CH . XXXII . POWERS OF CONGRESS - SLAVE -TRADE . 203

CHAPTER XXXII.

PROHIBITIONS ON THE UNITED STATES .

$ 1331. Having finished this review of the powers of Congress , the order of the subject next conducts us to the prohibitions and limitations upon these powers which are contained in the ninth section of the first article . Some of these have already been under discussion , and therefore will be pretermitted . $ 1332. The first clause is as follows : “ The migration or im portation of such persons, as any of the States now existing shall think proper to admit , shall not be prohibited by the Congress prior

to the year one thousand eight hundred and eight ; but a tax or ,

duty may be imposed on such importation not exceeding ten dol

lars for each person . ” . of of $ 1333 . The corresponding clause the first draft the Con , , be & c . : “ or stitution was in these words No tax duty shall laid as of on the migration or importation such persons the several ; or States shall think proper to admit nor shall such migration . ” In it is importation be prohibited this form obvious that the , of migration and importation of slaves which was the sole object , , , ,

so as any the clause was in effect perpetuated long State should . choose to allow the traffic The subject was afterwards referred ,

in its present to a committee who reported the clause substantially

shape ; except that the limitation was the year one thousand eight ,

eight . hundred instead of one thousand eight hundred and The by latter amendment was substituted the vote of seven States , by , ; adopted against four and as thus amended the clause was . ? the like vote of the same States , of $ 1334 . It is to the honor America that she should have set ,

regulation of 1 Those which respect taxation and the commerce have been consid , , , . . II . is ered under former heads to which the learned reader referred Ante Vol , ch . 14 15 . , ; , , , , , , , p . . 2

of . Pitk ? Journ . Convention 222 275 276 285 291 292 358 378 Hist , , , , p as an ch . 20 . 261 262 . It is well known historical fact that South Carolina and 2 ' s . Georgia insisted upon this limitation as a condition of the union . See Elliot Deb , ; . 97 . ' s 335 336 3 Elliot Deb 204 CONSTITUTION OF THE UNITED STATES . L[ BOOK III .

the first example of interdicting and abolishing the slave - trade in , , modern times . It is well known that it constituted a grievance of , which some of the colonies complained before the revolution that , by the introduction of slaves was encouraged the crown and that to prohibitory laws were negatived . It was doubtless have been , wished that the power of prohibiting the importation of slaves had , been allowed to be put into immediate operation and had not been , to it is postponed for twenty years . But not difficult account either ,

for this restriction or for the manner in which it is expressed . 2 , It ought to be considered as a great point gained in favor of hu , , manity that a period of twenty years might forever terminate , within the United States a traffic which has so long and so loudly

upbraided the barbarism of modern policy . Even within this pe , , by riod it might receive a very considerable discouragement cur ; tailing the traffic between foreign countries and it might even be , by totally abolished the concurrence of a few States . “ Happy " , by it was then added The Federalist “ would it be for the unfortu , nate Africans if an equal prospect lay before them of being re

deemed from the oppressions of their European brethren . Let it , , be remembered that at this period this horrible traffic was carried

on with the encouragement and support of every civilized nation ; by of Europe and none with more eagerness and enterprise than , by the parent country . America stood forth alone uncheered and , unaided in stamping ignominy upon this traffic on the very face ,

of her constitution of government although there were strong

temptations of interest to draw her aside from the performance of

this great moral duty .

§ 1335 . Yet attempts were made to pervert this clause into an , , by objection against the Constitution representing it on one side ; , as a criminal toleration of an illicit practice and on another as

calculated to prevent voluntary and beneficial emigrations to , , , ; I See 2 Elliot ' s Debates 335 1 Secret Journal of Congress 378 379 . , , , , ; 2 See 3 Elliot ' s Debates 98 250 251 3 Elliot ' s Debates 335 to 338 . In the origi by , of of . nal draft the Declaration Independence Mr Jefferson there is a very strong , paragraph on this subject in which the slave - trade is denounced “ as a piratical war , , fare the opprobrium of infidel powers and the warfare of the Christian king of Great ; , , "

be bought a Britain determined to keep open market where men should and sold , and it is added that “ he has prostituted his negative for suppressing every legislative

attempt to prohibit or restrain this execrable commerce . ” 1 Jefferson ' s Correspond , , ence 146 in the fac - simile of the original . , 8 . 42 . The Federalist No * Id . No . 42 . CH . XXXII . ] POWERS OF CONGRESS — SLAVE -TRADE . 205

