Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-08-27

der the universally recognized principles
Of the common law, have been supposed
to be fundamental and Interchangeable.
assume that the parties are guilty.
They call upon the parties to establish
their innocence; and they declare that
such innocence can be shown only ln
one wsy-by an inquisitiOn, In the form
Of an expurgatory oath, into the con"
science Of the parties"
The Court showed that the enactmsnts
in question accomplished precisely what
would have been accomplished by pro-
visions er post Jact0 in their nature,
directly providing for punishment by de-
privation of the right to vote. They
said that these Imposed the same PEN
atty, without the formslity Of q Judicial
trial and conviction that if that which
could not be accomplished by means
looking directly to the end, could be &C
complished by indirect means, the in
hibitisn of the Federal Constitution
might be- svaded at pleasure. They
said:
"No kind of oppression can be named,
agsinst which the trainers Of the Con-
stitutiOn intended to guard, which may
not be effected. Take the cRse Of q MAI
tried for treason and acquitted, or If con-
victed, psrdoned the Legislature may,
nevertheless, enact that, if the person
thus acquitted or psrdoned does not take
an oath that he nsver has committed the
acts charged against him, ne shall not be
permitted TO hold any Office Of hcnor or
trust or profit, or pursue any avOcstlon
in the State"
They said that if the Constitutional
provision could be so evaded, and the
persons now in the minority should OBJ
tain the sscsndancy il the State, and Sc
cure the control Of the Government, they
could disqualify every man to vote or
hold Office, or pursue any a~vocstion, who
would not swear that he had never sdvo-
Gated or advised or supported the impo-
sitiOn Of the present expurgatory oath.
under this form Of legislation" the
Court said, "the most fragrant invasion
Of private rights, in periods Of excite
meut, might be enacted, and individuals
and even whole classes, be deprived Of
political and civil rights.n
The Court quoted, in conclusion, some
passages Of q paper left by Alexander
Hamilton, on the subject Of e~xpurgatory
oaths, used as q means of inhictiug pun
ishmsnt for past conduct aud said that
he demonstrated that it was not only a
mode Of inficting punishment, but q
mode in violation of all the constitutional
guarantees secured by the Revolution, ef
the rights and liberties OF the people.
He said, among other things cited
at was an evasion Of the Treaty, and
8 subversiou Of the great principle of So
cisl security, tO-wit: that every man
shall be presumed to be innocent until he
is proved guilty. This was to invert the
order Of things and instead of obliging
the State to prove the guilt, in order to
iD1ict the penSlty, it was TO ohlige the
citizen 70 establish his own innocence to
avoid the penalty. 1t was to excite scru-
pies 10 the honest and conscientious, and
to hold out a bride to perjury. 1t
was q mode of inqUiring who had COM
mitted any Of these crimes to which the
penalty of disqualification was annexed,
With this R~ggravation, that it deprived
the citizen Of the benefit Of that advan-
tSge, which he wOul3 have enjoyed by
leaving, 81 in all other cases, the Durthen
OF proSf upon the prosecution"
ITO place the matter in q still clearer
Nh. Hamilton supposed precise
Iy suoh a case as that which exists in
Missouri and Tennessee, as one about
which nobody could doubt. He asked
whether, if the Legislature were to de-
70 that nrroru afF5w.n -Ta v,-r1E ~
that he had never adhered to the
King Of Great Britain should incur all
the penalties which the laws against
prescribed, this would not be q
palpab!s ard direct Infringement of the
The degree Of punish
ment, he said, was all that distinguished
the cases. And he said, 4" In either, Just
considered, it is substituting a new
and arbitrary mode OF prosecution to
hat ancient and highly esteemed one
recognized by the laws and Constitution
If the State. I mean the trial by Jury"
II disqualification TO vote wac part of
he punishment Of treason, before the
was committed, then the law
'unishes the supposed offence in part,
Without trial and conviction. If it can {
o impose part Of tie punishment, it can :
0 impose all, and hang every man who !
vii not swesr that be is innocent. fit
Vas no part of the punishment, the law
imposes a new punishment er post fGcto,
Without trial and conviction, and could
nth the same right impose the punish
lent OF burning at the stake, on every I
ne who would not swear to his limo. !
ence. :
Mr.. Hamilton said " Nothing can be {
r~epugnsnt to the true genius of the I
Common Law, than such an inquisition !
3 has been mentioned into the +
Of men" If property, ne I
Md, was attempted to be taken away in
nat mode, everybody would see that :
proceeding was tyrannical but
Gen the same mean were employed
to divest that right which ought to be T
eemed still more sacred" many were :
} infatuated as 10 overlook the mischief I
lie said t
1t Is an improper mode" rof ascer- y
aiming who had forfeited their rights as .
.ozsnsl A" because it puts the most es- u
initial interests Of the citizen upoo a =
orse footing than we should be willing to r
'ierste where inferior interests were u
)ncerned and because, TO elude the 2
resty, 1t substitutes for the established
legal mode Of investigating crimes
inficting fOrfeltures, one that is I'M
to the Constitution, and repug-
ant to the genius Of our law"
Such was the opinion Of Alexander
Such is the opinion Of the =
Court Of the United States. Is g
iere any flaw in the reasoning ? Is s.
lere any weak place in the argument ? q
there any sophistry in the opinion ? az
one.
KEVVE Is