Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1868-12-03
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massage of such statutes or ordinances,
were prohibited by the Constitution Of
the United States as retrospective penal
enactments or er post fdcto laws. II is
immaterial whether these statutes or or
dinances proceed from an ordinary legis-
lature or from the delegates Of the people
in convention assembled according to
the requirements Of preexisting con-
stitution.
The Constitution Of the United States
declares that no State shall pass any
er post fdcto law or bill Of attainder.
No respectable authority has ever held
that the word "State" did not embrace
the people of the State in any capacity
in which the people Of the State might
choose TO organize themselves. If this
were not so the. delegates Of the people,
in convention Assembled, might grant
titles Of nobility, abrogate oil contracts.
and enact er post tdcto laws and bills OF
attainder without restraint. The pun
ishment Of citizens by depriving them OF
their civil or political rights by constitu-
tional provisions ordained for the pun
ishment of offanses committed prior to
the passage of such ordinances are OF
no more validity than an ordinary act
Of the Legislature enacted under similar
circumstances and for like purposes
The elective franchise act passed in
1861, for the deprivation of the citizen
of rights for offenses committed or acts
done in 1861, '62, '63 and GA, are there
fore prohibited by the Constitution,
whether they are Legislative acts or con-
stitutional provisions. But if such sta
tutes were not retroactive in ope-
ration, if the offenses set forth
in these statutes we're punishable
by the express terms of statutes
by deprivation of the right to vote and
hold Office, such acts would be void and
of no legal validity because they would
be acts Of attainder. They would be acts
of attainder because they would punish
citizens for alleged crime without q trial
by the judicial branch ef the government.
The whole work of deprivation for al
legged crime has been accomplished by
the law-ordaining department of the gov
ernment, and by the executive depart
ment. The judicial branch of the gov
crnment has been wholly excluded. So
long as the prohibition in the Constitu-
ton, of bills of attainder stands, no citi-
zen can be deprived of civil or political
rights or privileges, or be otherwise pun
ished on account of offenses committed
without constitutional trial by the judi
cial branch of the government: The
elective franchise acts deprive the citi-
zen of his rights on the ground of offenses
committed in "the late rebellion " with
out q trial. These acts, therefore, are
acts of attainder, and prohibited by the
Constitution of the United States.
The precedents Of such eDsctments by
the parliament of England from time to
time in the progress of centuries, and the
decisions of the Supreme Court of the
United States almost from its foundation
to the present time, amply sustain these
positions. Some of them may be re-
ferred to, and first, as to parliamentary
attainder.
In the twenty-sighth year of Henry
VIII, bill of attainder was enacted
against the late Earl Kildare and others.
This special act declared that the late
Earl and his aiders, abettors, confederates
and adherents in his traitorous acts and
purposes, should be and stand attainted
aud convicted of high treason" and that
the conviction should be as "strong and
effectual against the adherents and con-
federates as if they had been specially
named 1t is possible that the punish
meut ordered to be executed by the judg-
ment of Parliament, might have been
the same which would have been ad-
judged against them by the Court of
Kings Bench, acting under existing
laws for the punishment of treason, but
this sentence of Parliament was an act
of attainder, because it was special law
made for the occasion, adjudging punish
ment without regular trial by the
court, to which should have been sub
mitted the facts of the case and the law
involved. If this judgment of Parlis-
ment had been certified to the Court OF
Kings Bench for execution, and the ad-
herents had been brought before that tri-
bunal by habeas corpus, no indictment
would have been filed against them, but
they would have been asked if they had
to say why the sentence of the
law should not be executed upon them.
The judgment of Parliament left nothing
to be tried by the Court of Kings
Bench, but the fact of adherence to the
Earl. Parliament usurped the jurisdic-
tioR Of the Judiciary.
In the thirteenth year of Charles the
First the Earl of Straford was brought
before the House of Lords on a bill of
BE was tried, attsinted and
executed. A distinguished comments
tor on the laws of England states that
he was sttsinted and executed :" on a
state of facts which by no previous law
or adjudication had been or could be de-
clared treason" The attainder was af-
terward reversed; the reversing statute
declaring that "all the proceedings in
relation to the said sttainder should be
cancelled and taken of the file, or other
wise defaced and obliterated, to the in
tent that the same should not be visible
to future ages, or be brought into ex-
ample to the prejudice Of any persons
whatever" This nobleman, according
to the commentator, perished by an ex
post fdct0 law and the proceeding BY bill
Of aftainder.
In the reign of Charles the Second, a
member Of Parliament (Sir John Coveu-
try), made some remarks on the disso-
lute character Of Charles. BE was there
upon seized in the streets Of London By
some persons, who assaulted and wound
"a him il the face with the intent to dis
fgure him. The authors Of the assault |
iei 10 the continent, and Parliament
passed an act Of aiiaindsr against them,
ldjudging that the offenders should re