State v. Murphy

41 Mo. 339

• Court: Supreme Court of Missouri
• Decided: October 15, 1867
• Status: Published

Opinions

Holmes, Judge,

delivered the opinion of the court.

At the December term of the Cape Girardeau Circuit Court, in 1865, the defendant was indicted for unlawfully preaching in said county, “ without having first taken, subscribed and filed the oath known as the oath of loyalty, as prescribed and set forth in the sixth section of the second article of the Constitution of the State of Missouri.” A demurrer to the indictment being overruled, the defendant pleaded not guilty. Being tried, convicted, and fined five hundred dollars, he brings the case to this court by appeal.

The essential question is that of the constitutionality of the oath.

Several other cases have been submitted, involving the same question in reference to preachers, teachers, attorneys, and persons solemnizing marriages. These cases will depend upon the same reasoning, and it will be more convenient to consider them all together.

When this matter came before the court in the case of Garesché v. The State, 36 Mo. 256, and the State v. Cummings, 36 Mo. 263, it did not satisfactorily appear to me that the provisions of the Constitution in question could be judicially declared void as being in violation of that clause in the Federal Constitution which prohibits a State from passing “ any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” That the provisions excluded these persons from the rights and privileges in question was express and clear enough, but that the thing done was prohibited under this clause was neither express nor very clear. There was no precedent that furnished any near parallel to such a case. No decision of the Supreme Court of the Uninited States had precisely defined the meaning of the clause, nor limited the extent to which the application of this prohibition might be carried. We had jurisdiction to construe it for ourselves; but it was a settled rule of construction that an express provision of the Constitution should not be declared void, unless the matter were clear beyond any rational doubt. Under this rule, it is conceived, it would have been the duty of this court, even if some doubt had been entertained, to uphold the Constitution of the State until it should be finally pronounced void by the higher tribunal; in which only was vested the judicial power to make an end of the question.

In Cummings’ case, 4 Wall. 277, it was decided that this oath of loyalty in reference to preachers, and so far as relating to past.acts, was substantially a bill of pains and penalties, and an ex post facto law, within the prohibition, and therefore unconstitutional and void; and the same reasoning was applied to the case of an attorney, arising under the act of Congress, in Ex parte Garland, 4 Wall. 333. This decision is absolutely binding on this court in that case; it is not absolutely binding in any other case. In other cases, whether the same or similar in nature, and so far as the principles involved are the same, it has the force of a judicial precedent only. No judicial precedent, however entitled to the gravest consideration and respect, is absolutely binding on any court; but when, by a single precedent, or a series of precedents, an adjudication of the court of last resort has become the established rule of decision in that court, the principles involved and determined should be considered by all inferior courts as definitively settled, and they could not wisely be departed from. Where a question of real property had been decided adversely to the opinion of this court, Scott, J., acquiesced in these words: “As this is a question arising under the laws of the United States, and as the highest tribunal known to the Federal Constitution has pronounced its judgment in relation to it, that judgment is obligatory on this court, whatever opinion might be entertained of its correctness”—Cabanné v. Lindell, 12 Mo. 189. It was considered not as directly binding, but as carrying a weight of authority which it would be unwise and useless to disregard. There was no reason to suppose that the decision would be different in another case.

If there were reason to believe that this decision was not really sound law, there might be no impropriety in our refusing to accept it as a controlling precedent. That the court was so equally divided in opinion must necessarily detract much from its weight, but it is still the official judgment of the court constitutionally pronounced. A.s such, we must consider ourselves in duty bound to follow it, unless convinced, first, that it was against law, and, second, that a different conclusion might, for that reason, be reached in that court in another case. We should not be at liberty to presume any other reason, but we may properly regard this as still open for consideration. If it were necessarily to be regarded as final, it would be proper to yield our own judgment altogether (if adverse); for there must needs be a final determination somewhere: interest reipublicce ut sit finis litium.

In the cases of Blair v. Ridgely and State v. Woodson, the majority of the court held that this decision was not decisive of the case of a voter or office-holder. I did not deem it necessary to give an opinion on the constitutionality of the oath in those cases. Nor is it necessary that I should consider, here, whether there be any or what grounds of distinction, which may take those cases out of the reasoning on which this opinion proceeds.

If it were clear that the precedent should be regarded as established in reference to the cases now before us, we might rest our decision on that authority alone. But a precedent is only evidence of what the law is. Other cases may involve a new application of law to facts. We are to decide every case according to law, upon all precedents and principles together. If we accept the precedent as authority, with or without a discussion of the reasons on which it rests, we must thereby admit it to be law for these cases. I conceive it to be proper, therefore, .that I should re-examine the subject as briefly as possible (considering its inherent difficulties), and rather for the justification of my own conclusion than as furnishing a guide or a light to others who may be more capable of judging the question for themselves.