America. Nothing, perhaps, can better exemplify the spirit and manner , in which the opposition to the Constitution was conduct ed , than this fact. It was notorious , that the postponement of an immediate abolition was indispensable to secure the adoption of the Constitution . It was a necessary sacrifice to the prejudices and interests of a portion of the Southern States.? The glory of the , achievement is scarcely lessened by its having been gradual and , by steps silent but irresistible . , $ 1336 . Congress lost no time in interdicting the traffic as far , by as their power extended a prohibition of American citizens

carrying it on between foreign countries . And as soon as the , , by stipulated period of twenty years had expired Congress a pro ,

spective legislation to meet the exigency abolished the whole

traffic in every direction to citizens and residents . Mild and moderate laws were , however , found insufficient for the purpose ;

of putting an end to the practice and at length Congress found , it necessary to declare the slave trade- to be a piracy and to punish

it with death . Thus it has been elevated in the catalogue of ; crimes to this “ bad eminence ” of guilt and has now annexed to , , it the infamy as well as the retributive justice which belongs to , an offence equally against the laws of God and man the dictates of , humanity and the solemn precepts of religion . Other civilized ; by nations are now alive to this great duty and the noble exer , tions of the British government there is now every reason to , ; believe that the African slave trade- will soon become extinct and

thus another triumph of virtue would be obtained over brutal vio

lence and unfeeling cruelty . 4 ,

$ 1337 . This clause of the Constitution respecting the impor ,

tation of slaves is manifestly an exception from the power of

regulating commerce . Migration seems appropriately to apply , ; to voluntary arrivals as importation does to involuntary arrivals , ,

and so far as an exception from a power proves its existence ,

this proves that the power to regulate commerce applies equally , to the regulation of vessels employed in transporting men who , , , , , ; ; I The Federalist No . 42 2 Elliot ' s Debates 335 336 3 Elliot ' s Debates 250

251 . , , ; , ; , ; 2 2 Elliot ' s Debates 335 336 1 Lloyd ' s Debates 305 to 313 Elliot ' s Debates 97 , , ; ; Id . 250 251 1 Elliot ' s Debates 60 1 Tuck . Black . Comm . App . 290 . , 3 Act of 1820 ch . 113 . , p 4 See 1 Kent ' s Comm . Lect . 9 . 179 to 187 . 206 . CONSTITUTION OF THE UNITED STATES [ BOOK III . ,

pass from place to place voluntarily as to those who pass involun

tarily . 1 , § 1338 . The next clause is “ The privilege of the writ of habeas , corpus shall not be suspended unless when in cases of rebellion or

invasion the public safety may require it . ”

§ 1339 . In order to understand the meaning of the terms here , ; used it will be necessary to have recourse to the common law

for in no other way can we arrive at the true definition of the writ , of habeas corpus . At the common law there are various writs

called writs of habeas corpus . But the particular one here , spoken of is that great and celebrated writ used in all cases of , by illegal confinement known the name of the writ of habeas cor , , pus ad subjiciendum directed to the person detaining another and ,

commanding him to produce the body of the prisoner with the day , , and cause of his caption and detention ad faciendum subjiciendum , , , ,

et recipiendum to do submit to and receive whatsoever the . ? in judge or court awarding such writ shall consider that behalf , ,

It is therefore justly esteemed the great bulwark of personal ;

liberty since it is the appropriate remedy to ascertain whether , any person is rightfully in confinement or not and the cause of , ;

his confinement and if no sufficient ground of detention appears

the party is entitled to his immediate discharge . This writ is ; most beneficially construed and is applied to every case of illegal , ; restraint whatever it may be for every restraint upon a man ' s , , ,

liberty is in the eye of the law an imprisonment wherever may , ,

be the place or whatever may be the manner in which the restraint

is effected . , § 1340 . Mr . Justice Blackstone has remarked with great force , by that “ to bereave a man of life or violence to confiscate his , estate without accusation or trial would be so gross and notorious

an act of despotism as must at once convey the alarm of tyranny by throughout the whole kingdom . But confinement of the person

secretly hurrying him to jail where his sufferings are unknown or , , , forgotten is a less public a less striking and therefore a more

dangerous engine of arbitrary force . ” 4 While the justice of the , , by remark must be felt all let it be remembered that the right to , , , , , ; ; 1 Gibbons v . Ogden 9 Wheat . R . 1 216 217 Id . 206 207 211 Id . 230 .

? 3 Black . Comm . 131 . , , p p 3 2 Kent ' s Comm . Lect . 24 . 22 & c . ( 2 edit . . 26 to 32 ) .

• 1 Black . Comm . 136 . CH . XXXII . ] POWERS OF CONGRESS — HABEAS CORPUS. 207

pass bills of attainder in the British Parliament still enables that body to exercise the summary and awful power of taking a man ' s life, and confiscating his estate without accusation or trial. The learned commentator , however , has slid over this subject with sur prising delicacy .1 : § 1341 . In England this is a high prerogative writ, issuing out of the Court of King's Bench , not only in term time, but in ; vacation , and running into all parts of the king ' s dominions for , , , it is said that the king is entitled at all times to have an

account why the liberty of any of his subjects is restrained . It is , , ,

grantable however as a matter of right ex merito justitice upon , , the application of the subject . 2 In England however the benefit ; of it was often eluded prior to the reign of Charles the Second

