Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-11-29

law Of the impending penalty which Is
the basis Of. all criminal responsibility.
But after the war was at an end, after
the great mass of those who had fought.
with most determined will against the
United States, had laid down their arms
and, proclaiming their anxiety for the
preservation Of law aud order, aud for the
re- establishment Of peaceful industry, had
discouraged ali irregular and lawleSs war,
and all violation Of the laws of the United
States, after tho courts of the United
States were open in all the States. and
offenders in all the States were subject
to arrest and to trial, without the slight
est resistance to the execution of the
law, after the Chief Magistrate Of the
United States, had issued and they had
accepted the benefit of proclamation of
amnesty, discharging them forever from
all penalties, forfeitures and disabilities,
which they may have incurred for and by
reason of the commission of any
political offense against the United
States, and restoring them to any
rights which they may have for
feited, then and not till then the
constituted authorities of the State Of
Tennessee by retrospective oaths, estab-
hshed a state Of political outlawry against
perhaps a hundred thousand citizens Of
the State, not for offenses against the
State, but for offences against the
United States, which had been pardoned
by the Executive Of the United States.
Have the constituted authorities of the
State the rightful jurisdiction to punish
pardoned offenses against the United
States by retrospective statutes or ordi-
nances
In tranquil times it would be declared
with hardly dissenting voice that all
statutes and constitutional provisions
which exiled or outlawed or in any man.,
ner destroyed any citizen, or which de-
priyed him Of his liberty by imprison-
ment, or of his estate or any part of it by
torfeitures or fines, or which deprived
him Of the right to hold Office under the
government, to give evidence in the
courts, to vote in public elections, to sue
in the courts for injuries to his person,
his property or his character, or which
deprived him of any civil or political
rights previously possessed and enjoyed,
on the ground that he had committed
offenses against the State, prior to the
passage of such statutes or ordinances
were prohibited by the Constitution of
the United States as retrospective penal
enactments or eE post .fdctO laws. 1t
is immaterial whether these statutes or
ordinances proceed from an ordinary
legislature or from the delegates Of the
people in convention assembled according
to the requirements Of pre- existing
Constitution.
The Constitution of the United States
declares that no State shall pass any
er post facto law or bill Of attainder.
No respectable authority has ever held
that the word State" did not embrace
the people of the State in any capacity
in which the people Of the State might
choose to organize themselves. Ii this
were not SO the delegates of the people
in convention assembled, might grant
titles of nobility, abrogate all contracts,
and enact er post fdctO laws and bills
Of attainder without restraint. The
punishment of citizens by depriving them
Of their civil or political rights by consti-
tutiOnal provisions ordained for the pun
ishment Of offenses committed prior to
the passage of such ordinances are OF no
more validity than an ordinary act of the
legislature enacted under similar clrcum-
stances and for like purposes. The cleo
tive franchise act passed in 1861, for
the deprivation of the citizen Of rights
for offences committed or acts done IN
1867 3 and 4 are therefore prohibited
by the Constitution, whether they are
legislative acts or constitutional proVls-
ions. But If such statutes were not
retroactive in operation, if the offences
set forth in these statutes were pun
ishable by the express terms Of statutes
by deprivation of the right to vote d
hold office, such acts would be void and
of no legal validity because they would
be acts Of attainder. They would be acts
of attainder because they would punish
citizens for alleged crime without trial
by the judicial branch of the govern
ment. The whole work Of deprivation
for alleged crime has been accomplished
by the law.ordaining department of the
government, and by the executive de-
partment The judicial branch of the
government has been wholly excluded.
So long as the prohibition in the COnstl-
tuition, of bills Of attaindeT stands, no citl-
zen can be deprived of civil or political
rights or privileges, or be otherwise pun.
ished on account of offeDses committed
without constitutional trial by the
judicial branch OF the government The
effective franchise acts" deprive the
citizen of his rights on the ground Of Of
lenses committed in "the late rebellion"
without trial. These acts, therefore,
are acts of attainder and prohibited by the
Constitution of the United States.
Tho precedents of such enactments
by the parliament of Englrnd from
time to time in the progress of cen
turtles, and the decisions Of the Supreme
Court of the United States almost from
its foundation to the present time, amply
sustain these positions. Some Of them
may be referred to, and first, as to par
liamentary sttainders.
In the twenty-eighth year Of Henry
the Eighth bill Of attainder was enacted
against the "late Earl Kildare and
others. This special act declared that
the "late Earl and his aiders, abetters,
confederates and adherents in his traiter-
Gus acts and purposes, should be and
stand attainted and convicted of high
treason" and that the conviction should
be as "strong and effectual against the
adherents and confederates as if they had
been specially named" 1t is possible
that the punishment ordered to be exc.
cuted by the judgment of parliament,
might have been the same which would
have been adjudged against them by the
Court of Kings bench, acting under ex-
listing laws for the punishment Of treason,
but this sentence of parliament was an
act of attainder, because it was a special
law made for the occasion, adjudging
| punishment without a regular trial by
the court, to which should have been sub
mitted the facts of the case and the law
involved. If this judgment of parliament
| had been certified to the Court Of Kings
bench for execution, and the adherents
had been brought before that tribunal by
| ha6eQs corpus, no indictment would
have been filed against them, but they
would have been asked if they had any
thing to say why the sentence Of the law
should not be executed upon them. The
| Judgment of parliament left hothing to be
| tried by the Court Of Kings bench, but
the fact Of adherence to the Earl. Par
lament usurpsd the jurisdiction Of the
judiciary.
In the thirteenth year of Charles the
First the Earl of Straford was brought