These persons were entitled to the benefit of the legal presumption of innocence, in conformity with those great principles of public law which constitute a part of the law of nations governing the case of civil war, the authority of which 1 suppose to be recognized by the Constitution of the United States—1 Kent’s Com. 1; Wheat. Elem. Int. Law by Dana, ch. 1, §§ 9-15, n. 32 on p. 84, n. 153 on p. 374; Prize Cases, 2 Black, 635; 1 Greenl. Ev. § 5. To the extent to which this law may have force and application here, it is a law superior to the Constitution of this State. According to this law (Vattel, bk. 3, ch. 18, §§ 291-4, & bk. 4, ch. 2, § 20), when a civil war ends by the submission of the rebels, “ it becomes necessary to grant an amnesty where the offenders are numerous,” and “when the amnesty is once published and accepted, all the past must be buried in oblivion ; nor must any one be called to account for what has been done during the disturbances,” and “the sovereign, whose word ought ever to be sacred, is bound to the faithful observance of every promise he has made, even to rebels”; but he may except from the amnesty the authors of the disturbances, the leaders of the party; he may bring them to a legal trial, and punish them if they be found guilty ; but “the end of peace is to extinguish all subjects of discord.” An amnesty is “ a perfect oblivion of the past,” and, subject to the exceptions, the amnesty exists even without a treaty, and, “ by the very nature of the peace, is necessarily implied in it,” and “ peace restores the two nations to their natural state.” The military government may continue until the regular civil authorities are fully established, but the amnesty must be made effectual. An amnesty for prisoners of war may have been, involved in the surrender of the rebel armies, and it had been proclaimed for others (with exceptions) when this Constitution was adopted.

These doctrines are certainly consonant to reason and the nature of things. It would maidfestly be impracticable to punish all, and absurd to atteippt it. The mass of offenders must be pardoned, and when pardoned their past offences must be buried in oblivion. Those who were citizens, and became rebels and criminals in law, are thus restored to their former state and condition of citizenship, and must be henceforth presumed in law to be innocent like all other persons, until convicted of some new offence. They return to allegiance and to obedience to the laws. Allegiance and citizenship are reciprocal and correlative obligations. They are entitled to the common benefit of the laws and government that are established, and to nothing more. Nothing more can be required of them by the civil state; and it must be admitted that their opinions and feelings, when not put forth in any new act of resistance to the laws, belong to themselves, and cannot, with reason and justice, nor lawfully, be punished as if they were offences against law.

It is unquestionable that the right of trial by jury in any criminal case, and the presumption of innocence involved therein, is protected by the Federal Constitution, and could not be infringed by a State.

The next thing to be clearly ascertained is, what were these rights to teach, preach, practise law, solemnize marriages, &a., and what was really done, with respect to them, when the new Constitution was ordained.

I premise that natural rights, merely as such, do not fall within the domain of civil jurisprudence: they belong to the forum of nature. They are doubtless highly important, and, for anything that we may judicially know, ought to be. inalienable; but perhaps, in point of fact, they are not; for in the forum of mere nature there is no tribunal to adjudge, no sanction but the eternal justice, or the right of might, and no execution but the vengeance of Nemesis—1 Black. Com. 138; 2 id. 18; Kant’s Metaphys. of Eth. & Law, (Edinb., 1836). We sit here in the civil forum, and we are to adjudicate upon civil rights, under the established government, and according to civil laws; and if any of these things were civil rights, they must have been created such by the laws and government of this State, or of the United States.

Natural rights, I take it, are raised into civil rights by the established government and laws, and civil rights are such only as they are so created,- defined, secured, and made to be, and nothing other. The civil rights which are thus given and secured constitute civil or political liberty, which is never anything else. Civil and religious liberties are political rights, says Mr. Justice Catron—Permoli v. Municipality, 3 How. (U. S.) 610. Tested rights of property or contract, when they exist by law, are recognized as civil rights by the clause relating to the obligation of contracts, and are protected as such. None of these things were such vested rights: I do no.t understand that it is claimed that they were. They were not of the nature of property or contract at all. The right to “ life, liberty, and property” (that is, personal security, personal locomotion or freedom from arrest, and private property), where it exists, is protected by the Federal Bill of Rights from being taken away, in any criminal case, without due process of law—Const. U. S., Amend. Art. V.; 1 Black. Com. 128; Sto. Const. § 926; Smith’s Com. § 593. So far as these things were of the nature of such rights, they either did not exist in these persons, or, if they existed, they were not taken away. I suppose it is not contended that they were, unless the penalties consequent upon a violation of the Constitution may be said to have that effect when enforced. No other clause of the Federal Constitution is referred to, and I presume none can be cited, that undertakes to make any of these things civil rights. It must follow, then, that if they were such rights, they owed their existence as such to the Constitution and laws of this State, and to no other civil power, and were a part of the civil liberty thereby established.

It may be admitted that all these positions, functions, and professions, were naked civil rights in this State, under the old Constitution. That the right to practise law, or solemnize marriages, was created and defined by the Constitution and laws then in force here, and by no other civil authority, can scarcely admit of question; and that all the rest were to some extent defined, and secured or protected, and thus made civil rights so far, by the same power and laws, would seem to be equally clear. They were of such a nature as very nearly and greatly to affect the good government and safety of the State, and they were an important part of the rights and liberties of the people. They existed under the old Constitution, and they would exist under the present one if the special provisions in question were abrogated or declared void; and they were taken away only by a change in the Constitution itself.

