Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-08-30

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and makes his refusal to swear evidence
of his guilt, he is tried, and convicted on
his W confession, If he does NOT swear.
To punish lie, to sffiIet with pain, loss or
calamity for q crime or fault; pri-
marily, to afaict with bodily pain. The
word is also applied to afiliction by loss
of property, by transportation, bsnish-
ment, seelusion from society, etc.
Sir VIM. Blackstone says: HSome
punishments consist In exile, or trans
portation, Others In loss Of liberty by
imprisonment; some extend to eonfiscs-
tIon by forfeiture of lands and goods
others induce a disability of holding
Offices, Of being heirs, and the Hke.n Pun
ishment, says the Dictionary Of the
French Academy, is the penalty which
one suffers, for the commission of some
fault or crime. Certainly to be deprived
OF the right to vote, because one has
been guilty Of treason, is 8 penalty and
If the mode of trial, by which this Of
fence is established, or q confession of 1t
compelled, is an outrage on justice, so
much the worse.
at Is true" said Mr.. Justice Miller,
&" that the act requiring an oath provides
g penalty for falsely taking It," Aye:
and 1t provides a penalty for not taking
it at all. Was it no penalty and no pun
ishment to deprive q Roman citizen Of
his citizenship, because he had offended
against the State?
But, said the same Justice, " this
provision is prospective, as no one is
SUPPOSED to take the oath until after the
passage Of the law." That provision
imposes q penalty for perjury, to be- COM
mitted after its passage; and the argu-
ment need not concern itself with that,
" This prospective penalty" he said, sis
the only thing in the law which par.
all other respects 3 ciril proceeding" A
proceeding is of q criminal character
when it imputes a crime and infiicts q
penalty for It's commission. It is either
a criminal proceeding, or no proceeding
at all. If the Car says to ten men,
"Some OF you have been guilty OF trea-
on. Some Of you are innocent. I
do not propose to give you q
trial in any known mode but
1 will obviate the necessity of that, by
demanding of each an oath that he has
not been guilty of the offence. Those
who refuse to take it, 1 will disqualify to
hold office or vote, IS guilty OF the Of
fence whereof they will not swear they
are innocent" Is this not to try, con-
Wet, condemn and punish ? Can any
judicial juggling with words and phrases,
disreputsb'e in a Judge, and scandaloua
in s Court, change the nature OF things,
and make this a civil proceeding?
1.-THE osth,n Mr.. Justice Miller said,
is simply an oath Of office, and it is re-
quired Of all ofice-holders alike. No
trial Of 3 person is contemplated by the
act for any past offence. Nor is any
party supposed 70 be charged with any
offence, in the only proceeding which
the law provides. A person proposing
to appear in the Court as az attorney, is
asked to take a certain oath. There is
no charge made against him that he has
been guilty Of any of the crimes men
toned in that oath. There Is no prose-
cution. There is not even an implica.
ton Of guilt, by reason Of rendering him
the oath, for it Is required Of the man
who has lost everything in defence Of
the Government, and whose loyalty is
written on the honorable scars that cover
his body, the same as of the guiltlest
traitor in the land. His refusal to take
the oath subjects him to no prosecution.
His taking it clears him of no guilt, and
acquits him OF no CHARGE
Apparently, In the opinion OF DIR. jus
tlce Miller and the judges who agreed
with him, On. Justice Chase aud Jus.
tiees SWayne and Davis, the right of an
American citizen 10 have q voice by his
vete Ia regard to the administration of
national aud State affairs, is Of SO little
value that 1t cannot be deemed q pun
ishment or penalty to take it away from
three hundred thousand mel at one fell
swoop by g test-osth.
"Tne oath is simply an cath of Office,
ard is required Of all oflce-holders
alike Very we'll Is TO those who
can take It, 1t amounts to nothing. II
wse not meant for them. We do not
exactly gee how ii could have b6en pro-
pounded to those only who cannot take
1t, since 1t q be ascertsined who these
are, only By propouuding the oath to
all. When the law makes, according to
the old smile, a net with meshes SO
weak that the large flies all pass through
and escape, and the small ones are
caught ana put to death, it cannot be
very o0usolatory to the small ones to be
told that the net was spread for all flies
alike.
There is nothing in the world SO shock
ing to a man OF homer IS a dishonest ar
gument Ia tbs mouth ofs Judge. It is
disgrseeful In a lawyer to make
where the life or liberty Of the citi-
zen is involved. II UipiaD, Paul and
I%Tebonlan had ever stopped to the base
level that seem natural to the Speeds,
C~hipmans, Binghsms, Boutwells and
Logans, their opinions and dieta would
never have been gathered together to
the Psndeets of Justinian.
When a Judge, ;rouches low enough to
or is $ . completely the slave Of
preconceptions, as to soy OF al cath in
to ~disfranchise men, an oath
stretches the conscience on the
rack, sud compels q man by bis silence
to testify against himself. sa oath for the
idea whereof despotisms ought to be most
to 3 Republic that has forgotten
the precedents of iberty,-as to say Of
'uch sn Osth, that lt is simply an oath of
1fnce, and required Of All oaicera alike, +,
lie little hope OF the republic. :
What has A, who cannot take it, to do {
with the fact that 3, can? The wrong I
lone 10 HIN is none the less or lighter, be. |
it is not done TO somebody else. !
1t is required OF sll alike! For so
the more reason Ia it 8 mean, l
Il