Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-08-27
Vera Atqsse HonestG deere.
TEST OATHs. AND THE :FRGNCHIsE
LAW OF TENNESSEE

TEST OATHs. AND THE :FRANcHIsE
LAW OF TENNESSEE
mo. 81
The Constitution OF the United States
contains this agreement made with one
another by all the States:
"No state shall pass any Bill Of At
tsinder."
The Court, in Cummings rs. The State
of Missouri, said:
"a Bill Of AttaiRder is 3 legislative
act which inhicts punishment without 3
judicial trial.
ar the punishment be less than
desth, the set Is termed q bill OF pains
and penalties.
"IYithin the meaning Of the COustitu-
ton, bills OF sttsindeF include bills OF
pains and penalties.
UTn these cases, the legislative body,
in addition to its legitimate functions,
exercises the powers and Office of judge;
n asEumes, in the language OF the text
books, judicial magistrscy 1t pronounees
upon the guilt Of the party, without any
Of the forms or safeguards OF trial 1t
determines the suficisncy Of the proofs
produced, whether cODfOrmable to the
rules of evidence or otherwise and Ii
fixes the degree Of punishment In &C
cordsDce with It's y notions OF the
enormity Of the offence.
"Bills OF this sort, says Mr.. Justice
Story, have been most usually passed in
England during times Of rebellion or
gross s~ubservieney TO the Crown, or OF
intense political excitement periods 10
which 81 nations are most lishle,
las well tbs free IS the enslaved, to for
- II IL - - w~-An 49,
rights and liberties Of others"
"These bills are generally directed
against individuals by name; but they
may be directed against q whole class"
They might, the Court said, infict
punishment absolutely or eonditiOnslly;
and they quoted these words Of the Court
Of Appeals of Kentucky, in Gaines rs
Buford, l Dana $40: "a British act of
Parliament might declare that If certain
individuals or 8 class Of individuals failed
TO do 8 given set by a named day, they
should be deemed to be and treated as
convicted fsIons or traitors. Such an
set comes precisely within the definition
Of 8 bill Of sttaInder and the English
courts would enforce it without indiet-
ment or trial by jury"
The Court said that the clauses in ques-
ton, Of the Missouri Constitution did
oreste the deprivation Of rights, without
any OF the ordinary forms and guards
provided for the security Of the citizen
In the administration Of Justice by the
established tribunals; that they pre-
sumed the guilt and adjudged the depri-
vstion Of rights, unless the presumption
were removed by the expurgatory oath =
in other words, they assumed the guilt
and sdJudged the punishment condition
ally.
They said that if the Constitution Of
Missouri had declared 3 direct deprlva-
ton Of the rights in question, that would
have been g bill Of s~ttainder; that the
only difference between such e provision
and the act in question would be that
the former would declare the guilt, in
stead Of assuming it. The Court said
The deprivation is effected with
equsl certainty in the one case as il
would be in the other, bat not with
equal directness. The purpose OF the
iaW-msker IN the case supposed would
De openly ayOwed in the case existing
II ls only disguised. The legal result
must De the same, for what cannot be
cone directly cannot be done indirectly.
Inc Constitution deals with substance.
lot shadows. lis inhibition was leYelled
ST the thing, not the name. II intended
that the rights Of the citizen should
be secure against deprivation for past
conduct, By legislative enactment, IN
Ger any form, however disguised. II the
can be eyadsd OF the form Of
the enactment, It's insertion in the fun
damentsl law was 3 vain and futile pro-
ceediDg."
Passing to the consideration Of the
clause in the Constitution which forbids
the passage of &c post Jacto laws, IS sf-
fecting the Ease before them, the Court
sid:
The elausss in the Missouri Constitu-
ton which are the subject Of e~onsidera-
do not, in terms, define u crimes,
declare that any punishment shall be
inflicted, but they produce the same re-
AIT upon the parties against whom they
are directed, as though the crimes were
lenned u the punishment declared, '
Ihey assume that there are persons 10
missouri vino are guilty Of some of
ne acts designated. They would
no meaning in the Con- '
..titution, were such not the ,
They are aimed at past ,
1chs, and not future acts. They were 4
Intended especially to operate upon par '
les who, IN some fOrTa or manner, by '
.cllon or words, directly or indirectly, Z
iad aloedo or cOuptensnced the rebellion, ,
4 sympathlzeG with parties engaged in
rebellioc, or had endeavored 70 ea- {
ape the proper responsibilities and du-
les ora citizen l a time OF war and they r
Vere intended to operate by depriving :
UGH persons Of the right to hold certain \
mces q trusts, and to pursue their :
rdinAry and regular ~avocations. This c
IS punishment; nor is il any 8
so oeeauses way is opened for escape p
rom II by the expurgatOry oath. The :
rsmers OF the Constitution Of Missouri {
new at the time that whole classes of '
1olviduals would be unable to take the Z,
ath prescribed. To them there is no ,
provided. To them the depriys- Z
ION was intended 70 be, and is, absolute 8
perpetual. To make the e~nj0ynaeat I
dTtqht dependent upOn an Impossible
OHdtttOn Is equivalent TO an absolute de- .
j0k Of the right under anu condition {
u denial, enforced for q past act, =
nothing less than punishment i'm =
osed for that act. 1t is a mlsspplica- :
lon o; terms to call it anything else" !
When the law says to an individual, I
II you do such an act, you shall be de- a
Of the right to vote" that law is :
aid. It tells the individual, before he .
oes the act, what one Of its eonse-
1ences will be; and a he does it after =
ards, with full knowledge that ia do :
it be incurs that penalty, it is just II
lat be should suffer il. -
But if the law says to him, Because +.
~ hare done such an act, you \
all not vote" when there was no such
snAlty denounced, no Law that caused
oh q consequence, when the act was
me, this is invalid, for it is an &c post d