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


u- one which imposes punishment for
10, act which was not punishable at the til
in it was committed, or imposes addition
is punishment to that then prescribed,
~, changes the rules Of evidence by viii
he less or different testimony Is required
,r- convict than was then exacted.
rst Fletcher VS.. Peck, Mr.. Chief JUST
~ Marshall defined an ex.post faero law
ld be " one which makes an act punishat
NJ in manner in which it was not punis
II, atie when 1t was committed. y SUI
e. a law" said that emineRt judge, "mi
ut infiict penalties on the person, or ma
is inflict peeuniary penalties which swt
w the public treasury The legislature
,e then, prohibited from passing law
r which a mans estate, or any part of
lr shall be seized for aerime which was d,
N declared by some previous law to rend'
r him liable to that punishment. VIII
le then, should violence be done to th
natural meaning of the words, for III
: purpose of leaving to the legislature th
|. power of seizing for public use the estat
II OF an individual in the form of law al
: nulling the title by which he holds th
!. estate? The court can perceive no sufii
e cient grounds for making this distinction
e 1 The resembling act would have the effeC
a of an ex post faetO law. 1t forfeits th
: estate of Fletcher for a crime not com
e mitted by himself, but by those from
2 whom he purchased. This could not b
? effected in the form of an ex post fact
: law or bill of attAinder. Why, then, j
it allowable in the form of a law annul
( ling the original grant
The act to which reference ia her
made was one passed by the state o
T Georgia repeating previous act undel
which land had been esale1 q The. q
pealing act divesting the title OF the
grantees did not in terms define any
crimes, or infiict any punishment, OF
direct any judicial proceedings; yet, in
asmuch as the Legislature was forbidden
from passing any law by which mans
estate could be seized for crime which
was not declared by some previous law
to render him liable to that punishment,
the chief justice was OF opinion that the
repeating act had the effect of an eX post
facto law, and was within the cOnstitu-
tional inhibition.
Now, the clauses in the Missouri con-
stitution which are the subject of Oonsid-
! Grafton do not in terms define any crime
or declare that any punishment shall be
| inflicted, but they produce the same re-
suit upon the parties against whom they
are directed as though the crimes were
| defined and the punishment d56lared.
They assume that there are persons in
| Missouri who are guilty of some of the
acts designated. They would have no
meaning in the constitution were not
such the fact They are aimed at past
acts, and not future facts. They were
intended to operate upon parties who, iD
some form or manner, by action or words,
directly or indirectly, had aided or ooun-
| tenanced the rebellion or sympathized
with parties engaged in the rebellion, or
had endeavored to escape the proper re-
spOusibilties aud duties of citizen in
time of war. And they were intended
to operate by depriving such persons of
the right to hold certain offices and trusts,
and TO pursue their ordinary and regular
avocations, This deprivation IS punish
ment nor is II any less so because a way
is opened for escape from it by the ex-
purgatory oath. The trainers of the con-
stitution of Missouri knew at the time
that whole classes of individuals would
be unable 10 take the cath prescribed.
TO them'there is no escape provided. To
them the deprivation was intended to be
and is absolute and perpetual. To make
the enjoyment of a right dependent upon
an impossible condition is equivalent to
an absolute denial of the right under any
DUuulLlOug -
past act is nothing else than punishment
imposed for that act; it is a misapplics-
ton of terms to call it anything else.
Now, some of the acts to which the ex-
purgatOry oath is directed were not
offenses at the time they were commit
ted. 1t was no offense against any law
to enter or leave the state Of Missouri for
the purpose of avoiding enrolment ord draft
in the military service, however much
the evasion of such service might be the
subject of moral censufe e. Clauses which
prescribe a penalty fc an act Of this ma
ture are within the I ms of the defini-
ton of an ex post factO law. They inn
pose a punishment for an act not punish
able at the time it was committed. Some
of the acts at which the oath Is directed
constituted high Offenses at the time they
were committed, to which upon cOnvic-
ton fine and imprisonment or other
heavy penalties were attached The
clauses which provide a further penalty
for these acts are also within the deflni-
ton OF an ex post faetO law. They i'm
pose additional punishment to that pre-
scribed when tine act was committed.
