Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-10-18

fee imposed by the Sd section of the 18th
article lie for crime IT a VIZ
i g. Disqualification for holding Office
for crime is punishment.
Z 8. If, therefore, the section in Question
is to be retrospectively interpreted and
construed, it's bin of pains ana Dep-
allies, or an en- post facto law, one or
both.
These propositions are so well estah-
lished by The Supreme Court of the
United States in the cases of Cummings
vs.. the State of Missouri, (4th Wallace
277, and ex parte Garland, (same book
1851 that they cannot be questioned.
The question then recurs: III a retro
spectiye Interpretations and construction Of
that section viii make 1t bin of pains
and penalties, or an ex post facto law.
one or both, can the courts give II sucb
an Interpretation and construction r1ss
~ Is OF easy demonstration that there
IS no principle In the philosophy of gov
ernment more obnoxious than the power
TO enact and execute laws ex post facto
IN their character; and indeed the author
tiles are abundant In our own country
that the principle is at war with the pe-
MUS of republican government, and de-
structive Of constitutional liberty. Mr..
Madison says (the Federalist No. Az that
the principle is CONTRARY to the first
principles of the social compact. and to
every principle of sound legislation" and
the prohibition of such laws is ga bull
wark in favor of personal security and
private rights. d" Mr.. Hamilton, in speak
ing upon the same subject in connection
with the improyident laws passed by the
Legislature of New York, and directed
against the 'loyalists" of the Revolu-
ton, says: illegal liberty holds the rights
of every individual sacred, condemns or
Furnishes no man without regular trial and
conviction of some crime by antecedent
laws. = Nothing is more COM
mon than for free people, in time of
heat and violence, to crafty momentary
passions by letting into the government
principles and precedents which afterward
prove fatal to themselves. OF this kind
is the doctrine of Acknowledgement, dis
qualification. The people are sure
to be the losers in the event, whenever
they suffer departure from the rules of
general and equal justice, or from the
principles of universal liberty.n History
. of the Republic of the United States, by
John G. Hamilton, vol. 8, p. "a, ct Sc
gifitur. ~ = -. -
Dir. Paley says that the purity of pub
lie justice and the existence of civil lib
erty essentially depend upon the prohi-
bition of such laws: Note 5, section
1,S44, Story on Constitution; and Mr..
Story in same book, section l, S7S, chsrac-
terizes such laws as ''mischievous and
tyrannical." Chief Justice Parker, one
of the most enlightened jurists that ever
sat upon the bench In Massachusetts, in
Ross case, 2 Pickering, leg, declares that
expost facto laws are CONTRARY to the
fundam entail principles of free govern
ment T" The Roman people, to manifest
their adherence of such laws, solemnly
resolved, and inserted it in the twelve
tables, that they would not even take the
passage of such laws into considerations:
Note, page 500, Sedgwick on Stat and
Com. Law.
Authorities to the same purpose might
be multiplied, but the truth of the propo-
sition, as stated by Chief Justice Parker,
that expost fscto laws are contrary to the
fundamental principles of free govern
ment, is abundantly shown, and with this
proposition established it is proposed to
examine the question under discussion
with reference to it. -..
The Declaration of Independence, which
is the corner stone of our government, de-
clales that governments are instituted
among men to secure the enjoyment of
certain inalienable rights, and that when
ever it becomes destructive of these ends,
it IS the right of the people to alter or
abolish it. When the Constitution of the
United States was proposed to the several
States for ratification, the chief objection
urged to its adoption was the want of q
bill of rights, and this was said to be q
fatal defect which would result in the ruin
of the Republic, and to this objection it
was answered that the privilege of the
writ of habess corpus; the right of trial
by jury; the prohibition OF ex post facto
laws, and the like, were so many declara-
tons of rights for the protection of the
citizen, not exceeded in value by any
which could possibly find place in any
bill of rights, and that the Constitution
itself was in effect bill of rights: The
Federalist, Nos. and 80; Story on the
Con-, sec. 1855, 1889, 1852. With the
understanding that the provisions of the
Constitution were declaration of rights,
that instrument was ratified by the
States, and in the case of Fletcher VS..
Peck 6 Cranch, 1877, in conformity with
this view, Chief Justice Marshall declared
that the Constitution of the United States
contains what may be deemed bill of
rights for the people of each State" By
article 3 of the Constitution, the power
of amendment is incorporated into the
Constitution, and the exercise of that
power is conferred upon two-thirds of
Congress and three-fourths of the States.
The word amendment, IL is believed,
occurs but twice in the Constitution, first
in section of article 1, where the Senate
is prohibited from originating, but may
propose and concur in amendments TO
House revenue bills, and lastly, in article
5; and there is nothing in the use and
connection of the word in the Constitu-
ton to indicate that it has broader sig
MITIGATION there, than belongs to it in its
ordinary legal acceptation. From the
premises established the following propo-
sitions may be infallibly deduced:
l. That the primary object of govern
ment is to protect the insliensble rights of
the people.
2. That the right to protection against
eK post facto laws is an iualienable right
of the people which cannot be infracted
without destroying fundamental princi-
pie of free government.
8. That the primary object of the Con-
stitution of the United States, and the
government created thereby, was TO pre-
serve and protect the inalienable rights of
the people, and that the Constitution was
accepted and ratified by the people of
the several States as bin of rights to that
end.
1t is unnecessary TO inquire whether as
an abstract question the people of the
United States, by an original convention,
and the action of that convention ratified
by each State in the Union, have the
power to infract or destroy any or all of
the inaliensble rights of the people, but it
would seem that they have no such right
full power, inasmuch as it is affirmed in
the Declaration of Independence, as self
evident truth, that the people would be
absolved from allegiance to such gov
eminent and would have the
right to alter or abolish it. The ques-
ton here, however, is a different one.
What is the object and limit of the
amending power confded to two-thirds of
Congress and three-fourths of the States
The object of it obviously is to promote
the legitimate ends of government, j. e.,
the protection of the rigtsh of the people,
and to this end the amending power is
commensurate with the danger of invs-
sion TO those rights. The amending power
is as broad as the rights of the people,
but no broader. 1t is omnipotent in the
protection of the fundamental principles
of the Government, but impotent to de-