and especially during the reign of Charles the First . These pit

iful evasions gave rise to the famous Habeas Corpus Act of 31 , Car . II . c . 2 which has been frequently considered as another ;

magna charta in that kingdom and has reduced the general

method of proceedings on these writs to the true standard of law , , and liberty . That statute has been in substance incorporated ; into the jurisprudence of every State in the Union and the right , , to it has been secured in most if not in all of the State constitu by tions a provision similar to that existing in the Constitution of , , the United States . It is not without reason therefore that the by common law was deemed our ancestors a part of the law of the , ,

land brought with them upon their emigration so far as it was ;

suited to their circumstances since it affords the amplest pro

tection for their rights and personal liberty . Congress have vested

in the courts of the United States full authority to issue this ,

great writ in cases falling properly within the of the

national government . 5 ,

$ 1342 . It is obvious that cases of a peculiar emergency may

arise which may justify , nay , even require , the temporary suspen

sion of any right to the writ . But as it has frequently happened , , in foreign countries and even in England that the writ has upon

various pretexts and occasions been suspended , whereby persons

14 Black . Comm . 259 . , ; ; p p 2 4 Inst . 290 1 Kent ' s Comm . Lect . 24 . 22 ( . 26 to 32 ) 3 Black . Comm . 133 . , , , ; p p 3 3 Black . Comm . 135 136 2 Kent ' s Comm . Lect . 24 . 22 23 ( 2d edit . . 26 to 32 ) . , , p p 4 2 Kent ' s Comm . Lect . 24 . 23 24 ( 2d edit . . 26 to 32 ) . , , , , ; 5 Ex parte Bollman etc . 4 Cranch 75 . ( See the Statutes 1 Stat . at large 81 4 ; ; ; , Id . 634 5 Id . 539 14 Id . 385 Cooley Const . Lim . 345 346 ) . 208 CONSTITUTION OF THE UNITED STATES . [ BOOK III.

apprehended upon suspicion have suffered a long imprisonment, sometimes from design , and sometimes because they were for gotten , the right to suspend it is expressly confined to cases of rebellion or invasion , where the public safety may require it. A

very just and wholesome restraint , which cuts down at a blow a fruitfulmeans of oppression , capable of being abused in bad times to the worst of purposes . Hitherto no suspension of the writ has ever been authorized by Congress since the establishment of the Constitution . It would seem , as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or inva sion , that the right to judge whether exigency had arisen must exclusively belong to that body .:

1 3 Black . Comm . 137, 138 ; 1 Tuck . Black . Comm . App . 291, 292. 2 Mr. Jefferson expressed a decided objection against the power to suspend the writ of habeas corpus in any case whatever , declaring himself in favor of “ the eter nal and unremitting force of the habeas corpus laws .” 2 Jefferson 's Corresp . 274, 291. — “ Why , ” said he on another occasion , " suspend the writ of habeas corpus in insurrections and rebellions ? ” —“ If the public safety requires that the govern ment should have a man imprisoned on less probable testimony in those , than in other emergencies , let him be taken and tried , retaken and retried, while the necessity continues , only giving him redress against the government for damages .” 2 Jeffer son 's Corresp . 344. Yet the only attempt ever made in Congress to suspend the writ of habeas corpus was during his administration , on occasion of the supposed treasonable conspiracy of Col. . Mr. Jefferson sent a message to Con gress on the subject of that conspiracy on 22 January , 1807. On the next day, Mr. Giles of the senate moved a committee to consider the expediency of suspending the writ of habeas corpus be appointed , and the motion prevailed . The committee (Mr. , Giles chairman ) reported a bill for this purpose . The bill passed the senate and ,

rejected in of a was the house representatives by vote of 113 for the rejection , , , , ; p against 19 in its favor . See 3 Şenate Journal 220 January 1807 . 127 Id . 130 , , , , , p 131 . 5 Journal of House of Representatives 26th January 1807 . 550 551 552 . , ; 3 Martin v . Mott 12 Wheat . R . 19 . See also 1 Tuck . Comm . App . 292 1 Kent ' s p . . 12 ( 2d . . to ) . [

power to suspend Comm Lect edit 262 265 The the writ of habeas

corpus for the first time became the subject of earnest controversy during the late , , . of

April passage of civil war On the 27th 1861 before the any statute on the

subject , to . . following the President addressed Lt Gen Scott the order : “

engaged in an You are suppressing insurrection against the laws of the United .

If at any point on or in vicinity of any military States the line which is now or ,

city of which shall be used between the Philadelphia and the city of Washington

you ,

it necessary to find resistance which renders suspend the writ of habeas corpus , , , for the public safety you personally or through the officer in command at the point , at

to suspend which resistance occurs are authorized that writ .

“ ABRAHAM LINCOLN .

“ By the President . , “ . H .

