priest of the Romish Church, was indicted, tried, and convicted, for exercising his profession without having taken the oath required. The highest court of Missouri having sustained this conviction, Mr. Cummings brought his case to the Supreme Court of the United States for review. It was claimed. that these provisions of the state constitution were void, on the ground that they were bills of attainder and ex post facto laws.

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§ 505. Ex parte Garland: Statement of facts. The second case was Ex parte Garland,1 being an application by Mr. Garland for permission to practice in the Supreme Court of the United States as an attorney and counsellor, without taking the oath required by a statute of Congress and the rules of the court. Mr. Garland had been admitted as an attorney and counsellor of the court in 1860. He took a part in the rebellion, having been a member of the Confederate Congress from May, 1861, until the downfall of the Confederacy. In July, 1862, Congress passed a statute requiring all United States officers to take the following oath: “I do solemnly swear that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought, nor accepted, nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto." In January, 1865, Congress passed a further statute which declared that, "No person after the date of this act shall be admitted to the bar of the Supreme Court of the United States, or to the bar of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counsellor of such court, or shall be allowed to appear and be heard in such court, by virtue of any previous admission," without having first taken the oath above set forth.

14 Wall. 333.

In July, 1865, Mr. Garland received from the President a pardon, of which the operative words were, that the President did thereby "grant to the said A. H. Garland a full pardon and amnesty for all offences by him committed, arising from participation, direct or implied, in the said rebellion."

Mr. Garland applied to the court for permission to resume and continue his practice at the bar, without taking the abovementioned oath. He based his application on two grounds: that the pardon restored him to all privileges and removed all disabilities; if not, that the statute of Congress requiring the oath was void, being a bill of attainder, and an ex post facto law.

§ 506. Decision of the Court. Five members of the court, Field, Clifford, Nelson, Grier, and Wayne, JJ., held in the Cummings case that the provisions of the Missouri Constitution, so far as they applied to him, were null and void, being both a bill of attainder and an ex post facto law. Four judges, Chase, C. J., and Swayne, Davis, and Miller, JJ., dissented, and were of opinion that the provisions in question were neither a bill of attainder, nor an ex post facto law.

The same majority held in the Garland case, that the statute of Congress was both a bill of attainder and an ex post facto law, so far as it affected him and others in the same situation, and that the President's pardon relieved him from all disabilities which could have attached by virtue of his participation in the rebellion.

§ 507. Opinions and arguments of the Court. I pass by at present all portions of the judgments except those which consider the question whether the legislation under review came within the description of bills of attainder. Mr. Justice Field delivered the opinion of the court in each case. In the Cummings case, after maintaining the proposition, that to deprive a person of an office or profession, or to prevent him from engaging in an office or profession, was to impose a penalty or punishment upon him; and after giving the definition of bills of attainder quoted in § 501, he proceeds: 1 "If the clauses of the second article of the constitution of Missouri, to which

1 4 Wall. 324.

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 could 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.

§ 508. The results which would 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 or 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 only 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 law-maker in the supposed case 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. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding."

In the Garland case, the court say on this point, that the reasoning employed in Cummings v. The State of Missouri, applies with equal force there, and leads to the same conclusion.

It will, therefore,

§ 509. Opinion of the Minority. Mr. Justice Miller delivered one opinion of the dissenting judges, applicable to both cases. After describing bills of attainder in the language already quoted (§ 502), he proceeds: "It remains to inquire whether, in the act of Congress under consideration (and the remarks apply with equal force to the Missouri constitution), there is found any one of these features of bills of attainder; and if so, whether there is sufficient in the act to bring it fairly within the description of that class of bills. It is not claimed that the law works a corruption of blood. be conceded at once, that the act does not contain this leading feature of bills of attainder. Nor am I capable of seeing that it contains a conviction or sentence of any designated person or persons. It is said that it is not necessary to a bill of attainder that the party to be affected should be named in the act, and the attainder of the Earl of Kildare and his associates is referred to as showing that the act was aimed at a class. It is very true that bills of attainder have been passed against persons by some description, when their names were unknown. But in such cases the law leaves nothing to be done to render its operation effectual, except to identify those persons. Their guilt, its nature, and its punishment are fixed by the statute, and only their personal identity remains to be made out. Such was the case alluded to. The act declared the guilt and punishment of the Earl of Kildare, and all who were associated with him in his enterprise; and all that was required to en1 4 Wall. 389.

sure their punishment was to prove that association. No person is pointed out in the act of Congress, either by name or by description, against whom it is to operate. The oath is only required of those who propose to accept an office or to practise law; and as a prerequisite to the exercise of the functions of the lawyer, or the officer, it is demanded of all persons alike. It is said to be directed, as a class, to those alone who were engaged in the rebellion; but this is manifestly incorrect, as the oath is exacted alike from the loyal and disloyal, under the same circumstances, and none are compelled to take it. Neither does the act declare any conviction either of persons or classes. If so, who are they, and of what crime are they declared to be guilty? Nor does it pronounce any sentence, or inflict any punishment. If by any possibility it can be said to provide for conviction and sentence, though not found in the act itself, it leaves the party himself to determine his own guilt or innocence, and pronounce his own sentence. It is not, then, the act of Congress, but the party interested, that tries and condemns. We shall see, when we come to the discussion of this act in relation to ex post facto laws, that it inflicts no punishment. A statute, then, which designates no criminal, either by name or description, which declares no guilt, pronounces no sentence, and inflicts no punishment, can in no sense be called a bill of attainder."

§ 510. It is certainly proper to express an opinion upon the correctness of decisions so important as these. It can hardly be said that the judgments of the court thus rendered, have established the doctrine contained in them. A ruling upon a question never before presented, made by a bare majority of the judges, is certainly law for the parties litigant; but neither in England nor in America would the law for the whole country be considered as definitively settled by such an adjudication; the question would still be treated as open to discussion. I cannot resist the conviction, that the court has fallen into a grave error, and that the positions taken by the dissenting judges are entirely correct. Neither the clauses in the But both of the foregoing decisions were directly affirmed in Pierce b. Carskadon, 16 Wall. 234 (1872), Bradley, J., alone dissenting. See Blair v. Ridgeley, 41 Mo. 63; Drehman v. Stiffle, 8 Wall. 595. ED.

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