Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-12-01
THE FRANCHISE.
THE CONsTITUTIONALI Or THE
ELECTIVE FRANCHISE ACES.
BY W. q. HUMPHREYS.

In 1IS0 the provision oil the CONSTITUTION
of the United States in regard to er pos
tdcto laws and bills of attainder came befor
the Supreme Court of the United State
for construction. The Legislature of Con
necticut in conformity with the practice o
that State at that time ordered a new tria
TO be granted by Probate Court in cas'
where a will of real estate offered for pro
bate had been rejected. new trial wal
granted in conformity with Law, and the
will established. The case was brought
from the Supreme Court of the State to the
Supreme Court of the United States, on
the ground that the provision in the Con.
stitution of the United States against eI
post Jdcto laws had been violated by ths
law of the State. The substance of the
opinions delivered, was that the phrase
C1 post tactO laws had technical meaning
liked by lawyers, legislators and authors,
before the Constitution was adopted that
laws which declared acts to be criminal,
which when done were not criminal laws
which changed the rules of evidence by
authorizing convictions upon less evil
deuce than was necessary at the time the
| offence was committed, or laws which
| changed cr increased the punishment were
/
adopted probably from the knowledge that
| the British Parliamet had enacted such
laws under the denomination of billsBof
attainder and bills of pains and penalties,
the first inhictiDg capital punishment, the
the latter less punishment, and that the
provision did not embrace retrospective
civil laws like the Connecticut law, but was
confined to retrospective penal enactmenis
to crimes pains and penalties" The
Court declared that in all nations rival
factions in their efforts to crush each
other had superseded the forms of law and
suppressed the sentiments of Justice; that
retaliatory attainders had marked the
alternate rise and fall of parties, and that
these prohibitions were intended to curb
the rage Of proscriptiYe power by the
forms of preordained law, and by the prin-
ciPles Of established Justice.
In 1910 the meaning of the phrase was
again defined and declared By the same
court.
In 1875 the Legislature Of Georgia made
a grant Of lands 10 Gum and others under
the name of "the Georgia Company" by
special act. During the year 1875 the
company made conveyances of portions of
the land, of which five thousand acres
came to Fletcher. In 1896 a subsequent
Legislature enacted that the act of 1895
was frGudulently obtained, unconstitutional,
and void, and that the grant to the Georgia
company was void, and that the titles TO
any portion of the land conveyed by the
company to others were void, and that The
whole of the land conveyed to the COM
pany was the property OF the State of Geor-
gia, the act Of the Legislature of 1895 to
the contrary notwithstanding. Ths plead
ings exhibit the charge that the grant to
the Georgia company was obtained by
bribery. The Chief Justice (Marshall) de-
livering the opinion of the court, said that
Fletcher being purchaser for valuable
consideration, without notice Of the alleg-
ed fraud and bribery of the Georgia com
pany," had obtained a good title to the
land before the enactment of the rescind-
ing act. The resembling act had the eff
feet of an er post taeto law. 1t forfeited the
right Of Fletcher to FIVE thousand acres Of
land for the fraud and bribery of the Geor.
gia company. The Legislature had no au-
thorIty to "eize the estate of any citizen
for crime where there was no previous
law authorizing the seizure Tor that crime
The law was er post fdctO and void.
In 1884 the Supreme Court, 10 a case
where the Legislature of Pennsylvania
enacted law to remedy defective acknowl-
edgement by married women of deeds Of con-
veyaBce, the court said the prohibition in the
Constitution, did not apply 70 retrospective
laws in regard to civil rights and civil pro-
ceedings like the case before them, but pro-
hibited claws which imposed penalties and
foTfeiiures for acts antecedently done,
which we're not punishable at all, or not
punishable in the manner OF TO the extent
prescribed
The Constitution of the State Of Ten.
nessne prohibits the passage of civil laws
retroactive in effect where such laws oper-
ate upon the rights Of the parties. So does
the Constitutions of other States. Retro
spectiye laws are generally condemned in
all civilized countries, and for period Of
upwards of thirty years from 1898 to 1884,
able and experienced and sound lawyers
asserted before the Supreme Court that to
exclude all civil proceedings from the
prohibition was giving narrow and I'M
authorized construction to the phrase eT
post fdcto and broke down one of the bull
warks erected for the protection of the
county a food Of unjust and oppressive
laws. The Supreme Court of Tennessee
decided in 1887 that the Legislature was
prohibited from passing retrospective
statutes affecting civil rights, and in 1921
declared that the Constitution of the
United States prohibited the passage Of
er post tactO laws, because Nth that en-.
ginc dominant party might carry desir7tctioH
into the ranks Of It's enemies.
It would seem clear that If Marshall,
who delivered the opinion in 1910 in re-
gard to ec post factO lava and bills of at
| tainder, and Story, who deliyeredthe Opin-
ion in 1884 had been called upon to de-
eide on provision similar to that in the
| Tennessee acts, they, according to their
expressed opinions, would have de-
clared that provision enacted in
| 1867 inaicting a forfeiture Of estab-
| Iished legal rights, civil or political,
| for offenses committed 10 136l-2-3-4 and
was retroactive in effect, was psnal ID
! its character and within The prohibition Of
/ the Constitution.
Ia 1865 this provision again cime up
| for construction IN two cases, the one, the
| case of Cummings rs. State OF Missouri,
| and the other the matter Of Garland.
The Constitution of the State Of Mis-
souri,, adopted in 1865, provided that no
citizen Of the State Of Missouri should
preach, teach or soIemnise marriages, vote
| or hold any Office of honor, profit or trust,
! who had ever borne arms against the
| United States, or manifested his adherence
to the enemies of the United States By
word or acts, and that if any citizen should
vote, hold office, teach, preach or solemnlse
marriages, without first having taken an
oath that he had not borne arms against
the United States, and had not manifested
adherence to the enemies of the United
States. by word or act, should be subject to
Indictment, and on conviction, to fine and
imprisonment. Cummings, a Catholic
priest was indicted, convicted aud sen
fenced to fine and imprisonment. He ap
pealed from the judgment of the Supreme
Court Of Missouri to the Supreme Court o
the United States. The judgment of thu
| Supreme Court of Missouri was reversed
Cummings was discharged, and permitted
to perform the duties of his clerical mission
without taking the oath prescribed By tn,
Constitution of the State,
The other case was that OF Garland, who
had been a member of the Confederate
Congress from the State of Arkansas. Con
press had enacted law which required al
Officers and atternies to take an oath tina
thew had not borne arms against the Unite
States, and had never given aid, counsel
! encouragement TO those engaged IN aTme'
: hnstiIity TO the United States. Other fact
! were required 10 be denied, bat the faci
! are sufficiently set forth 10 show the retro
apoctive and penal character of the oath
required, The Supreme Court OF tn
{ United States made rule that no attorne
: should be permitted to appear and b