Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-12-01

| scrlDed When the act was done, or Whic
changes the rules of evidence by whic
, other or different testimony is made sui
J hcient to convict than was necessary whel
the act was done that bill attainder wa
a legislative Judgment or sentence, that
bill of attaiuder in which was include,
bills of pains and penalties, might be en-
acted against one person or against many
persons by name or by general description
that the legislative sentence or judgment
might be absolute and unconditional, OF
might be conditional, that the oaths pre-
scrlbed aimed at past acts, not fature acts
that 1t was known at the time of the
adoption of the Constitution of Missouri
that large class Of persons could not take
the oath prescribed, that 10 make the en-.
Joyment of the right to hold office or to
pursue calling dependent upon an i'm
possible condition, was equalent to an
absolute denial of the right under any cir.
cumstances, and that such denial of right
enforced for "past conduct" was nothing
less than punishment imposed for that act /;
1t was a interpolation of terms to call it
any thing else; that punishment might be
inflicted by the deprivation of any right,
civil or political, the circumstances at
determining the fact whether it was or was
not punishment; that the provision in
the Constitution Of the State Of Missouri.
and the act of Congress, were intended
to deprive citizens Of the right to hold GER
tain offices Of honor, profit and trust, and
to deprive them of the right to pursue
their regular and ordinary avocations, and
did deprive them Of such rights without
| trial By their own inherent force for past
acts, and were prohibited by the Coustitu.
ton. There were dissenting opinions de.
liyered
The argument mainly relied on to sus-
tain the constitutiOnality of their retro
spectiVe oaths has been that neither the
constitutional provision of Missouri, or the
act Of Congress, or the ordinances of the
State Of Tennessee, were penal in their
character, that they define no crime, that
they provide for the arrest Of no citizen for
ofenses committed in 1851, 1862, 1863,
1854; that they provide for no indicl-
ment, no trial, and that they pro-
vide for no judgment inficting penal
ties or forfeitures for past con-
duct or offense5 !; that the Tennessee
ordinances were merely political regula-
tions and the preceding under them by
retrospective Oaths were intended to ascer-
tain and declare who should be the lawful
voters in the State, that they did not in
fiict forfeitures but prescribed qualification,
and that no punishment being prescribed,
and none inflicted, the pardon of the Exc
cntive did not effect theSValidity of the
ordinance.
This argument is not supported by iel-
son or authority.
10 the FIRST place laws enacted by Con-
gress and by the Legislature of the State of
Tennessee, before the war, during the war,
and after the war, orders and proclama-
lions of the Executive Of the United States
and of the State of Tennessee, all show the
existence in the State Of Tennessee of
armed opposition in 1861, ., %, and A to
the authority of the United States in the
State. They show that the constituted
authorities Of the State were in the attitude
of hostility 10 any exertion Of authority
on the part Of the United States in the
State OF Tennessee, and the State was char
acterized by act of Congress ss an insur-
gent State aud the people thereof as
Rebels" This would seem to establish
the fact that the msjority Of the whole
people we're in the attitude of supporting
or sympathiZiDg" with that armed Oppo-
sitiOn to the United States. The Judiciary
is therefore bound to recognizes the fact of
the existence of armed opposition to the
government OF the United States in the
specified years and that the existence OF
this armed opposition was the cause Of the
ordinances enacted in 1867, on the sub
ject Of suffrage. This ordinance declares
that no person who bore arms against the
United States in the late rebellion" shall
vote or hold Office. The deprivation
Of the right o. vote and hold office by
| citizens has been in all sges and in many
States prescribed as punishment 1t was
a moce of punishment authorized by the
Roman code, by the Greciau States. 1t
is now punishment inflicted in France,
in England, and probably many countries
in Europe. The deprivation of the right
to hold office is punishment prescribed
by the laws Of the United States for for
gerry, perjury, bribery and other offences,
and the State Of Tennessee has prescribed
the deprivation of the right to vote az a
punishment in some twenty or more
enumerated feIonies. These acts or ordi-
nances therefore employ the usual instru-
ments exerted for punishment in many
nations and in all sges. They have there
fore the leading and distinctive character
istic of penal statutes, of criminal proceed
ceedings as Contradistinguishd from
civil proceedings. But these ordi-
nances, deprive the citizen of the right
to vote and hold office because he has borne
arms against the United States, because he
has accepted office or sought office under
! the Confederate States in hostility to the
United States. The bearing arms against
the United States by citizen of the United
States is an oiiense against the United
States But if 1t were not an otfense be-
| fore, it was made 80 by the enactment.
| If past conduct" be the ground of deprivs-
ton, its penal character is established.
| These statutes or ordinances define Of
fences and prescribe the punishment. The
language of the press North and South, the
| debates in Congress, the Language of the
rostrum, establish the popular understand
| ing, that the citizens of the State have for
| feitsd their right 10 vote or hold office by
| reason of ofieases committed in "the late
| rebellion" and that these ordinances en-
| force that forfeiture. 1t has not been often
controverted till the confines of high judi
! cial tribunals were reached, when the mo-
| mentous consequences of the admission are
acknowledged, to-wit: that the ordinances,
if they infict punishment, come with.
in the prohibitions of the Constitution, and
are void
1t does not affect the penal character Of
these ordinances that some of its authors
did not intend to degrade and humiliate
and punish the citizeas whom the ordl-
nauces were intended to reach, or that 9TH
ers were not animated by any desire to &C
complish any result but to obtain posses
sion Of the political power of this State to
enrich themselves, or that the great body
of them acted from the most honest anC
considerations convictions that these meas
ures were necessary for the public safety
1t is wholly immaterial, 20 far as the con
struction Of these ordinances wure con
cerned, what were the purposes intended t.
be accomplished by the authors OF thsm
Whatever they were, they were accom-
plished by the fundamentally OF pena
enactment, enforced by retrospective oaths
II these ordinances are analysed IN thei
| details, the analysis will chow more full
and satisfactorily that they define an ol
tense, declare the punishment and proYld
, | the mode of inhicting the punishment.
If there be no application by the cltlzel
to vote, because he cannot take the oall
/ that he did not bear arms against the Unite
States in 'the late rebellion" or cannc
r with ruth deny other facts required to b
denied, or because he cannot procure tn
affidavit of two unconditional Unto
, men" that they believe, in the language
: the stante, that he has not been guilty
= the disqualification" set forth in it, then
q obtains no certificate to vote, and if he pre-
' seuts himself at the ballot-box and claim
: the right to vote, be is rejected just az
/ II r 49,. Onuinfior r