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 the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense." 5

The opinion then goes on to declare that the questioned clauses of the Missouri Constitution are also invalid as ex post facto legislation, being aimed at past rather than future acts.

5 The opinion continues: "If the clauses of the second article of the Constitution of Missouri, to which we have referred, had in terms declared that Mr. Cummings was guilty, or should be held guilty of having been in armed hostility to the United States, or of having entered that State to avoid being enrolled or drafted into the military service of the United States, and, therefore, should be deprived of the right to preach as a priest of the Catholic Church, or to teach in any institution of learning, there can be no question that the clauses would constitute a bill of attainder within the meaning of the federal Constitution. If these clauses, instead of mentioning his name, had declared that all priests and clergymen within the State of Missouri were guilty of these acts, or should be held guilty of them, and hence be subjected to the like deprivation, the clauses would be equally open to objection. And, further, if these clauses had declared that all such priests and clergymen should be so held guilty, and be thus deprived, provided they did not, by a day designated, do certain specified acts, they would be no less within the inhibition of the federal Constitution. In all these cases there would be the legislative enactment creating the deprivation, without any of the ordinary forms and guards provided for the security of the citizen in the administration of justice by the established tribunals. The results which follow, from clauses of the character mentioned, do follow from the clauses actually adopted. The difference between the last case supposed and the case actually presented is one of form only, and not of substance. The existing clauses presume the guilt of the priests and clergymen, and adjudge the deprivation of their right to preach and teach unless the presumption be first removed by their expurgatory oath. . . . in other words, they assume the guilt and adjudge the punishment conditionally. The clauses supposed differ in that they declare the guilt instead of assuming it. The deprivation is effected with equal certainty in the one case as it would be in the other, but not with equal directness. The purpose of the lawmaker in the case supposed would be openly avowed; in the case existing it is only disguised. The legal result must be the same, for what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised."

In Ex parte Garland, decided at the same time as the Cummings case, the court held void, as a bill of attainder, the act of Congress of January 24, 1865, prescribing an oath that the deponent had never voluntarily borne arms against the United States, given aid to its enemies, etc., as a qualification for admission as an attorney, before the federal courts."

A statute making the non-payment of taxes evidence of disloyalty during the Civil War and providing for the forfeiture of lands without a judicial hearing has been held to be a bill of attainder, as has a law excluding from the United States Chinese who are citizens of the United States.9

8

§ 409. Ex Post Facto Legislation.

The same clause of the Constitution which prohibits bills of attainder, declares that no ex post facto legislation shall be passed. In the early case of Calder v. Bull10 the prohibition was declared to relate only to criminal and not to civil proceedings, and, as thus limited, ex post facto laws were declared to be " every law that makes an action done before the passing of a law, and which was innocent when done, criminal; and punishes such action. Every law that aggravates a crime, or makes it greater than it was, when committed. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. Every law that alters the legal rules of evidence, and requires less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender."

By later decisions this definition of ex post facto legislation has been broadened so as to include all laws which in any way operate

64 Wall. 333; 18 L. ed. 366.

7 Justices Miller, Swayne, and Davis dissented in both the Garland and Cummings cases.

8 Martin v. Snowden, 18 Gratt. 100. In re Yang Sing Hee, 13 Saw. 486. 10 3 Dall. 386; 1 L. ed. 648.

to the detriment of one accused of a crime committed prior to the enactment of such laws.11

