Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-19

seeing that 1t containsa conviction or sem
tence Of any designated person or PERSONS!
1t Is said that it is not necessary to a blllOf
attailller that the party to be affected
should be named inthe act, and the attaia-
der of the Earl OF Kildare and his associates
Is referred to as Showing that the, act was
aimed at class. tits very true that bills
of attaihdcr have been passed against per-
sons by s6me description when their names
were unknown, but in such cases the law
leaves nothingto be done to render its OPP
GRAFTON efiectial but to identify those per-
sons. Their guilt, its nature and its pun
ishment are fixed by the statute, and only
their personal Identity remains to be made
out. Such was the case alluded to. The
act declared the guilt and punishmentofth the
Earl of Kildare and all who were associated
with him in his enterprises and all that was
required to insure their punishment
was to prove that association. Ut this
were not so, then it was simply brtttt@lt JNI-
men, and the parties other than the Earl of
Kildare could only be punished notwith-
standing the act, by proof of their guilt be-
fore some competent tribunal. No person
Is pointed out in the act of Congress,
either by name or by description, against
whom it is to operate. 2o The oath Is
only required of those who propose to
accept an office or to practice law, and as a
prerequisite to the exercise Ofthe functions
of the lawyer or the officer it is demand-
ed of all persons alike. 1t is said TO be di-
rected, as class, to those alone who were
engaged In the rebellion; but this is mani
testify incorrect, as the oath is eXacted alike
from the loyal and disloyal, under the like
circumstances, and none are compelled to
take it. Neither does the act declare any
conviction either of persons or classes. '1f
or bo. INV n ttl nflt ri Nj ifnn ra
they declared to be guilty Nor does 1t pro-
Eounce any sentence or inflict any punish
ment. If by any possibility 1t can be said
to provide for conviction and sentencel
though not found in the act itself, it leaves
the party himself to determine his own
guilt or innocence and pronounce his own
sentence. 1t is not, then, the act OF Con-
gIess, but the party interested, that tries
and condemns. We shall see when we
come to the discussion of this act in its re-
lation to e1 post tacto laws that 1t inflicts no
punishment, and statute which designates
no criminal, either by name or by descrip-
tion, which declares guilt, pronounces no
sentence and intlicts no punishment, can in
no case be called a bill of attainder. d7e
Passing now to the consideration whether
this statute is an e1 post JdctO law, we find
that the meaning of that term as used in
the Constitution is a matter which has been
frequently before this Court and it has
been so we'll defined as to leave no room for
controversy. The only doubt which eau
arise is as to the character of the particular
acts claimed to come within the definition; ;
not as to the definition of the phrase itself.
All the cases agree that, the term Is to be
applied to criminal causes alone, and not to
civil proceedings. In the language of JUS
N n Watson Mnppnr
Is Peters, SS), EG post tGcto laws relate to
penal and criminal proceedings which inn
pose punishments and torieitures, and not
to civil proceedings which affect private
rights respectively. calder y. Bull, 3 Dali
las, 1856; Fletcher .. Peck, 6 Cranch. 81 Og-
den D. Saunders, II Wheaton, 26G; Satterlee
D. Matthewson, 2 Peters, 3S0.) The first
case on the subject is that of Calder o. Bull,
and it is the case in which the doctrine con-
cerning eJ post JdctO laws is most fully eX-
pounded. The Court divides all laws which
come within the meaning of that clause of
the Constitution into four m classes !:
First, Every law thatmakes an act done be-
fore the passing of the law, aud which was
Innocent when done, criminal, and Furnishes
such action. Second, Every law that ag-
gravateS crime, or makes it greater than
1t was when committed. Third, Every law
that changes the punishment and inflicts a
greater punishment than the law annexed
to the crime when committed, F9llth,
Every law that alters the rule of evidence,
and receives less or different testimony than
the law required at the time of the COM
mission of the offense to convict the Of
fender. Again the Court drawsin the same
opinion the true distinction as between er
post tdcto laws and retrospective laws, and
proceads to show that however unjust the
latter may be, they are not prohibited by
the Constitution, while the former are.
The exposition of the nature of an er post
tdcto law has never been denied, nor has
any Court or any commentator on the Con-
stitutiOn added to the classes of laws here
set forth as coming within that clause of the
organic. law. In looking carefully at these
tour classes Of laws, two things strike the
mind as common to them all--first, that
they contemplate the trial of some person
charged with an otfense; second, that they
contemplate "a punishment of person
found guilty of such otfense. Now, it
seems to me Impossible to show that the
law in question cOntemplates either the
trial of person for an offense committed
before its passage, or the punishment of
any person for such an offense. It is true
the act requiring an oath provides pen
atty for falsely taking it. But this prOvis-
ion Is prospective, as no one is supposed to
take the oath until after the passage of the
law. This prospective penalty Is tho only
thing in nthellaw which partakes Of crim-
inat character 1t is in all other respects u
civil proceeding. 1t is simply an oath of
office, and it is required of all office holders
hlike.5 AS far as am informed, this is the
first time in the history of Jurisprudence
that taking an oath of office has been called
Rcriminal proceeding. If it is not n GRIM
inal proceeding, then by all theIauthorities
1t is not all eD post tactO law. No. trial of
hnyperson is Contemplated by the act for
any past offense; nor is any party supposed
to be charged with any otferse in the only
proceeding which the law provides A.
person proposing to appear in the Court,
as an attorney Is asked to take n Ia
certain d oath. There is no charge
made against him that he has been
guilty of any of the crimes mem
TONED in that oath! Therelis no prosecu-
tion. There is not even multiplication of
guilt by reason of rendering him the oath,
ferdt Is require1Of the oman who hasIsl0st
everything in defense of the Government
and whose loyalty is written in the honor,
able scars Which cover his body, the same
rs OF the gulltiest traitor in the land!n1Iis
refusal to take the oath subjects him to- no
prosecutions His taking itelears him of
no, guilt and aequits him of no charge,
Where, then, ist this et post tdct9 law which
tries and panislIes q man for q crime e6msl
mitted, before it was passed?9 1t can only
be found in those elastic rules of cnnstruc-,
tlon which cramp the powers of the Fede-
raj Goverhtnentiwh they arctic be exef-
cised In certain directions, and enlaEger
them when they, are to be, exercised in
others, No more striking example of this
could be given than che cases before us i0