states, some other parts of the Constitution require notice. All the great national powers of war, peace, alliance, confederation, commerce, external revenue, coinage, and currency are expressly prohibited to the States. Without these and without the right to choose their own form of government, there can be no ground of claim to independence, or nationality. Without independence and nationality there can be no claim to that supreme sovereignty, which consists in the right to govern in the last resort, or to that absolute allegiance which springs from it.

"No State shall pass any bill of attainder, or ex post facto law." "A bill of attainder," says Chief Justice Marshall, speaking for the Court, (6 Cr., Rep. 138), "may affect the life of an individual, or may confiscate his property, or may do both." Mr. Justice Story, who was not at that time. a member of the court, afterwards cites with approbation this part of the opinion, which is also adopted by Chancellor Kent. If it may affect life and property, it may necessarily affect liberty also. The prohibition includes all bills of pains and penalties, which come within the same category, and involve the same reason for condemnation. Attaint, attinctus, is that stain, or mark of infamy, which the common law attaches to a person condemned to death for any crime. It is the index, the nom de plume, to all that long catalogue of incidental pains, penalties, and disabilities, which, at common law, attend and follow such a judgment. It puts him out of the protection of the law, deprives him of all credit and reputation; he cannot be a witness in court, or perform any of the functions of a man; but is considered dead in law, his estate forfeited, and his blood corrupted. Such is attainder by the common law, as a sequence or appurtenance of a judgment of death at law. But Parliament apply the attaint directly by statute,—whether before or after a legislative trial and conviction, and with or without such condemnation, is immaterial. For as to a legislative trial, or no trial at all, eadem est ratio.-See 4, Bl. Com., 380. The uniform characteristics of all such bills are deprivation of some person, of life, liberty, or property, by legislative act for crime. They are judicial and

ex post facto, in their nature. The prohibition of bills of attainder therefore means, that no state shall, by legislative act, deprive any person of life, liberty, or property, for any crime already committed. If a state cannot do this against any person, of course they cannot against any number of persons, by name, or by any other description, of class or condition, or otherwise. If they cannot do it for crime actually committed, of course they cannot do it without crime. If they cannot do it for cause, a fortiori, they cannot do it without cause. By extending the penalty, and taking away the cause, you would necessarily increase the wrong, and aggravate the injustice, for which the act is proscribed. The act prohibited by this clause, under the name of a bill of attainder, includes the one also forbidden by the last clause but one in the fifth amendment; viz, depriving any person of life, liberty, or property, "without due process of law "-that is, by legislative enactment, and without judicial trial and judgment, per legem terræ. Both clauses mean substantially the same thing, and are both applicable to Congress, and if both are not also applicable to state legislatures, the first certainly is, and ought to be sufficient to prevent all legislative attempts to deprive individuals-" any person "-of their rights without judicial inquiry and judgment, according to the general laws of the land.

The word, attainder, occurs again in our Constitution, Article III, § 3, not in reference to legislation, but in a strictly technical sense, relating to judicial proceedings. "No attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted." This could not apply to a legislative attainder, for that had been already prohibited for any crime whatever. Further, the article speaks of conviction, on testimony, or confession in open court, showing that a judicial proceeding only was intended. What, then, is attainder, in reference to such a proceeding? It is a common law incident, adjunct, appendage, or addition to the judgment of death for any offence. It is no part of the judg ment, nor is it contained in it, in form; but is a common law appurtenance to it. "When sentence of death is pronounced," says Blackstone, "the immediate, inseparable consequence from

the common law is attainder." It is not upon conviction, for that may be without a judgment, as judgment may be arrested. It is not simply upon a judgment on conviction, for such a judgment may not be capital. The judgment must include an actual sentence of death. "Upon judgment of death, and not before, the attainder of a criminal commences." If Congress should reduce the penalty of treason, as they have a perfect right to do, to imprisonment, transportation, or anything else but what it is, there could be no common law attainder of treason in this country. There cannot be now, without a special act of Congress. There are no common law crimes, or punishments, or appendages to punishments, under our Constitution. Congress may prescribe the punishment of treason, and make it death, attainder, confiscation, or anything they please; and if they should make it, or any part of it, attainder, the common law might be resorted to for its meaning. But without an act of Congress, there can be no attainder of treason; and with it, there can be none that shall "work corruption of blood, or forfeiture, except during the life of the person attainted." Whatever was intended to be the precise meaning of this exception, it is scarcely of consequence enough now, to be worth the inquiry. For, as Congress can make the punishment what they please, and may include in it confiscation, corruption of blood, or any other of the disabilities of the common law attainder, that they choose, there is little probability of their ever undertaking to make attainder itself a part of it; especially as the word is not a word of substance in itself, and could be valuable as a punishment only in consequence of the several particulars supposed to be contained in, or incidental to it, or in the language of our Constitution "worked" by it. If Congress should do such a thing as to punish treason, in whole or in part, by attainder, there will then be time enough to inquire what such an attainder of treason may or may not "work" under this clause of our Constitution.

