a jury would not be suffered to accept as overcoming the legal presumption of innocence. Whether the accused should necessarily be served with process; what degree or species of evidence should be required; whether the rules of law should be * followed, either in determining what constituted a crime, [* 261] or in dealing with the accused after conviction, - were all questions which would necessarily address themselves to the legislative discretion and sense of justice; and the very qualities which are essential in a court to protect individuals on trial before them against popular clamor, or the hate of those in power, were precisely those which were likely to prove weak or wanting in the legislative body at such a time.1 And what could be more obnoxious in a free government than the exercise of such a power by a popular body, controlled by a mere majority, fresh from the contests of exciting elections, and quite too apt, under the most favorable circumstances, to suspect the motives of their adversaries, and to resort to measures of doubtful propriety to secure party ends? Legislative punishments of this severe character, however, were not the only ones known to parliamentary history; but there were others of a milder form, which were only less obnoxious in that the consequences were less terrible. Those legislative convictions. which imposed punishments less than that of death were called bills of pains and penalties, as distinguished from bills of attainder; but the constitutional provisions we have referred to were undoubtedly aimed at any and every species of legislative punishment for criminal or supposed criminal offences; and the term "bill of attainder" is used in a generic sense, which would include bills of pains and penalties also.2 1 This was equally true, whether the attainder was at the command of the king, as in the case of Cardinal Pole's mother, or at the instigation of the populace, as in the case of Wentworth, Earl of Strafford. The last infliction of capital punishment in England, under a bill of attainder, was upon Sir John Fenwick, in the reign of William and Mary. It is worthy of note that in the preceding reign Sir John had been prominent in the attainder of the unhappy Monmouth. Macaulay's History of England, c. 5. Fletcher v. Peck, 6 Cranch, 138; Story on Constitution, § 1344; Cummings v. Missouri, 4 Wal. 277; Ex parte Garland, ib. 333; Drehman v. Stifle, 8 Wal. 601. "I think it will be found that the following comprise those essential elements of bills of attainder, in addition to those I have already mentioned [which were that they declared certain persons attainted and their blood corrupted, so [* 262] *The thoughtful reader will not fail to discover, in the acts of the American States during the Revolutionary period, sufficient reason for this constitutional provision, even if the still more monitory history of the English attainders had not been so freshly remembered. Some of these acts provided for the forfeiture of the estates, within the Commonwealth, of, those British subjects who had withdrawn from the jurisdiction because not satisfied that grievances existed sufficiently serious to justify the last resort of an oppressed people, or because of other reasons not satisfactory to the existing authorities; and the only investigation provided for was an inquiry into the desertion. Others mentioned particular persons by name, adjudged them guilty of adhering to the enemies of the State, and proceeded to inflict punishment upon them, so far as the presence of property within the Commonwealth would enable the government to do so. These were the resorts of a time of extreme peril; and if possible to justify them in a period of revolution, when every thing was staked on success, and when the public safety would not permit too much weight to scruples concerning the private rights of those who were not aiding the popular cause, the power to repeat such acts under any possible circumstances in which the country could be placed again was felt to be too dangerous to be left in the legislative hands. So far as proceedings had been completed under those acts, before the treaty of 1783, by the actual transfer of property, they remained valid that it had lost all heritable property], which distinguish them from other legislation, and which made them so obnoxious to the statesmen who organized our government: 1. They were convictions and sentences pronounced by the legislative department of the government, instead of the judicial. 2. The sentence pronounced and the punishment inflicted were determined by no previous law or fixed rule. 3. The investigation into the guilt of the accused, if any such were made, was not necessarily or generally conducted in his presence or that of his counsel, and no recognized rule of evidence governed the inquiry." Per Miller, J., in Ex parte Garland, 4 Wal. 388. 1 See Belknap's History of New Hampshire, c. 26; 2 Ramsay's History of South Carolina, 351; 8 Rhode Island Colonial Records, 609; 2 Arnold's History of Rhode Island, 360, 449; Thompson v. Carr, 5 N. H. 510; Sleght v. Kane, 2 Johns. Cas. 236; Story on Const. 4th ed. § 1344 note. On the general subject of bills of attainder, one would do well to consult, in addition to the cases in 4 Wallace, those of Blair v. Ridgeley, 41 Mo. 63 (where it was very elaborately examined by able counsel); State v. Staten, 6 Cold. 248; Randolph v. Good, 3 W. Va. 551; Ex parte Law, decided by Mr. Justice Erskine, in the United States and effectual afterwards; but so far as they were then incomplete, they were put an end to by that treaty.1 The conviction of the propriety of this constitutional provision has been so universal, that it has never been questioned, either in legislative bodies or elsewhere. Nevertheless, cases have recently arisen, growing out of the attempt to break up and destroy the government of the United States, in which the Supreme * Court of the United States has adjudged certain action [* 263] of Congress to be in violation of this provision and consequently void. The action referred to was designed to exclude District Court of Georgia, May term, 1866; State v. Adams, 44 Mo. 570; Beirne v. Brown, 4 W. Va. 72; Peerce v. Carskadon, ib. 234. 1 Jackson v. Munson, 3 Caines, 137. 