Attainder

him, it is at the same time imperatively his duty to obey the process of the United States, to hold the person in custody under it, and to refuse obedience to the marshal or process of any other government. And, consequently, it is his duty not to take the prisoner, or suffer him to be taken, before a State judge, or court, upon a habeas corpus under State authority. No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any authority to interfere with him or to require him to be brought before them. And if the authority of a State, under form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States in any respect, in the custody of his prisoner, it would be his duty to resist it and call to his aid any force that might be necessary to maintain the authority of the law against illegal interference. No judicial process, whatever form it may assume, can have any authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violation. (United States v. Booth, 21 How. 526?") Stanbery in Gormley's Case; 1 Kent's Com. 32, 11th Edition, note 1.

This general language is to be confined to process issued by the United States courts, not to any other kind of imprisonment. (Hurd on Habeas Corpus, 284.) Stanbery.

It was the duty of Commodore Selfridge to produce the body of the marine. Id. The decision of the Secretary of the Navy was revoked, and the Commodore ordered to obey the writ of the Court of Quarter Sessions of Pennsylvania. New York Herald of 7th Oct., 1867.

[3.] No bill of attainder or ex post facto law shall and ex post be passed.

facto?

Define Bill of Attain

der?

Give exam

142. A BILL OF ATTAINDER is a legislative act which inflicts punishment without a legal trial. And it includes bills of pains and penalties. (Story's Const. § 1344.) Cummings v. The State of Missouri, 4 Wallace, 323. They may be directed against individuals or a whole class. Id. And inflict punishment absolutely or conditionally. Id. Gaines v. Buford, 1 Dana, 510.

The Constitution of Missouri, which required an expurgatory ple of such? oath of all priests, teachers, &c., was in effect, a bill of attainder. Cummings v. State of Missouri, 4 Wall 323, 325.

19.

The test oath required of Attorneys (note 242) of the courts of the United States, partakes of the nature of a bill of pains and penalties, and it is subject to the constitutional inhibition against the passage of bills of attainder, under which general designation they are included. Ex parte Garland, 4 Wallace, 377; H. Stanbery's Opinion of 24th May, 1867, p. 14.

In Cummings v. The State, (4 Wallace, 326), we considered the meaning of a bill of attainder and of an ex post facto law in the clause of the Constitution forbidding their passage by the States, and it is unnecessary to repeat here what we there said. A like

prohibition is contained in the Constitution against enactments of this kind by Congress. Ex parte Garland, 4 Wallace, 378.

Attorneys and counsellors are not officers of the United States. Are attorId. They are officers of the court, and hold during good behavior, neys offi and can only be deprived of their offices for misconduct ascertained cers? and declared by the judgment of the court, after opportunity to be heard has been afforded. (Ex parte Heyfron, 7 Howard, Mississippi, 127; Fletcher v. Dangerfield, 20 California, 430.) Id.

Their appointments and removal are judicial acts, and they can only be deprived of the right for moral and professional delinquency. (In the matter of the application of Henry W. Cooper, 22 New York (8 Smith), 81; Ex parte Secombe, 19 How. 9.) Ex parte Garland, 4 Wallace, 379. The removal cannot be effected by an act of Congress requiring new qualifications. (Cummings v. Missouri, 4 Wallace, 329.) Ex parte Garland, 4 Wallace, 380. Such laws are forbidden both to Congress and the States. Id. 386.

In the opinion by Mr. Justice Miller, expressing the dissent of What was Chief-Justice Chase, Justices Davis, Swayne, aud himself, he the dissent? defines " ATTAINDER," in the language of Sir Thomas Tomlins, as "the stain or corruption of blood of a criminal capitally condemned; the immediate and inseparable consequence of the common law, on the pronouncing the sentence of death." Ex parte Garland, 4 Wallace, 387.

Bills or acts of attainder were laws which declared certain persons attainted, and their blood corrupted, so that it had lost all heritable quality. Ex parte Garland, 4 Wall. 387.

States?

The power to pass attainders is forbidden in this section to Con- Is the power gress, in section nine to the States, and in section three of article forbidden to III., it is declared that no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted. Ex parte Garland, 4 Wallace, 387, 388.

159.

common

Attainders were convictions and sentences pronounced by the Define atlegislative department, instead of the judicial; the sentence pro- tainders at nounced and the punishment inflicted were determined by no law? previous law or fixed rule; the investigation into the guilt of the accused, if any were made, was not necessarily or generally conducted in his presence, or that of the counsel, and no recognized rule of evidence governed the inquiry. (Story's Const. § 1344.) Ex parte Garland, 4 Wallace, 389. (A bill of attainder may affect the life of an individual, or may confiscate his property, or both. Fletcher v. Peck, 6 Cr. 138; 1 Kent's Com. Lect. 19, p. 382.)