11 In Thompson v. Utah (170 U. S. 343; 18 Sup. Ct. Rep. 620; 42 L. ed. 1061), the more important adjudications with reference to this subject are summarized as follows: "It is sufficient now to say that a statute belongs to that class [of ex post facto laws], which by its necessary operation and in its relation to the offense, or its consequences, alters the situation of the accused to his disadvantage. (United States v. Hall, 2 Wash. C. C. 366; Kring v. Missouri, 107 U. S. 221; 2 Sup. Ct. Rep. 443; 27 L. ed. 506; Medley, Petitioner, 134 U. S. 160; 10 Sup. Ct. Rep. 384; 33 L. ed. 835.) Of course a statute is not of that class unless it materially impairs the right of the accused to have the question of his guilt determined according to the law as it was when the offense was committed. And, therefore, it is well settled that the accused is not of right entitled to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offense charged against him. Cooley in his Treatise on Constitutional Limitations, after referring to some of the adjudged cases relating to ex post facto laws, says: 'But so far as mere modes of procedure are concerned, a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime.' Chap. 9, § 272. And this view was substantially approved by this court in Kring v. Missouri, above cited. So, in Hopt v. Utah (110 U. S. 574; 4 Sup. Ct. Rep. 202; 28 L. ed. 262), it was said that no one had a vested right in mere modes of procedure, and that it was for the State, upon grounds of public policy, to regulate procedure at its pleasure. This court, in Duncan v. Missouri (152 U. S. 377; 14 Sup. Ct. Rep. 570; 38 L. ed. 485), said that statutes regulating procedure if they leave untouched all the substantial protections with which existing law surrounds the person accused of crime, are not within the constitutional inhibition of ex post facto laws. But it was held in Hopt v. Utah (above cited), that a statute which takes from the accused a substantial right given to him by the law in force at the time to which his guilt relates would be ex post facto in its nature and operation, and that legislation of that kind cannot be sustained simply because, in a general sense, it may be said to regulate procedure. The difficulty is not so much as to the soundness of the general rule that an accused has no vested right in particular modes of procedure, as in determining whether particular statutes by their operation take from an accused any right that was regarded, at the time of the adoption of the

In Thompson v. Missouri1 the authorities are again reviewed, the court in this case holding that a state statute authorizing the comparison of disputed handwriting with any writing proved to be genuine is not an ex post facto law in its application to crimes previously committed, as altering the legal rules of evidence in existence at the time of the commission of the offense.

§ 410. Appropriations.

It is provided that "no money shall be drawn from the treasury but in consequence of appropriations made by law."

This restriction, it is apparent, operates rather upon the officials of the Treasury Department than upon Congress. The legislative body is left free to authorize such expenditures as it may see fit, and to direct the payments to be made by the Secretary of the Treasury. This direction having been given by law, no discretionary power is left with the Treasury Department to determine whether the payment is a proper one.13

Congress may, as has been earlier pointed out,14 appropriate sums of money for private purposes; for the construction and maintenance of works which the United States could not constitutionally itself construct or operate; and recognize and pay claims of merely an equitable or moral nature.15

That money once covered into the United States Treasury may not, by a judicial process, be recovered therefrom without the sanction of an act of Congress, is further discussed under the title Suability of the United States." 16

Constitution, as vital for the protection of life and liberty, and which he enjoyed at the time of the offense charged against him."

Mr. Brainerd T. De Witt has an interesting article in the Political Science Quarterly, XV, p. 76, entitled "Are Our Legal Tender Laws Ex Post Facto?" in which he seeks to show, and with considerable success, that the framers of the Constitution probably intended that the prohibition upon the Federal Government to pass ex post facto laws should include a denial of the right of legislation to impair the obligation of valid contracts previously entered into. 12 171 U. S. 380; 18 Sup. Ct. Rep. 922; 43 L. ed. 204.

13 United States v. Price, 116 U. S. 43; 6 Sup. Ct. Rep. 235; 29 L. ed. 541. 14 Section 269.

15 United States v. Realty Co., 163 U. S. 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215.

16 Chapter LIV.

§ 411. Limitations with Respect to the Definition and Punishment of Crime.

By various provisions of the Constitution as originally adopted, and in the Amendments thereto, restrictions have been placed upon the Federal Government with reference to the definition of and trial and punishment for crime. These limitations will be considered in the sections which follow.

§ 412. Jury Trial.

By Article III, Section II, Clause 3, it is provided that "The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed."

By the Sixth Amendment, this requirement of a jury is repeated and the additional conditions imposed that the trial of persons accused of crime shall be speedy and public, the jury an impartial one, selected from the State and district wherein the crimes shall have been committed, which district shall have been previously ascertained by law, and that the accused shall be informed of the nature and cause of the accusation, be confronted with the witnesses against him, have compulsory process for obtaining witnesses in his favor, and have the assistance of counsel for his defense.

The relation between this Amendment, and the third clause of Section II of Article III is, as stated in Callan v. Wilson," that in the latter are enumerated, ex abundanti cautela, the rights to which, according to settled rules of common law, the accused is entitled.18

Offenses committed outside the jurisdiction of a State are not local, but may be tried at such places as may be designated by Congress.

17 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223.

18 Cf. Story, Commentaries, § 1791.