The words of the exception were taken from an ameliorating English statute, and were obviously intended to diminish. or exclude some of the remote consequences of a common law

attainder. The phraseology is not the most happy, or its interpretation perfectly patent. Strictly speaking, corruption of blood, or forfeiture, never did extend beyond the party attainted;—that is, nobody's blood was corrupted but his own, and nobody's estate was forfeited but his own. But all his own was forfeited, whether it was for life, for years, or in fee, and nobody else had any interest in it. The heir's estate was not forfeited, if he had any before or after the attainder. He got nothing from the traitor, for all he had was thereby forfeited to the king; and if it had not been, he could then have taken nothing, for no one is heir to the living. Upon the death of the traitor afterwards, the heir could take nothing, for the double reason, that the traitor left nothing to inherit, having forfeited it all before by the attainder, and his blood was corrupted so that no one could inherit from him. But the blood of the heir is not corrupted. He can hold property, and inherit through anybody but the traitor. He cannot inherit through him, because his blood was corrupted by the attainder, and this corruption, or disability, or the consequences of it, continued beyond his life. For instance, suppose the heir to be a son, he could not inherit from his paternal grandfather, or uncle, because the right would come to him through his father. But he could inherit from his maternal relations, or anybody else, where the father would not have taken the estate before him, in case he had been alive. It was in this, and similar ways, that third parties were remotely affected by attainder, and it was the possibility of these consequences, probably, that the exception in our Constitution was intended to cut off. But even in this respect it is difficult to see how it could ever be made to apply to our institutions; for if the heir lost an estate in this manner, it did not go to the king by forfeiture, because there was no ground of forfeiture. But it went to the feudal lord, of whom it was held, by way of escheat, propter delictum tenentis, for want of a legal tenant, and as the king was often this lord, he usually got the estate. In this respect, also, it can have no application to our institutions, for we have no feudal tenures, nor any failure of heirs.

Our law makes ample provision for a legal successor to everybody.

Since the above was written, Congress have, in effect, reduced the penalty of treason. True, they leave it in the discretion of the court to make the penalty death, or imprisonment for five years, which is about the ordinary penalty for an aggravated assault and battery, or sheep-stealing. DEATH at the discretion of a judge!!! This is fully equivalent to an abolition of the death penalty for treason. No judge, since the time of Jeffreys, has been known to condemn a convict to death, when it was in his power to make the punishment anything else, and nothing is hazarded in predicting that, until another Jeffreys shall arise, no such judge will ever be found. That time is probably remote, for Jeffreys, notwithstanding all the odium so justly attached to his name, is generally allowed to have possessed one good quality, which the race of political judges bequeathed to the country by the late administrations, have, as a body, manifested little propensity to imitate. To add to the ridiculous absurdity of this act of Congress, any one, who shall aid or abet the traitor, though not liable to be hung at the discretion of the judge, shall be imprisoned just twice as long as the traitor himself. These provisions are a fair specimen of the wisdom of the whole act. It would have saved the Government a part of the disgrace of such loose, inartificial, and impracticable legislation, if the President's veto had been allowed to stand, though the principal grounds of the veto are scarcely less absurd than the act itself. The codicil, by which the veto was evaded, renders the act, for any good purpose, more impracticable and inefficient than it was before, while it leaves all that was really objectionable entirely untouched.

An ex post facto law is more extensive. It includes all bills of attainder, and bills of pains and penalties, because they all relate to past transactions, and deprivations on past considerations. But the prohibition of an ex post facto law not only prevents any deprivation by direct legislation, on past transactions, but it forbids any increase of penalty or criminality of an act, even in judicial cognizance, which was either lawful, or