All these things were thus clearly matters of internal government and civil institution in this State. The old Constitution gave the people power to alter or abolish their Constitution, and, in so doing, to abrogate or revoke these naked civil rights, as they might deem fit and necessary for the common safety and happiness of the body politic. The Convention was expressly directed to frame such a constitution as might be “by them deemed essential for the promotion of the public good.” Their power to give or withhold, to abrogate or modify, these civil rights, for purposes of good government, was unquestionably sovereign and absolute. The prohibitory clause was not in itself a limitation on the exercise of this power for this purpose. It would be purely an exercise of the political power, wherein it was sovereign and unrestricted. As to these persons from whom these particular rights and liberties were taken away, or to whom they were not given or secured, it was in one sense a deprivation of civil rights, and in every sense a loss or diminution of civil liberty. In the first place, it would not be quite correct to call this a deprivation of rights, or certainly not in any sense of punishment: more properly it would be said that all persons within the State surrender for the public good so much of tlieir natural or civil rights as the majority, when establishing a new government, may deem fit and necessary that they should surrender for that purpose, when no higher authority intervenes; and this is wholly a matter of political wisdom. .Inthe second place,it is perfectly plain that if such deprivation of rights were necessarily to be regarded as punishment, the Constitution could never be altered, amended, or abolished at all, nor the laws changed otherwise than by enlarging these rights and liberties for everybody; and this would be next to impossible. So far it must be admitted that the question is wholly political, and not judicial, in its nature.

A judicial question can arise here only by finding some higher positive law by which the sovereign power of the Convention and people was restricted. It is not claimed that such superior law can be found anywhere else than in this prohibitory clause, nor in that, unless these provisions can be held to change the criminal law, or the rules of evidence, -in relation to past acts, or can be declared to be a legislative sentence of punishment for supposed criminal offences, or past conduct assumed to be criminal; and whether the enactment were this thing (raising a judicial question), or that other (raising a political question only), must necessarily depend upon the object, scope, and intent of the act itself. If the operation and intention were to punish these persons for such past conduct as criminal, I suppose it might be said to be a bill of pains and penalties ; but if it were really, by scope and intention, a measure of political wisdom only, looking to the good government of the State, however mistaken in policy, and neither designed nor declared as punishment at all, I do not see that it could be rightly called such a bill.

It appears to me that, any ex post facto elements which might possibly be found in it, may be considered as merged in the graver character of a bill of pains and penalties. For if the administration of the oath could be regarded as the criminal proceeding to which these elements relate, it would still be the enactment itself, if anything, which changed the law of crimes, or the rules of evidence, retrospectively; and if it be a bill of pains and penalties, it must be the enactment itself which assumes judicial magistracy, weighs the offence and the proofs, decides upon the political necessity and moral fitness of the penal judgment, declares the guilt, and fixes the punishment.-

The requisition of the oath can be no more than the execution of the sentence. No other trial or criminal proceeding than that which may be found in the act itself could possibly have been contemplated. The administration of the oath is in itself, I think, clearly a civil proceeding only ; but as a mode of executing sentence it may be considered as a part of the legislative judgment. The criminal proceeding, then, must lie in the force of the enactment, or there is none at all; and without some criminal proceeding, or some decisive penal character, I do not see that it can by any possibility be an ex post facto law in the sense of jurists. If it be a bill of pains and penalties, that is enough. By no construction, it seems to me, can these provisions be an ex post facto law, or necessarily punitive in character, without being also a bill of pains and penalties ; and, to my mind, if it be not the latter, it is neither. In order to make it such a bill, it would seem to be essential that it should punish a past act as criminal—Calder v. Bull, 3 Dall. 390.

Ordinarily the word bill or law would import an act of the Legislature ; but in civil jurisprudence an ordinance or constitution of the supreme power in the State would be considered, I presume, as an act of legislation. I suppose, then, that these words may include this Constitution. Such bills in England were acts of Parliament. The power of Parliament was more nearly that of a State Convention with us than that of a Legislature sitting under a written constitution ; and if by any latitude of construction this clause can be applied to conventions of the people* assembled for the purpose of founding a new constitution of government, it would seem to be reasonable that the intention to enact such bills should be unequivocal and clear.

There is a class of cases in which acts of the Legislature have been tried by the supreme law of the Constitution (State or Federal) under which the Legislature sat, and been held void as being of the nature of punishment without trial, because the Legislature, in such case, had no power to divest civil rights, vested or naked, which were by such higher authority secured against legislative action in any other way, or for any other purpose, than as a penalty for crime to be imposed on judicial conviction—Taylor v. Porter, 4 Hill, 140. Such was the case of Fletcher v. Peck, 6 Cranch, 138, where a vested right of property was taken away by an act of the State Legislature, which had no power to do such a thing otherwise than as a punishment on conviction. It was therefore necessarily to be inferred that it was done for punishment, because it had that direct effect; and, being done by legislative act, and not by judicial sentence, it was held to have the operation of an ex post facto law, punishing the party for the supposed offences of his grantors. It was necessarily equivalent to punishment without trial. No other purpose could be alleged or heard. Such deprivation of rights as this, I should readily admit, could be regarded in no other light than as punishment in the legal sense.

Before these cases, or this principle, can have an application here, it must be shown that this enactment was, by the same or some like reasoning, necessarily equivalent to punishment for past conduct. The prohibitory clause may be considered as excepting out of the absolute sovereignty of the Convention all power of depriving persons of civil rights, as and for a sentence of punishment, without trial, or in a way that changed the criminal law, or the rules of evidence, retrospectively.

