Say:

pass any bill of attainder or ex post facto law;" that the clause of the Missouri Constitution prescribing the oath and forbidding the doing of the acts referred to, save on condition of taking the oath, was a bill of attainder, which the court defined to be a legislative Act which inflicts punishment without a judicial trial; and that, being an Act imposing a punishment, by way of disqualifying from office or from the pursuit of a lawful occupation, for an act which was not punishable at the time the act was committed, or imposing additional punishment to that then prescribed, it was an ex post facto law. The court, per Field J., "The clauses in the Missouri Constitution which are the subject of consideration do not in terms define any crimes, or declare that any punishment shall be inflicted; but they produce the same result upon the parties against whom they are directed as though the crimes were defined and the punishment was declared. They assume that there are persons in Missouri who are guilty of some of the acts designated. They would have no meaning in the Constitution were not such the fact. They are aimed at past acts, and not future acts. They were intended especially to operate upon parties who, in some form or manner, by actions or words, directly or indirectly, had aided or countenanced the rebellion, or had endeavored to escape the proper responsibilities or duties of a citizen in time of war; and they were intended to operate by depriving such persons of the right to hold certain offices and trusts, and to pursue their ordinary and regular avocations. This deprivation is punishment. Nor is it any less so because a way is opened for escape from it by the expurgatory oath. The framers of the Constitution of Missouri knew at the time that whole classes of individuals would be unable to take the oath prescribed. To them there is no escape provided; to them the deprivation was intended to be and is absolute and perpetual. To make the enjoyment of a right dependent upon an impossible condition is equivalent to an absolute denial of the right under any condition, and such denial, enforced for a past act, is nothing less than punishment imposed for that act. It is a misapplication of terms to call it anything else.

"Now some of the acts to which the expurgatory oath is directed were not offences at the time they were committed. It was no offence against any law to enter or leave the State of Missouri

for the purpose of avoiding enrollment or draft in the military service of the United States, however much the evasion of such service might be the subject of moral censure. Clauses which prescribe a penalty for an act of this nature are within the terms of the definition of an ex post facto law, they impose a punishment for an act not punishable at the time it was committed.'

"Some of the acts at which the oath is directed constituted high offences at the time they were committed, to which, upon conviction, fine and imprisonment or other heavy penalties were attached. The clauses which provide a further penalty for these acts are also within the definition of an ex post facto law, • they impose additional punishment to that prescribed when the act was committed.'

"And this is not all. The clauses in question subvert the presumptions of innocence, and alter the rules of evidence which heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable. They assume that the parties are guilty; they call upon the parties to establish their innocence; and they declare that such innocence can be shown only in one way, by an inquisition, in the form of an expurgatory oath, into the consciences of the parties." 1

The reasoning of the court in this case is equally applicable to the oath prescribed in the other State Constitutions referred to, excepting, perhaps, those framed by the reconstruction Conventions. The action of Congress in calling those bodies, irregular at best,2 was hardly rendered more so by a provision for submitting their work to the people, in a manner demanded by political necessity, as calculated to secure the supremacy of those loyal to the Union.

§ 509 b. In the provisions of some of the States for submitting Constitutions framed during or just after the late civil war, they were to be submitted to the qualified voters of the State, but with the proviso that should persons otherwise entitled to vote at elections be absent from the State, as soldiers in the armies of the United States, their votes might be received at the points where the armies were encamped, and apparatus was provided for taking such votes, and reporting them to the State authori

1 Cummings v. Missouri, ubi sup.

2 See ante, § 253.

ties at home. Such provisions were adopted in the Constitutions of Nevada and Maryland, 1864, Missouri, 1865, and Tennessee, 1866.1 Were a legislature or a Convention to adopt such a law or ordinance at the present time, when arma silent inter leges, not a voice would be raised in favor of the constitutional competence of either body to take such action. But, under the circumstances in which the States named were then laboring, a civil war still raging, or, though nominally ended, not having as yet given place to a stable peace, or been followed by a reconstruction of the shattered institutions of the rebel States, much may be pardoned to the errors of men struggling to maintain the substantial rights of the people, imperilled by the return to their homes of multitudes of citizens fresh from armed conflict to subvert those rights. But while this may morally furnish an excuse for the Acts or Ordinances in question, it forms legally no justification for them whatever. So clear is this that it may be confidently predicted that the spectacle will never again be witnessed of commissioners from New England gathering in the far Southwest the votes of New England men domiciled or commorant there. The Constitutions of the States, expressly or by clear implication, all require, as a condition of the right to vote at an election therein, an actual residence within their respective boundaries. A law permitting the reception of votes of supposed electors beyond those boundaries, without inquiry whether the ani mus revertendi existed or not, assumes that animus as a fact, contrary, in a great number of cases, to the real intention of the voters. It is well known that, at the close of the war, many Union soldiers remained at the South when their regiments were disbanded there. To reckon such persons as still resident citizens of the Northern States in which they enlisted was to violate the only rational presumption in the case, that they intended

