pass such measures. The next section of the same article, however, says: "No state shall pass any bill of attainder [or] ex post facto law." Hence follows directly the important principle that (as the courts have always held) all prohibitory clauses of the constitution containing no words extending their import bind only the federal powers.1 According to a decision of the supreme court {Cummings vs. State of Missouri, Wallace, IV., 323, 324) the expression "bill of attainder" is to be understood here in the broadest sense, so that it includes also the socalled bills of pains and penalties. In other words, not only can no death sentence be imposed by an act of the legislative power, but,the latter cannot take the general exercise of justice in criminal cases into its own hands. In the United States a punishable crime is only one which is declared to be such by existing laws, and a man accused of such a crime can be made answerable only under existing laws and before a competent court.2 A correct definition of the expression "ex post facto laws" is not to be got by translating and taking the Latin in its literal sense. The framers of the constitution used the Latin words because they desired to speak only of what this technical term means in English law, and not of all retroactive laws. Indeed, all ex post facto laws are retroactive, but all retroactive laws are not ex post

1 It suffices to mention Barron vs. Mayor of Baltimore, Peters, VII., 343.

2 In the so-called Test-Oath Cases, viz.: Cummings vs. State of Missouri, supra, and Ex parte Garland, Wallace, IV., 333, the supreme court gave such a wide scope to this eminently technical expression, that most jurists will probably agree with the minority of the judges. The controversy in the Cummings case was over certain provisions of the Missouri constitution (and in the Garland case over certain federal laws) which made the capacity of occupying an office depend upon taking a test-oath as to non-participation in the rebellion. In both cases five judges were arrayed against four.

facto. The latter relate only to crimes and misdemeanors covered by the criminal law. Neither congress nor the states can give a law a retroactive force in such a way as to make an act, already done and not punishable when done, punishable now; or to increase the punishment or the legal grade of a punishable act; or to lessen the legal conditions of conviction;1 or to withdraw a legally-vested right on account of an action now first made punishable; - or, finally, to deny to a person accused of crime the opportunity of pleading something—for instance, a declaration of amnesty, a former sentence or an acquittal—which would otherwise assure him immunity.3

§ 73. Nobility. Both the United States and the states are forbidden to grant any title of nobility (art. I., sec. 9, § 8,4 and sec. 10, § 1).

§ 74. Religious Liberty. The principle of the separation of church and state is as completely carried out in the United States as it can be in any nation based upon law; but religious liberty is not, as most Europeans believe, guarantied by the constitution. The latter contains only two clauses as to religion. It prohibits a "religious test ... as a qualification to any office or public trust under the United States" (art. VI., § 3).5 The word "test" is unquestionably to be understood in the

1In 1798, in Colder vs. Bull, Dallas, HI., 390, Justice Chase defined these four classes.

2 See the convincing criticism of this part of the Test-Oath Cuses by Pomeroy, pp. 340-347.

3 Cooley, Principles, 286.

4 Here, too, belongs the provision that no officer of the United States "shall, without the consent of the congress, accept of any present, emolument, office or title of any kind whatever, from any king, prince or foreign state."

6 The federal and state officers who must pledge themselves to support the constitution are free to take a mere affirmation in lieu of an oath.

technical sense which it possesses in the ecclesiasticalpolitical history of England, but nevertheless it would be unconstitutional if — for example — faith in God should be declared necessary in order to become a federal officer. The United States are not legally a Christian state; they are not even a theistic state; but just as little are they a pagan state. They are simply a state. The religious convictions of the people and the churches as communities of believers do not exist, so far as the United States are concerned, i. e., all these things lie without their sphere of action.1 The federal government hasonly the powers granted by the constitution, and the latter mentioned religion only because it appeared safer to express explicitly what complete silence would have implied. The second provision also contains but a single prohibition. The first amendment forbids congress to enact any law "respecting an establishment of religion or prohibiting the free exercise thereof."2 "An establishment

1 The attempt has been repeatedly made to bring into the constitution in some form or other a recognition of God, but the people have never taken kindly to the thought, perhaps less because they are quite conscious of the objections to it on principle, and regard them as decisive, than because they consider the matter simply unnecessary.