One view says that the Constitution was ordained in political wisdom for purposes of good government, with no object or intent to punish these persons for supposed criminal offences, and that it came therefore within the civil power wherein it was absolutely sovereign : the other view says that by the very scope and intention of the enactment itself it did punish for such past conduct, and was a legislative sentence without trial for the treasons and other assumed offences involved in the acts specified. On this issue the whole matter turns. Which view is the correct one ?

It does not appear by the tenor, nor in any other way, that the Convention had no power to divest persons of these naked civil rights otherwise than as a penalty for crime on conviction. It is not, then, upon this ground, necessarily equivalent to punishment, and it is not, therefore, for that reason necessarily to be regarded as punishment. It is obvious that the question here must depend wholly upon what was the direct scope, object, and real intention of the act. If it were simply a measure of political wisdom, for purposes of good government, it was a matter within the sovereign power, and valid beyond the reach of judicial condemnation. To bring it within the definition of such bills and raise a judicial question on this prohibition, it is absolutely necessary that it should be such by the very scope, operation and intention of it. I see no other legitimate way of showing that it can be regarded in no other light than as punishment.

In what manner is this to be determined ? And, first, what tribunal is to decide what is a measure of political wisdom, and what are purposes of good government ? I must answer, the people in Convention assembled, absolutely for themselves. And, second, who is to decide whether this enactment was such a measure or not — whether or not it was, in its actual effect and real intention, not such a measure at all, but an ex post facto law, or a legislative sentence of punishment ? Here I must answer, the court sitting in judgment upon this judicial question. It is to be determined according to the established rules of construction, among which I find these: that the object of all rules and maxims of interpretation or construction is, if possible, to discover the true intention of the law; that the intention must prevail over the literal sense of terms, and “ is to be taken or presumed according to what is consonant to reason and good discretion” (1 Kent’s Com. 462; Smith’s Com. § 515-45; 1 Dom. Civ. Law by Cush. 118-25); that we are look to the nature, object, scope and design of the act, and give to words such operation as may fairly secure the ends proposed (Prigg v. Com. of Penn., 16 Pet. 610; 1 Sto. Com. § 405, 405 a.); that where the words are express, the meaning clear, and the intention wgll known, it must govern, however unwise the law may seem to be (Smith’s Com. § 501, § 465); that if on the face of the enactment this intention be doubtful, we may look into the attending circumstances and condition of the people, into matters of public history affecting the whole people, and public matters affecting the government of the country (1 Greenl. Ev. § 5) ; but if the intention of the law be plain and intelligible, we cannot allow- ourselves to find in any reference to extraneous matters any authority for interpolating either a grant of power or a restriction on power granted (Hamilton v. County Ct., 15 Mo. 23); that in case of implied limitation or prohibition of power, it is not sufficient to show a possible or potential inconvenience, but there must be a plain incompatibility, repugnancy, or an extreme practical inconvenience leading irresistibly to the same conclusion (1 Sto. Com. § 477); that we are not to substitute other language, nor our own notions of what the framers intended, but are to seek for the thought which is expressed; that it is not the intention of the members which is to govern, but that of the law whicn they have enacted ; and that the legislative body must be understood to have employed words in their natural sense, and to have intended what they have said (Gibbons v. Ogden, 9 Wheat. 188; Fletcher v. Peck, 6 Cranch, 130; Newell v. People, 3 Seld. 97; Sedgw. Stat. & Const. Law, 246); that we are not to lose sight of the instrument itself, nor look beyond it “and roam at large in the boundless field of speculation,” where it is plain and explicit and can mean but one thing (People v. Purdy, 2 Hill, 36); that it cannot be presumed to admit of any recondite meaning or any extraordinary gloss (1 Sto. Com. § 451); that the whole must be taken together, and, if possible, reconciled into harmony (Sedgw. 237; 1 Sto. Com. § 455); and, finally, that the clear scope, object, effect, and intention of the law, as made, must govern absolutely, and cannot be overborne nor evaded by judicial construction.

There is no case here for the interpretation of the meaning of words : there is no ambiguity in the language. The only question there can be is, what was effected, and what was the object and intention of what was so done ? ' The intent of the law is to be gathered from the enactment itself, and that, when ascertained, must be presumed to have been the intention of the legislative body. The motives, objects, and reasons of the members are not in question ; they are not examinable in a court of justice; and neither their motives, however patriotic or corrupt, nor their reasons, however sufficient for themselves, or insufficient for us, can be allowed to change the nature and effect of the law which they have enacted—Fletcher v. Peck, 6 Cranch, 130. Even where it is permissible to look into the extraneous matters, it is not the intention of the legislators, but that of the legislative body as embodied in the enactment, which is the subject of inquiry.