1 A similar provision was contained in the Act calling the New York Convention of 1867. See Act of March 29, 1867, secs. 2 and 5. In like manner, the enabling Act of Congress, under which the Nevada Convention of 1864 assembled, gave the Convention express authority to receive the votes of soldiers in the Federal armies, within or without the said Territory, upon the question of the adoption of the Constitution. As no submission of the Constitution framed by the Convention to the people of the Territory was strictly necessary, but only to the Congress, the irregularity of taking the soldiers' votes was of less importance. It was enough that the Convention should adopt and Congress approve. See § 495, ante.

from the first what they finally did, namely, to take up their permanent residence at the South. It should be added, however, that the power of a Convention to provide for receiving the votes of soldiers on foreign service, in future elections, to occur after the adoption of the Constitution providing therefor, is not now denied, but only the power of such a body, without constitutional authority, to submit the Constitution, for adoption or rejection, to voters residing abroad, though in the public service of the country.

§ 510. III. We are now to determine the nature of the act performed by the persons or body to whom submission is made.

A convenient mode of conducting this inquiry will be to pass. in review the various departments of a government, and to select from amongst them that one whose acts and functions. correspond with those of the people in the act of passing upon a fundamental law.

The act in question must, I think, be comprised within one of the three classes of acts known as legislative, executive, and judicial. Let us see to which it belongs, commencing with the last.

(a). When the people pass upon a Constitution, the act done by them is so palpably not of a judicial character, that I spend no time in comparing or contrasting it with the exercise of judicial power.

(b). Understanding by the term executive acts, such as are usually performed by our executive magistrates, there are of such acts three separate classes: 1, administrative acts, relating to the carrying of laws into practical effect; 2, acts involving the exercise of the official negative, or veto; and, 3, acts of authentication, such as the signing of bills, &c. Does the act in question belong to either of these classes?

1. It cannot be pretended that the act of the people, in the case supposed, is an act of administration, which is possible only when the law to which it relates has been passed and approved. The purpose of an administrative act is to give to a law, already complete as such, the practical operation, without which it would remain a dead letter in the statute book. This is equally true of municipal laws, strictly so called, and of organic or fundamental laws.

§ 511. 2. Though the act of the people we are considering bears

some resemblance to the exercise of the negative or veto power, still I am satisfied it is radically different from it; and the result is the same, whether it be compared with the true veto, as exercised by the Roman Tribunes, by the individual members of the Polish Diets, or by the English monarchs, or with the qualified veto, more properly called the negative, familiar to us in America. The veto proper was an absolute interdict upon the measure proposed, and it was nothing more. It never ratified or sanctioned, but always forbade. It consequently made of every functionary intrusted with the power a coördinate department with the legislature in the matter of rejecting, though not in that of confirming, laws. The negative of an American President or Governor is somewhat similar in its nature, but is much less extensive in its effects. It is, like that, a mere interdict; but it is an interdict that is only provisional, having the effect simply of compelling a reconsideration of the measure to which it has been applied, and, in the vote to be taken upon it, of enhancing, as if by a temporary amendment to the Constitution, the majority necessary to carry it. In most of the State Constitutions, as in that of the United States, it is provided, that a bill "returned with the objections" of the Executive may, notwithstanding, become a law, if, on a reconsideration, it be passed by a two-thirds vote in both houses.

That a vote of the people upon a Constitution is not in character like either of these executive acts, is perceivable at a glance. The vote of the people may be in the negative, or it may be in the affirmative; and in either event it is absolute.

Again both the veto proper and the negative of an American executive officer, operate only upon a bill passed through all the forms of a law, by the two houses of the legislature, and submitted to him for his official sanction. It is impossible that a measure not thus originating should be the subject of the veto or of the negative. With a Constitution submitted to a vote of the people, it is different. A Convention might reject a particular form of a Constitution, and adopt and submit to the people another; but if the legislature were, in the mean time, before the vote upon it, to submit for the consideration of the people the rejected Constitution, it might be competent for them, at the same election, to adopt the latter and reject the former.