that: "No bill of attainder or ex post facto law shall be passed." Bills of attainder are enactments of the legislative department of the government, accusing persons of crime, convicting them thereof, and fixing the penalty therefor. When the penalty imposed is less than that of death, bills of attainder are also called bills of pains and penalties. Bills of attainder had their origin in England. "A Bill of attainder differs from an impeachment thus: Impeachment is a judicial proceeding in which the commons, 'the most solemn grand inquest of the whole kingdom,' are prosecutors, supporting their accusation by evidence and the lords are the sole judges. Attainder is a legislative act, which must pass through the same stages as any other Act of Parliament. It may be introduced in either the Lords or Commons, and after having passed through both houses, receives the Royal assent. No evidence is necessarily adduced to support it. It is analogous to a bill of pains and penalties, and was originally intended for the punishment of those who fled from justice. The earliest notable instance of its employment was in the banishment by Parliament of the two Despencers, father and son in the 15th Edward II, A. D., 1321.' 23 The last instance in English history of the use of a Bill of Attainder was in the case of Sir John Fenwick in 1697. "The proceedings of Parliament in passing bills of attainder, and of pains and penalties, do not vary from those adopted in regard to other bills. They may be introduced into either House but ordinarily commence in the House of Lords; they pass through the same stages; and, when agreed to by both houses, Taswell-Langmead's English Constitutional History, Note page 397. they receive the Royal assent in the usual form. But the parties who are subject to these proceedings are admitted to defend themselves by counsel and witnesses before both houses; and the solemnity of the proceedings would cause measures to be taken to enforce the attendance of members upon their service in Parliament. In evil times this summary power of Parliament to punish criminals by statute has been perverted and abused; and in the best of times it should be regarded with jealousy; but, when ever a fitting occasion arises for its exercise it is undoubtedly the highest form of parliamentary judicature."" Bills of attainder had been frequently used in the different colonies and states; particularly against the Royalists after the revolt of the colonies.25 The term "bills of attainder" as used in the Constitution of the United States includes bills of pains and penalties.20 Any act which deprives the defendants of an existing right, for past misconduct and without judicial trial, partakes of the nature of a bill of "pains and penalties," and is subject to the Constitutional inhibition against the passage of such bills.27 It may either affect the life of a party or confiscate his property.28 The term "ex post facto laws" applies to criminal legislation only.29 The Constitution, however, deals with substance and not with form, hence any statute depriving citizens of rights for past misconduct is void; however disguised, the inhibition against ex post facto laws cannot be evaded by giving civil form to what is in substance criminal.30 In the case of Calder vs. Bull,"1 the following classes of laws were held to be ex post facto laws: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. Chief Justice Marshall in one of his decisions gives the following definition of ex post facto laws: "An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person, or may inflict pecuniary penalties which swell the public treasury. The legislature is, then, prohibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime which was not declared by some previous law to render him liable to that punishment.' 19 32 The classification of ex post facto laws contained in the decision in Calder vs. Bull has been followed in all subsequent decisions of the United States courts; and also in those rendered by the State courts. 33 souri, 107 U. S., 221; See also Thompson vs. Utah, 170 U. S., 343, 351. In this decision it is said that the situation of the accused must have been ma terially altered to his disadvantage. The accused party is not entitled of right to be tried for a crime in the exact mode in all respects that may be prescribed for trial of criminal cases at the time of the commission of the offense charged against him; for example a law changing the place of trial is not an ex post facto law. 35 34 "The prescribing of different modes of procedure and the abolition of courts and creation of new ones, leaving untouched all the substantial protections with which the existing law surrounds the person accused of crime, are not considered within the constitutional inhibition.'' 36 Retrospective laws are those whose application is in any way made to apply to events which took place before their passage. "Retrospective laws" is a broader term than ex post facto laws; all ex post facto laws are also retrospective, but the converse is not true. The passing of retrospective laws, no matter how unjust they may be in individual cases, is not prohibited to the United States, unless such laws are also ex post facto laws. SECTION 80. TREASON. The subject of treason is taken up in the third section of the third article of the United States Constitution. Thompson vs. Utah, 170 U. S., Gut vs. State, 9 Wallace, 37; 36 Duncan vs. Missouri, 152 U. S., "Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed." "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. "The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted." It is of vital importance to the safety of the individual that the law regarding treason shall be clearly set forth and the crime of treason sharply defined, in order that prosecutions for treason may not be instituted for political purposes. This was recognized in England as far back as the fourteenth century and brought about the passage of the Statute of Treason, which has since served as the basis for the law on this subject both in England and in this country. "The petition upon which this Act is founded simply prayed that 'whereas the King's Justices in different counties adjudge persons indicted before them to be traitors for sundry matters not known by the Commons to be treason, would it please the King by his council and by the great and wise men of the land, to declare what are treasons in this present Parliament?' The King's answer to this petition, entitled 'A Declaration which offenses shall be declared treason,' constitute the existing statute. It was a matter of the greatest constitutional importance that the law of treason should be fixed and invariable. In subsequent reigns the law of treason was frequently extended to offenses not mentioned in the Statute of Edward III but it was always a popular 25 Edward III, St. 5, Ch. II. |