The act of Congress and the Constitution of Missouri, requiring expurgatory oaths, do not come within the definitions, and are not bills of attainder. Ex parte Garland, 4 Wallace, 388.

They designate no criminal, either by name or description, declare no guilt, pronounce no sentence and inflict no punishment, and can, in no sense, be bills of attainder. Justice Miller in ex parte Garland, 4 Wallace, 390. See 2 Woodeson's Lectures, 622

624.

18.

143.

143. Ex post facto laws are such as create or aggravate crime, Define ex or increase the punishment, or change the rules of evidence for the post facto? purpose of conviction. Calder v. Bull, 3 Dall. 390; Cummings v.

156.

Give an example?

18.

122.

Missouri, 4 Wallace, 326; Shepherd v. People, 25 N. Y. 406. The phrase only applies to penal and criminal laws, which inflict forfeitures or punishment, and not to civil proceedings which affect private rights retrospectively. Watson v. Mercer, 8 Pet. 110; Carpenter v. Pennsylvania, 17 How. 463; Fletcher v. Peck, 6 Cr. 138; Society for the Propagation of the Gospel v. Wheeler, 2 Gall. 138; United States v. Hall, 2 Wash. C. C. 366; Commonwealth v. Lewis, 6 Binn. 271; Locke v. New Orleans, 4 Wallace, 173. There is nothing in the Constitution which forbids Congress to pass laws violating the obligation of contracts, though such a power is denied to the States. Evans v. Eaton, Pet. C. C. 323; Mayer v. Knight, 27 Tex. 719; Paschal's Annotated Digest, note 220, p. 91, and note 157, p. 42.

An ex post facto law renders an act punishable in a manner it was not punishable when committed. (Fletcher v. Peck, 6 Cranch, 138.) Cummings v. Missouri, 4 Wallace, 326. An act repealing a law on which a grant rests and annulling the title, is, in effect, an ex post facto law. Idem. The Constitution of Missouri, which disqualified all persons who had aided in the rebellion or sympathized with the rebels, unless they took an expurgatory oath, was in effect an ex post facto law. Cummings v. Missouri, 4 Wallace, 327.

Some of the things enumerated in the oath were not offenses when committed; and therefore are within the definition of an ex post facto law. "They impose a punishment for an act not punishable at the time it was committed." Id. So the clauses which imposed a further penalty was ex post facto, because "they impose additional punishment to that prescribed when the act was committed." (Fletcher v. Peck, 6 Cranch, 138.) Cummings v. Missouri, 4 Wallace, 328. (For the Missouri oath, see Constitution of Missouri, Article II., 1 New York Convention Manual, p. 348.) This provision to secure the liberty of the citizen, cannot be evaded by the form in which the power of the State is exerted. Id. In the cases of Cummings and Garland, Mr. Justice Millet declass of cases livered the dissentient opinion for Chief-Justice Chase, Justices does ex post Davis, Swayne, and himself. He held that all the cases agree, that facto only apply? the term ex post facto is to be applied to criminal and penal cases alone, and not to civil proceedings. (Watson v. Mercer, 8 Pet. 88; Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cr. 87; Ogden v. Saunders, 12 Wheat. 266; Satterlee v. Matthewson, 2 Pet. 380.) Ex parte Garland, 4 Wallace, 390, 391.

To what

159.

238.

158.

They make acts done before the passage of the law, and which were innocent when done, criminal, and punish such actions; or change the punishment and inflict greater punishment than the law annexes to the crime when committed; or they alter the rules of evidence and receive less or different testimony than the law required at the time of the commission of the offense. (Calder v. Bull, 3 Dall. 386.) Ex parte Garland, 4 Wall. 391; Cummings v. Missouri, 4 Wall. 325, 326; Shepherd v. People, 25 N. Y. (11 Smith) 406.

The true distinction, is between ex post facto laws and retrospective laws. (Calder v. Bull.) Ex parte Garland, 4 Wallace, 391. The minority held that the test oath to attorneys in the act of

Congress, and the expurgatory oath in the Constitution of Missouri are not within the definition of an ex post facto law.

Id.

And for further learning on the subject, see Carpenter v. Pennsylvania, 17 How. 456; Baugher v. Nelson, 9 Gill. 299; The Federalist, Nos. 44, 49; Journal of Convention, Supp. 431; 2 Am. Museum, 556; 2 Elliot's Debates, 343-354; Ogden v. Saunders, 12 Wheat. 266, 303, 329, 330, 335; 1 Kent's Com. Lect. 19, pp. 381, 382.

inhibition as

[4.] No capitation, or other direct tax, shall be laid, What is the unless in proportion to the census or enumeration here- to direct in before directed to be taken.

taxes?

