Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-01

also, and often has been imposed as pu
the ishment. By the statute Of9 and
ort William Ill, if any person educated
+. or having made profession Of the chri
the tian religion did, by writing, printin
teaching or advised speaking, deny Il
lon truth of the religion or the Divine autho
M ity of, the scriptures, he was for the fir
offense rendered incapable to hold an
of office or place of trust, and for the secon
ri, he was rendered incapable of bringin
St any action, being guardian, executor
lat legatee, OF purchaser of lands, besides bC
est ing subjected to imprisonment withOU
Ias bail. BY statute 3, George ], contempt
be against the kings title were punished b.
ne incapacity to hold public office or plac
est of trust TO prosecute any suit to be guar
IA dian or executor, to take any legacy O
h, deed of gift, and TO vote at any election
10, for members of parliament, and by for
he feiture Of e500 to any one who would su
u for the same.
ut "SOme punishments," says Black
stone, "consist in exile of Punishment
u by abjuratiOn of the realm or transporta
D. tion others in loss of liberty by per
a. petual or temporary Imprisonment
st Some extend TO confiseatiOn by forfeiture
of OF lands or movables or both, or of the
D. profits Of lands for life. Others induce q
J. disability of holding office or employ
d ments, being heirs and executors and the
d like.u Among the Romans, loss of the
l. privilege of membership of the family
:. or of citizenship were punishments in-
Y flicted by her laws. In France, depriVa-
e ton or suspension of civil rights, or of
! some of them, are punishments pre-
r scribed by her code, and among civil
r rights are included the righ Of voting, Of
e eligibility to Office OF taking part in
4 amily councils, Of being guardian and
e trustee, of bearing arms, or being en-
e ployed in q school or seminary of learn
I ing.
E The theory upon which our political
institutions rest is, that all men have
: certain inalienable rights; that among
r 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 to every one, and
thar in the protection of these rights all
are equal before the law. Any depriva-
ton or suspension of any Of these rights
, for past conduct or acts Is punishment,
and can in no other wise be defined.
| Punishment not being therefore re-
stricted as cOntended, to the deprivation
of life, liberty, or property, but also EN-
bracing deprivation or suspension of po-
litical or civil rights and the disabilities
prescribed by the provisions of the Mis-
souri, constitution being in effect, pun
ishment we proceed to consider whether
there is any inhibition in the constitu-
ton Of the United States against their
enforcement.
The counsel from Missouri closed his
argument in this case by presenting
striking picture of the struggle for as
ceBdancy in that state during the re-
cent rebellion between the fTiends and
the enemies of the union, and Of the
fierce passions which that struggle !
aroused. 1t was in the midst of that |
struggle that the present constitution !
was framed, although it was not adopted |
by the people until the war had ceased. |
1t would have been strange, therefore, /
had it not exhibited in its provisions |
some traces of the excitement amid /
which the convention held its delibera- /
tiOns. 1t was against the excited action |
Of the states, under such influences as |
/ these, that the trainers of the federal /
constitution intended to guard. In /
Fletcher VS. Peck, Chief Justice Mar
shall, speaking of such action, uses this
| language:
Whatever respect might have been
/ felt for the state sOvereignties, it is not
| to be disguised that the trainers of the
constitution viewed, with some appre-
hension, the violent acts which might
5iOh OuA vi illC iEGAALG ~ vi bAAG llOLllEuLf !
