gions to be governed. If there be any difference in the extent of the attributes flowing from these two sources, it would seem that those proceeding from the latter are the greater and the more efficient. But to whichever of these origins the power to legislate for the new territories be referred, its existence is unquestioned, and the limitations upon it are the same.

That the territories are acquired and held for the whole nation, and that legislation in respect thereto should be for the common benefit, are truisms. To exactly the same extent, and in exactly the same manner, all the legislation of Congress should be for the general welfare of the United States. But of the particular means which tend to produce this general welfare, Congress is the only judge.

The position assumed by the court, that Congress, in the exercise of its legislative function for the territories, is bound by the restrictive clauses of the Bill of Rights, cannot be successfully attacked. Indeed, it can make no difference whether that body proceeds under the express grant of Article IV., or under its power implied in the capacity to acquire and hold additional soil; in either case it is equally hedged round and trammelled by the safeguards of individual rights that are contained in the first eight amendments. No American citizen in whose veins flow any drops of Saxon blood, and who inherits the results of the glorious struggle which his English forefathers maintained with power and prerogative, can deny or question this doctrine.

$499. While the doctrines thus far considered are either entirely correct, or entirely harmless, the concluding and substantial portion of this celebrated judgment has rendered the Dred Scott case a by-word and a hissing. It more than any thing else strengthened the convictions and intensified the feelings of the North against the institution of slavery; it shook the confidence of the country in the Supreme Court as the ultimate and authoritative interpreter of the Constitution, and in one day undid the good work which a steady devotion for more than sixty years to the cause of nationality had accomplished. I mean that portion of the judgment which pronounced property in slaves to be equal in character and degree to prop

erty in any other things; which declared slavery to be guarded and upheld by the national Constitution, and not to be the mere creature of local laws, confined to the very districts within which those laws have force; and which decided a statute of Congress prohibiting slavery in the new territories to be invalid, because it deprived a person of his property without due process of law. The events of the last few years, and especially the thirteenth amendment to the Constitution, have happily removed all occasion for any discussion and criticism of these doctrines of the Supreme Court; they have passed out of the field of present activities; let them be buried in oblivion.

SECTION XII.

EXPRESS PROHIBITIONS UPON THE EXERCISE OF LEGISLATIVE POWERS.

§ 500. I shall now pass to the consideration of express prohibitions upon legislative action. These apply either to Congress, or to the states, or to both. Many of them have already been referred to in the foregoing sections of this chapter. I shall pursue the following order: (1.) Examine those directed to the national legislature, or to it and the state legislatures in common; and (2.) Examine those directed alone against the state legislatures. These several prohibitory clauses are found in Sections IX. and X. of Article I. Section IX. contains eight subsections. Of these the fourth, fifth, and sixth relate to taxation and the regulation of commerce, and have been sufficiently discussed. The first refers to the slave trade, and is partly obsolete; it certainly requires no illustration. The second guards the privilege of the writ of habeas corpus. The examination of this all-important clause will be postponed until I shall treat of the Executive powers. The remaining paragraphs will be now passed under review.

First. Those Prohibitions which are directed to Congress, or to it and the State Legislatures in common.

I. Bills of Attainder.

§ 501. Article I. Section IX. § 3 is in these words: "No bill of attainder or ex post facto law shall be passed." In this connection is to be read, § 1 of Section X. "No state shall pass any bill of attainder or ex post facto law."

Both Congress and the state legislatures are therefore forbidden to pass these enactments; and if they should under any form violate the mandates of the organic law, their attempted legislation would be absolutely void. What is a Bill of Attainder? The phrase has a technical meaning. In England such statutes were well known, and their terrible character led our forefathers to forbid any resort to them. A bill of attainder in England is a statute passed by Parliament declaring a person by name, or a class of persons by description, to be guilty of crime, and ordering him or them to be capitally punished. A similar statute inflicting a less degree of punishment than death, was technically known as a Bill of Pains and Penalties.

In two late cases before the Supreme Court of the United States, Cummings v. The State of Missouri, and Ex parte Garland, Mr. Justice Field, delivering the opinion of a majority of the court, defined the phrase in language somewhat different in form, but the same in substance. He says:1 "A Bill of Attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to

1 4 Wall. 323, 324.

the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offence. . These bills are generally directed

against individuals by name; but they may be directed against a whole class. .. These bills may inflict punishment absolutely, or may inflict it conditionally."

§ 502. Mr. Justice Miller, pronouncing the opinion of the dissenting judges, in the same case, thus describes bills of attainder.1 "Upon an attentive examination of the distinctive features of this kind of legislation, I think it will be found that the following comprise those essential elements of bills of attainder, which distinguish them from other legislation, and which made them so obnoxious to the statesmen who organized our government. They were convictions and sentences pronounced by the legislative department of the government, instead of the judicial; the sentence pronounced and the punishment inflicted were determined by no previous law or fixed rule; the investigation into the guilt of the accused, if any such were made, was not necessarily or generally conducted in his presence, or that of his counsel, and no recognized rule of evidence governed the inquiry."

§ 503. There could be no engine of tyranny more terrible than Bills of Attainder, and Bills of Pains and Penalties. No trial is necessary; no legal evidence; no notice to the accused; no opportunity of defence; no examination of witnesses; even no crime. The life and property of every person would be at the mercy of the legislature, were these legislative-judicial proceedings allowed. Mr. Justice Chase, in an early case in the Supreme Court, uses language which I will quote.2 "These . prohibitions very probably arose from the knowledge that the Parliament of Great Britain claimed and exercised the power to pass such laws under the denomination of bills of attainder, or bills of pains and penalties, the first inflicting capital, and the other, less punishment. These acts were legislative judgments, and an exercise of judicial power. Sometimes they respected the crime, by declaring acts to be treason which were not treason when committed (the case of the Earl of 14 Wall. 387, 388.

2 3 Dall. 389.

Strafford in 1641): at other times they violated the rules of evidence to supply a deficiency of legal proof, by admitting one witness, when the existing law required two; by receiving evidence without oath, or the oath of a wife against her husband, or other testimony which the courts of justice would not admit (the case of Sir John Fenwick in 1696): at other times they inflicted punishments, where the party was not by law liable to any punishment (the banishment of Lord Clarendon in 1669, and of Bishop Atterbury in 1723): and in other cases they inflicted greater punishment than the law annexed to the offence (the Coventry Act, 1670). The ground for the exercise of such legislative power was this, that the safety of the kingdom depended on the death, or other punishment, of the offender. With very few exceptions the advocates of such laws were stimulated by ambition, or personal resentment and vindictive malice. To prevent such and similar acts of violence, and injustice, I believe the federal and state legislatures were prohibited from passing any bill of attainder."

Until the most recent times the national judiciary has never been called upon to question the validity of any statute of Congress or of a state legislature on the ground that it was a bill of attainder. The Test Oath Cases, however, decided during the past year, involve such an inquiry, and the intrinsic importance of those determinations requires that I should examine them with some care.

§ 504. Cummings v. Missouri: Statement of facts. — The first and leading case is that of Cummings v. The State of Missouri. In June, 1865, the State of Missouri adopted a constitution which contained a provision for a stringent test oath. Article II. Section 3, provided that "no person should be deemed a qualified voter who has ever been in armed hostility to the United States, or to the lawful authorities thereof; or has ever given aid, comfort, countenance or support to persons engaged in any such hostility; or has ever in any manner adhered to the enemies of the United States; or has ever by act or word manifested his adher

1 4 Wall. 277.