Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1868-12-03
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violence and passien and exhibited the
appearance Of malignity and persecution
II also appears that bills OF attaindei
were enacted against bodies OF men who
we're named and against bodies OF mer
who were not named.
Wooddeson states that the exercise o.
the power Of making the law for cases
after they arose and inhicting punish
ment without reference 10 any existing
law. was shocking to the humanity Of
the people Of England, and was found
like Sisyphus' stone to roll back on the
promoters. =.
During the war Of l776 the feeling
which that bloody and devastating con-
hict created, introduced, TO some extent,
con6scation and deprivation OF civil and
political rights, by test oaths; and iegis-
iative orders were enforced against those
who adhered 10 the British crown IN the
struggle. The treaty Of peace provided
that no further prosecutions on account
Of the part citizens had taken IN the war
should be instituted. Able and promi..
nent men in all the States took ground
against it's continuance and maintained
that the upjustifable course of the tories
when they obtained the ascendancy in
any quarter during the war, did not
iustify lawless retaliations. They de-
clared that this course would "let into
government principles and practices
which would in the end prove fatal to
themselves"
Marion, OF South Carolina, Henry, JEFF
feison, Madison and Washington, of Vir-
ginia, were among those who took part
against these measures. Gen. Hamilton,
OF New York, stated in n speech, that all
the persons, with few exceptions, who
had been NEST distinguished in accom-
plishing the revolution, were opposed TO
this system OF retaliatory measures. de
said that they proposed to condemn clti-
zens without preordained law. without
iudicial trial and to disfranchise them in
the face of the Constitution. 1.-THE Legis-
lature could disfranchise any number OF
citizens by general description, it might
soon confine all the voters to small
number of partisans and establish an
oligarchy. If it may, without trial,
Danish all whom circumstances may rem
der obnoxious, no man can be safe against
a prevailing faction. The name OF lib
erty applied to such government was
mockery." During the period which
elapsed between the treaty of peace in
1888 and the adoption Of the Constitution
in 1887, the popular judgment became
settled against the policy, and the
results were manifest. The Constitution
of the United States provides that all
legislative power shall be vested IN the
hands of one body of men; all Judicial
powers in the hands of another body OF
men; and all executive power in the
hands of an executive. No one branch
can exercise the powers belonging to
either of the others. This division OF
power had been advocated in France by
Montesquier, and able writers in other
countries, as q fundamental feature Of a
lust and free government. 1t had been |
maintained and partially executed in |
England, and other states, but had never |
been completely and practically estab-
lished in the very structure of the Gov |
eminent before the adoption of the Con-
stitution of the United States, and the
adoption of the constitutions of the |
States about the same time
This division of power was intended to
prohibit the consolidation of all power,
legislative, executive and judicial, in the
hands of one body of men, or of one
man, and to restrain the action of de-
PRAYED and turbulent msjorities against
weak and helpless minorities But the
trainers of the Constitution did not con-
tent themselves with this general prohi-
bition of the passage of the bills of
attsinder by the provision that the legis-
lative department should not exercise
judicial power. By the special prohibi-
ton of er post fdcto laws and bills of
attainder, they intended to declare, and
did declare, more explicitly, that neither
Congress or any State should exile, out
law, or in any manner destroy any citi-
zen, or deprive him of any established
rights, civil or political, by forfeitures or
disabilities inflicted for offenses commit
ted, unless such forfeitures and disabili-
ties were incurred by the violation of
laws previously enacted, and unless such
forfeitures and disabilities were declared
and enforced by the judicial department
Of the government. 1t was believed and
declared at the time of the formation of
the Constitution, that the legislative
branch was the strongest, and that the
judiciary was the weakest of the three
and that the greatest dan
ger 10 the future operation of the govern
ment would be that it would be over
thrown in its independent action or be
suspended for periods of time, or that the
Judges would become the servile instru-
nents of the other departments, as many
of them had been during the reign of the
rudors and Stuarts in England. The
Constitution therefore attempted to es.
tablsh the independence of the judiciary,
and erected bulwark for that purpose,
BY the power given to declare acts of
conflict with the Constitution
void, and by other provisions.
In support of the same general pur-
pose, the trainers Of the Constitu-
ion mitigated the rigor of the COM
mon law in regard to political offenses.
They cut off that legion of construc-
i've treason by which SO many able
and virtuous men had persisted in the
progress of centuries. They abolished
hat principle of the common law which
corrupted the blood of persons attainted
IF treason, and prevented them from
receiving and transmitting estates by
Inheritance. They required two wit
lesses to any overt act Of treason before
. conviction would be had and main
aimed They limited confscation to the
ife of those whose estates were subject to
,on6scation They provided by amend
nent, that the arrest for crime should be
'ounded on affidavit; that the party ac-
,used should be informed of the nature
and cause Of accusation against him; that
he should have the benefit of counsel; that
he should not be compelled to give evil
lence against himself; that he should
nave compulsory process to obtain wit
iesses in his power; that he should be
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