due to the United States, is claimed under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States or in any department thereof. "Congress inust possess the choice of means and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution. It is under the same implied authority, that the United States have any right even to sue in their own courts; for an express power is no where given in the constitution, though it is clearly implied in that part respecting the judicial power. And congress may not only authorize suits to be brought in the name of the United States, but in the name of any artificial person (such as the post-master general) or natural person for their benefit. Indeed, all the usual benefits appertaining to a personal sovereign in relation to contracts, and suing and enforcing rights, so far as they are within the scope of the powers of the government, belong to the United States, as they do to other sovereignties. The right of making contracts and instituting suits is an incident to the general rights of sovereignty; and the United States being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers, and enforce the observance of them by suits and judicial process."

§ 228. We have thus far considered the clauses of the federal constitution containing express grants of powers to congress, and the judicial decisions under them, and incidentally the limitations upon the state sovereigntics arising out of those grants. We are in the next place to consider the restrictions laid upon the legislative power of the Union, under express prohibitions found in

the same instrument. It is provided that "the immigration or importation of such persons as any of the states shall think proper to admit shall not be prohibited by the congress, prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person." This limitation of the powers of congress has now expired by its own limitation, hence no question will be likely to arise under it.

§ 229. "The writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it." This clause was introduced into the constitution as one essential to personal liberty of the citizen. The necessity and importance of such a writ has been clearly and beautifully expressed by the learned commentator on English law, who says: "to bereave a man of life, or by violence to confiscate his estate without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the kingdom. But confinement of the person by secretly hurrying him to the jail, where his sufferings are unknown and forgotten is a less public, a less striking, and therefore a more dangerous engine of arbitrary force. The writ which it was the design of this clause to secure is that known to the common law as the writ of habeas corpus ad subjiciendum, which is directed to one detaining another, commanding the production of the person detained, and the cause of such caption and detention, ad ficiendum, subjiciendum, et recipiendum, to do, submit, and receive whatever the court or officer awarding such writ should consider in that behalf.

§ 230. "No bill of attainder, or ex post facto law shall be passed." The first question which arises under this clause is, what is to be considered as a bill of attainder within the meaning of this clause. A bill of attain

der, as understood in England, is a special act of parlia ment which inflicts capital punishment upon persons supposed to be guilty of high crimes, and that without any conviction by the ordinary judicial tribunals. Wooddeson says "such acts of the supreme power are with us called bills of attainder which are capital sentences, and bills of pains and penalties which inflict a milder degree of punishment. In these instances the legislature assume judicial magistracy, weighing the enormity of the charge and the proof in support of it, and then de ciding the political necessity and moral fitness of the penal judgment."(a) Thus it will be perceived, that in England a distinction was made between bills of attainder and bills called bills of pains and penalties. The former inflicting capital punishment, the other a milder one than death. But the word as used in this clause of the constitution has been held to include not only a bill of attainder as understood in England, but also all bills which there, would be regarded as bills of pains and penalties. In Fletcher v. Peck,(b) the court say: "A bill of attainder may affect the life of an individual or may confiscate his property, or may do both. In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained.

§ 231. The second question which arises for consideration under this clause is, what is an "ex post facto" law, within the meaning of the constitution? The meaning to be given to this in a literal sense would be, a law passed after the act is done. In a comprehensive sense, the term "ex post facto law," embraces all retrospective laws, or laws governing or controlling past transactions, whether they are of a civil or criminal nature. Laws, however, which mitigate the character or punishment of a crime already committed may not

(a) 2 Woodd. 1. 41, p. 371.

(b) 6 Cranch, 138.

fall within the prohibition contained in this clausc, for they are in favor of the citizen. Ex post facto laws relate only to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively. In the case of Fletcher v. Peck,(a) Chief Justice Marshall, in delivering the opinion of the court, says; "An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed." In the case of Calder v. Bull, (b) Chase, Justice, in delivering the opinion, defines ex post facto laws to be, 1st, Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes the 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 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.

§ 232. It is true, Mr. Justice Johnson, in a note to 2 Peters, 681, in the exposition of this phrase in the constitution, in reviewing this case, attempts to show that ex post facto laws include not only those which relate to criminal or penal statutes, but also to statutes affecting civil rights, he says: "The case of a legislature declaring a void deed to be a valid deed, is a striking one to show, both that the prohibition to pass laws violating the obligation of contracts is not a sufficient protection to private rights, and that the policy and reason of the prohibition to pass laws violating the obligation of contracts, is not a sufficient protection to private rights, and

(a) 6 Cranch, 87; 2 Peter's Con. Rep. 308. (4) 3 Dallas, 386.

that the policy and reason of the prohibition to pass an ex post facto law, does extend to civil as well as criminal cases, the restriction not to pass ex post facto laws could not be limited to criminal statutes without restricting the protection of the constitution to bounds, that would import a positive absurdity." "Many statutes have a retrospective operation, which cannot be supposed to be included in this constitutional prohibition. Of this description are all acts legalizing past proceedings; all acts of relief, or pardon, or indemnity; all acts which mitigate the malignity of an offence, or mollify the rigor of the criminal law, and many others which might be enumerated. These are all retrospective, but are not in the constitutional sense ex post facto. The words, "er post facto," have a definite, technical signification. The plain and obvious meaning of this prohibition is, that the legislature shall not pass any law, after a fact done by any citizen, which shall have relation to that fact, so as to punish that which was innocent when done, or to add to the punishment of that which was criminal, or to increase the malignity of a crime, or to retrench the rules of evidence, so as to make conviction more easy. This definition of an ex post facto law is sanctioned by long usage. The words had acquired an established, definite, technical signification, long before British jurisprudence was known, or the English language spoken in America. In this sense the words have been used and understood by the most celebrated statesmen and jurists, both here and in England."

§ 233. His view, however, as regards civil rights, is overruled by the whole current of decisions on this subject. Judge Chase in the case above cited, says:-"If the prohibition against making 'ex post facto' laws was intended to secure personal rights from being affected or injured by such laws, and the prohibition is sufficiently extensive for that ob