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Subject Area: Law
Topic: The American Revolution and Constitution

§ 29.: Bills of attainder.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 29.

Bills of attainder.—

A further limitation is imposed by the constitution of the United States, which prohibits the enactment of bills of attainder by Congress and by the legislatures of the several States.2 A bill of attainder is a legislative conviction for crime, operating against a particular individual, or some one or more classes of individuals. According to the ancient English meaning of the term, it included only those legislative enactments, which pronounced the judgment of death. But a broader signification is given to the word in this constitutional limitation, and it includes all attempts on the part of Congress to inflict punishment and penalties upon individuals for alleged crimes of every description. The term bill of attainder is now used to include all bills of pains and penalties. “I think it will be found that the following comprise those essential elements of bills of attainder, in addition to the one already mentioned (which was that certain persons were declared attainted and their inheritable blood corrupted), 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. 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.”1

Since the formation of the Union, there has happily been but one occasion when there was any inducement to the enactment of such legislative judgments and convictions, and that was at the close of the late civil war. Congress provided by statute that in order that one may enter upon the performance of the duties of any office of trust or profit under the government of the United States, excepting the President of the United States, he shall theretofore take and subscribe an oath that he had not aided or given countenance to the rebellion against the United States. A second act was passed, prescribing a similar oath to be taken by candidates for admission to practice in any of the courts of the United States. The Supreme Court held that the latter statute was void, because it offended this constitutional provision, prohibiting the enactment of bills of attainder.1 Inasmuch as the right to hold a public office is a privilege and not a right, the former act of Congress, which provided the so-called “iron-clad” oath of office, would not be unconstitutional, unless the qualifications of the candidates for office, to which the statute applied, are stipulated in the constitution. Congress, or a legislature, has no power to change the qualifications for office, where they have already been determined by the constitution.2 It is, probably, for this reason that the office of President was excluded from the operation of this statute. In article I., section 1, of the constitution of the United States, the oath of office is prescribed which the President is required to take before entering upon the duties of his office.

Similar legislation was enacted in some of the States. In Missouri, the constitution of ’65 contained a clause, which required a similar oath to be taken by all voters, officers of State, county, town, or city, to be elected or already elected; attorneys at law, in order to practice law; clergymen, in order to teach, and preach or solemnize marriages; professors and teachers of educational institutions, etc. Although the State court, as it was then constituted, did not hesitate to pronounce these provisions valid, the Supreme Court of the United States has declared them void as being in violation of the national constitution, which prohibits the enactment of bills of attainder by the States.3

Coming under the head of bills of attainder, the New York statute (Laws of 1893, ch. 661, as amended by Laws of 1895, ch. 398) might be cited, which makes it a misdemeanor for any one to practice medicine, who has been convicted of a felony, where the statute is made to apply to persons who were convicted before it became a law. In a case, conveying these facts, the statute was declared to be unconstitutional because it was ex post facto.1

[2]U. S. Const., art. I., §§ 9, 10.

[1]Miller, J., in Ex parte Garland, 4 Wall. 333.

[1]Ex parte Garland, 4 Wall. 333; Drehman v. Stifle, 8 Wall. 595.

[2]See Cooley Const. Lim. *64, note.

[3]Cummings v. Missouri, 4 Wall. 277; s. c. State v. Cummings, 36 Mo. 263. The constitutional provision was likewise upheld in the following cases: State v. Garesche, 36 Mo. 256, in its application to an attorney; State v. Bernoudy, 36 Mo. 279, in the case of the recorder of St. Louis. In State v. Adams, 44 Mo. 570, after the Cummings case had been decided by the Supreme Court of the United States against the State, and after also a change in the personnel of the State court, a legislative act, which declared the Board of Curators of St. Charles College deprived of their office, for failure to take the oath of loyalty, was held to be void as being a bill of attainder. A statute of this kind was likewise passed by the legislature of West Virginia, and although sustained at first by the Supreme Court of the State (Beirne v. Brown, 4 W. Va. 72; Pierce v. Karskadon, 4 W. Va. 234), it was subsequently held by the Supreme Court of the State, and of the United States, that the act was unconstitutional. Kyle v. Jenkins, 6 W. Va. 371; Lynch v. Hoffman, 7 W. Va. 553; Pearce v. Karskadon, 16 Wall. 234.

[1]People v. Hawker, 14 App. Div. 188; 43 N. Y. S. 516.