Wm Secretary of SEWARD State . " for Similar orders were afterwards issued other lines and places . , , ,

On May 25 1867 John Merryman of Baltimore was arrested charged with CH . XXXII. ] POWERS OF CONGRESS — ATTAINDERS . 209

§ 1343 . The next clause is, “ No bill of attainder or ex post facto law shall be passed .” § 1344 . Bills of attainder , as they are technically called , are such special acts of the legislature as inflict capital punishments upon persons supposed to be guilty of high offences , such as treason

various acts of treason , and confined in Fort McHenry , then in command of Gen . Geo . Cadwallader . He immediately applied to Chief Justice Taney for a writ of habeas corpus, which was granted and served upon Gen . Cadwallader , who refused to comply with the exigency thereof , on the ground that the privilege of the writ

had been suspended by the President for the public safety . Thereupon an attach , ment was issued against him for this refusal but the officer was not suffered to enter

the fort to serve the same . It being thus made apparent that it was impossible to ,

to justice enforce obedience the writ the chief contented himself with putting on

file an opinion in which he denied the authority of the President to suspend the writ , of habeas corpus in his own discretion and gave reasons for his opinion that that , by authority was vested the Constitution in Congress . Taney ' s , ; ; Decisions McPherson ' s History of the Rebellion 155 9 Am . Law Reg . n . s . 527 . This , , by opinion was controverted by Attorney General- Bates and other eminent lawyers , , , including Mr . Horace Binney Mr . Reverdy Johnson and Prof . Theophilus Parsons , , but was warmly supported by others . On the third of March 1863 Congress passed , , an act providing among other things that the President during the existing rebellion , whenever in his opinion the public safety might require it was authorized to suspend , the writ of habeas corpus in any case throughout the United States or any part , , thereof and that whenever such suspension should take place no military or other , , officer should be compelled in answer to any writ of habeas corpus to return the ; by body of any person held him by authority of the President but upon the certifi , cate under oath of the officer having charge of any one so detained that such person , is so detained under the authority of the President further proceedings under the , writ should be suspended so long as the suspension by the President should remain

in force and the rebellion continue . The same act provided that " any order of the , President or under his authority made at any time during the existence of the pres , , ent rebellion shall be a defence in all courts to any action or prosecution civil or , , , , ,

any or imprison criminal pending or to be commenced for search seizure arrest , , , , , ment made done or committed or acts omitted to be done under and by virtue of , such order or under color of any law of Congress . ” See this act considered in , McCall v . McDowell 1 Abb . U . S . R . 212 . ,

question power to suspend Except in Merryman ' s Case the whether the the writ , , ,

or in Congress corpus in of habeas was under the Constitution the President does ,

not appear to have received much attention in the courts though vehemently dis , , , Deady v . supra pamphlets publications . In cussed in and serial McCall McDowell , , District Judge says : “ There are some things too plain for argument and one of , by , of them is that the Constitution the United States the President has not the , of

. power suspend privilege of Congress power to the the writ and has The the , President is executive power : a power to execute the laws and not to suspend them . , , , , by The latter is a legislative function and so far as it exists belongs naturally and , , , p force of the Constitution to Congress : ” . 235 . See also opinion of Smalley D . J . , , .

of of power to danger 5 . 63 . in Ex parte Field Blatch As the abuse this see Mr ; Burke ' s Letter to the Sheriffs of Bristol also May ' s Constitutional History of Eng , land ch . XI . Mr . May well remarks that the suspension of the habeas corpus is " in . " ) of truth a suspension Magna Charta 14 VOL . II . 210 CONSTITUTION OF THE UNITED STATES . [ BOOK II .

and felony, without any conviction in the ordinary course of judi. cial proceedings . If an act inflicts a milder degree of punishment than death , it is called a bill of pains and penalties . But in the sense of the Constitution , it seems that bills of attainder include ,

bills of pains and penalties ; for the Supreme Court bave said “ A , bill of attainder may affect the life of an individual or may con , , fiscate his property or both . ” 2 In such cases the legislature ,

assumes judicial magistracy pronouncing upon the guilt of the , party without any of the common forms and guards of trial and

satisfying itself with proofs , when such proofs are within its reach ,

whether they are conformable to the rules of evidence or not . In , , short in all such cases the legislature exercises the highest , power of sovereignty and what may be properly deemed an irre , by sponsible despotic discretion being governed solely what it ,

deems political necessity or expediency and too often under the , influence of unreasonable fears or unfounded suspicions . Such ,

acts have been often resorted to in foreign governments as a com ; mon engine of state and even in England they have been pushed ,

to the most extravagant extent in bad times reaching as well to

the absent and the dead as to the living . Sir Edward Coke has , mentioned it to be among the transcendent powers of Parliament

that an act may be passed to attaint a man after he is dead . And , , the reigning monarch who was slain at Bosworth is said to have by been attainted an act of Parliament a few months after his , death notwithstanding the absurdity of deeming him at once in

possession of the throne and a traitor . The punishment has often , been inflicted without calling upon the party accused to answer ; , or without even the formality of proof and sometimes because , , the law in its ordinary course of proceedings would acquit the , , offender . The injustice and iniquity of such acts in general con

stitute an irresistible argument against the existence of the power . ;

