Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-10-18
# ihe first importance in determining the

of the first Importance in determining the
intent of the law makers, bat as Congress
simply proposes an amendment and the
States ratify it, it is obvious that the de-
bates and journals of Congress can not be
looked to to find the intent with which an
amendment was created, as they can af-
ford no test of the sense in which the
States understood the amendment at the
time it was ratified by them, and it is
the ratification by the States of the
amendment which makes it a part of
the organic law, and therefore the court
csnnot go beyond the Constitution itself
to determine its Interpretation and COM
struction: Cody on Con. Linn. 81. With
this principle in view, and assuming that
there is nothing in the reading of the
third section of the fourteenth article,
which makes it necessarily retrospective,
1t is proposed to examine briefly the
authorities touching the question of inter-
probation and construction, with reference
to the section in question. In Ross case,
2 Pickering, C16e,r Chief Justice Parker
says, f'If the Legislature should pass
such law the court might perhaps, de-
clare that it was passed by mistake, even
If we had no Constitution prohibiting the
enactment of ex post facto. laws" This
authority strongly illustrates the jealousy
of the courts upon this question, and al
though the proposition seems to be strong
ly stated by the learned court in the case,
yet it is believed that no authority contra
vening it can be found in our books.
To appreciate the force of the statement
of the rule in that case it must not be
forgotten that in the absence of consti-
tutional inhibition, the Legislature of q
State has as much power to pass an ex-
post facto law as can belong TO an organic
body. Nor is this new doctrine of in
depreciation, for abundant traces of it are
to be found in the civil law: Vattell (b.
PIP. 266, 278) says: elm point of pen
alties, in particular where they are odious,
we ought not only to restrict the terms of
the law to their most limited Specification,
and even adopt fgurative meaning ac-
cording as the case may require or author
ize il, but also to admit of reasonable ex-
cuses, which is kind of restrictive in
depreciation tending to exempt the party
from the penalty" .Es11 81 % IS,
So Domat %. i. tit. /, and sec. Q pl. y
declares the rule to be, that when the
sense of the law, how clear scevel it may
appear in the words, would lead to false
consequences, and to decisions that would
be unjust, the court will adopt such in
terpretstion as will avoid such consequent
ces Smiths COnl. Con. 663. In order
to appreciate the application and force of
this rule, with reference to the question
under discussion, it is proper here to con-
slider consequence which would flow
from the interpretation contended for in
addition to those already discussed. The
constitutional power of tia President to
grant pardon and amnesty for past often
ces is complete. That power has been
exercised in favor of a large number of
the class which it is contended fall within
the Disqualification of the Sd section of
the 14th- article. The legal effect of the
pardon and amnesty so granted was to
obhterate absolutely the offense and make
the offender new creature, as free from
guilt and the legal consequences of it as
though he had never committed the Of
Tense: Exparte Garland, 9Th Wallace
Now, therefore, the direct effect of the
Interpretation commended for would be not
only to declare the law ex post facto, and
therefore subversive of a fundamental
principle of the government but also to
go immeasurably beyond this, and create
crime, affix punishment to it, impute
it to guiltless and innocent citizens, and
inf1ict punishment on them therefor This
result is monstrous, and until passion
drives reason from her ancient seats such
an Interpretation can never obtain.
Mr.. Cooley (Con. Linn 90, 63) states
the rule of construction to be, that con-
stitution is to be construed prospeetively
only, unless there is something on the
face of it putting it beyond doubt that it
was meant to operate retrospectively and
that is so, he says, because retrospective
legislation is Objectionable in principle
and apt to result in injustice; and the rule
so stated by Mr.. Cooley is abundantly
sustained by authority. 1t must be re-
membered, too, that such is the rule as to
ordinary retrospective provisions, and
therefore for far stronger reason must the
principle be applied to laws expost facto
in their character. Much discussion has
been had in the courts of our Republic
as to whether particular laws were expost
facto within the meaning of the Consti-
tuition, but the propriety of such laws
was never debated, for the reason they
were so universally odious it was not con-
templated that it would ever be purposed,
or claimed, that any existing or possible
future provision of the organic law of
of the Republic should operate expost
facto as to crimes and their punishment,
and hence the paucity of American au--
thority upon the question. .
Finally, In constituting the section in
question it must be done in connection
with the whole instrument, and effect is
TO be given, if possible, to every section
and clause, and in case of seeming con-
fict, that construction must be favored
which will render every word operative.
Cooley Con. Linn, So, and authorities
there cited. By the Sd section of the
18th article no new crime is created, but
a new and additional penalty is imposed
for the crime of treason. The Constitu-
ton left it to Congress, under certain lin
itation to fix the punishment for treason.
By act of 30th of April, 1890, Congress
made it capital offense. By act of
January; 1862, Congress made it punisha.
able by death or imprisonment; and under
the Sd section of the 14th article, and the
Enforcement Bill' the further penalty
of disqualification from holding office is
added. Treason, is, therefore, capital
offense and an infamous crime within the
meaning of law, and under the 9Th article
OF amendment no person can be held
to answer therefor unless on an indict-
ment or plesentment by a grand
jury. The right to trial by Jury is Sc
cured by the I'd section of the Sd article,
and under the 9th article of amendment
the party so indicted has the right to
speedy public trial, by an impartial jury
of the district, previously ascertained by
law, and to have copy of the accuse
ton; and under the Sd section of the Sd
article, no conviction can be had save on
the testimony of two witnesses to the
same overt act, or upon confession in open
court. Under the 9th section of the
18th amendment it is provided that no bill
of attainder or ex post fscto law shall be
passed. Now the Sd section of the 14th
amendment must be so construed, if posi-
BILE, as to allow all the recited provisions to
stand. 1t cannot be claimed that any one
of them has been repealed or abrogated,
and it is too clear for argument that this
construction cannot be had if RETROSPECT
tive action is to be allowed the Sd section
of the 18th amendment
This conclusion is made inevitable by
the fact that the third section of the 18th
amendment can have no vital force without
Congressional action, and as such action
must be had in reference to the whole
Constitution, and must not impinge upon
any part of it, and as the prohibition of
expost fscto laws is as much part of the
Constitution, to say the least of it, as the
third section of the 14th article, they must
be so construed as to allow each to stand
if possible, and prospective Congressional
action, in harmony with both provisions.