66 2 On the 2d of July, 1862, Congress, by an act to prescribe an oath of office, and for other purposes," enacted that "hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation: I, A B, do solemnly swear or affirm that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, nor attempted to exercise, the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do further swear or affirm that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God." On the 24th of January, 1865, Congress passed a supplementary act as follows: "No person after the date of this act shall be admitted to the bar of the Supreme Court of the United States, or at any time after the 4th of March next shall be admitted to the bar of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counsellor of such court, or shall be allowed to appear and to be heard in any such court, by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath" aforesaid. False swearing, under each of the acts, was made perjury. See 12 Statutes at Large, 502; 13 ib. 424. In Ex parte Garland, 4 Wal. 333, a majority of the court held the second of these acts void, as partaking of the nature of a bill of pains and penalties, and also as being an ex post facto law. The act was looked upon as inflicting a punishment for past conduct; the exaction of the oath being the mode provided for ascertaining the parties upon from practice in the United States courts all persons who had taken up arms against the government during the recent rebellion, or who had voluntarily given aid and encouragement to its enemies; and the mode adopted to effect the exclusion was to require of all persons, before they should be admitted to the bar or allowed to practise, an oath negativing any such disloyal action. This decision was not at first universally accepted as sound; and the Supreme Courts of West Virginia and of the District of Columbia declined to follow it, insisting that permission to practise in the courts is not a right, but a privilege, and that the with[* 264] holding it for any reason of State policy or personal unfitness could not be regarded as the infliction of criminal punishment.' The Supreme Court of the United States have also, upon the same reasoning, held a clause in the Constitution of Missouri, which, among other things, excluded all priests and clergymen from practising or teaching unless they should first take a similar oath of loyalty, to be void, overruling in so doing a decision of the Supreme Court of that State.2 whom the act was intended to operate. See Drehman v. Stifle, 8 Wal. 597. The conclusion declared by the Supreme Court of the United States in Ex parte Garland had been previously reached by Mr. Justice Trigg, of the United States Circuit Court, in Matter of Baxter; by Mr. Justice Busteed, of the District Court of Alabama, in Matter of Shorter et al.; and by Mr. Justice Erskine, of the District Court of Georgia, in Ex parte Law. An elector cannot be excluded from the right to vote on the ground of being a deserter who has never been tried and convicted as such. Huber v. Reily, 53 Penn. St. 112; McCafferty v. Guyer, 59 Penn. St. 109; State v. Symonds, 57 Me. 148. See ante, 64, note 3. See the cases of Ex parte Magruder, American Law Register, Vol. VI. N. s. p. 292; and Ex parte Hunter, ib. 410, 2 W. Va. 122; Ex parte Quarrier, 4 W. Va. 210. See also Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 241. Cummings v. Missouri, 4 Wall. 277. See also the case of State v. Adams, 44 Mo. 570, in which it was held that a legislative act declaring that the board of curators of St. Charles College had forfeited their office, was of the nature of a bill of attainder and void. The Missouri oath of loyalty was a very stringent one, and applied to electors, State, county, city, and town officers, officers in any corporation, public or private, professors and teachers in educational institutions, attorneys and counsellors, bishops, priests, deacons, ministers, elders, or other clergymen of any denomination. The Supreme Court of Missouri had held this provision valid in the following cases: State v. Garesche, 36 Mo. 256, case of an attorney; State v. Cummings, 36 Mo. 263, case of a minister, reversed as above stated; State v. Bernoudy, 36 Mo. 279, case of the recorder of St. Louis; State v. McAdoo, 36 Mo. 452, where it is held that a certificate of elec 2 The same provisions of the national Constitution which we have cited also forbid the passage either by the States or by Congress of any ex post facto law. At an early day it was settled by authoritative decision, in opposition to what might seem the more natural and obvious meaning of the term ex post facto, that in their scope and purpose these provisions were confined to laws respecting criminal punishments, and had no relation whatever to retrospective legislation of any other description. And it has, therefore, been repeatedly held, that retrospective laws, when not of a criminal nature, do not come in conflict with the national Constitution, unless obnoxious to its provisions on other grounds than their retrospective char acter. "The prohibition in the letter," says Chase, J., in the leading case, "is not to pass any law concerning or after the fact; but the plain and obvious meaning and intention of the prohibition is this that the legislatures of the several States shall not pass laws after a fact done by a subject or citizen, which shall have relation to such fact, and punish him for having done it. The prohibition, * considered in this light, is an additional bulwark [* 265] in favor of the personal security of the subject, to protect his person from punishment by legislative acts having a retrospective operation. I do not think it was inserted to secure the citizen in his private rights of either property or contracts. The prohibitions not to make any thing but gold and silver coin a tender in payment of debts, and not to pass any law impairing the obligation of contracts, were inserted to secure private rights; but the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment, in consequence of such law. If the prohibition against making ex post facto laws was intended to secure personal rights from being affected or injured by such law, and the prohibition is suffi tion issued to one who failed to take the oath as required by the constitution was void. In Beirne v. Brown, 4 W. Va. 72, and Peerce v. Carskadon, ib. 234, an act excluding persons from the privilege of sustaining suits in the courts of the State, or from proceedings for a rehearing, except upon their taking an oath that they had never been engaged in hostile measures against the government, was sustained. And see State v. Neal, 42 Mo. 119. 1 Constitution of United States, art. 1, §§ 9 and 10. 2 Calder v. Bull, 3 Dall. 390. |