and that the people of the United States,
in opposing that instrument, have mani
Tested a determination to shield them
selves and their property from the effects
OF those sudden and strong passions to
which men are exposed. The restrictions
on the legislative power Of the states are
obviously founded in this sentiment; and
the constitution Of the United States con-
tains what may be deemed a bill of rights
for the people Of each state:
"' No state shall pass any bill of at
tsinder, ex POST faeto law, or law impair
ing the obligation of contracts
A bill of sttainder is a legislative act
which infiicts punishment without q
judicial trial. If the punishment be less
than death, the act is termed a bill of
pains and penalties. Within the mean
ing of the constitution bills of attainder
include bills Of pains and penalties. In
these eases the legislative body, in addi-
tiOn TO its legitimate functions, exercises
the powers and office of judge. 1t as
sumes, in the language Of the text books,
jndicial magistracy. 1t ItprOnounces upon
the guilt of the parties without any of
the forms or safeguards of trial. II de-
termines the suficiency Of the proofs
produced whether confOrmable to the
rules Of IriI5ence or otherwise. 1t fixes
the degrg sof punishment in accordance
with itSs5wn notions of the enoTmity of
the Otlanse. " Bills of this sOrt,u saws
Mr.. Justice Stery, have been usually
passed in England in times of rebellion,
or gross subserviency to tine crown, or of
violent political eXcitement-periOds in
which all nations are most liable, as well
the free as the enslaved, to forget their
duties and trample upon the rights and
liberties Of otheFs.n
These bills are generally directed
against individuals by name, but they
may be directed against a whole class.
The bill against the Earl Of Kildare,
passed in the reign Of Henry VIII, en- A.,
acted "that all such persons which be or {
heretofore have been cOmforters, abet- |
tors, paTtakers cOnfederates or adheTents {
Of the said late earl i'm his or their false
and tTaitOrOus acts and purposes shall in
likewise stand, be attained, adjudged I
and convicted of high treason, and that S
the same attainder, judgment and con- |
viction against the said comfOrters,
aiders, abettors, undeTtakers, confeGe-
rates and adherents shall be as strong |
and effectual in the law against them ;
and every one Of them as though they {
and every one of them had been spe- ,
cially, singulaTly and particularly named
by their proper names in the said act.n
These bills may inflict punishment {
absolutely or may intict it cGEditiOnally. [
The bill against the Earl of Clarendon,
passed in the reign of Charles ii, enacted |
that the earl should suffer perpetual exile {
and be forever banished from the realm, |
and that if lie returned or was found in | ,
England or in any other of the kings !
dOminiOns after the lst of February, I
1867, he should suffer the pains and PEN {
alties of treason, with q prOyisO, how !
ever, that if he surrendered himself s
before the said first day of February for {
trial, the penalties and disabilities de- '
clared should be void and Of no effect.
&" \ British act of parliament" to cite
the language Of the supreme court of
Kentucky, " might DECLARE tnat il GER
tain indiYiduals failed to do 4 given act /
by a named day they should be deemed ,
to be and treated as convicted felOps and {
traitors, and the act would come pre-
cisely within the definition of bill Of |
attainder, aad the English courts would |
enforce it without indictment or trial Ey
Jury" If the clauses of the third article |
OF the constitution Of Missouri to which !
We have referred had in terms declared {
that Mr.. Cummings was guilty, or {
should be held guilty, of having been in
armed hostility to the United States, or i
of having entered that state 10 avoid 7
being enrolled or drafted into the mill /
taTy SeTYi5e, and thereafter should be de-
prived of the right TO preach as priest '
Of the Catholic church or to teach in any ]
institution of learning, there would be
no question but that the clauses would {
constitute bill Of stiainder within the j
meaning of the federal constitution, if {
these clauses, instead of mentioning his /
name, had declared that priests and {
clergymen within the state of Missouri |
were guilty Of these acts, or should be II
held guilty of them, and hence should G
be subjected to the like deprivation, the q
clauses would be equally open to objec-
tion. And further, if these clauses had t
declared that al sucn priests and clergy d
men should be held guilty, and be thus C
deprived, provided they did not by day L
designated do certgn specified acts, they Q
would benz less within the inhibition of s
the federal constitution. C
In all these cases there would be the :
legislative enactment creating the de- o
privatiOn, without any of the ordinary / 2
forms and guards provided for the security o
of the citizen in the administration of JUS b
tice by the established tribunals. S
The results which would follow from a
clauses Of the character mentioned DO L
follow from the clauses actually adopted. v