Penal acts usually prescribe the penalties for criminal of-fences with express clearness and precision. The known examples of bills of this nature contain bold, explicit, and unmistakable declarations of the object, the punishment, and the persons. The precedents of ex post facto laws admit of no other rational construction. Deprivations, disqualifications and disabilities of this kind have often, in the history of penal legislation, been thus prescribed bylaw as a punishment for crime; and when so declared, in whatever form, they are doubtless to be regarded as punishment in the legal sense. There is no such explicit declaration here: if there be any at all, it must lie in the effective operation. It must be presumed that the intention was to do what is actually done, and this is to be found in the operation and effect of the act. What, then, was done ? That all these persons were absolutely excluded from the exercise of these privileges, offices, places and functions, and deprived of civil rights which they had previously enjoyed, is certain enough. This portion of their civil rights and liberties was taken away. There ^is certainly no defining of qualifications or disqualifications of these persons for any of these things: as to them, it is clearly at one sweep an absolute exclusion. I believe no one has ever denied this. The oath is not directed for this purpose: they are all forbidden to take it under the penalties of perjury. None of them could take it, and it was clearly not intended that they should. It is only the other portion of the people, who were not deprived of these rights and liberties, who are to take the oath, or do these things at all; and it is plainly required of them only for the purpose of ascertaining that they belong to this class, and possess the rights and liberties. All this was intended by the act itself to be done. This the Convention plainly intended to do ; and this unquestionably it had the sovereign power to do for the purposes of good government, and with the object of securing the well-being and safety of the State. It is equally clear that it had no power to accomplish such objects and purposes by means of an ex post facto law or a bill of pains and penalties.

The expressly declared object of the whole instrument was “ the more certain security of our liberties and the better government of this State.” There is no good reason for doubting that this was the general object and purpose of the Convention. It would neither be reasonable, nor according to the rules of construction, to presume that the law was aimed at these persons as criminal offenders : such aim must be found in the provisions of the act if anywhere. «

The most favorable view I am able to find in support of the enactment may be stated thus: it 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, not that the acts were therein regarded as crimes, however they might be found to be such on a judicial 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 entrusted with places, privileges and functions that so nearly affected the well-being and safety of the body politic; that the criminality of the acts was in no way adjudged, nor passed into a sentence of punishment; that the oath merely ascertains who have these rights and liberties, but not the guilt or innocence of those who have them not; that it was aimed at a portion of the inhabitants with a view to the actual condition of the State and people, and with reference to their future safety and well-being, and had no object or intent to punish them as criminals; but that their having done these acts, their notorious disloyalty under the old Constitution, and their well known abuse of these rights and liberties when they had them, were, not a reason why they were deemed guilty of offences for which they were punished, but a well grounded and just cause why the civil power in its wisdom judged it necessary, wise, and fit, for the future safety and good government of the State, that this description of persons should be thus excluded, for such time as the State might think prudent, from this part of the common rights and privileges of citizenship.

It might be said that this purpose was further manifest in the provision made for enabling the Legislature alone, after a certain time, to repeal these special clauses and restore these persons to full and equal rights ; wherein it is indicated that the object was not to punish them, however culpable, but to secure the peace, order and safety of the whole; and that all this was a matter of political judgment over which the courts have no control. If this view could be justified, it would be clear that the question would be wholly political and not judicial in its nature; and the matter would fall within that class of cases in which it is held, that, for any wrong or injustice done in the exercise of the political sovereignty, there is no remedy but in an appeal to the political constituencies.

This reasoning would assume that the past acts were not the reason of the deprivation or exclusion, but a reason why the enactment had become a necessary measure of political wisdom. Any other view might seem to imply that the Convention had forgotten its duties, and insidiously set about finding out a way of evading the Federal Constitution, and inflicting penalties' upon persons who were to be presumed to be innocent of everything criminal, and whom they presumptively knew not to be punishable without trial for their past offences. To impute any such lurking intention to the Convention would certainly be unjustifiable. There is no need of that. We are not to look beyond the enactment itself ; nor is there any occasion to search for any extraordinary gloss beyond its obvious effect and necessary operation.

It is indisputable that the exclusions and disabilities refer directly to the enumerated acts. The oath expressly relates to them. The acts are plainly the immediate reason and sole ground of these special provisions. It may reasonably 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 manifestly crimes, and all are dealt with in the same way as if they were of like nature (and that large numbers were guilty in point of fact was not only true, but well known to almost everybody — not, indeed, by legal proof on trial, but by general information), the truth of which assumption they were obliged to confess by the impossibility of their taking the oath; thus ( as it may fairly be said), effectually changing the rules of evidence, and subverting the presumption of innocence retrospectively in every individual case, contrary to right reason, the law of nations, and the national right of trial by jury in criminal cases ; and they were thus effectiu ally 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 sufficiently designated for all the purposes of visiting the deprivation on them with inevitable certainty. The deprivations are in themselves of such a character, that, if they had been expressly declared as and for a penalty for crime, or for any of these acts, they would have constituted indisputably a severe degree of punishment. The operation of the law enacted, upon them, is really just the same as if it had been so expressly declared. It may justly be said, therefore, that the declaration as and for punishment for these acts as criminal is actually involved and contained, 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 necessary operation and effect of the law, though not expressed in set terms. It must be presumed that the legislative body intended to do what is actually done, and that would seem to be, essentially, nothing less than a legislative sentence of punishment for past conduct as criminal; and so it may be concluded, that the act itself assumes judicial magistracy, weighs the offence and the proofs, decides upon the necessity and fitness of the penal judgment, assumes the guilt, ascertains the persons, and declares the punishment. It is thus shown that the act itself alone is necessarily equivalent to punishment, and comes within the principle of such bills. As such, it must be held to be an exercise of the civil power of the State, not wherein it was sovereign and absolute, but wherein it was limited and forbidden.

