lands or movables, or
both, or Of the profits Of lands for life.
Others induce a disability Of holding Office
or employments, being heirs and executors
and the like" Among the Romans, loss Of
the privilege Of membership Of the eamily
OF Of citizenship we're punishmentsi inflicted
by her laws. In France, deprivation or
suspension Of civil rights, or Of some Of
them, are punishments prescribed By her
code, and among civil rights are included
the right Of voting. Of eligibility to Office,
Of taking part in family councils, Of being
guardian and trustee, Of bearing arms, or
being employed in e school or seminary of
learning.
The theory upon which our political in
stitutions rest is, that all men have certain
inaiienable rights; that among these are
life, liberty and the pursuit Of happiness;
and that, in the pursuit Of happiness, all
avocations, all honors, all positions are
alike open 10 every one and that in the
protection Of these rights all are equal be-
fore the law. Any deprivation or suspen-
sion Of any Of these rights for past conduct
OF acts Ia punishment, and can in no other
wise be defined
Punishmentnot being therefore restricted
as contended by counsel to the deprivation
Of life, liberty, OF property, bat also en-
bracing deprivation or suspension Of pOlit-
ical or civil rights, and the disabilities pre-
scribed by the provisions of the Missouri
constitution being in effect punishment, we
proceed to consider whether there is any in
hibition in the constitution Of the United
States against their enforcement.
The counsel for Missouri closed his ar
gument in the case by presenting a striking
picture Of the struggle for ascendency in
the State during the recent rebellion be-
tween the friends and the enemies Of the
Union, and Of the fegce passions which that
struggle aroused. II was in the midst of
the struggle that the present constitution
was framed, although it was not adopted
by the people until the war ceased. 1t
would have been strange, therefore, had it
not exhibited in its provisions some traces
Of tie excitement amid which the conven-
ton held its deliberations Il was against
the excited action Of the States under such
influences as these that the trainers Of the
Federal constition intended to guard. In
Fletcher VS.. Peck, Mr.. Chief Justice Mar
shall, speaking Of such action, uses this
Language;
Whatever respect might have been
felt for the State soyereignties, il is not 70
be disguised that the frameIs Of the cOnsti-
tuition viewed, with some apprehension, the
violent acts which might grow out Of the
feeling Of the moment and that the people
Of the United State g, in adopting the :nstru-
ment, have manifested q determination to
shield themselves and their property from
the effects Of those sudden and strong pas
sions TO which men are exposed. The re-
strictiona on the legislative power Of the
States are obviously founded in this senti-
mens; aud the constitution Of the United
States contains what may be deemed bill
Of rights for the people Of each State
No State shall pass any bill Of attain
der, er pos, }acto law, or law impairing the
! obligation Of contracts '"'
A bill of atiainder is legislative act
which inficts punishment without a Judi
cial trial II the punishment be less than
DEATH the act is termed bin of pains and
penalties Within the meaning Of the con-
stitution bills Of attainder include bills Of
pains and penalties. In these cases the
| legislative body, ia addition 20 its legitI-
mate functions, exercises the powers and
Office Of judge. Il assumes in the Ian
| gusge oftheteTt books, judicial magistracy
| IL pronounces upon the guilt Of tie parties
without any Of the forms OF safeguards Of
| trial lt determines the suticiency of the
proofs produced whethercomtormableto 20 the
rules Of evidence or otherwise. II fxes the
degree Of punishment in accordance with
/ its own notion Of the snormity Of the Of
| Tense Bills q this sort, savs Mr. JUS
tce Story, have been usually passed in
England in times Of rebellion or gross sub.
| serviency 70 the crown, Of violent political
| excitement-period in which all nations
are most liable, as we'll the free as the en-
/ shaved, 60 forget their duties and trample
/ upon the rights and liberties Of Others"
These bills are generally directed against
/ individuals by name, but they may be di-
| rected against a whole class. The bill
against the Earl Of Kildare, passed in the
reign Of Henry VIII, enacted that all
such persons which be or heretofore have
been comforters, sbettors, partakers, confed-
| crates. or adherents Of the said late Earl in
| his or their false and traitorous acts and
! purposes shall 10 likewise stand, be attaint-
/ ed adiudged, and convicted of high treason.
I and that the same attainder, judgment,
4 and conviction against the said comforters,
| aidCrs, abettors. undertaken, coniederates,
and adhersuts shall be as strong and ef-
fectual in the law against them and every
one Of them as though they and every one
! of them had been specially, singularly, and
particularly named by their proper names
IN the said act'
These bills NAV infict punishment abso-
luteiy or NAV intict il conditionally The
bin against the Earl Of Clarendon, passed
in the reign Of Charles H.. enacted that the
Earl should suffer perpetual exile and be
forever baaishcd from the realm. and that
if he returned or was found in England or
in any other of the Kings dominioas AFTER
the lst Of February, 1867, he should suffer
the pains and penalties of treason. with d
/ Vr0yiso, however. that if he surrendered