a large class of persons, criminals, in time of peace, merely upon the ground that they entertained certain opinions upon questions of church or state; to do this by act of Parliament, without a hearing, or after the death of the alleged offender; to involve the innocent with the guilty in indiscriminate punishment, outrage upon the rights of the people not to be tolerated in our constitution as one of the ernment. was an powers of gov BILLS OF ATTAINDER ABOLISHED. * The constitution provides expressly, that "no bill of attainder, or ex post facto law, shall be passed by Congress; and that no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." There is, therefore, no power in this country to pass any bill of attainder. WHAT IS A BILL OF ATTAINDER? Wherein does it differ from other statutes for the punishment of criminals? A "bill of attainder," in the technical language of the law, is a statute by which the offender becomes "attainted," and is liable to punishment without having been convicted of any crime in the ordinary course of judicial proceedings. If a person be expressly named in the bill, or comes within the terms thereof, he is liable to punishment. The legislature undertakes to pronounce upon the guilt of the accused party. He is entitled to no hearing, when living, and may be pronounced guilty when ab sent from the country, or even long after his death. Lord Coke says that the reigning monarch of England, who was slain at Bosworth, is said to have been attainted by act of Parliament a few months after his death, notwithstanding the absurdity of deeming him at once in possession of a throne and a traitor.* A question has been raised, whether any statute can be deemed a bill of attainder if it inflicts a degree of punishment less than that of death? In technical law, statutes were called bills of attainder only when they inflicted. the penalty of death or outlawry; while statutes which inflicted only forfeitures, fines, imprisonments, and similar punishments, were called bills of "pains and penalties." This distinction was practically observed in the legislation of England. No bill of attainder can probably be found which did not contain the marked feature of the death penalty, or the penalty of outlawry, which was considered as equivalent to a judgment of death. Judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice, was founded on that which was in law deemed a tacit confession of guilt.† BILLS OF PAINS AND PENALTIES, It has been said that within the sense of the constitution, bills of attainder include bills of pains and penalties; and this view seemed to derive support from a remark of a judge of the Supreme Court. "A bill of attainder may affect the life of an individual, or may confiscate his property, or both." ‡ See Story on the Constitution, B. III. Sect. 678. ‡ Fletcher v. Peck, 6 Cranch, R. It is true that a bill of attainder may affect the life of an individual; but if the individual attainted were dead before the passage of the act, as was the case with Richard III., the bill could not affect his life; or if a bill of attainder upon outlawry were passed against persons beyond seas, the life of the party would not be in fact affected, although the outlawry was equivalent in the eye of the law to civil death. There is nothing in this dictum inconsistent with the ancient and acknowledged distinction between bills of attainder and bills of pains and penalties; nothing which would authorize the enlargement of the technical meaning of the words; nothing which shows that Judge Marshall deemed that bills of attainder included bills of pains and penalties within the sense of the constitution. This dictum is quoted by Judge Story," who supposed its meaning went beyond that which is now attributed to it. But he does not appear to sanction such a view of the law. This is the only authority to which he refers; and he introduces the proposed construction of this clause by language which is used by lawyers who have little confidence in the result which the authority indicates, viz., "it seems." No case has been decided by the Supreme Court of the United States which shows that "bills of attainder," within the sense of the constitution, include any other statutes than those which were technically so considered according to the law of England. EX POST FACTO LAWS PROHIBITED. BILLS OF PAINS AND. PENALTIES, AS WELL AS ATTAINDERS, UNCONSTITUTIONAL. It does not seem important whether the one or the other construction be put upon the language of this * Com. Const. III. Ch. 32, Sect. 3. clause, nor whether bills of pains and penalties be or be not included within the prohibition; for Congress can pass no ex post facto law; and it was one of the invariable characteristics of bills of attainder, and of bills of pains and penalties, that they were passed for the punishment of supposed crimes which had been committed before the acts were passed. The clause prohibiting Congress from passing any ex post facto law would doubtless have prevented their passing any bill of attainder; but this prohibition was inserted from greater caution, and to prevent the exercise of constructive powers against political of fenders. No usurpation of authority in the worst. days of English tyranny was more detested by the framers of our constitution than that which attempted to ride over the rights of Englishmen to gratify royal revenge against the friends of free government. Hence in that respect they shut down the gate upon this sovereign power of government. They forbade any punishment, under any form, for crime not against some standing law, which had been enacted before the time. of its commission. They prevented Congress from passing any attainder laws, whereby the accused might be deprived of his life, or his estate, or both, without trial by jury, and by his political enemies; and whereby also his relatives would suffer equally with himself. ATTAINDERS IN THE COLONIES AND STATES. Bills in the nature of bills of attainder were familiar to our ancestors in most of the colonies and in the States which subsequently formed the Union. And several of these acts of attainder have been pronounced valid by the highest courts in these States. By the act of the State of New York, October 22, 1779, the real and personal property of persons adhering to the enemy was forfeited to the State; and this act has been held valid,* and proceedings under acts of attainder were, as the court held, to be construed according to the rules in cases of attainder, and not by the ordinary course of judicial proceedings; † and these laws applied to persons who were dead at the time of the proceedings. I "Bills of attainder," says the learned judge, (in 2 Johnson's Cases,) "have always been construed in this respect with more latitude than ordinary judicial proceedings, for the purpose of giving them more certain effect, and that the intent of the legislature may prevail." "They are extraordinary acts of sovereignty, founded on public policy § and the peace of the community." "The attainted person," says Sir Matthew Hale, "is guilty of the execrable murder of the king." The act of New York, October 22, 1779, attainted, among others, Thomas Jones of the offence of adhering to the enemies of the State. This was a specific offence, and was not declared or understood to amount to treason, because many of the persons attainted had never owed allegiance to the State. [ Bills of attainder were passed not only in New York, but in several other colonies and States, inflicting the penalties of attainder for other crimes than treason, actual or constructive. And the harsh operation of such laws, their injustice, and their liability to be abused * Sleight v. Kane, 2 Johns. Cas. 236, decided in April, 1801. Jackson v. Stokes, 3 Johns. 15. § Foster, 83, 84. |