Comparing these views, it is evident that the one looks to the object and intention more especially in the political bearing, the other in the strictly legal; the one considers the operation of the law upon the whole body politic in reference to good government, the other its special operation upon these persons with reference to their personal rights and liberties ; the one follows the political reasons, the other the legal principle; the one regards rather the intention of the Convention, the other that of the law, which was enacted ; the one the general, the other the particular intention. In the judgment of the former view, the conclusion of the latter appears to be based upon a consequential operation and a remotely punitive character argumentatively drawn out, and not upon the meaning of language, nor upon the obvious and direct effect of what is said and done, nor upon the true object and intention of the enactment at all, which, under the rules of construction, was the very thing to be discovered ; and it supposes the true intention to be inferred by the other, not from anything contained in the act, but from the argumentative deduction of a resulting penal consequence of a general nature, which is confounded with legal penalty, and therefore assigned improperly as the true object, scope, and intention of the law.

It seems to me that the real question must turn upon the consideration whether the more general, or the special and particular, operation and intention are to govern in determining what is to be considered in law the true ground, reason, and nature of this enactment. If the former is to govern, then it would be plain that the punitive character would be only a remote consequence and an inferential result, but not the real object, operation, and intention of the law; but if the latter is to prevail, then the political object is to be held subordinate, or left wholly out of view; the purposes of good government could no longer be allowed as the true object and intention of the law as made; the question of the intention would have to be confined to what is said and done with regard to the individual rights and liberties of these persons ; and the latter view, which regards the act as essentially penal in its operation on them, as necessarily punitive in character and a sentence of punishment for past conduct as criminal, must prevail; and it might justly be said that it could be regarded judicially in no other light.

The decision of the Supreme Court of the United States holds that such is the essential nature and character of the enactment within the meaning of the prohibitory clause. I must concede that I have been unable to find satisfactory grounds on which I could venture to deny the reasonableness of that opinion, or refuse to accept it as an authoritative precedent. Such being the character of the act, the prohibitory clause is itself the supreme law by which it is to be judged and condemned. It is thereby taken out of the category of a measure of political wisdom for purposes of good government.

Under the proper rules of construction, the judicial mind, I think, may reasonably conclude that such was the real nature and intention of the law, as it stands enacted, whatever may have been the intentions of the legislators. It is probable that they considered the matter in its political bearing only. The politic reasons may have been very just and sound; but no reasons of policy whatever can be heard in support of a law which the Convention was prohibited from passing for any purpose, and had no power to enact. Neither can it be presumed that the Convention considered these past acts only as a reason which rendered these persons unfit for citizenship, or incapacitated them for the further exercise of these civil rights and functions in the State. Such a presumption would not be consonant to reason and sound judgment: it would be in conflict with the law of nations and those fundamental principles on which our systems of government are founded. The rules of construction will not allow such reasoning to be imputed to the legislative body. Nor is it necessary to suppose that the members actually thought of punishing these persons in this way, nor that they were at all aware that they were enacting a bill of attainder or an ex post facto law. It may reasonably be inferred that they had overlooked the penal aspect of the matter, as well as the bearing of this clause upon it. At all events, it is necessarily to be concluded that they had fallen into some misconception of their lawful powers, or of the legal operation of the provisions which they adopted. Nor should there be anything wonderful in this, when the question has perplexed and divided the most learned jurists.

If the public good could be regarded, judicially, as the sole ground, real object, and true intention of the law as made, then it might be nothing to the purpose that the consequential result and remotely punitive effect upon these persons were really just as severe as if a bill of pains and penalties had been enacted against them. There can be no doubt that upon a change of the Constitution, such rights and privileges, being inconsistent with the new government, may be abolished—Terrett v. Taylor, 9 Cranch, 51; In re Lee, 21 N. Y. 12. There have been many instances, in several States, where public offices and private rights of this nature, and of great value, have been annulled by such ordinances—Butler v. Pennsylvania, 10 How. (U. S.) 415; State v. McBride, 4 Mo. 303; State v. Bernoudy, 40 Mo. 192. The laws are abolished, and the private rights, which depended on them for their existence or continuation, are thereby annihilated, for, such reasons as may seem good to the State. It has always been considered as done for purposes of good government and as a matter of civil institution. The reasons are no usually given in such ordinances, nor is it supposed that they could be made to appear by any reference to extrinsic matters. Even if there were some reason to believe from anything contained in the act itself, that, aside from the public good, some reference was had to past conduct of the persons concerned, or even to acts which might be criminal in their, nature, it is not to be supposed that the courts could assume' that the thing was done on account of such past conduct, rather than for the purposes of good government, unless it,, were so declared in the act itself in plain terms, or by actual import and necessary implication; nor that an argumentative deduction of a resulting punitive effect upon the sufferers would be sufficient to make the act a bill of pains andi penalties. Such reasoning might take a wide range, and if there were no limit to the latitude of construction there-might be danger that the control of the people over their-own Constitution and laws would be surrendered to another-power. It would not be true that such remote consequential! result could be regarded in no other light than as punishment ; it could be, and no doubt ought to be, in such case, considered only as the ordinary and unavoidable effect of the' exercise of the political power for the public good, andiin reference to the individuals as a surrender of rights and pri'vifleges for the good of the body politic. It is not believed that any such remote result would make an act a bill of attainder or an • ex post facto law. It is not enough that it should incidentally partake of the character of such bills: it must actually be such a bill or law. In order to make it such, I should say it must be so, either by the natural and . obvious sense of language, or by the direct scope, necessary operation and true intention of the law as it was enacted, admitting of no other rational construction, capable of correct explanation upon no other principle, resting not upon slight implication, but upon actual import and necessary implication ; not upon potential inconvenience and vague conjecture, but upon a strong conviction of incompatibility, of plain and irresistible repugnancy, and being “a clear unequivocal breach of the Constitution, not a doubtful and argumentative implication for, by all principle and authority, it is in such case only that an act of the Legislature, or the Constitution of a State, is to be judicially declared void as being in conflict with the Federal Constitution—Fletcher v. Peck, 6 Cranch, 128; Dartmouth College v. Woodward, 4 Wheat. 625; Cooper v. Telfair, 4 Dall. 14; Butler v. Pennsylvania, 10 How. (U. S.) 415; 1 Sto. Const. §§ 416, 447.

