the necessities of the case, from the antecedent capacity to acquire and hold additional domain, and from the fact that Congress, as the agent of the whole nation, is the only body which can make laws for the government of communities not organized into states. As the districts acquired by treaty or conquest belong to the whole country, the legislation in respect to them must be for the common benefit, and cannot discriminate in favor of or against the inhabitants or institutions of any particular portion of the United States. In making laws for these territories, Congress is restrained by the negative clauses of the first eight amendments to the Constitution; it cannot deprive a person within their boundaries of life, liberty, or property without due process of law, or do therein any other of the acts inhibited by the Bill of Rights. Property in slaves is recognized and protected by the Constitution; it is of as high a character as property in any other things; Congress cannot discriminate against it. A statute prohibiting slavery in the territories where all citizens have a common right to go and to carry the things owned by them, deprives such citizens of their property without due process of law, and is therefore forbidden by the Bill of Rights, and is void.

§ 498. Such is an outline of the judgment to which a majority of the court assented. I will very briefly examine its positions.

The declaration that the United States may acquire territory to be formed into states, but not to be indefinitely held as colonies, is a proposition clearly without any practical value; it is a rule which cannot by any possibility be enforced. Ter ritory may be acquired, and must be governed by Congress. How long it shall remain in its condition of dependence, or when it shall be erected into a state, is a matter to be deter mined exclusively by the national legislature. Congress cannot be compelled to act; nor can the territories be clothed with the attributes of states without the action of Congress. "New states may be admitted by the Congress into this Union." This language is simply permissive. When the admission shall be effected, and how long it shall be delayed, are matters residing entirely within the Congressional dis

cretion.

The very elaborate argument to show that the special clause of Article IV. applies only to the territory which belonged to the United States at the adoption of the Constitution, and that the power to govern the domain subsequently annexed must be referred to the general capacity to acquire and hold additional soil, seems at best to have been an unnecessary labor. The power to make all needful rules and regulations respecting the territory" cannot be any more comprehensive, cannot include any greater variety of particular measures, than the undefined power of legislation which is conceded to belong to Congress by virtue of the nation's proprietorship in the regions 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 property 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.

consideration of express proThese apply either to ConMany of them have already sections of this chapter. I

§ 500. I shall now pass to the hibitions upon legislative action. gress, or to the states, or to both. been referred to in the foregoing 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

14 Wallace's R. 323, 324.

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 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 1 4 Wallace's R. 387, 388.

2 3 Dallas's R. 389.