144. "CAPITATION," [Lat. caput, the head] or, as they are more Define capicommonly called, poll-taxes, that is taxes upon the polls, heads, or tation? persons, of the contributors, are direct taxes. (See Smith's Wealth of Nations, B. 5, ch. 2, art. 4; The Federalist, No. 36; 2 Elliot's Debates, 209.) Story's Const. § 954; Hylton v. United States 3 Dall. 171; Loughborough v. Blake, 5 Wh. 320–1. This section, compared with the 8th and 9th, and the 2d section of the 1st 22, 81, 85. art. Hylton v. United States, 1 Cond. 84. A tax on carriages, expenses, or income is not a direct tax. Id.

Taxes on lands, houses, &c., are direct taxes. (1 Tucker's Black. Com. App. 232, 233; Hylton v. United States, 3 Dall, 171; The Federalist, No. 21; Loughborough v. Blake, 5 Wheat. 317-325.) Story's Const. § 954. The poll-tax was to be considered direct on account of the slaves. Id.

contributions im

In a general sense, all contributions imposed by the government What are all upon individuals for the service of the State, are called taxes, by whatever name they may be known, whether by the name of posed by tribute, tithe, tailage, impost, duty, gabel, custom, subsidy, aid, government supply, excise, or other name. They are divided into direct and called? indirect taxes. Under the former are included taxes on land, or 72, 77. other real property; under the latter, taxes on articles of consumption. (Federalist, Nos. 21, 36; Smith's Wealth of Nations; B. 5, ch. 2, Pt. 2, Arts. 1 and 2 and App.; Loughborough v. Blake, 5 Wheat. 317-319.) Story's Const. § 950.

If South Carolina considers the revenue laws unconstitutional, What was and has a right to prevent their execution in the port of Charles- the view of ton, there would be a clear constitutional objection to their collec-nullification? tion in every port, and no revenue could be collected anywhere; for all imposts must be equal. President Jackson's Proclamation, 10th December, 1832; Story's Const. § 1053a, note 1. It will also be found in Benton's Thirty Years in the Senate. No document has ever more strongly stated the principles upon which the government suppressed the rebellion.

For an exhaustive treatise on "TAXES," see Story's Const. 3 ed. book 3, ch. IV.

Direct taxes must be by the rule of apportionment. The License 22, 81. Cases, 5 Wall. 471.

Define census?

21, 22.

24. 275, 285.

How many census re

ports?

What are the inhibitions

as to commerce?

144.

81.

Can there be

145. "CENSUS."-Lat. in the Roman law. A numbering or enrollment of the people, with a valuation of their fortunes (personarum et bonorum descriptio). (Brissonius.) The right of being enrolled in the census books. (Butler's Corpus Jur. 27.) [Law Lat.] In old European law, a tax or tribute (tributum); a toil (Esprit des lois, liv. 30, c. 14). Burrill's Law Dic., CENSUS.

In this clause it doubtless has reference to Article 1, clause 3, which declares that "Representatives and direct taxes shall be apportioned among the several States which may be included in the Union according to their respective numbers," the basis of which, as has been seen, was to number every soul, but to exclude twofifths of the slaves from the ratio of representation. But since the destruction of slavery, all the "numbers" found by the future censuses must be counted, unless the new basis proposed by the fourteenth amendment shall have been adopted. This has naturally been one of the great points of controversy upon the reconstruction question. It is a legitimate fruit of the revolution.

To the philosophical statesman there has been nothing in the execution of the Constitution so valuable as the Census Reports and the Compendiums thereof, running through eight decades. The information and the classification have improved every year, until the present able head of the bureau has almost reduced the tables to perfection. Nothing is hazarded in saying that, had these reports been carefully studied, the Union never would have encountered its severe struggle.

[5.] No tax or duty shall be laid on articles exported from any State. [6.] No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.

146. "NO TAX OR DUTY."-The power is thus wholly taken any duty on away to interfere with the subject of exports. Story's Const. § exports? 1014; Sergeant's Const. ch. 28, p. 346; Rawle's Const. ch. 10, p. 115, 116; United States v. Brig William, 2 Hall's Law Jour. 255, 259, 260. The subject was well considered in the Convention. Journals of Convention, 222, 275, 301, 318, 377; 2 Curtis's Hist. Const. 290, 304.

The clause was stricken out of the Constitution of the Confederate States. This clause read: "No preference shall be given by any regulation of commerce to the ports of one State over those of another."

And very heavy export duties were levied upon cotton, first by military orders, and afterward by statute. Paschal's Annotated Digest, p. 90, § 7.

The omission in regard to vessels was to correspond with their amendment in regard to commerce.

147. "NO PREFERENCE."-[Lat. prefero, the act of preferring.]