When deprivation of civil rights is prescribed by law as a penalty for criminal offences, on conviction, it is done for the reason that the public good requires it to be done. This is a thing which the Federal Constitution does not forbid; it is only the imposition of a criminal penalty otherwise than upon trial by jury that is prohibited; and it might be supposed here that these persons were subjected to exclusions and disabilities' for that same reason and by virtue of the same authority. It is very probable that this consideration had its weight with the Convention ; but they have, in express terms, embodied these past acts of a criminal nature in the enactment itself as the immediate and plain reason and sole ground of the law enacted as against these persons, and in reference to the private rights of which they were deprived. The oath and other special proceedings touching these persons directly relate to these acts as their immediate ground and reason, and they are subjected to the deprivations for that same reason, whatever other reasons there may have been. This being so, it is nothing to the purpose that the political reason for passing such an act was the public good. The act which is passed is penal in its own nature ; it is such by its own actual import, and therefore by necessary implication ; and the penal law is carried into execution without trial: whence it is clearly manifest that the civil power was exercised, in this, not wherein it was sovereign and absolute, but wherein it was restricted and forbidden.

If the true intention could be considered so far doubtful as to warrant us in looking into the extraneous history for further light, and it were at all allowable (as it is not) for us to inquire into the motives and reasons of the legislators, it would no doubt appear that they thought only of good government and the public safety, and had no idea of inflicting punishment on culprits whose crimes, if punishable at all, might be capital offences. Nor are these disabilities to be regarded as punishment in addition to the penalties of treason ; for whatever they are they fall upon persons whom the law must presume to be innocent of criminal offence, and who might not be punishable' even for their past treasons. The extraneous history would' not show that the enumerated acts were not the true ground and reason of these special provisions: it would reveal no more than that the acts may have been considered, in a politic view, as a sound and just reason and a good cause why this Convention had become a political necessity, and this enactment a just measure of political wisdom and a prudent foresight (as in that view it may very well have been) ; and in this same aspect it might with reason be said that the reference to the acts was merely for description of the persons excluded, and that the oath was purely a civil proceeding within the authorities—Watson v. Mercer, 8 Pet. 110.

But if there be any force in what has been said, this law as made is essentially penal in character, is necessarily equivalent to punishment in the legal sense, and is a law which by its own force declares and executes the punishment. In such case, I must admit that no one can be heard to say, not even the members themselves, that the intention was not to punish these persons for those past acts as criminal, but only to found a good government and secure the safety of the State; for the saying would be of a matter extrinsic, and would contradict the proper scope, operation and effect of the enactment itself. Though it might be gathered from the general tenor and purposes of the Constitution that they honestly believed they had the power, and deemed the measure just and necessary (as it might well seem to be in a political or moral point of view), yet it must be apparent to the judicial mind that the thing done was prohibited, and they could not be listened to; for no citizen, not even a rebel restored to citizenship, could be deprived of his civil rights and liberties in that way and for that reason, even for the public good, either on account of his crimes, his moral character, or his opinions merely. It would clearly subvert the national right of trial by jury and contravene this prohibition. A government so proceeding might be a good despotism, but certainly a very bad republic ; and hence the reason of the prohibition. The court must see therein the operation of mistaken views of political necessity or expediency, unreasonable fears, or ungrounded suspicions* directly overriding a positive law—Sto. Const. § 678. It is not possible to render rebellion forever impossible any more than murder; and the government must be presumed, in legal theory, to be always capable of punishing crime by due course of law, and of putting down rebellion by force of arms, whenever it shall raise its head : in rege, qui recte regit, necessaria sunt duo hcec, arma videlicet et leges.

It may fairly be concluded that the provisions come within the rule that would authorize the court to declare them void; that the thing admits of no other rational construction, and rests not upon slight implication, but upon actual import and necessary implication — not upon argumentative deduction merely, but upon “ a clear and strong conviction of incompatibility,” and is on the whole (what the precedents would require it to be) “no doubtful case.” The higher tribunal has in effect so declared. I am not so clear to the contrary that I can venture to gainsay the correctness of that decision.

