LECTURE XXV. Ex post facto Laws and Bills of Attainder. Their Enactment within the Power of Parliament, but inconsistent with the Principle of Magna Charta as applied to all the Branches of Government in the United States.-Ex post facto Legislation before the Constitution. - Extent and Meaning of the Constitutional Prohibition.- Difference between Ex post facto Laws and Bills of Attainder. - Laws inflicting on a Class Disfranchisement or Professional Disqualification. - The Legislature may regulate the Evidence or the Procedure, provided they do not impair the Rights of the Accused.- The Penalty may be diminished, but must not be aggravated. What constitutes an Aggravation.— May extend the Period of Limitation while it is still running, but cannot deny the Accused its Protection after it has expired. — Effect of giving the Defendant a Choice between the Original and the Substituted Penalties. THE subordination of the General and State Governments to organic laws enacted by the people in their sovereign capacity, permits the application of restraints which can have no place in countries where the government is absolute and wields the entire power of the State. Had the doctrine of Magna Charta that every man shall be tried by his peers -been adhered to, it would have precluded the dangerous practice of inflicting punishment legislatively by bills of attainder, which, used alternately as instruments of kingly power and weapons for the defence of liberty, were always arbitrary, and not infrequently unjust. Though fallen into disuse, they still form an integral part of the English Constitution, and may be applied at any time by Parliament, which may not only find the accused guilty of acts that have previously been defined as crimes, but proceed, ex post facto, to create the offence, convict the offender, and prescribe a new and unheard-of punishment which he had no reason to anticipate when the act was done. And it may also, without BILLS OF ATTAINDER. 545 going to this length, declare a past act criminal and leave the infliction of the penalty to the judiciary. Such legislation was not unknown in this country during the revolutionary struggle, and for some years after its termination; and in Cooper v. Telfair 1 the Supreme Court of the United States sustained an act passed by the Georgia legislature in 1782, declaring that certain persons were guilty of treason, banishing them from the State, and confiscating their lands and chattels, although the Constitution of Georgia provided that the legislative, executive, and judicial departments should be distinct and separate, so that neither should exercise the powers properly belonging to the other. The court held that wherever the legislative power is undefined, it includes the executive and judicial attributes. There was no such definition in the case before them, and the general principles laid down in the Georgia Constitution must be regarded as declaratory, and not as intended to impose an absolute restriction. The question arose before the Constitution of the United States was adopted, and did not depend on its provisions. It was not altogether clear that the court could set aside a statute as unconstitutional; but if it could, the circumstances did not warrant its interposition. Such was not the language of Chatham's magnificent protest against the arbitrary proceedings of the House of Commons in the case of Wilkes, but that "legem facere and legem dicere are powers clearly distinguished from each other in the nature of things," and which the wisdom of the English Constitution sedulously kept asunder. The rule is now established on this basis in the United States.3 The consequences of ascribing such omnipotence to the legislature were forcibly portrayed by Edmund Randolph in addressing the Virginia Convention in 1788, and urged as a conclusive reason for adopting a frame of government that 1 4 Dallas, 14. Thackeray's Life of Chatham, ii. 1391. Greenough v. Greenough, 11 Pa. 489; Reiser v. The Saving Fund, 39 Id. 137, 145; Haly v. Philadelphia, 68 Id. 45; Kelsey v. Kendall, 48 Vt. 24; Black, Constitutional Prohibitions, sect. 194. VOL. I. - 35 would operate as a salutary restraint on the excesses of the several States. The Constitution had been violated "from the year 1776 down to the present time, violations effected through acts passed by the legislature; everything had been drawn into the legislative vortex." The obligations of contracts, the security of titles, the rules which guarded life and liberty, all had been sported with by acts passed under the spur of a real or supposed necessity. There was an instance which he could not recall without horror. It was that of a man, one Josiah Philips, who had been charged in the House of Delegates with having committed various crimes, and who was alleged to be at large and meditating others. On this accusation, unsustained by evidence, a bill of attainder was brought in, read three times in one day, and sent to the Senate, which adopted it soon afterwards, and Philips was thus sentenced and executed without being confronted with his accusers or an opportunity to call witnesses for his defence. There were still a multitude of complaints of the debility of the laws. Justice was in many instances so