Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-08-28

edition of Haiti.
Following the case Of Cummings rs
The State Of Missouri, is that Of Es
pGrte Garland, 4 Wallace, 1888, in which
the question was SIS to the constitution
atty Of the act Of Congress requiring
test-oath Of attorneys In the Fedora
Court.
The Court held, as in the case Of Cum.
mings, thst exclusion from any ordinary
-avocstion Of life for past conduct, il
punishment for such conduct, and tina
the exaotion Of the oath is the mode in
vented for s~scertaining the parties or
whom the act is intended to operate, and
therefore in the nature Of a bin of pain:
and penalties, and within the constitu.
tional prohibition of bills Of sttainder.
The Court also held that a pardon re.
moves all penalties and disabilities that
are consequences of the offence, restores
the party to ell his civil rights, and gives
him a new credit and capacity, after
which he is beyond the reach Of punish
ment of any kind for that offence.
We heal it said that the Supreme
Court Of the United States has not de-
clded that disqualification to vote is a
punishment, nor that a test oath may
not be required as a means of ascertain
ing that disqualification. OF course.
That question has not bean directly be-
fore the Court. But it is nevertheless
virtually decided, if the argument and
opinion of the Court applies as well to
it as to the case before it. That is whg'
we have to ascertain.
The counsel for Garland said, among
other things:
dropping names and forms, and con-
sidering the substance of things, the
President says, by his pardon, You
snail not De precluded from practIcing in
the Supreme Court in consequence of
yOur crime ! pardon yOu.' The act
says: You shall never practice IN the
Supreme Court without taking an oath
which will be perjury, and then, on con-
vicIiOn Of that, that snail disquslify you"
What is the right OF an attorney to prac-
tice in g Court? Mr. ]. B. Henderson
insisted that that alone was punishment,
which took from a nan life, liberty or
property. Is that right, property? II so,
is not the right to vote, property also?
The Supreme Court held that the at
torneys Of q Court are officers Of it, hold
ing their office during good behavior,
and can only be deprived Of it for mis-
conduct ~sscertained and declared by the
judgment of the Court, after opportunity
to be heard has been afforded that the
right of an attorney to practice is,-they
did not say property, but q right, of
which he cannot be arbitrarily deprived,
but only by the judgment Of the Court.
The right to vote is also, IS WI have
shown, & right, to enforce which a party
may appeal to the Courts, or, at least, he
may there obtain damages against any
who obstruct his exercise of the right.
The Matter Of Dorsey, : Porter 293, was
referred to, where the question was as to
the constitutionality of an act of the
Legislature Of Alabama, requiring off,
GERS to swear that they never had been
and never would be engaged in any duel.
Counsel said Of it:
1.-THE report of the case occupies about
two hundred pages, and is an able and
elaborate discussion OF this subject, and q
foil authority for the position We take In
this case" II was there held
l. That in that ease the law prescribed
a quauf ;stion for holding Office, which
Al individual never could comply with,
and that such act, as to him, was q dis
qualification.
,. That such disqualification was pun
ishmeHt.
8. That the retrospective part Of the
oath was unconstitutional.
4. That as parto: the oath was nconsti-
tutionaI, and the court could not separate
it, the whole oath was unconstitutional,
and the petitioner was entitled to be ad-
mitted without takingit 1t.
Judge GOldthwaite, a most able and
learned iurist, said, in that case:
AZ have omitted any argument to
show that disqualification from office or
from the pursuits Of a lawful avocation,
is a punishment; that il is so, is too evil
dent TO require any illustration. Indeed,
il may be questioned whether any inge.
nuity could devise any penalty which
would operate more fOrcibly on society."
In Barker 4. The People Of Near York,
8 C0uen 6S6, the Court said, 1.-The dis
reimbursement Of q citizen is not an IN
usual punishment; it was the conse-
quence of treason, and Of infamous
crimes.p
A right TO enforce which there is nc
remedy, and for the violation whereof
no redress, ia no right. A right which a
msjorIty can arbitrarily take away, is no
right. The Constitution Of the State Of
Tennessee secured to all free white men
over twenty-one years of age, the right
to vote. No one doubts that this RICH
might be forfeited by crime, if the law
denounced such forfeiture as part Of the
punishment; and it is not possible for
any one really to doubt that this forfeit
ure can only take effect upon conviction
Of the crime, by due process Of law; that
Is, by lawful trial by 3 jury. That the
msjOrity may at pleasure ~disfrsncbise
the minority, is an infamous doctrine.
II II were 50, the Democrats, when
10 power 10 Tennessee could arbitrarily
have DISTINGUISHED every Wing in the
State, either by direct dlvestiture of the
franchise, or by requiring of the voter an
oath that he had not voted the Wing
ticket, or sympathized with the Wing
party. For, it is claimed, this = not
punishment of an offence, but simply TO
fix the qualifications OF voters.
The counsel Of Garland (Rsverdy John
som said
What right has Congress to prescribe
other qualifications than RTe found in
the Constitution and what is the limit
of the power? or course the power Is
conceded, to make perpetual or limited
disqualification M of the penalties Of
crime, applying the act prospectively.
such was the act sustained in Barker
Us. The People, before cited, but where
does Congress get the power to disfrsn-
chise and disqualify any citizen, except
as punishment for crime, whereof the
parry shall have been duly convicted"