Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-22
nEfre1tEtg5: OIdM
u NUMBERS a75.

llicting punishment. The subiect. was re-
garded as so important and ACKNOWLEDGING
OF the oath such a Violation Of tie funda-
mental principles of civil liberty and the
rights OF the citizen, that iteDgageifiIent- it
tention ofe eminent lawyers and distinguish
ed statesmen of the time, among others,u Of
Alexander Hamilton. We will cite some pas
sages ofa papefieit BY him on the subject,
In which with his iselaraeteristie fpllness andE
ability, lie examines TIE oath and dethon4A
strates that it Is not only mode of infiict-
ing punishment, but a mode 10 violation of
all, the constitutional guarantees xetu ed
bg the revolution fl Of the rights and liberties
"It we examine It's (thef measure & requir-
ing the OATH said this greatlawyer, with
an unprejuldieed eye, we must acknowledge
not only that 1t was an evasion Of the treaty,
but a suhyersion ofsOne egreatgppineiple of
social security, to-wit: that every man
shall be presumed innocent until he is
proved guilty. This was to 'fnvert the order
of things, and instead Of obliging the State
to prove the guilt miorder to finfiet THE
penalty, it was TO obllge the citizen TO show
. his own Innocence TO avoid. the penaltgs Itly
was to excite scruples in the honest and
4, conscientious, and TO hold out bfibe TO
perjury. @#h 1t was ainode OF inqhfffhg
whOhad. d.committed any Of those crimes to8
which the penalty of disqualification was
annexed, with this aggravation, that Il de-
prived the citizen of the benefit of that ads
vantage which he would have enjoyed by
leaving, as in all other cases, the burden OF
proof upon the prosecution, To place this
matter in a still clearer light, let IL be sup
posed that instead OF the mode OF indict-
ment and trial by jury, the Legislature was
to declare that every citizen who did not ,
swear that he had never adhered to the
King of Great Britain shouldincuri all the
penalties which our treason laws prescribe, i'
would this not be pllpable evasion of the
treaty, and adirect Infringement of the Con-
stitution? The principle, is the same in "
both cases. with only this difference in the,
consequences, that in the instance already
acted upon the citizen forfeits part OF his o1
rights, in the ole supposed heIwould for-J
felt the whole. The degree of punishment
Is all that distinguishes the cases. In
either, justly considered, it is substituting a.
new and arbitrary mode of prosecution TO
that ancient and highly-esteemed one rec
ognized by the laws and the Constitution
of the State--I mean the trial by jury. ny7en.
Let us not forget that the Constitution =.
declares that trial by Jury in all cases In
which it has been formerly usedshOuld re-
main inviolate forever, aud that the Iegis-
lature should at no timc erect any new .ju-
risdiction which should not proceed accord
ing to the course of the common law. Noth-A
ing can be more repugnaDt to the truce
genius OF the common law than such an
inquisition as has been mentioned into the
eOnsctenceS OF men. AfS . If any OATH
with respect to past conduct has been made
the condition on which individuals who have
resided within the British lines should hold
their estates, we should immediately seerf
that this proceeding would be tyrannical
and aviolation of the treaty; and yet, when
the same oath is employed TO divest that
right which ought to be deemed still moro
sacred. many of US are SO infatuated as to
overlook the mischief.
To say that the persons who will be
affected by it have previously forfeited +
their right, and that therefore nothing Is o,
taken away from them, is a begging Of the
question. How do we know who are the
parties in thissituation? II 1t be answered z
this is the mode taken to ascertain il, the
objection returns, 1t is an improper mode,
because it puts the most essential interests
ID Of the citizen upon worse footing than we %
should be willing to tolerate where inferior -,
interests are concerned, and because, II al .
lowed, it substitutes for the established aud y
legal mode OF Investigating crimes and in+Es
hictiDg forfeitures one that is unknown to
the Constitution and repugnant to the ge-
MUS of our law."I7m fl11iJ1fl g tc aliN All
Similar views have frequently been ex-
pressed by the judiciary, in cases involving d
analogous questions. They are presented
with great force in the matter of Dorsey
/ a Porter, but we do not deem Unnecessary
to pursue the subject further. The judg-r
ment of the Supreme Court of Missouri
must-be reversed and the cause remanded,
with directions to enter Judgment resi- q
versing the judgment OF, the Circuit Court.
and directing that Court to discharge the
( defendant from imprisonment and suffer
him to depart without delay aud it Is SOL
ordered. .erol