(2.) As imposing additional punishments to those prescribed when the acts were committed.

These features warranted the legal conclusion that the provision of the State Constitution was in effect an expost facto law.

§ 269. Next, inasmuch as the provision inflicted a penalty by a legislative act, and without trial by judicial process, the result was equivalent to a bill of attainder, and therefore void.

§ 270. From this decision, and also from the decision in the case of ex parte Garland (4 Wall. 333), Chief Justice Chase, Justices Swayne, Davis and Miller dissented.

In the latter case, and by a similar process of reasoning, the Court decided that a statute which required attorneys of the Courts of the United States to take an oath that they had not given aid to the Rebellion in certain specified ways, was a penalty imposed by the legislative will, and consequently that it was unconstitutional and void.

§ 271. A law passed after the commission of an offence, and which in relation to the offence or to its consequences alters the situation of the accused to his disadvantage, is an expost facto law, and void. (Kring v. Missouri, 107 U. S. 221.)

§ 272. A statute which enlarges the class of persons competent to testify is not an expost facto law, although passed after the offences to which the testimony relates were committed. (Hopt v. Utah, 110 U. S. 574.)

§ 273. The opinions given in the several cases cited contain very full expositions of the nature of expost facto laws, the distinction between such laws and retrospective acts, the history of bills of attainder and a specification of the tests by which they may be distinguished from other legislative acts.

CHAPTER XXIV.

CAPITATION AND DIRECT TAXES.

ART. 1, SEC. 9, PAR. 4.

"No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."

§ 274. Under this clause of the Constitution two questions of importance have been raised, considered and settled.

Under the act of 1864 "to provide internal revenue to support the government," a "license tax," subsequently designated a “special tax," was imposed upon various kinds of business, including the sale of spirituous liquors and lottery tickets.

§ 275. In New York and New Jersey the sale of lottery tickets was forbidden, and in Massachusetts the sale of spirituous liquors was forbidden except in special cases.

In each of these States persons who had engaged in the prohibited pursuits were indicted in the Circuit Courts of the United States for non-payment of the special tax levied under the laws of the United States.

§ 276. In each of the cases a demurrer was filed, and upon the ground that the acts were characterized in the State statutes as crimes, either malum in se or malum prohibitum, and that Congress could not authorize that to be done in a State which by the laws of the State was made criminal. It was contended by the counsel for the defendants that "in this repugnancy between an act of Congress raising a revenue from crime in a State, and the legislation of the State suppressing the crime, there can be no doubt of the supremacy of State legislation."

§ 277. On the issue thus raised the Court held that the statute of the United States neither authorized nor prohibited the kinds of business named, but that the tax was levied for purposes of revenue, and that without regard to the legality or illegality of the business under State laws.

Finally, the Court held that the acts of Congress of 1864 and 1866 were in harmony with the Constitution, and with sound public policy. (License Tax Cases, 5 Wall. 462.)

§ 278. The city of Little Rock, Arkansas, having authorized the issue of its notes to the amount of $160,000, the same were issued and put into circulation as currency by the Merchants' National Bank of that city.

A tax of ten per cent upon said sum was levied upon the bank under section 3413 of the Revised Statutes, which provides as follows: "Every national banking association, State bank, or banker, or association, shall pay a tax of ten per centum on the amount of notes of any town, city, or municipal corporation, paid out by them."

§ 279. It was contended by the defendant bank that the city of Little Rock was a municipality and a part of the State government, and that under the decisions which had been made, exempting officers of a State and other instrumentalities of a State government from taxation by the general government, the city of Little Rock, as a part of the State of Arkansas, was not liable to taxation upon its issue of notes as a means of borrowing money.

§ 280. As in the earlier case of the Veazie Bank against Fenno (8 Wall. 533), the Court held that as Congress, "in the exercise of undisputed constitutional powers had undertaken to provide a currency for the whole country," it might "restrain, by suitable enactments, the circulation as money of any notes not issued by its authority." (National Bank v. United States, 101 U. S. 1.)

§ 281. If the point had been sound that the city of Little Rock was a part of the State of Arkansas in its character as

a sovereign State, it would have followed that the issue of the notes in question would have been unconstitutional as an emission of "bills of credit" by State authority. (Craig v. The State of Missouri, 4 Pet. 410; Byrne v. State of Missouri, 8 Pet. 40.)

As early as the year 1796, in the case of Hylton against the United States (3 Dall., 171), the Supreme Court held that a tax on carriages was not a direct tax under the constitution. In the case of Springer against the United States (102 U.S., 586), the Court decided that an income tax was constitutional, and that the only taxes that were "direct taxes under the constitution were capitation taxes and taxes on real estate.

It was held in the Head Money cases that a tax was uniform when the levy was equal upon the same subject matter wherever found. (112 U. S., 580.)

During the term of the Supreme Court for the year 1894-5, two cases were decided by which the conclusions reached in the case of Hylton and in the case of Springer have been reversed. (Pollok v. The Farmers' Loan and Trust Company, and Lewis H. Hyde v. The Continental Trust Company.)

In these cases it has been held, by a divided court, that a tax upon the rent or income of land and a tax upon the income of personal estate are direct taxes, and can only be assessed upon the States and by the rule of apportionment.

CHAPTER XXV.

TAX ON EXPORTS.

ART. 1, SEC. 9, PAR. 5.

"No tax or duty shall be laid on articles exported from any State."

§ 282. The State of Pennsylvania, by an act passed in 1803, made certain regulations in regard to pilots and pilotage on all vessels exceeding seventy-five tons burthen, and sailing from or bound to any port not within the River Delaware. In the case of Cooley against the Board of Wardens of Port of Philadelphia (12 How. 299), two questions under the Constitution were raised and considered, viz. :

(1.) Were the pilot fees prescribed a tax or duty on articles exported from the State, and, consequently, a violation of clause five, section nine, article one of the Constitution?

(2.) Was the statute an infringement upon the power of Congress to regulate commerce with foreign nations and among the several States?

§ 283. To each of these questions the Court gave a negative answer. The answer to the first question was absolute and unconditional.

§ 284. As to the second question, the exclusive power of Congress to legislate upon the subject of pilots and pilotage was asserted, but the statute of Pennsylvania was sustained as warranted by the statute of 1789. (1 Stat. 54.) That statute which is now in force (R. S. 4235) provides that all pilots "shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively enact for that purpose.'

§ 285. Said the Court, through Mr. Justice Curtis, "the