Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-08-20
TEST OATHs, AND THE FRANCHISE
LAW OF TENNESSEE.

L
Of Missouri, Wallace, 277, the Suprem
Court Of the United States was Gale
upon to determine whether an act OF tn
Legislature of Missouri was constitu
tionsl, which required citizens to swea
that they had not been engaged in, o
given aid and comfort to, or sympathize'
with, the Rebellion, before they SHOULD
be allowed to vote, or to hold any Of Ger
tain offices, or to preach the Gospel.
Father Cummings was Catholi'
Priest, indicted and convicted for having
preached without first having taken thu
required oath.
The argument Of his counsel in the
Supreme Court was thus re-stated:
"He is punished by deprivation of his
profession, for an act not punishable
when it was committed, and by legis-
lative instead Of judicial proceeding
II this is held to be constitutional be-
cause It Is not done directly, but indi-
rectly, through the tender and refusal oil
an oath, so cOntrived as to imply, If de-
cIined, q confession of having committed
the act, then the prohibition " LOf the
Constitution against passing any bill oil
attainder1 may be evsded st pleasure.
You cannot imagine an instance Of OPP
preston, that the Constitution was de-
signed TO prevent, which may not be
effected by this means. Suppose the
case Of q man tried for treason and &C
quilted BY Jury. The Legislature may
nevertheless enact that il the person &C.
quilted by q jury does not take an
oath that he is innocent, ne shall
be deprived of political or civil rights or
privileges. Suppose that the Legisla-
ture Of New York were TO pass an act
disquRlifying from preaching the Gospel,
or healing the sick, or practising at the
bar, all who during the last year were
connected with any organization inim-
ical to the administration of the State
government. Such an act would Of
course be adjudged inconsistent with the
Federal Constitution. But suppose, in
stead Of passing the law in this form, it
should be in the form Of requiring an
oath from every person desiring TO preach
the Gospel, or 10 heal the sick, or prac-
fice at the bar, that he had not been
connected with such an organization,
would that make the case any better
You can punish in two ways: you can
charge with the alleged crime, and prov
ing it, punish for it; or you can require
the party to purge himself on oath, and
If he refuses, punish him by exclusion
from a right, privilege or employment"
The counsel insisted:
That it is a punishment, to deprive q
man of right or privilege, political or
civil, on account Of the commission of
an offence, or because he refuses to
swear that he has not committed par
ticuIar offence.
They insisted that the Missouri Act vic
lated the provision of the Constitution
which prohibits the passing Of bills of
sttainder." Much of their argument
was directed against that provision Of
the act which punished sympathy with
the rebels. Leaving that on one side,
we adopt their argument to this effect ;
That the phrase bill of attsinder" was
intended to include "every legislative |
act which infiicts punishment without |
Judicial trial." that if the offence is less
than felony, the act Is usually called
bill of pains and penalties; that it makes |
no difference that this result OF punish |
ment without trial is effected by means |
OF an oath or its tender and refusal; there |
being, at least, only this difference, that |
these means are more odious than the |
other that the. legal result must be the |
same, for il il g maxim that what can
not be done directly cannot be done by |
indirectien that the constitutional pro-
hibition was intended to protect every |
mans right against that kind of legisla-
ton which seeks to infiict a penalty /
without a trisl and that it does lot help
this kind Of legislation, that its taking
effect is made to depend on the neglect
or refusal to take prescribed oath nor
would it help it TO declare that the omis-
sion TO take the oath should be deemed
3 confession of guilt.
One OF the counsel referred to the fact
that an act prescribing test-oath was
passed in New York soon after the Rev.
olution, and that Alexander Hamilton
said, in regard to it:
"A share Of the sovereignty of the
State which is exercised by the citizens
at large in voting at the elections, is one
Of the most important rights of the sub
lect, and in republic ought to stand
foremost in the estimation OF the law, 1t
Is that right by which we exist, as a free
people, and it will certainly therefore
never be admitted that less ceremony
ought to be used in divesting any citizen
Of that right, than in depriving him of
bis property. Such doctrine would i'll
suit the principles Of the Revolution
which taught the Inhabitants of this
country to risk their lives and fortunes
n asserting their liberty, or, in other
words, their right to q share in the Gov.
He further said:
"These men inculcate revenge. erueltv
and perfidy. The spirit Of
ghigism cherishes legal liberty, holds
he rights Of every Individual sacred con- 7
iemns or Furnishes no man without reg :
liar trial and conviction Of some crime .
by sntecedent laws, repudistes
.quslly the punishment OF the citizen {
ly arbitrary acts of the Legislature. as
~ the lawless combinations of IMAM
horned individuals; while these men are
he advocates for expelling large num-
Der OF their fellow-citizens unheard. nm
.ried, or, if they cannot effect this they {
are for DISTINGUISHING them In the face Of
he Constitution, without the judgment
If their peers, and contrary 10 the law of J
he land. Nothing is more com {
non than for q free people, in times ,
II heat and violence to crafty momen.
Gry passions by letting into the govern
nent principles and presidents, which {
afterwards prove fatal to themselves. OF |
his kind is the doctrine of disfrdnchise. ,
7le7lt, disqatdLi fcdtiOa and punishnlents
y acts OF the Legislature. The danger
us consequences Of this power are man
fest. II the Legislature can disfran-
hise any number Of citizens at pleasure, ,
y general descriptions, it may soon con-
Inc all the voters to a small number of {
artisans, and establish an aristocracy or {
n oligarchy. II it may Danish at dis G
retion all those whom particular cir
render obnoxious, without
caring or trial, no man can be safe, nor {
now when he may be the innocent vic I
m Of prevailing faction. The name r
liberty applied to such a government :
JOtlLd be a D1OckeTy Of common sense.
he PEOPLE ARE sUhE 10 BE LOSERS IN {
he EVENT, WHENEVER THEY SUFFER ]
DEPARTURE FROM THE RULES OF GEN q
RAJ AND EQUAL JUSTICE, OR FROM
HE TRUE PRINCIPLES OF UNIVERSAL
IBERTY.p c
And he made q remark which has an
special application to the present state
Sa,o - 49,. | g