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* The want of a bill of rights was, therefore, made the [* 259] ground of a decided, earnest, and formidable opposition to the confirmation of the national Constitution by the people ; and its adoption was only secured in some of the leading States in connection with the recommendation of amendments which should cover the ground.
The clauses inserted in the original instrument, for the protection of person and property, had reference mainly to the action of the State governments, and were made limitations upon their power. The exceptions embraced a few cases only, in respect to which the experience of both English and American history had forcibly démonstrated the tendency of power to abuse, not when wielded by a prince only, but also when administered by the agencies of the people themselves.
Bills of attainder were prohibited to be passed, either by the Congress? or by the legislatures of the several States. Attainder, in a strict sense, means an extinction of civil and political rights and capacities ; and at the common law it followed, as of course, on conviction and sentence to death for treason; and, in greater or less degree, on conviction and sentence for the different classes
A bill of attainder was a legislative conviction for alleged
they may try the opposition of the The executive, in our governsubordinate governments. 4. Expe- ments, is not the sole, it is scarcely rience proves the inefficacy of a bill of the principal, object of my jealousy. rights. True. But though it is not The tyranny of the legislatures is the absolutely efficacious, under all cir- most formidable dread at present, and cumstances, it is of great potency will be for many years. That of the always, and rarely inefficacious. Å executive will come in its turn; but it brace the more will often keep up the will be at a remote period.” Letter building which would have fallen with to Madison, March 15, 1789, 3 Jefferthat brace the less. There is a re- son’s Works, p. 4. See also same markable difference between the char- volume, pp. 13 and 101 ; Vol. II. pp. acters of the inconveniences which 329, 358. attend a declaration of rights, and 1 For the various recommendations those which attend the want of it. by Massachusetts, South Carolina, The inconveniences of the declaration New Hampshire, Virginia, New York, ate, that it may cramp government in North Carolina, and Rhode Island, see its useful exertions. But the evil of 1 Elliott's Debates, 322–334. this is short-lived, moderate, and rep- 2 Constitution of United States, arable. The inconveniences of the art. 1, $ 9. want of a declaration are permanent, 8 Constitution of United States, afilietive, and irreparable. They are art. 1, § 10. in constant progression from bad to
crime, with judgment of death. Such convictions have not been uncommon under other governments, and the power to pass these bills has been exercised by the Parliament of England at some
periods in its history, under the most oppressive and [* 260] unjustifiable * circumstances, greatly aggravated by an
arbitrary course of procedure, which had few of the incidents of a judicial investigation into alleged crime. For some time before the American Revolution, however, no one had attempted to defend it as a legitimate exercise of power; and if it would be unjustifiable anywhere, there were many reasons why it would be specially obnoxious under a free government, and why consequently its prohibition, under the existing circumstances of our country, would be a matter of more than ordinary importance. Every one must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited, – the very class of cases most likely to be prosecuted by this mode. And although it would be conceded that, if such bills were allowable, they should properly be presented only for offences against the general laws of the land, and be proceeded with on the same full opportunity for investigation and defence which is afforded in the courts of the common law, yet it was remembered that in practice they were often resorted to because an obnoxious person was not subject to punishment, under the general law, or because, in proceeding against him by this mode, some rule of the common
1 Cases of this description were liament of James II., assembled in most numerous during the reign of Dublin, by which between two and Henry VIII., and among the victims three thousand persons were attainted, was Cromwell, who is said to have their property confiscated, and themfirst advised that monarch to resort to selves sentenced to death if they failed this objectionable proceeding. Even to appear at a time named. And, to the dead were attainted, as in the case render the whole proceeding as borriof Richard III., and later, of the ble in barbarity as possible, the list heroes of the Commonwealth. The of the proscribed was carefully kept most atrocious instance in history, secret until after the time fixed for however, only relieved by its weak- their appearance ! Macaulay's Hisness and futility, was the great act of tory of England, c. 12. attainder passed in 1688 by the Par
law requiriug a particular species or degree of evidence might be evaded, and a conviction secured on proofs that a jury would not be suffered to accept as overcoming the legal presumption of innocence. Whether the accused should necessarily be served with process; what degree or species of evidence should be required; whether the rules of law should be * fol- [* 261] lowed, either in determining what constituted a crime, or in dealing with the accused after conviction, - were all questions which would necessarily address themselves to the legislative discretion and sense of justice ; and the very qualities which are essential in a court to protect individuals on trial before them against popular clamor, or the hate of those in power, were precisely those which were likely to prove weak or wanting in the legislative body at such a time. And what could be more obnoxious in a free government than the exercise of such a power by a popular body, controlled by a mere majority, fresh from the contests of exciting elections, and quite too apt, under the most favorable circumstances, to suspect the motives of their adversaries, and to resort to measures of doubtful propriety to secure party ends?