And this is not all. The clauses in ques-
ton subvert the presumptiOns OF inno-
cence and alter the rules of evidence
which heretofore, under the universally
recognized principles of the common
law, have beeDllupposed TO be fundamen-
tai and interchangeable. They assume
that the parties are guilty: they call
upon the parties to show their innocence,
and they declare that such innocence
can be shown only in one way, by an in
QUESTION in the form of an expurgatory
oath into the consciences of the parties.
The Objectionable character of these
clauses will be more apparent if we put
them into the ordinary form of legisla-
tive act. Thus, if instead of the general
provisions in the constitution, the con-
ventiop. had provided as follows " BE jt |
sadcteSat That all persons who have |
heen inv armed hostility to the United |
States shall, upon conviction thereof, not |
only be punished as the laws provided at |
the time the offenses were committed |
but shall also be thereafter rendered in |
capable of holding any of the offices, |
trusts, and positions, and of exercising |
any of the pursuits mentioned in the !
third article of the constitution or Mis- |
souri," no one could have any doubt Of |
the nature Of the act. ItwOuld be an ex |
post faotO law, and void, for it would add |
a new punishment to an old offeuse. So, |
too, if the convention had passed an en- |
actment of a similar kind with reference |
to those acts which do not constitute I
offenses. Thus, had it provided as fol- !
lows " Be Il enacted, That ali persons |
who have heretofore at any time entered |
or left the state Of Missouri with intent |
to avoid enrolment or draft in the mill !
tary service Of the United States, shall, |
upon conviction thereof, be forever rem
dered incapable OF holding any Office of |
honor, trust, or profit in the United |
states, or of teaching in any seminary of |
learning, or OF preaching as a minister Of |
the gospel OF any denomination, or exer-
cising any of the professions or pursuits |
in tho third article of the con- /
there would be no question of |
the character of the enactment. 1t |
would be an ex post fac:O law, because it |
would impose punishment for an act /
not punishable at the time it was COM |
Initted.
The provisions of the constitution of |
Missouri accomplish precisely what en-
actments like those supposed would ac-
complish. They impose the same pen
atty without the formality of a judicial !
trial and conviction for the parties en-
braced by the supposed ehaetments |
would be incapable OF taking the oath |
TO them its requirement |
would be an impossible condition. Now, |
as the state, had she attempted the |
course supposed, would have failed, it |
aust follow that any other mode prOduc-
ing the same result must equally fail.
The provisions of the federal constitution f,
intended to secure the liberty of the Giti- 4
zen cannot be evaded h,Y the FORM in
which the power CT the state is exerted. |
If this be a0t 50, if that which cannst |
ae accomplished by means looking di- /
ectly to the end can be accomplished by 1
indirect means, the Inhibition may be
evaded ct pleasure. No kind of Oppres-
SION can be named against which the
trainers Of the constitution supposed they
had guarded, which may not be effected. |
Take the case supposed by cOgusel, that |
of man tried for treason and acquitted,
or, If convicted, pardoned.
Tine legislature may pass an act that if
the person thus acquitted or pardoned
does not take al oath that he never has
omEaitted the acts charged against him,
be shall not be permitted to hold any
office of honor, or trust, or profit, or pur-
sue any avOcatiOn il the state. Take the
case befara us; The constitution of Mis-
souri, excludes, on failure 10 take the
path we have prescribed, large class of
oersous within her borders from numer-
lus offices and pursuits. 1t would have
been equally within the power Of the /
state to have extended the exclusion so
rs to deprive the parties who were una
aie 10 take the oath from any avocations |
whatever in the state. Suppose, again,