A treaty concluded with the Bey of Tripoli November 4, 1796, says: "The government of the United States is not in any sense founded on the Christian religion." U. S. Statutes at Large, VIII., 155.

2 The Mormons, on account of this amendment, declare that the laws against their polygamy are unconstitutional. And it has seemed doubtful to many non-Mormons whether congress was authorized to assail this "remnant of barbarism" with penal laws. The question is certainly not wholly without difficulty, for it is well to note that the free "exercise" of a religion cannot be prohibited. But the demands of sound common sense have won the victory over scruples of constitutional law. A state cannot be in duty bound to look with folded arms on the subversion of its fundamental principles of morality because the attack is cloaked under the form of practicing of religion" is also a technical expression borrowed from England, but it must not be understood in its narrowest technical sense. Congress is not only prohibited from making any religion whatever a state religion or any church whatever a state church, but it cannot make any laws favoring one religion or church more than any other. As far as the federal constitution is concerned, not only are all religions and churches tolerated, but they have all perfectly equal rights, inasmuch as congress has no powers whatever in relation to any of them or all of them. On the other hand, neither of the two constitutional provisions as to religion imposes any obligation or limitation upon the states. But the constitutions of the states themselves, without exception, contain provisions substantially the same as those of the federal constitution. This is not, however, because the latter binds them to this. Actually and legally the complete religious liberty

a religious dogma. But although, undoubtedly, no such insane and suicidal obligation can be deduced from this constitutional provision, it must, nevertheless, be admitted that the limits to which congress may proceed, in its application, cannot be defined with absolute certainty. If its application has once become a necessity, only the sound sense of the people can prevent the transgression of the correct line of demarcation on any other occasion. In the United States public opinion offers sufficient security, however, against any such transgression. From a political stand-point it is a more important fact that so far no effective means have been found for suppressing polygamy by legislation. The final reason why all penal laws have remained substantially ineffective is perhaps the unanimity of passive resistance which the Mormons oppose to them. Neither accusers nor witnesses can be found, and there is therefore no opportunity to apply the law. The latest penal act (that of March 22, 1882; the socalled Edmunds bill) punishes polygamy in the territories and in other places under the exclusive jurisdiction of congress with a fine not exceeding $500 and imprisonment for not more than five years, and also deprives a polygamist of the franchise and of the right of occupying any public office.

and separation of church and state exist throughout the Union, but not as an effect of the constitution. The latter guaranties this only so far as the federal government is concerned. The separation of church and state is manifestly not to be understood as implying that the churches can do and not do what they please. As corporations, they are subject like other corporations to the legislative power of the states, especially as to their property. They are also subject to the police power, and they cannot any more than individuals escape from the laws of the state prohibiting and punishing violations of public morals by appealing to their religious convictions.1 § 75. Freedom Of Speech And Of The Press. The general observations in the last paragraph apply here also. Freedom of speech and of the press are guarantied by the constitution, only so far as the federal government is concerned; but they are also guarantied by all the state constitutions.2 It is to be observed that congress is

1 On the ground that the Christian religion was always acknowledged by the common law, and further, that it is the prevailing religion of the United States, the power to punish " blasphemies " has been claimed. The relations of church and state will be more fully discussed in the chapter on the public law of the several states.

2 The provisions in point are collected by Cooley, Constitutional Limitations, 414-417. Hammond, I., 23, § 67, says, nevertheless, in reference to United States vs. Hall, 13 Int. Rev. Record, 182: "The right of freedom of speech, and the right peaceably to assemble and other rights enumerated in the first eight amendments to the constitution, are thereby protected only against the legislation of congress and not against the legislation of the states. These rights, therefore, were not secured to the people of the United States until the fourteenth amendment to the constitution, because till then they might be impaired by state legislation; but now they are not only secured from congressional interference, but by the amendment, from state interference also." He can refer here only to the clause in the first section of the fourteenth amendment, which prohibits the states from making or enforcing " any law which shall abridge the privileges or

« ForrigeFortsett »