In a free government it would be intolerable and in the hands of , , , a reigning faction it might be and probably would be abused to

the ruin and death of the most virtuous citizens . Bills of this 1 2 ' s . Woodeson Law Lect 622 . , , ; , p 2 v . 6 R . 1 ' s . . Fletcher Peck Cranch 138 Kent Comm Lect 19 . 382 . , , , 4 3 4 . 36 37 . 2 ' s . Coke Inst Woodeson Lect 623 624 .

5 2 Woodeson ' s Lect . 624 .

6 Dr . Paley has strongly shown his disapprobation of laws of this sort . I quote

a pregnant passage . “ of from him short but This fundamental rule civil jurispru . , is in of of or dence violated the case acts attainder confiscation in bills of pains and CH . XXXI . POWERS OF CONGRESS — ATTAINDERS . 211

sort have been mostusually passed in England in times of rebellion , or of gross subserviency to the crown , or of violent political excite

ments ; periods , in which all nations are most liable ( as well the , as ) to forget free the enslaved their duties and to trample upon

the rights and liberties of others . 1 , ,

penalties in ex post and all facto laws whatever in which Parliament exercises the

double office of legislature and judge . And whoever either understands the value ,

of the rule itself or collects the history of those instances in which it has been , , , be I

to acknowledge invaded will induced believe that it had been wiser and safer , , to

departed it . never have from He will confess at least that nothing but the most peril of

justify a manifest and immediate the commonwealth will repetition of these , go

dangerous examples . If in being do the laws not punish an offender let him ; , legislature , unpunished of let the admonished the defect of the laws provide against of of . the commission future crimes the same sort The escape of one delinquent can

never produce so much harm to the community as may arise from the infraction of , a rule upon which the purity of public justice and the existence of civil liberty essen

tially depend . ” , ; , p I 1 . .

. App . on . ch . See Tuck Black Comm 292 293 Rawle Const 10 . 119 . , , ,

Cooper v . 4 . R . 14 . . in See Telfair Dall Mr Woodeson his Law Lectures ( Lect . 41 ) , , has devoted a whole lecture to this subject which is full of instruction and will

diligent perusal of . 2 ' s . reward the the student Woodeson Law Lect 621 . During ,

power ; the American revolution a unsparing this was used with most hand and it , a

of regret in has been matter succeeding times however much it may have been applauded flagrante . ( bello For some information regarding bills of attainder during , , ; the American revolution see Belknap ' s History of New Hampshire ch . 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 . 511 Sleight v . Kane 2 ; , ; , ; .

. Cooper v . 4 . 14 Hylton v . 1 . C . Johns Cas 236 Telfair Dall Brown Wash C . 307 De ,

Lancey v . Id . . of patriots McKeen 354 Some the best and most eminent statesmen of , the period defended them as wise and necessary . See Hawley ' s letter to Gerry Life , , , by of Gerry Austin vol . i . 106 . This is not surprising when we consider that coolness , , caution and a strict regard for the rights and liberties of others are the accompani , ments of conscious security and strength and are not to be looked for in times of great , danger when the people regard their all as being staked upon the issue of a doubtful , , it is of contest and when the utmost importance to their cause that by every possible , they , means force doubtful parties to take sides with them and lessen the power num , ber and means of offence of those opposed . When the issue of the late rebellion re , , , , by mained in suspense ( July 2 1862 ) Congress “ an act to prescribe an oath of office " , and for other purposes enacted that “ hereafter every person elected or appointed to

any , of or profit government of office honor under the 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

I voluntarily that have never borne armsagainst the United States since I have been ; , , , a I voluntarily given no citizen thereof and that have 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 212 CONSTITUTION OF THE UNITED STATES . [ BOOK II.

§ 1345 . Of the same class are ex post facto laws, that is to say (in a literal sense ) , laws passed after the act done. The terms , er

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 meGod .” On the 24th of January , 1865, the following supplementary act was passed : “ 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 or 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 " above recited . See 12 Stat . at Large , 502 ; 13 Id. 424 . This last act came under review in , 4 Wall . 333, and by a majority of the court was adjudged to be void as in the nature of a bill of attainder . The attor ney and counsellor , it was said , “ clothed with his office , does not hold it as a matter of grace and favor . The right which it confers upon him to appear for suitors , and to argue causes , is something more than a mere indulgence , revocable at the pleasure of the court, or at the command of the legislature . It is a right of which he can only be deprived by the judgment of the court for moral or professional delinquency . The ,

legislature may undoubtedly prescribe qualifications for the office to which he must , , ,

conform as it may where it has exclusive jurisdiction prescribe qualifications for

the pursuit of any of the ordinary avocations of life . The question in this case is not , as to the power of Congress to prescribe qualifications but whether that power has , as a been exercised means for the infliction of punishment against the prohibition p of the Constitution : " . 379 .

