The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1870-11-30
The Amendment of 1866.

The Amendment Gf 1866.
The IntelIgacsr thinks that because
the prohibition OF retrospective amend
ments to the constitution is found only
in that section of Article XII. which
relates to amendments proposed by a
Constitutional Convention. it does not
apply to amendments proposed by the
Legislature. But the Constitutional
Convention is higher body than the
Legislature OF the State; it is entrusted
with more power by the people than
any other assembly that can be held;
it represents the sovereignty more fully
and completely than any other delegate
body in a constitutional government
Ii makes and controls the Legislature
and defines the limits Of legislative
power. If then, the Constitutional
Convention, is by the terms Of the IN
strument now in force in this State,
prohibited from the enactment Of or
dinances which may, 10y any shift or de
vice, be made to have any retrospective
operation or effect, does not this prohi-
bition apply with still greater force to
changes in the organic law which may
be proposed by the Legislature?
The Htelhgencsr further asserts that
Notwithstanding the prohibition referred
to, it is clearly in the power of a major
ity OF the people to adopt any amend
ment they wish, no matter whether 1t
he retrospective in its operation or not.
We grant that if, in the prescribed
manner, that clause of the Constitution
which prohibits retrospective legislation
were first stricken out, and no limit to
the power Of amendment were any
where expressed, such amendments as
that of 1866 might be adopted and en-
forced. But we deny that such legisla,
ton can be made valid while the pro,
hibition stands, or that by the pretended
adoption of an amendment whose ma
ture is forbidden, the prohibiting law
is repealed. Such doctrine destroys
the very foundation of constitutional
law.
Again; As regards the &C post tacto
character of the amendment of 1866, it
is only necessary to show that it made
the offense of rendering aid and assis-
lance to the rebellion punishable in
manner in which it was not legally
punishable when committed. 1t is not
necessary to show that disfranchise-
ment was made the only penalty Of the
otfense' but that il was put in the law
after the commission of the act, when
it had formerly held no place among
the penalties provided That disfran-
chisement for and on account OF COM
plicity in the rebellion Is to be regarded
as in the nature Of a punishment
for an ofense committed in VIC
lation of law. seems to Us too
plain for argument. When man has
violated the law by appropriatiHg to his
own use the property of another, ne Is
deprived of his personal liberty. The
htelLigencer may as well say of this
that there is no punitive idea about i;
it is wholly in the nature OF protection
and precaution for the future as of the
case Of man deprived Of the elective
franchise in consequence Of The viola
ton of the law. One is as much in the
nature of a punishment as the other,
and there is no more and no less of
protection and precaution for the
future" in the Acknowledgement of
citizen as part of the penalty Of an
offense, than there is in the imprison-
ment of man for theft, or his execu-
ton as the penalty of murder.
We believe that the positions assum-
ed in our article of Monday morning
are correct. The amendment of 1866
has been held to have such retrospect
tive operation asis forbidden by the first !
section Of article XII, and it is also, IN
every legal sense, er post tactO and there
fore null and void. But independent of
all this, the amendment has not
been legally adopted, and, were it I'M
Objectionable in its terms, it could not
be properly enforced, as has been here |
tofore most conclusively shown.