Year: 1867




tutional inhibition. l.a.u 10 .Hr1Ho|


Now, the clauses in the Missouri COnsti-
tuCion which are the subject of considera-
tiOn, do not in terms defiue any crime or
declare that any punishment shall be in
fllcted, but they produce the same result
upon the parties against whom they are
directed as though the crimes were defined
and the punishment declared. They as
sumo that there are persons in Missouri who
are guilty of some OF the acts designated.
They would have no meaning in tile Con-
stituton were not such the fact. They are
aimed at past acts and not future ac's. They
were intended to operate upon parties who,
i'll some form or manner, by action or
word, directly or indirectly, had aided or
countenanced the rebellion or sympathiZed
with parties engaged in the rebellion, or
had endeavored to escape the proper re-
sponsibilities and duties of citizen in
time of war. And they were intended TO
operate by depriving such persons OF the
right to hold certain offices and trusts, and
to pursue their ordinary and regular avO-
cations. This deprivation is punishment;
nor Is it any less so because way is open
ed for escape from it by the expurgatory
oath. The trainers of the Constitution of
Missouri knew at,the time that whole class
es Of individuals would be unable to take
the oath prescribed. To them there is no
escape provided. To them the deprivation
was Intended to be and is absolute and per-
petual. To make the enjoyment of right
dependent upon an impossible condition is
equivalent TO an absolute denial of the
right under any condition, and such denial
enforced for Il past act Is nothing else than
punishment imposed for that act; it Is a
misapplication ot terms to call IL anything
else,


Now, some of the acts to which the ex-
purgaJory oath Is directed were not Of
lenses at the time they were committed.
1t was no offense against any law to enter
or leave the State OF Missouri for the pur-
pose of avoiding enrolment or draft in the
military service, however much the evasion
of such service might be the subject of
moral censure. Clauses which prescribe a
penalty for an act of this nature are within
the terms of the definition of an er post
IdctO law. They impose punishment for
an act not punishable at the time it was
committed. Some of the acts at which the
oath Is directed constituted high ofienses
at the time they were committed, TO which,
upon conviction, fine and Imprisonment or
other heavy penalties were attached. The
clauses which provide further penalty for
these acts are also within the definition of
an e1 post fdctO law. They impose addi-
tional punishment to that prescribed when
the act was committed. And this is not all.
rne clauses in question subvert the pre-
sumptons of innocence and alter the rules
of evidence which heretofore, under the
universally recognized principles of the
common law, have been supposed to be
fundamental and Interchangeable. They as
sumo that the parties arc guilty; they call
upon the parties to show their innocence.
and they declare that such innocence can
be shown only in one way, by an inquisi-
! tion in the form of an eXpurgatory oath in-
to the cOnsciences OF the parties. .ar. -
The Objectionable character of these
clauses will be more apparent If we put
them in the ordinary form of a Legislative
act. Thus, if instead of the general pro-
visions in the Constitution, the convention
had provided as follows: Be it enacted,
that all persons who have been in armed
hostility to the United States shall, upon
conviction thereof, not only be punished as
the laws provided at the time the offenses
were committed, but shall also be thereaf-
ter rendered incapable of holding any Of
the offices, trusts and positions, and OF eX-
ercisirg any OF the pursuits mentioned i'll
the third al ticle of the Constitution of
Missouri" no one could have any doubt OF
the nature of the act. 1t would be an &C
post fdcto law, and void, for it would add
new punishment to an old otfense. So,
! too, if the convention had passed an en-
actment of a similar kind with reference to
those acts which do not constitute offenses.
Thus, had it provided as follows: "Be it
enacted, that all persons who have hereto
fore at any time entered or lett the State of
Missouri with intent to avoid enrolment or
draft in the military service of the United
States, shall, upon conviction thereof, be
10, I'M nf hnl
office of honor, trustor profit In the United
States, or of teaching in any seminary of
learning, or preaching as a Minister OF
the Gospel of any denomination, or eXrr
cising any of the professions or pursuits
mentioned in the third article of the Con-
stituti0u," there would be no question of
the character of the enactment. 1t would
be an er post fdctO law, because it would i'm
pose punishment for an act not punish
able at the time it was committed. U
The provisions of the Constitution of
Missouri accomplish precisely what enact
ments like those supposed would accom-
plish. They impose the same penalty
without the formality of judicial trial
and conviction, for the parties embraced
by the supposed enactments would be in-
capable Of taking the oath prescribed. To
them its requirement would be an impossi





attempted the course supposed, would have
failed, itmust follow that any other mode
producing the same result must equally
fail. Tue provisions OF the Federal Consti-
tuition intended to secure the liberty of the
citizen cannot be evajed by the form in
which the power of the State is eXerted.
| II this be not so, if that which caunot be
accomplished by means looking directly to
the end can be accomplished by indirect
means, the inhibition may be evaded at
pleasure. No kind of oppression can be
named against which the trainers of the
Constitution supposed they had guard
ed, which may not be effected. Take the
case supposed by counsel, that of a man
tried for treason and acquitted, or, If con-
| Victed, pardoned. IS. E sHNFcYalsa


The Legislature may pass an act that if
the person thus acquitted orpardoned does
not take an oath that he never has COM
mitted the acts charged against him he
shall not be permitted to hold any Office of
trust or profit, or pursue any avocation in
| the state. Take the case before us: The
Constitution of Missouri excludes, on fail
ure to take the oath we have described, a
large class of persons within her borders
from numerous offices aud pursuits. IL
would have been equally within the power
! of the State to have extended the exclusion
| so as to deprive the parties who were una
Bile to take the oath from any avocations
whatever in the State. Suppose, again, in
the progress of events, persons now in the
minority in the ascendency, and secure the
control of the Government, nothing could
prevent, IL the constitutional prohibition
can be evaded, the enactment Of a provision
requiring every person, as a condition Of
holding any Office of honor or of trust, or
of pursuing any avocation in the State, to