Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-12-01

= cant has noe proved himself innocent Q
8 the charge, and he is, therefore, presume
T 10 be guilty of the disqualification. !
e there be no arrest provided for, and no in
: dictment required to be filed charging tn
bearing arms, etc, if the arbitrary and un
! recorded sentence Of an executive or min
] tsterial officer be no Judgment in a eonsti
: tntional sense, it is nevertheless a sentence
J Of deprivation which does its work a.
, effectually as the sentence Of a constitu
! tional court could do. The result is that
perhaps a hundred thousand cifizsus are
: deprived OF their lOng enjoyed and eslab.
lished legal rights, on the ground that they
nave committed treason, conspiracy, sedi-
lon or other political ofense, by the mere
terms OF an ordinance or statute, and the
action Of an executive or ministerial agent
without any indictment, without a jury
trial, without any judgment pronounced
by judicial department of the government.
Yet, we are graVely told that an ordinance
which inhicts forfeiture of the most valu
able and endearing rights Of citizens of the
State on account of alleged offenses, is not
penal in its character, because the ordi-
nance does not prescribe trial by the iu-
diclal branch; that no punishment is in
| AANtOA SNNauoC TIC Is
without any constitutional trial, and that
the proceedings under these ordi-
nances are not criminal proceedings,
because they are executed BY no ju-
| dicial officer, and are made under a
law for the registration of the voters.
The Supreme Court Of the Uaited States
says that the provision in the Constitution
was intended to secure the rights of the
citizen against forfeiture, for past conduct,
by legislative enactment under any form,
however disguised. II the prohibition can
be evaded by the form Of enactment, its
insertion 10 the fundamental law was a
vain and futile proceeding. The court de-
clares that no kind of oppression can be
named which the trainers of the Conslitu-
ton intended to guard against which
might not be effected if the form of the
| statute clears it Of penal character Ac-
| eording to this Interpretation of statute,
the Legislature might declare that if
person who had been tried for treason
and acquitted, or if convicted, pardoned
that if the person 50 acquitted, or pat.
doned, did not swear that he h+d
never committed the offence he should be
deprived OF the right to hold any Office Of
honor, profit or trust in the State,or pursue
any avocation in the State.
Gen. Hamilton said in 1888, that this
mode Of depriving citizens of their rights,
by test osths substituted a new and arbitrary
mode Of prosecution for the ancient mode
established By the Constitution and laws.
He declared that if the Legislature had
the right to declare that every man IN the
State Of New York who did not swear that
he had not adhered to the British crown in
the previous war, should be disfranehised,
that body had the same right to declare
that every man who did not AXE that oath
should suffer the penalties Of treason that
the principle which justified the inhictiOn
of the punishment in one case would Justify
its in1ictiOn in the other, and that the only
difference would be in the character Of the
punishment inflicted in the two cases. III
the Constitution or law of Tennessee
declared that if any citizen Of the State did
not, within six months, take an oath that
he had not borne arms against the United
States or sought or accepted Office underway
insnrrectioaary State, he should be lraus-
ported TO the West India Islands and re-
main ia exile for the term Of ten yeaFs, or
that he should be subjected to ten years
imprisonment in the peuiteutiary or sub
jected to any specific corporal punishment,
and that the Governor of the State should
execute the Law, could there be doubt but
that this would be an arbitrary and sum-
mary mode Of prosecuting and furnishing
men.
II the Constitution and the law provided
thas no citizen, who did not in six months
make the affidavit required by the ordi-
/ nance Of 1856 Z, should vote or hold Office,
sns an the courts Tor injuries 70 his person
/ or 10 his property, inherit or purchase real
estate, give evidence 10 the courts or pur-
sue any business or profession which re-
/ quired licenee; would such provisions
inhict no punishment because they did not
require seizure Of the person or of the
| goods and chattels, lands add tsnements Of
those who failed to erculpste and acquit
| themselves Of the charges made against
| them.
| These ordinances constitute q new and
summary and obituary mode of prosecuting
| offences they are penal; they are retro
| speetiYe; they iDhicl punishment with
out a constitutional trial. They enact
sWsepins political attainders, eyadiDg
| judicial safeguard TO constitutional liberty
breaking down every barrier 60 cauti ously
established by the Constitution of the
| United States, and the Constitution Of the
State against oppressive State prosecutions.
If this system of attainders by retro
| spectiye oaths are sustained by the high
/ judicial tribunals, 10 what extent may 1t
/ not be carried-in future times by desperate
/ partisans who are determined to accomplish
| their purposes without sutiectiDg them
/ selves to the delay, the harrassing agitation
/ of criminal trials? Shall the citizens hold
/ their lives, their liberties, their property,
| their civil and political rights upon the
| condition that they swear they have CON-
| mitted no murder, no larceny, no perjury,
/ no forgery, or other felony that they have
/ committed no treason, concealed no treason,
| made no seditioIs speech, and published no
| seditious libels against the officers Of the
| government that they have entered into
no conspiracies and have goEe into no
| secret association against the dOmlnent
| party for the time being? Shall nOncOn-
! formity" TO some arbitrary standard IN
| politics or religion be declared a crime,
and shall this terrible engine be Brought 10
bear upon those who do not live and move
and believe by that standard. These test
oaths are drawn from some Of the darkest
pages of European history; bat in "Eoglaud
and France they were always limited to al
| Affirmation, of present belief and preseL {
dispositicn towards the government, and
were never exacted with reference to par
ticuIar instances Of past misconduct"
If the citizens now deprived of their
political rights by these acts of sttaindsr
should gain the ascendency in the State,
the precedent established by the acts OF
1867 might be brought to bear against
all those who for years have been engaged
in the work of establishing political out
lawry against those who have Inherited
their rights from a common ancestry; and
would not the material well being OF the
whole people and the interests of civiliza-
ton be deeply injured by these retaliatofy
attaindersF
The decision Of the Supreme Court Of
the United States In the cases Of Cummings
and Garland, and the unreported decision
of the Supreme Court of New York, have
arrested the further progress OF these SUN
mary prosecutions.
The principles declared in these deci5-
ions we're not novel. In 1924, the Legs
: Ieture of AlsbAms, in the deep desire which
prevailed all over the United States at tina
time 10 arrest the practice Of duelIng, en-
T acted that all officers and all attorneys
should take an oath that they had neVe
: fought duel, and never would. The Sl
preme Court of the State declared that the
retrospective feature in the required osli
was prohibited aud void.
4 Last Saturday afternoon, fne,lookinG
t woman arrived at Richmond, Indiana, Of
q the Indiana Central afternoon train
e having with her a ine>looking boy child
. aged about eight months. just as tn