“ The statute is directed against parties who have offended in any of the particu by lars embraced these clauses . And its object is to exclude them from the profes , sion of the law or at least from its practice in the courts of the United States . As , , , by the oath prescribed cannot be taken these parties the act as against them operates

as a legislative decree of perpetual exclusion . And exclusion from any of the profes

sions or any of the ordinary avocations of life for past conduct can be regarded in

no other light than as a punishment for such conduct . The exaction of the oath is

the mode provided for ascertaining the parties upon whom the act is intended to , , operate and instead of lessening increases its objectionable character . All enact , ments of this kind partake of the nature of bills of pains and penalties and are sub , ject to the constitutional inhibition against the passage of bills of attainder under p which general designation they are included : ” . 377 . , , , In

Cummings v . 4 . a in Missouri Wall 277 clause the constitution of Missouri which

required a similar oath of priests and clergymen as a condition to the right to the , continued exercise of their profession was held to be a bill of attainder on the like , , reasoning . In each of these cases four of the justices - Chief Justice Chase and , , , Justices Miller Swayne and Davis dissented .

Besides the valuable discussion of the term “ bills of attainder ” which was had in , , these cases much of interest will be found in the cases of Blair v . Ridgeley 41 Mo . , , ; by 63 Ex parte Law decided Mr . Justice Erskine in the U . S . Dist . Court of Georgia , , , ; May term 1866 . See also State v . Staten 6 Cold . 248 Randolph v . Good 3 W . Va . CH. XXXI . ] POWERS OF CONGRESS — EX POST FACTO LAWS . 213

post facto laws , in a comprehensive sense , embrace all retrospective laws, or laws governing or controlling past transactions , whether they are of a civil or a criminal nature . And there have not been wanting learned minds, that have contended , with no small force of authority and reasoning , that such ought to be the interpreta tion of the terms in the Constitution of the United States . As ani original question , the argument would be entitled to grave con sideration ; but the current of opinion and authority has been so

generally one way , as to the meaning of this phrase in the State constitutions , as well as in that of the United States , ever since their adoption , that it is difficult to feel that it is now an open question . The general interpretation has been , and is, that the phrase applies to acts of a criminal nature only ; and that the pro , ,

hibition reaches every law whereby an act is declared a crime and , , ;

made punishable as such when it was not a crime when done or , , ,

whereby the act if a crime is aggravated in enormity or punish ; , , ment or whereby different or less evidence is required to convict , an offender than was required when the act was committed . The

supreme court have given the following definition : “ An ex post ,

facto law is one which renders an act punishable in a manner in

which it was not punishable when it was committed . ” 3 Such a , , , ; ; ; 551 State v . Adams 44 Mo . 570 Beirne v . Brown 4 W . Va . 72 Peerce v . Carskadon

Id . 234 . , A provision of the constitution of Missouri forbidding civil actions against any by by of party for any act done or performed him during the rebellion virtue the , by military authority vested in him the government of the United States or of the by , , to do to

or in pursuance State to do such act orders received him such act from , , v . of . any person vested with such authority is not a bill attainder Drehman Stifle

8 Wall . 595 . ) , , 1 Mr . Justice Johnson ' s Opinion in Satterlee v . Mathewson 2 Peters ' s R . 416 and , , ; , ; , ; note Id . App . 681 & c . 2 Elliot ' s Debates 353 4 Wheat . R . 578 note Ogden v . , Saunders 12 Wheat . R . 286 . , ; , , ; , 2 See Calder v . Bull 3 Dall . 386 Fletcher v . Peck 6 Cranch 138 The Federalist ; , ; p ; , 2 ' s 2 . .

Supp . . . of No . 44 84 Journ Convention 431 Amer Mus 536 Elliot , , , , , , , , ; ; Debates 343 352 354 Ogden v . Saunders 12 Wheat . R . 266 303 329 330 335 1 , , , , ; p Kent ' s Comm . Lect . 19 . 381 382 . ( See also Society fc . v . Wheeler 2 Gallis . 105 , ; , ; Satterlee v . Mathewson 2 Pet . 380 Watson v . Mercer 8 Pet . 110 Charles River Bridge , ; , ; v . Warren Bridge 11 Pet . 421 Carpenter v . Pennsylvania 17 How . 463 Cummings v . , Missouri 4 Wall . 277 . The State decisions have been to the same effect . , , happening previ may be Divorce not being a punishment authorized for causes , . . ] v . 40 .

