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No Bill Of Attainder Or Ex Post Facto Law May Be Passed By Congress

This morning I have something else for you which you probably do not
understand, something that you can hardly imagine would interest you
personally; but as I have often repeated, always bear in mind that every
single clause of the Constitution is made for each and every one of us, no
matter what position we may have in life.

The framers of the Constitution said:

“_No Bill of Attainder or ex post facto Law shall be passed._”(86)

What does “attainder” mean? It means the extinction of civil rights and
capacities and powers, which under the law in the olden times took place
whenever a person was convicted of treason, or of a crime for which the
death sentence was imposed. It means that all the estate of the convicted
person, all his land, money, or other property, was forfeited to the
government; so that upon his death nothing passed by inheritance to his
heirs. As it was expressed, his blood was “corrupted”. He could not sue in
a court of justice. He was helpless to defend any right of himself or his
family.

By “bills of attainder”, which were legislative acts imposing that penalty
on the accused without giving him any hearing in a court, many persons
were deprived of their rights and their possessions in the centuries which
have gone by, in order that such rights and such possessions might go to
some favorite of the government. Of course no one would have much sympathy
for a person who might be actually guilty of treason, or guilty of a great
crime which involved a death penalty; but in the olden days innocent men
were often charged with treason and punished. Conspiracies were formed to
get rid of certain individuals who might be an obstacle to the achievement
of base ambitions.

The abuses arising out of the imposition of attainder became so grave that
in the time of Queen Victoria a statute was passed in England abolishing
the extreme penalties which followed it.

In some of the colonies in this country, before the Constitution was
adopted, acts of attainder were passed and enforced; but when the
Constitution was finally adopted, bills of attainder were forever barred.

Don’t you see the spirit of charity which is manifest in this, just as in
the entire Constitution, charity even for wrongdoers, charity for the
weaknesses of men? Wrongdoers of course must be punished, yet the
Constitution wipes out harsh and brutal methods which were common in the
days before America came into being.

No “ex post facto law” shall be passed. _What does that mean?_(87) If a
person does an act, which at the time of the doing of the act is not a
criminal offense, the Congress of the United States, with all its power,
cannot make that act, innocent when done, a crime. Yet this used to be
done in the old days. You can imagine how in those days a brutal
government being desirous of getting rid of some objectionable person, but
desiring to have its acts appear legal, might find that he had done some
act which was not punishable under the law; but through a corrupt
legislative body, it might so legislate as to make the act a criminal
offense, and thus have the person tried and convicted.

A person might commit an offense for which there was a moderate
punishment; and the legislature might, after the commission of the crime,
but before he was tried, increase the penalty. For instance, if there were
a penalty of two years imprisonment for stealing a horse, and some
neighbor was guilty of stealing a horse, thus leaving himself, when
convicted, subject to two years imprisonment, all the powers of the United
States government, all the powers of Congress, all the wonderful power of
the people of the country could not change the penalty, could not, for
instance, amend the law so as to provide a five year penalty instead of
two, so as to affect this neighbor who had stolen the horse before this
time. He could, if convicted, be sentenced to two years, but no more.

You may think that those who adopted the Constitution must have been
suspicious of Congress, or the people in thus carefully preventing wrongs
against individuals accused of a crime—yes, individuals who had actually
committed a crime; but you can readily understand why they were so
careful. The conduct of the governments of the world had been such before
that day that suspicion was justified. The Constitution was made for the
individual—for men, women, and children—to guard their rights against the
abuse of power; and in fact most of the wrongs of the world have had their
origin in the abuse of power. The Constitution guards the humblest person
against abuse of the power granted to the government, as well as against
the wrongs of our neighbors.

The people in this country have great power—absolute power. This power may
be expressed in laws enacted by Congress or by the legislatures of the
States, except in those things which the people themselves in the
Constitution of the United States, and in the Constitutions of the
different States, have placed beyond even their own power.

Of course these provisions of the Constitution, as all provisions of the
Constitution, may be changed by the people, but not by a mere majority of
the people. These constitutional provisions relate to sacred rights, and
they may not be changed except upon mature deliberation, and by a vote
which represents the sentiment of at least a majority of the people of
three-fourths of the States.

So I hope you can realize that when the framers of the Constitution
prohibited bills of attainder, and prohibited the enactment of the ex post
facto laws, they were doing something for the people of this country. They
had the rights of the people in mind—the rights of the humble and perhaps
unknown, as well as the rights of those in high places. I do not expect
you to study the details of these provisions of the Constitution relating
to bills of attainder and ex post facto laws. You will probably never have
to enforce these rights which are given to you under the Constitution. I
hope you will not; but the important thing which I always want you to bear
in mind is, that these guaranties of the Constitution are in existence and
that they confer upon you certain powers which may be asserted to protect
your liberty if occasion should ever arise.

I am sure you realize that at the beginning of the life of the American
Nation, extreme care was exercised by those who framed the Constitution,
to guard the people at every point against injustice and wrong, whether
exercised by private individuals or by public officials.

Understanding these things—feeling these things, will give you a new sense
of power, of pride, and of duty, as citizens of this great Nation.

ELEMENTARY QUESTIONS

1. What does attainder mean?

2. What was the effect of a bill of attainder on the family of a man who
was convicted?

3. Why does the abolition of attainder show the charity of the founders of
the Constitution?

4. What is an ex post facto law?

5. How would this kind of a law be unjust?

6. How could a strong, powerful, and dishonest man work injustice by means
of such a law?

ADVANCED QUESTIONS

A. Show how attainder worked in England in the early days.

B. What were the abuses found under such a law?

C. Show how its abolition made for democracy.

D. Show how the abolition of ex post facto laws made for democracy.

E. Write a paper on the following:

 

The Injustice of Attainder

The Injustice of an Ex Post Facto Law