The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1868-11-11

Condemns u-scatnS eon
apaipa, Test Onths and ex post facto
Laws.
CouRT OF APPEALS OF THE STATE OF
New YoRK-GREEN VS.. SUBWAY
MILLER. J.-This case involves the con-
stitutional validity of that portion of
tae act TO provide for convention to
revise and amend the constitution of
this State, which excludes from the
privilege of voting all who refuse to
take the test oath prescribed by the act
in question Is. l.. of 1867, chap. 194, sec.
2, p. 2S7. aL.t a.
| think that the oath in question was
unconstitutional and invalid. The first
subdivision of the tenth section of the
first article of the Constitution of the
United States provides that "no State
Shall pass any bill of attainder, er post
facto law, OF law impairing the obliga.
tions of contracts or grant any title OF
nobility This act declares that no
person shall vote at the election for del
egates to said convention who will not,
if duly challenged, take and subscribe
an oath that he has not done certain
acts mentioned therein, and infiicts the
penalty of political disfranchisement,
without any preliminary examination or
trial, for a refusal to take said oath.
Thus the citizen is deprived, upon de-
Ginning, of a right guaranteed by the
Constitution and the laws, and one of
the most inestimable privileges of free
government. There can be no doubt, L
think, that to deprive q citizen of the
privilege of exercising the elective fran
chise for any conduct which he has pre-
viously been guilty of, is to inhict
punishment for the act done. 1t inn
poses upon him a severe penalty, one
which by the laws Of this State Is Il
part of the punishment inflicted after
conviction for felony. 1t arbitrarily
and summarily, and without any of the
forms of law, Furnishes for an otfense
created by the law itself.
When the act in question was passed
by the Legislature, there was no law in
this State which condemned or charac-
teriZed the conduct which is punished
in this act, by depriving the citizen of
the right of suffrage. This law created
a new crime, and makes an otfense
which did not previously exist. ltpun-
ishes for an act which was not q crime
when committed Besides, the statute
in question, in violation of the rules of
the common law, pronounces Judgment
of condemnation without evidence, with
out any opportunity to defend against
The charge, and without any trial. 1t
makes the party the accuser of himself,
and his refusal to acquit himself for
any cause, his own condemnation. 1t
Furnishes for an otfense Uefore an accu-
sation is,made and trialhad judicially,
according to the constitution and the
laws of the land. 1t compels him, in a
direct violation of the Constitution of
the United States, to be witness
against himself. His refusal to testify
that bc is innocent operates to produce
mis- conviction, and seals his guilt. The
object of the fifth amendment was to
prevent the party from being called
upon as a witness of his own guilt. To
compel him to testify would violate this
provision; and indirectly to make his
refusal to testify cause punishment
effects the same purpose. 1t is only an
evasion Of the provision cited.
Again, the act is essentially in the
particulars indicated, both bill of at
tainder, or of pains and penalties, and
an &c post facto law. In Cummings
against the State of Missouri, a Wal,
277), bill of attainder is defined TO be
a legislative act which inflicts punish
ment without q judicial trial. Field j.,
in the opinion Of the court, remarks
"In these cases the legislative body, in
addition to its legitimate functions, ex-
ercses the powers and office OF Judge;
it assumes, in the language of the text
books, judicial magistracy; 1T pro.
nounces upon the guilt of the party
without any of the forms or safeguards
of trial; It determines the sutficency OF
the proofs produced, whether conforma-
ble to the rules of evidence or other
wise; and it fixes the degree of punish
ment in accordance with its own no.
tions of the enormity of the otfense."
The learned Judge cites cases from
British history, where bills of this char.
acter had been passed, and the court
held that tho second article of the Con-
stitution of the State of Missouri, which
required test oath from priests and
clergymen, in order that they might
continue in the exercise of their proies-
stems, and be allowed to teach and
preach, constituted bill of attainder,
within the meaning of the provision OF
the Federal Constitution prohibiting
the States from passing bills of that
character.
The court also held that the clauses
of the same article, in depriving priests
and clergymen of the right to preach
and teach, impose a penalty for acts
which were innocent when they were
committed, and increase the penalty for
certain public otfenses, and in both par
ticulars violate the prohibition, of an
er post facto law. That they further
violated that provision in altering the
rules of evidence with respect to the
proof of the acts specified; thus, in as
Stunning guilt instead of the innocence
of the parties, in requiring them 10
establish their innocence instead of
requiring the government to prove their
guilt, and declaring that their inno-
cence can be shown only in one way, by
an expurgatory oath.
In er parte Garland G Wal. 333), q
similar question was presented, aud it
was held that an act of Congress which
excludes from practicing in the Federal
courts any attorney or counselor who
refuses to take test oath partakes of
the nature of bill of pains and pen
alties, and is subject to the constitu-
tional inhibition against the passage of
bills of attainder, as we'll as within the
inhibition of the Constitution against
the passage of an er post tGctO law.
The cases cited cover the question
discussed, and are decisive and control
ing. But besides all oaths of an ex-
purgatory character, especially when
applied as a means of punishment for
past acts, not at the time known to the
law as criminal, have been regarded in
all countries in modern times as odious
and inquisitorial, and passed as they
usually are in times of high excitement,
and upon the return of cool judgment
and calm reason, have been condemned
and repealed by legislative enactments.
Such laws of such character had been
passed during that period, and even af-
ter its close, when peace had returned,
rigid enactmests were made, which ex-
clxded from the legal profession many
eminent lawyers of that generation. A
more enlightened and liberal spirit.
| however. under the guidance of the