passage of ous to the the divorce act Carson Carson Miss 349 , , of

( Supreme v . 6 3 Fletcher Peck Cranch 138 The Court the United States has , no right to pronounce an act of the legislature void as contrary to the Constitution , , of the United States from the mere fact that it divests antecedent vested rights of prohibit of property . The Constitution the United States does not the States from 214 CONSTITUTION OF THE UNITED STATES . [ BOOK II. ,

law may inflict penalties on the person or may inflict pecuniary , , , penalties which swell the public treasury . Laws however which

of a already mitigate the character or punishment crime com , , mitted may not fall within the prohibition for they are in favor of

the citizen . 2 ,

post . it passing retrospective laws generally but only ex facto laws Now has been , , by to

is applicable solemnly settled this court that the phrase ex post facto laws not , ,

punish a party antecedently civil laws but to penal and criminal laws which for acts , or in to done which were not punishable at all or not punishable the extent the

, proceed post to penal manner prescribed . In short ex factolaws relate and criminal , , proceedings to ings which impose penalties or forfeitures and not civil which affect , , 8 ' s in v .

. Story private rights retrospectively . Per Mr Justice Watson Mercer Peters

S . C . R . 110 . E . H . B . ) , ,

1 Fletcher v . Peck 6 Cranch 138 . ( And if the penalty is for the benefit of private , , , 2 M '

. v . Campbell to provision may be equally parties it obnoxious this Falconer Lean by 212 . And a law which way of punishment deprives persons of the privilege of of

calling is following their lawful trade or also within the inhibitions the Constitu , , ; tion . Cummings v . Missouri 4 Wall . 277 Ex parte Garland Id . 333 . So to deprive a , , by by repealing an amnesty protection to party of a ensured him law such law has , , , C . ) . v . 63 N .

ex post . been held to be as to him facto State Keith 140 , , ; ; p 2 Rawle on Constitution ch . 10 . 119 1 Tuck . Black Comm . App . 293 1 Kent ' s , , , ; ; p Comm . Lect . 19 . 381 382 Sergeant on Constitution ch . 28 ( ch . 30 ] Calder v . , , ; , Bull 3 Dall . R . 386 . ( See also Strong v . State 1 Blackf . 193 Woart v . Winnick ; , ; , ; 3 N . H . 473 State v . Arlin 39 N . H . 180 Keen v . State 3 Chand . Wis . 109 Boston , ; , , , ; 25 v . v . 23 . 16 . v . Cummins Geo 102 Clarke State Miss 261 Maul State Texas , , , ; ; ; 166 Hartung v . People 22 N . Y . 105 Ratzky v . People 29 N . Y . 124 Turner v . State

40 Ala . 21 . It will be seen that in some cases it has been found difficult to determine

what change in a punishment is to be regarded as in mitigation thereof . It is

agreed that as regards modes and forms of procedure in bringing parties to punish , ment for alleged criminal acts changes may be made in the discretion of the legisla , ture and the changes applied to previous facts without infringing upon this provision of

the Constitution . A few of the most striking cases may be referred to . It has been

held that a law is not to be regarded as ex post facto which precludes a defendant on

trial for an alleged offence previous to its passage from taking advantage of variances , 97 . . v .

prejudice : which do not him Commonwealth Hall Mass 570 Nor one which , , ; authorizes the amendment of indictments : State v . Manning 14 Texas 402 Lasure , , , ; v . State 19 Ohio N . S . 43 State v . Corson 59 Me . 137 . Nor one which gives the ; , . 15 16 B . government additional challenges : Walston v . Commonwealth Monr State , , , ; ;

v . Ryan 13 Minn . 370 State v . Wilson 48 N . H . 398 Commonwealth v . Dorsey 103

Mass . 412 . Nor one authorizing the change of venue in a criminal case : Gut v . , , , State 9 Wall . 35 . Nor one which in providing for the punishment of future offences , authorizes the offender ' s conduct in the past to be taken into the account and the , , ; punishment to be graduated in reference to it : Ross ' s case 2 Pick . 165 Riley ' s case , , ; ; . v . 3 .

9 . People v . Id . 172 Rand Commonwealth Grat 738 Butler Cow 347 But the

change must not be in the direction of depriving the accused party of any substantial

protection established with a view to insuring a fair trial on the merits . In Hart v . , , State 40 Ala . 21 a statute providing that the rule of law precluding a conviction , of

apply to testimony of an accomplice on the uncorroborated should not cases mis ,

to retrospective demeanor was held not have operation . , ,

disloyal requires of purpose of excluding Whether a law which for the voters all CH . XXXI .] POWERS OF CONGRESS — EX POST FACTO LAWS . 215

§ 1346 . The next clause (passing by such as have been already considered ) is , “ No money shall be drawn from the treasury but in consequence of appropriations made by law . And a regular

statement and account of the receipts and expenditures of all pub

lic money shall be published from time to time . ”

