The Lincoln County herald., 1870-02-03
Pro. and Con. Of the Missouri Test
Oath Case.

as will be seen by our editorial columns, i,
perhaps our readers will be interested in
a brirf statement Of both sides of the
question, as recapitulatcd by Judge Ma
,hapicl Holmes in his opinion on the
Murphy and Glover test oath cases, de
!ivered at the October term, 1867, of tho
Missouri Supreme Court, which we clip
from Tuesdays Republican.
THE MOST FAVORABLE VIEW.
The most favorable view I am able to
6ud in support Of the enactment may be
stated thus |, may be said that these
persons out Of the whole community
were to identify themselves by their own
knowledge that they had done some one
or more Of these acts, and that the acts
we're therein regarded as crimes, however
they might be found to be such on iu-
decial trial, but that the persons Who had
done the acts, whether criminal or not,
were deemed, in the political wisdom Of
the convention and people, for the time
being, not to be safe and suitable persons
to have and enjoy these rights, or be in.
trusted with places, privileges and func.
tons that so nearly affected the we'll being
and safety of the body polite; that the
criminalty of the acts was in no way ad
judged, nor passed into a sentence of
punishment; that the oath merely ascer-
tains who have these rights and liberties
but not the guilt or innocence of those
who have them not; that it was aimed at
portion of the inhabitants with view
to the actual condition of the State and
people, and with reference to their fu,
ture safety and well being, and had no
object or intent to punish them as crimi
nas:.but that their having done these acts,
their notorious disloyalty under the old
constitution, and their we'll known abuse
of these rights and liberties when they
had them, where not reason why they
we're deemed guilty of offences for which
they we're punished, but well grounded
aud just cause why the civil power in its
wisd ON judged it necessary. wise and fit
for the future safety and good govern
ment of the State, that this description
Of persons should be thus excluded, for
such time as the State might think pru-
dent, from this part Of the common rights
and privileges Of citizenship.
1t is indisputable that the exclusions
and disabilities refer directly to the emu
nerated acts. The oath expressively re-
latcs to them The acts are plainly the
immediate reason and sole ground Of
these special provisions, 1t may reason.
ably be said that in them it is virtually
assumed that all these persons had done
some one or more Of these acts, of which
some were maniestly crimes, and all are
dealt with in the same way as if they were
Of like nature (and that large numbers
we're guilty in point oe fact was not only
true, but we'll known to almost everybody
not, indeed, by legal proof on trial, but
by general information,) the truth Of
which assumption they we're obliged to
confess by the impossiblity of their tax
i"s the oath (, thus Gas it may DO fairly
said) effectually changing the rules IF
evidence, and subvertng the presumption
Of innocence re,rospectively in every indi.
vdual case, contrary to right reason, the
law O. nations and national ight Of trial
by jury in criminal cases and they were
thus elfectually deprived Of these rights
and liberties, and for that reason. The
only condition allowed for escape was the
oath known to be impossible for them.
The persons to be affected are thus sufi
ciently dcsi gnated for all the purposes Of
visiting the deprivation on them with evi.
table certainty. The deprivations are in
themselves Of such character that, if
they had been expressly declared as and
for penalty for crime, or for any of
these acts, they would have constituted
indisputably severe degree of punish
ment. The operation of the law enacted,
upon them, is really just the same as if it
had been SO expressly declared. 1t may
justly be said, therefore, that the declara.
tion as and for punishment for these acts
as criminal is actually involved and con.
taiued, and is necessarily to be implied,
in what is enacted. This whole import
is really there by the natural and obvious
sense Of the language, and by the ueccs-
sary operation and effect of the law,
though not expressed in set terms. 1t
must be presumed that the Legislative
body intended to do what is actually
done, and that would seem to be essen.
TALLY, nothing less than legislative sen
ence of punishment for past conduct as
criminal and 50 it may be concluded
that the act itself assumes judicial magis.
tracy, weighs the offence and the proofs
decides upon the necessity and fitness oi
the penal judgment, assumes the guilt
ascertatns the persons, and declares the
punishment. 1t is thus shown that the
act itself alone is necessarily equivalen
to punishment, and comes within thu
principle Of such bills. As such, it mus
be held to an exercise of the civil power
of the State, not wherein it was sovereign
and absolute, but wherein it was limitet
aud forbidden.