I must admit that these exclusions are not of the nature of qualifications at all; and the reason is, that they are not really intended as general laws nor as a permanent institution, either with reference to the fitness of these persons for these special duties and functions, or with reference to the public safety in any proper sense, but are temporary disabilities imposed on a class of persons on account of their reprehensible past acts and their apprehended future bad conduct. That they were to be temporary only is sufficiently apparent from the tenor of the Constitution ; for though they might continue in force indefinitely, if not repealed by the Legislature soon after the time limited for that purpose, it was nevertheless plainly contemplated that they would be repealed after a few years. They were not expected to remain a permanent part of the Constitution, and were evidently not intended as a perpetual regulation. In this respect they are clearly distinguishable from those general laws and permanent institutions of government which are really intended to have an equal bearing upon the whole community, and upon each individual so far as in the nature of things they may be applicable to him, and which exclude naturalized citizens, denizens, women, superannuated men, minors, negroes, Indians, and the like, from certain political powers, public offices, or civil functions. This exclusion is plainly founded upon natural, inherent and permanent incapacities, and looks only to the first necessities of good government. Such laws are consonant to reason, and are, in truth, wise, necessary and just measures of political wisdom. They are clearly not of the nature of punishment; they are in no sense penal enactments ; and they fall therefore within the unrestricted sovereignty.

That the Constitution effects a serious loss or diminution o£ civil liberty in all these persons, and that the deprivations and disabilities operate upon them as a severe punishment in a general sense, no one can entertain any doubt; and if they were declared by law as a part of the sentence on conviction for criminal offences, every one would concede that they would be a heavy punishment in the legal sense. If there were no limitation on the civil power of the State that could save these rights and liberties out of the absolute sovereignty of the people in Convention assembled, this result, however severe or well deserved, could be regarded only as a loss of civil liberty, for which there would be no relief but in an appeal to the people for a change in the Constitution. The existence of such superior law depends upon the construction to be given to this prohibitory clause. Its application here depends upon the operation and intention of this special enactment. The vital turning point would seem to lie in the question, whether the deprivations and disabilities are therein declared as and for a penalty for past acts assumed to be of a criminal nature. This declaration is certainly not made in express words, but it may fairly be said to exist by necessary implication. The decision in question is clearly to this effect. I am not prepared to say that it is not sound law, a proper construction, and, on the whole, the better opinion.

The matter is to be considered here as a judicial question only ; and it can make no difference whether the subject be viewed with reference to the present time, or with reference to the state of affairs which existed when the Constitution was framed. Then the civil war had not come to an end; the amnesty had not been proclaimed ; a large part of the State was still the scene of strife, and the disturbances had not wholly ceased when the Constitution was adopted. These powers, offices, and functions, had been made an instrument of sedition, and a means of aiding rebellion. They were of such a nature as largely to admit of a dangerous influence in the future. It was doubtless contemplated that some time would be required for the restoration of peace and public order. It might be difficult for any one to say that all apprehension was groundless; that this measure was not a wise and just political foresight; or that there was any intention to trample upon the rights of innocent persons. These things were matters of political judgment: they do not touch the legal question. Nor can we listen to arguments founded only upon the natural justice or injustice of such legislation, nor to historical examples of prodigious oaths : such considerations would more properly be addressed to the political constituencies. If the judiciary could hear them, they might possibly conclude that treason, rebellion and disloyalty to a just government were still more enormous, and that in the establishing of a new Constitution the safety of the people was the supreme law.

It has been argued, too, that if the opposite party should get control of the State, nothing could prevent them upon any other construction from subjecting all the advocates of this oath to like deprivations in the same way. This argument also has two aspects : the one political, the other judicial. In the broadest political statement, I suppose it would stand nearly thus: that because the patriotic and loyal portion of the body politic, when they had the power, had endeavored to purge the State of treason and disaffection, and save it from existing rebellion and future disorder; therefore, the traitorous and disloyal, when they should get the power, would straightway put all loyalty and patriotism under like disabilities. I might answer this by saying that I suppose they most probably would. In the judicial aspect, I can see also that in times of high party feeling a loyal majority might deprive a loyal minority, or certain obnoxious but innocent persons, of important civil rights and liberties, by enacting against them a legislative sentence of punishment for real or imaginary offences as criminal, but for this very prohibition, which was doubtless inserted into the Federal Constitution for the purpose of preventing such possible injustice; and to this suggestion (I must acknowledge) I have found no reliable answer but in tlie opinion which holds this part of the Constitution to be in substance a bill of pains and penalties, and so far unconstitutional and void.

I am further reconciled to this conclusion by the reflection, that if it seem to admit of any questionable latitude of construction, it is a liberality on the side of the largest liberty— not by any means a licence for disloyalty, but the amplest civil freedom for all submissive and law-abiding citizens,— and establishes a precedent not for the present state of things merely, but for all future times and conditions of the country : wherein it may be said to be the especial duty of the judiciary, which sits as it were upon an eminence, remote from the storm and turmoil of political antagonisms, serenely to maintain a watchful care over those great principles of law and liberty which lie at the foundation of the republic : une quid respublica detrimenti caperet.”

The judgment will be reversed, and the defendant discharged.