§ 1347 . This clause was not in the original draft of the Consti ; tution but the first part was subsequently introduced upon a ; report of a committee and the latter part was added at the very

close of the convention . 1

§ 1348 . The object is apparent upon the slightest examination . , , ,

It is to secure regularity punctuality and fidelity in the disburse

ments of the public money . As all the taxes raised from the , , people as well as the revenues arising from other sources are to , ,

be applied to the discharge of the expenses and debts and other , , engagements of the government it is highly proper that Congress

should possess the power to decide how and when any money ,

should be applied for these purposes . If it were otherwise the

executive would possess an unbounded power over the public ; purse of the nation and might apply all its moneyed resources at

his pleasure . The power to control and direct the appropriations

constitutes a most useful and salutary check upon profusion and , extravagance as well as upon corrupt influence and public pecula , tion . In arbitrary governments the prince levies what money he , , pleases from his subjects disposes of it as he thinks proper and is , beyond responsibility or reproof . It is wise to interpose in a , , , republic every restraint by which the public treasure the common , , , fund of all should be applied with unshrinking honesty to such

objects as legitimately belong to the common defence and the ; general welfare . Congress is made the guardian of this treasure , and to make their responsibility complete and perfect a regular

account of the receipts and expenditures is required to be pub , , lished that the people may know what money is expended for , by what purposes and what authority . , , $ 1319 . A learned commentator has however thought that the , , in provision though generally excellent is defective not having , , 39

of v . Shumway is ex post persons voting an oath of loyalty facto see the case Green , , , , , N . Y . 418 which holds that it is and Blair v . Ridgeley 41 Mo . 63 and State v . Neal , 42 Mo . 119 which hold that it is not .

An act to validate an invalid conviction of crime would be ex post facto . In re , Murphy 1 Woolw . 141 ) . , , , , ,

1 Journal of Convention 219 328 345 358 378 . . 216 CONSTITUTION OF THE UNITED STATES [ BOOK III . , enabled the creditors of the government and other persons having , , vested claims against it to recover and to be paid the amount , judicially ascertained to be due to them out of the public treasury

without any appropriation . Perhaps it is a defect . And yet it is , by no means certain that evils of an opposite nature might not , arise if the debts judicially ascertained to be due to an individual , , , by a regular judgment were to be paid of course out of the public

treasury . It might give an opportunity for collusion and corrup

tion in the management of suits between the claimant and the

officers of the government intrusted with the performance of this , , by duty . Undoubtedly when a judgment has been fairly obtained , which a debt against the government is clearly made out it becomes ; , the duty of Congress to provide for its payment and generally

though certainly with a tardiness which has become in some sort , by a national reproach this duty is discharged Congress in a spirit , , of just liberality . But still the known fact that the subject must , pass in review before Congress induces a caution and integrity in , making and substantiating claims which would in a great measure , be done away if the claim were subject to no restraint and no

revision . , $ 1350 . The next clause is “ No title of nobility shall be granted ; by the United States and no person holding any office of profit or , , , trust under them shall without the consent of the Congress accept , , , , of any present emolument office or title of any kind whatever , , from any king prince or foreign state . ”

$ 1351 . This clause seems scarcely to require even a passing , notice . As a perfect equality is the basis of all our institutions ,

state and national the prohibition against the creation of any titles , , of nobility seems proper if not indispensable to keep perpetually

alive a just sense of this important truth . Distinctions between , citizens in regard to rank would soon lay the foundation of odious , claims and privileges and silently subvert the spirit of independ , ence and personal dignity which are so often proclaimed to be the

best security of a republican government . 2 , $ . as to 1352 The other clause the acceptance of any emolu , , , , ments title or office from foreign governments is founded in a . .

. App . 11 Tuck Black Comm 362 to 364 . Claims[ against the United States and by ,

adjudicated a of counter claims are now Court Claims originating from the act of , . 24 .

appeal to

Supreme is Feb given in 1855 An the Court certain cases ) . 2 , . The Federalist No 84 . CH . XXXII. ] POWERS OF CONGRESS — TITLES OF NOBILITY . 217

just jealousy of foreign influence of every sort . Whether, in a practical sense , it can produce much effect , has been thought doubtful . A patriot will not be likely to be seduced from his duties to his country by the acceptance of any title , or present, from a foreign power . An intriguing , or corrupt agent , will not be restrained from guilty machinations in the service of a foreign state by such constitutional restrictions . Still , however , the provision is highly important , as it puts it out of the power of any officer of the government to wear borrowed honors , which shall enhance his sup posed importance abroad by a titular dignity at home . It is singu lar, that there should not have been , for the same object , a general prohibition against any citizen whatever , whether in private or public life, accepting any foreign title of nobility . An amendment ; , , by for this purpose has been recommended Congress but as yet

it has not received the ratification of the constitutional number of , States to make it obligatory probably from a growing sense that

it is wholly unnecessary . 2 , , , , ; p 11 Tuck . Black . Comm . App . 295 296 Rawle on Constitution ch . 10 . 119

120 . , , p 2 Rawle on Constitution ch . 10 . 120 .