unattainable that commerce might be said to have entirely ceased. There was no peace in the land. Peace could not co-exist with injustice, licentiousness, insecurity, and oppression.1 Instances of a like kind may be found in the annals of the other States, and Randolph might well insist that the excessive licentiousness which had resulted from the relaxation of the existing system was a cogent reason for the adoption of a Constitution which would secure the citizen in person and estate, and invigorate and restore commerce and industry.2 It is well when the past justifies our preference for existing institutions. But for the restraints imposed by the Constitution of the United States, a convention acting in the name and with the sovereign authority of the people might abrogate the organic law of a State, and confiscate the property of an obnoxious individual, or attaint him, and carry the sentence into execution on the nearest tree or lamp-post. 1 3 Elliott's Debates (2d ed., Phila., 1876), 66. 2 1 Bl. Com. 46. See Green v. Shumway, 39 N. Y. 418. AND EX POST FACTO LAWS. 547 The powers which Parliament may exercise, and which the Constitution of the United States forbids, were described as follows by Mr. Justice Chase in the case of Calder v. Bull:1 "The prohibition against ex post facto laws was introduced for greater caution, and very probably arose from the knowledge that the Parliament of Great Britain claimed and exercised a power to pass such laws, under the denomination of bills of attainder or bills of pains and penalties, the first inflicting capital, and the other a less, punishment. The acts were legislative judgments and an exercise of judicial power. Sometimes they created the crime, by declaring acts to be treason which were not treason when committed. At other times they violated the rules of evidence (to supply a deficiency of legal proof), by admitting one witness when the existing law required two, by receiving evidence without oath, or the oath of the wife against the husband, or other testimony which the courts of justice would not admit. At other times they inflicted punishments where the party was not by law liable to any punishment, and in other cases they inflicted greater punishment than the law annexed to the offence. The ground for the exercise of such legislative power was this: that the safety of the kingdom depended on the death or other punishment of the offender, as if traitors, when discovered, could be so formidable, or the government so insecure." The framers of the Constitution were careful to provide against so great an evil. Section 9 of Article I. accordingly declares that no bill of attainder or ex post facto law shall be passed by Congress, and section 10 extends the prohibition to the States. These clauses have received a restrictive interpretation which narrows their literal signification. Literally, every law passed after the event to which it relates and operating by retroaction is ex post facto. Technically, and as used in the Constitution of the United States, the phrase comprehends only penal legislation rendering an antecedent act punishable in a manner in which it was not punishable 1 3 Dallas, 386. when committed.1 A law divesting a prior vested right— as by abrogating the lien of a judgment, or taking the property of A and conferring it on Bis not, it has been said, within the prohibition.2 The point actually determined in Calder v. Bull was, that a law of Connecticut providing for the re-hearing of a cause which had been already adjudicated, and resulting in a reversal of the prior judgment, did not contravene the constitutional prohibition; but the judges were explicit that a law retrospectively impairing rights that would otherwise have been valid is not ex post facto unless the object is to inflict punishment; and this view is sustained by the general current of decision.3 If the definition given in Calder v. Bull is to be taken literally, and strictly followed, the legislature may evade the prohibition by disguising the intention to punish, and clothing a penal statute in the garb of civil legislation. A law confiscating the property of a citizen is not less clearly punitive because it assumes the form of a declaration that his title is invalid, or that a third person has a better right. It is not the form or pretext, but the effect which should be considered, in determining whether a law is consistent with the provisions by which property is guarded and liberty secured. The nature of a bill of attainder has already been described. The distinction between such a measure and ex post facto legislation is that in the latter the legislature lays down the rule and leaves the application of it to the tribunals, while in the former it assumes the judicial function, and not only enacts, but administers the law. A bill of attainder may nevertheless be ex post facto, and is so when it punishes a lawful act or inflicts a different penalty 1 Calder v. Bull, 3 Dallas, 386; Fletcher v. Peck, 6 Cranch, 87; Grim v. The Weissenberg School District, 57 Pa. 435; Commonwealth v. Bailey, 81 Ky. 395. 2 Watson v. The New York Central R. R., 47 N. Y. 157; Harvey v. Thomas, 10 Watts, 65, 67. Watson v. Mercer, 8 Peters, 88; Carpenter v. Pennsylvania, 17 Howard, 456. |