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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.1

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 demonstrated 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 2 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 of felony.

A bill of attainder was a legislative conviction for alleged

worse.

The executive, in our governments, is not the sole, it is scarcely the principal, object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for many years. That of the A executive will come in its turn; but it will be at a remote period." Letter to Madison, March 15, 1789, 3 Jefferson's Works, p. 4. See also same volume, pp. 13 and 101; Vol. II. pp. 329, 358.

they may try the opposition of the
subordinate governments. 4. Expe-
rience proves the inefficacy of a bill of
rights. True. But though it is not
absolutely efficacious, under all cir-
cumstances, it is of great potency
always, and rarely inefficacious.
brace the more will often keep up the
building which would have fallen with
that brace the less. There is a re-
markable difference between the char-
acters of the inconveniences which
attend a declaration of rights, and
those which attend the want of it.
The inconveniences of the declaration
are, that it may cramp government in
its useful exertions. But the evil of
this is short-lived, moderate, and rep-
arable. The inconveniences of the
want of a declaration are permanent,
afflictive, and irreparable. They are
in constant progression from bad to

1 For the various recommendations by Massachusetts, South Carolina, New Hampshire, Virginia, New York, North Carolina, and Rhode Island, see 1 Elliott's Debates, 322–334.

2 Constitution of United States, art. 1, § 9.

8 Constitution of United States, art. 1, § 10.

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 most numerous during the reign of Henry VIII., and among the victims was Cromwell, who is said to have first advised that monarch to resort to this objectionable proceeding. Even the dead were attainted, as in the case of Richard III., and later, of the heroes of the Commonwealth. The most atrocious instance in history, however, only relieved by its weakness and futility, was the great act of attainder passed in 1688 by the Par

liament of James II., assembled in Dublin, by which between two and three thousand persons were attainted, their property confiscated, and them selves sentenced to death if they failed to appear at a time named. And, to render the whole proceeding as horrible in barbarity as possible, the list of the proscribed was carefully kept secret until after the time fixed for their appearance! Macaulay's His tory of England, c. 12.

law requiring 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.1 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

1 This was equally true, whether the attainder was at the command of the king, as in the case of Cardinal Pole's mother, or at the instigation of 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 v. 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

reign Sir John had been prominent in the attainder of the unhappy Monmouth. Macaulay's History of England, c. 5.

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[* 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.1 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 I have already mentioned [which were that they declared certain persons attainted and their blood corrupted, so that it had lost all heritable property], which distinguish them from other legislation, and which made them so obnoxious to the statesmen who organized our government: 1. They were convictions and sentences pronounced by the legislative department of the government, instead of the judicial. 2. The sentence pronounced and the punishment inflicted were determined by no previous law or fixed rule. 3. The investigation into the guilt of the accused, if any such were made, was not necessarily or generally conducted in his presence or that of his counsel, and no recognized rule of evidence governed the inquiry." Per Miller, J., in Ex parte Garland, 4 Wall. 388.

1 See Belknap's History of New Hampshire, c. 26; 2 Ramsay's History of South Carolina, 351; 8 Rhode Island Colonial Records, 609; 2 Arnold's History of Rhode Island, 360, 449; Thompson v. Carr, 5 N. H. 510; Sleght v. Kane, 2 Johns. Cas. 236; Story on Const. (4th ed.) § 1344, note. On the general subject of bills of attainder, one would do well to consult, in addition to the cases in 4 Wallace, those of Blair v. Ridgeley, 41 Mo. 63 (where it was very elaborately examined by able counsel); State v. Staten, 6 Cold. 248; Randolph v. Good, 3 W. Va. 551; Er parte Law, decided by Judge Erskine, in the United States District Court of Georgia, May term, 1866; State v. Adaus, 44 Mo. 570; Beirne v. Brown, 4 W. Va. 72; Peerce c. Carskadon, 4 W. Va. 231.

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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 v. Munson, 3 Caines, defend the Constitution of the United 137.

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On the 2d of July, 1862, Congress, by "an act to prescribe an oath of office, and for other purposes," enacted that hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation: I, A B, do solemnly swear or affirm 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. And I do further swear or affirm that, to the best of my knowledge and ability, I will support and

States against all enemies, foreign
and domestic: that I will bear true
faith and allegiance to the same; that
I take this obligation freely, without
any mental reservation or purpose of
evasion; and that I will well and
faithfully discharge the duties of the
office on which I am about to enter,
so help me God." On the 24th of
January, 1865, Congress passed a
supplementary act as follows: "No
person after the date of this act shall
be admitted to the bar of the Supreme
Court of the United States, or at any
time after the 4th of March next shall
be admitted to the bar of any Circuit
or District Court of the United States,
or of the Court of Claims, as an at-
torney or counsellor of such court,
or shall be allowed to appear and to
be heard in any such court, by virtue
of any previous admission, or any
special power of attorney, unless he
shall have first taken and subscribed
the oath" aforesaid. False swearing,
under each of the acts, was made per-
jury. See 12 Statutes at Large, 502;
13 Statutes at Large, 424.
parte Garland, 4 Wall. 333, a ma-
jority of the court held the second of
these acts void, as partaking of the
nature of a bill of pains and penalties,
and also as being an ex post facto

In Ex

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