Nor were legislative punishments of this severe character the only ones known to parliamentary history; there were others of a milder form, which were only less obnoxious in that the consequences were less terrible. Those legislative convictions which imposed punishments less than that of death were called bills of pains and penalties, as distinguished from bills of attainder ; but the constitutional provisions we have referred to were undoubtedly aimed at any and every species of legislative punishment for criminal or supposed criminal offences; and the term “ bill of attainder" is used in a generic sense, which would include bills of pains and penalties also.2
* This was equally true, whether reign Sir John had been prominent in the attainder was at the command of the attainder of the unhappy Monthe king, as in the case of Cardinal mouth. Macaulay's History of EngPole's mother, or at the instigation of land, c. 5. the populace, as in the case of Went- 2 Fletcher v. Peck, 6 Cranch, 138; worth, Earl of Strafford. The last Story on Constitution, § 1344; Cuminfliction of capital punishment in mings v. Missouri, 4 Wall. 277 ; Ex England, under a bill of attainder, parte Garland, 4 Wall. 333 ; Drehman was upon Sir John Fenwick, in the 1. Stifle, 8 Wall. 595, 601. “I think reign of William and Mary. It is it will be found that the following worthy of note that in the preceding comprise those essential elements of
[* 262] * The thoughtful reader will not fail to discover, in the
acts of the American States during the Revolutionary period, sufficient reason for this constitutional provision, even if the still more monitory history of the English attainders had not been so freshly remembered. Some of these acts provided for the forfeiture of the estates, within the Commonwealth, of those British subjects who had withdrawn from the jurisdiction because not satisfied that grievances existed sufficiently serious to justify the last resort of an oppressed people, or because of other reasons not satisfactory to the existing authorities; and the only investigation provided for was an inquiry into the desertion. Others mentioned particular persons by name, adjudged them guilty of adhering to the enemies of the State, and proceeded to inflict punishment upon them, so far as the presence of property within the Commonwealth would enable the government to do so. These were the resorts of a time of extreme peril; and if possible to justify them in a period of revolution, when every thing was staked on success, and when the public safety would not permit too much weight to scruples concerning the private rights of those who were not aiding the popular cause, the power to repeat such acts under any conceivable circumstances in which the country could be placed again was felt to be too dangerous
bills of attainder, in addition to those 1 See Belknap's History of New I have already mentioned (which were Hampshire, c. 26; 2 Ramsay's Histhat they declared certain persons at- tory of South Carolina, 351 ; 8 Rhode tainted and their blood corrupted, so Island Colonial Records, 609; 2 Arthat it had lost all heritable property), nold's History of Rhode Island, 360, which distinguish them from other 449; Thompson o. Carr, 5 N. H. 510; legislation, and which made them so Sleght v. Kane, 2 Johns. Cas. 236; obnoxious to the statesmen who organ- Story on Const. (4th ed.) $ 1344, note. ized our government: 1. They were On the general subject of bills of convictions and sentences pronounced attainder, one would do well to conby the legislative department of the sult, in addition to the cases in 4 government, instead of the judicial. Wallace, those of Blair v. Ridgeley, 2. The sentence pronounced and the 41 Mo. 63 (where it was very elabpunishment inflicted were determined orately examined by able counsel); by no previous law or fixed rule. 3. State v. Staten, 6 Cold. 248; RanThe investigation into the guilt of the dolph v. Good, 3 W. Va. 551; Es accused, if any such were made, was parle Law, decided by Judge Erskine, not necessarily or generally conducted in the United States District Court of in his presence or that of his counsel, Georgia, May term, 1866; State t. and no recognized rule of evidence Adams, 44 Mo. 570; Beirne r. Brown, governed the inquiry." Per Miller, 4 W. Va. 72 ; Peerce c. Carskadon, J., in Ex parte Garland, 4 Wall. 388. 4 W. Va. 231.
to be left in the legislative hands. So far as proceedings had been completed under those acts, before the treaty of 1783, by the actual transfer of property, they remained valid and effectual afterwards ; but so far as they were then incomplete, they were put an end to by that treaty.1
The conviction of the propriety of this constitutional provision has been so universal, that it has never been questioned, either in legislative bodies or elsewhere. Nevertheless, cases have recently arisen, growing out of the attempt to break up and destroy the government of the United States, in which the Supreme Court of * the United States has adjudged certain action [* 263] of Congress to be in violation of this provision and consequently void. The action referred to was designed to exclude
1 Jackson 1. Munson, 3 Caines, defend the Constitution of the United 137.
States against all enemies, foreign . On the 2d of July, 1862, Con- and domestic: that I will bear true gress, by “ an act to prescribe an oath faith and allegiance to the same; that of office, and for other purposes,' I take this obligation freely, without enacted that "hereafter every person any mental reservation or purpose of elected or appointed to any office of evasion; and that I will well and honor or profit under the government faithfully discharge the duties of the of the United States, either in the office on which I am about to enter, civil, military, or naval departments so help me God.” On the 24th of of the public service, excepting the January, 1865, Congress passed a President of the United States, shall, supplementary act as follows: “No before entering upon the duties of person after the date of this act shall such office, take and subscribe the be admitted to the bar of the Supreme following oath or affirmation: I, A B, Court of the United States, or at any do solemnly swear or affirm that I have time after the 4th of March next shall never voluntarily borne arms against be admitted to the bar of any Circuit the United States since I have been or District Court of the United States, a citizen thereof; that I have volun- or of the Court of Claims, as an attarily given no aid, countenance, torney or counsellor of such court, counsel, or encouragement to persons or shall be allowed to appear and to engaged in armed hostility thereto; be heard in any such court, by virtue that I have neither sought nor ac- of any previous admission, or any cepted, nor attempted to exercise, the special power of attorney, unless he functions of any office whatever, under shall have first taken and subscribed any authority or pretended authority the oath” aforesaid. False swearing, in hostility to the United States; that under each of the acts, was made perI have not yielded a voluntary support jury. See 12 Statutes at Large, 502; to any pretended government, author- 13 Statutes at Large, 424. In Ex ity, power, or constitution within the parte Garland, 4 Wall. 333, a maUnited States, hostile or inimical jority of the court held the second of thereto. And I do further swear or these acts void, as partaking of the affirm that, to the best of my knowl. nature of a bill of pains and penalties, edge and ability, I will support and and also as being an ex post facto