The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1867-01-18

be equally open to objection; and if it
had declared that all such persons
would be held guilty-provided that py
q day specified they did not do certain
acts that would be within the constitu-
tional inhibition. In all these cases IL
would be legislative judgment without
the form Of security of the citizens
established by our tribunals.
The question presented was one OF
form and not of substance. The exist
ing clause presumes the parties guilty
from which they cannot reclaim them
selves without an expurgatory oath. IL
is certain the legal result is that what
cannot be done directly cannot be done
Indirectly; the constitution deals with
substance, not with shadow. 1t aims az
things, not names. Chlef Justlce MAI
shall says an ex post facto law imposes
punishment for an act not punlshaole at
the time it was committed, or imposes
penalties additional to those there pre-
scribed on different testimony. Thatcher
against Peek made it an act OF punish.
ment for what was not punishable at
the time the act was committed.
The act to which Judge Marshall takes
reference was passed by the Legislature
of Georgia, repeating previous act by
which land had been granted. 1t was
decided the repeating act had the effect
of an er post jacto law. The clause OF
the Missouri constitution did not In
terms define any crime or declare pun
ishment inflicted, but presumed the
same result as if the crime had been de-
fined and tho punishment prescribed,
1t aimed at some persons who, Directly
or indirectly, had aided the rebellion OF
escaped proper responsibility OF citizens
in time of war, or was intended to de-
nriye certain persons of offices of trust
and emolument. Such deprivation ls
punishment; nor is it way which is
opened by an expurgatory oath. NOW
some of these were not offences when
the acts were committed. 1t was not
then an offence to avoid tho enrolment
or the draft, howmuchsoever 1T mlgnt
be matter of censure. Some OF the acts
at which the constitution was direct
ed were offences at the time, but the
clause which prescribes further penal
ties is within the nature OF an &c pos
facto law. A..
The clause in question subverts the
presumption of innocence, and perverts
the rules of evidence, which by the
common law are fundamental. 1t pre-
sumes the parties to be guilty, ana de-
clares that innocence can only be snown
in one way, and that by expurgation'
Put this clause in the form of leglsla'
five act and it would read: Be it enact
ed. etc. that all persons i'll armed hos
tility to the United States shall, OF
conviction, not only be punished as the
law proyid ed at the time of the offence
but also rendered incapable OF holding
offices of trust, honor or emolument, ol
exercise the Office of a teacher or
priest, etc. 49,. ~
No one could doubt that this third
article. if thus rendered, would De e.
most facto, because it would be adding
new punishment for an old offence moi
punishable at the time of the enact
ment; it would impose penalties with
ont the form of judicial proceedings
The constitution of Missouri imposes
an oath which it was impossible for al
TO take; it was an impossible condl
: tion.
The constitution of the United States
cannot be evaded in the form by which
the power of the State is eSerted: L
this can be accomplished by lndirec
means, the constitutional inhibition
may be evaded ut pleasure. Take th'
case of a man tried for treason, and 1
convicted, pardoned; nevertheless TIT
Legislature might prescribe that unless
he took an oath that he never did th'
act charged, he should never hold Office
of honor or profit. Suppose the minor
ity should get the control of the STATE
government, nothing could prevent
them from requiring that every person
as condition to holding office of honor
profit or trust, should take an oath tha
he never advocated, advised or supported
the imposition of the present cxpurga
tion.
Under this provision the most hagran
violations of Justice may be committed
and individuals deprived of their civi
rights. A AquestiOn rose in New York II
1852 upon q statute of the State which
involved an expurgatory oath as
means of punishment. The subject was
regarded so important as to engage the
attention of eminent lawyers and dis
tinguished statesmen of the time
Alexander Hamilton demonstrated that
il was in violation of the constitution
which secured the rights and libertie:
of the people as the resnlt of the revo
luton. It was Il wise axiom that every
man is believed to be innocent until he
is proved guilty. The reversing of this
was to hold out bribe to perjury. II
deprived the citizen of the advantage
of leaving the burden of proof on his
prosecutor. Let us not forgot that the
trial by jury should remain inviolate
forever, etc.
The same view was embraced by the
judiciary on analogous questions. The
court said, in conclusion, that the judg-
ment of the Supreme Court of the State
of Missouri must be reversed, with di-
rections to enter Judgment to reverse
the Judgment of the Circuit Court OF
Pike county, and also with directions
to said Circuit Court to enter an order
discharging the defendant from impris-
onment and permitting him to go with
out delay.
| Associate Judge Field then said he
was also instructed to deliver the opin.
ion of the court in the matter of the pc
tition er parte of A. II. Garland. On the
Goth of July, 1862, Congress passed an
act prescribing the form of an oath to
be taken by officers elected under the
constitution of the United States, with
the exception of the President. On the
oath of July, 1865, Congress passed a
supplementary act embracing attorneys
and counsellors.
1t provides that no person shall be adj
mitted to the bar of the Supreme Court
] Of the United States, or at any time
after the 4th of March next, be admitted
to the bar of any Circuit Court or Dis
trict Court of the United States, or the
Court of Claims rs an attorney or coun-
sellor, or be allowed to appear by virtue
of any previous admission of any special
powers of attornSy, unless he first takes
and subscribes t6the oath prescribed in
the act to prescribe an oath of Office,
approved July 2, 1862, which said oath,
so taken and subscribed, shall be pre-
served among the files of such court,
and that any person who shall falsely
take said oath shall be guilty of perjury,
and on conviction shall be liable to the
nains and Denalties of periury and the