several States 1 are forbidden to pass bills of attainder. As known in English history, bills of attainder were enactments of Parliament, charging persons named with criminal misconduct of some sort, convicting them thereof, and adjudging the punishment of death, with forfeiture of property. Sometimes the proceeding was resorted to because the obnoxious persons were out of the realm, and therefore out of the reach of process, sometimes because the evidences of guilt might not be sufficient for judicial conviction, and sometimes because the obnoxious conduct had never been made criminal by law, and consequently the person whom the authorities desired to make way with was not subject to punishment in any judicial proceeding. It was quite possible in these cases for the bill to go through all its stages without the accused party being allowed any opportunity whatever for a hearing; and he might be denied a hearing at the will of the legislature in all cases. In the highest degree, therefore, such proceedings were likely to be unjust and tyrannical; and if a purpose existed to deal fairly in any particular case, the very organization of the tribunal rendered it practically impossible. But in most cases there was no such purpose, and the legislature, in passing a bill of attainder, was the tool of a tyrant. And what might take place at the will of a king, under a monarchy, might also happen, at the demand of an excited and passionate majority, at some periods in the history of a republic.

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Besides bills of attainder there were also bills called bills of pains and penalties, which differed from the former only in this, that the punishments imposed were less than death. Many instances of these had occurred in American history, particularly in the case of Americans who had remained loyal to the British Crown after the revolt

1 Const., Art. I. § 10, cl. 1.

2 This was particularly true of the reign of Henry VIII.

of the Colonies.1 It is conceded on all sides, that the purpose of the constitutional inhibition is to take away the power to pass either the one or the other; in short, wholly to deprive the government of any power to inflict legislative punishment for criminal, or supposed criminal conduct. And a case in which the punishment is imposed indirectly, as by depriving one of the right to follow his occupation, or to institute suits, unless he will take an oath that he has not been guilty of certain specified conduct, is as much a bill of attainder as is an act directly imposing a punishment.

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Ex Post Facto Laws.-The United States 5 and the States, alike, are also forbidden to pass ex post facto laws. In its natural and ordinary sense this term embraces all retrospective laws; but in the Constitution the sense is more restricted, and is limited exclusively to laws of a criminal nature. Of retrospective laws in general, therefore, there is no occasion to speak in this connection; but they will receive some attention when the constitutional rules for the protection of property are given. One of the early justices of the Supreme Court has classified ex post facto laws as follows: "1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was when committed. 3. Every law that changes the punishment, and inflicts a greater punishment than the law

1 Cooper v. Telfair, 4 Dall. 14. One of the New York bills of attainder not only confiscated the property of the loyalists named, but actually condemned them to death in their absence, and without trial.

2 Ex parte Garland, 4 Wall. 333. Excepting, of course, such conduct as may be punished under parliamentary law as contempt. 8 Cummings v. Missouri, 4 Wall. 277.

Pierce v. Carskadon, 16 Wall. 234.

5 Const., Art. I. § 9, cl. 3.

6 Const., Art. I. § 10, cl. 1.

annexed to the crime when committed. 4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender." 1 And to these classes may be added,― 5. Every law which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which when done was lawful. And 6. Every law which deprives persons accused of crime of some lawful protection to which they have become entitled; such as the protection of a former conviction or acquittal, or of a proclamation of amnesty."

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But a law is not obnoxious to this provision which changes the punishment by mitigating it; or which changes the practice in criminal cases, still preserving to the defendant his substantial rights; or which takes from him the privilege of mere technical objections; or which limits the number of peremptory challenges to jurors, or modifies not unreasonably the grounds of challenge for cause;" or permits a change of venue for the purposes of a fair trial. Nor is it incompetent, in providing for the trial of such offences as may be committed in the future, to permit the punishment to be increased on proof of a previous conviction; though the previous conviction took place before the law; for it is the subsequent offence only that is punished in such a case, and it was committed with constructive, if not actual, notice of what the punishment might

1 Calder v. Bull, 2 Dall. 386, 390.

2 State v. Keith, 63 N. C. 140.

3 Clarke v. State, 23 Miss. 261; Ratzky v. People, 29 N. Y. 124. 4 State v. Manning, 14 Texas, 402; State v. Corson, 59 Me. 137. 5 Commonwealth v. Hall, 97 Mass. 570.

6 Dowling v. State, 13 Miss. 664.

7 Stokes v. People, 53 N. Y. 164.

8 Gut v. State, 9 Wall. 35.

be.1 And a person may be extradited under a treaty, though he had obtained asylum in the country before the treaty was made.2

SECTION II. TREASON: ITS DEFINITION AND PUN

ISHMENT.

The Constitution. It is declared in the Constitution, that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." The provision is taken from the Statute of Treasons, 25 Edw. III., before the passage of which, as the ancient common law was administered, it was in the breast of the judges to determine what conduct was treason and what not, whereby the creatures of tyrannical princes had opportunity to create abundance of constructive treasons; that is, by forced and arbitrary constructions to raise offences into the crime and punishment of treason, which never had been suspected to be such. The statute did not fully accomplish its purpose in England, as was proved by the conviction and execution of Algernon Sidney, whose real offence was the combating in argument the arbitrary doctrines which were then popular at the court; but the wrongs of that arbitrary period had been avenged upon the perpetrators, and similar perversions of law and justice were not again to be looked for either in England or in America. If the attempt to revive constructive treasons should be made, the Constitution by this clause provided against it as far as was possible.

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What is Treason? — A mere conspiracy by force to subvert the established government is not treason; but there

1 Rand v. Commonwealth, 9 Grat. (Va.) 738.

2 In re De Giacomo, 12 Blatch. 391.

8 Const., Art. III. § 3.

4 Instances are given by Blackstone, 4 Com. 75.

Trial of Sidney, 9 State Trials, 817.

must be an actual levying of war.1 War, however, is levied when men are assembled with the intent of effecting by force a treasonable purpose; and all persons who then perform any act, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors.2 And one is adherent to the enemies of the country, and giving them aid and comfort, when he supplies them with intelligence, furnishes them with provisions or arms, treacherously surrenders to them a fortress, and the like.3 But coming from an enemy's ship to the shore peaceably to procure provisions for him is said not to be treason.*

Evidence. - A conviction of treason must be on the testimony of at least two witnesses to the same overt act, or on confession in open court.5 This, like the first, was a provision of the Statute 25 Edw. III., and had been equally perverted to the destruction of innocence.

SECTION III. THE WRIT OF HABEAS CORPUS.

The Constitution. The right to the important writ by means of which the liberty of the citizen is protected against arbitrary arrests is not expressly declared in the Constitution, but it is recognized in the provision that "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." This writ was the offspring of the common law, but its benefits and securities Habeas Corpus Act of

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were enlarged and guarded by the

Charles II., the general provisions of which are either

1 Ex parte Bollman, 4 Cranch, 75.

2 Ex parte Bollman, 4 Cranch, 75, 126. See Fries's Case, Whart. State Trials, 634, and the voluminous report of Burr's Trial.

8 4 Bl. Com. 76.

4 United States v. Pryor, 3 Wash. C. C. 234.

5 Const., Art. III. § 3.

6 Const., Art. I. § 9, cl. 2.