Bill of attainder

“ A logical starting place for an inquiry into the meaning of the prohibition is its historical background. The bill of attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government. ”

“ The next clause declares, "No bill of attainder or ex post facto law shall be passed." A bill of attainder is an act of the legislature by which the punishment of death is inflicted upon a person for some crime, without any trial. If it inflicts a milder punishment, it is usually called a bill of pains and penalties. Such laws are inconsistent with the principles of republican government, and are therefore properly prohibited. ”

“ A bill of attainder is an English term, meaning an act which without trial inflicts death for treason: attainder of treason cannot in the United States work "corruption of blood" so as to prevent a person from transmitting lands to his descendants. An ex-post-facto law makes an act criminal or penal which was not so at the time it was committed. A United States office-holder, wishing to accept a present or distinction offered him by any foreign power, must ask permission of Congress before he can receive it. ”

“ They might be passed against any political opponent who might happen to be in a minority; or against any man, after he was dead, whose property the King or Parliament might wish to secure. This most odious engine of despotism has been abolished in this country. Here, "no bills of attainder may he passed." But attainder itself—that is, loss of political and civil rights—is not abolished in this country. It may be inflicted as a penalty for treason or rebellion, or other crime, only it must be by trial and conviction; it cannot be by bill or mere act of Congress. ”

“ If any means be left by which the defendant can escape the punishment prescribed in the act, the act cannot be a bill of attainder; for a bill of attainder assumes the guilt and punishes the offender whatever he may do to escape. If the act in question applies as well to the entire community as to him, and operates upon all alike, only prescribing an oath, which may or may not be taken by him and others, as a condition of a future privilege, it is in no sense a bil of attainder. ”

“ Like § 504, the statute there under consideration did not cover all persons who might be likely to call political strikes. Nevertheless, legislative findings that some Communists would engage in illegal activities were sufficient to sustain the exercise of legislative power. The Bill of Attainder Clause now forbids Congress to do precisely what was validated in Douds. ”

“ He suggests that for purposes of the Bill of Attainder Clause, such conflict-of-interest laws [28] are not meaningfully distinguishable from the statute before us. We find this argument without merit. First, we note that § 504, unlike § 32 of the Banking Act, inflicts its deprivation upon the members of a political group thought to present a threat to the national security. As we noted above, such groups were the targets of the overwhelming majority of English and early American bills of attainder. Second, § 32 incorporates no judgment censuring or condemning any man or group of men. ”

“ Appellant's characterization of the meaning of a bill of attainder obviously proves far too much. By arguing that an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classification and punishment. ”

“ And surely if § 9 (h) is a bill of attainder, the filing of any non-Communist affidavits under § 9 (h) , whether true or false, cannot be said to have interfered with any lawful or legitimate function of the Labor Board. It would indeed be strange if the Court means that it is a lawful and legitimate function of the Government to enforce and carry out in any part a bill of attainder against these petitioners. ”

“ Under the long line of our decisions, therefore, the Court has the heavy burden of demonstrating that legislation which singles out one named individual for deprivation — without any procedural safeguards — of what had, for nearly 200 years, been treated by all three branches of Government as private property, can survive the prohibition of the Bill of Attainder Clause. ”

“ A bill of attainder may refer simply to a concrete case, and contrive penalties for acts which are not specially punishable by statute, whereas an impeachment applies to some violation of recognized legal principles, and is a solemn indictment preferred by the commons to the house of lords." E. Fischel, The English Constitution, book 7, chapter 9. "By the 33 & 34 Vict. c. 23, forfeiture and attainder for treason or felony have been abolished." T. P. Taswell-Langmead, English Constitutional History, chapter 10 (2d edition, page 393) , foot-note. ”

“ But I cannot believe that the authors of the Constitution, who outlawed the bill of attainder, inadvertently endowed the executive with power to engage in the same tyrannical practices that had made the bill such an odious institution. [1]
There is argument that executive power to issue these pseudo-bills of attainder can be implied from the undoubted power of the Government to hire and discharge employees and to protect itself against treasonable individuals or organizations. ”

“ The Court is concerned to separate the legislative and judicial functions by ensuring that the legislature does not infringe the judicial function of applying general rules to specific circumstances. Congress is held to have violated the Bill of Attainder Clause here because, on the one hand, § 504 does not encompass the whole class of persons having characteristics that would make them likely to call political strikes and, on the other hand, § 504 does single out a particular group, members of the Communist Party, not all of whom possess such characteristics. ”

“ But under Cromwell the coercion of juries and the management of judges rendered the courts mere mouthpieces of the royal will: and where even this shadow of justice proved an obstacle to bloodshed, Parliament was brought into play to pass bill after bill of attainder. "He shall be judged by the bloody laws he has himself made," was the cry of the Council at the moment of his fall, and by a singular retribution the crowning injustice which he sought to introduce even into the practice of attainder, the condemnation of a man without hearing his defence, was only practised on himself. ”

“ On the 21st of February, [159] 1534, therefore, a bill of attainder was brought into the House of Lords against the maid and her abettors, on the plea that their conspiracy tended to bring into peril the king's life and crown. The bill, notwithstanding that it was regarded with horror by the public as a strange and cruel stretch of authority, was passed by the slavish Parliament; and on the 21st of April, 1534, the seven accused were drawn to Tyburn and hanged. ”

“ The aim and purpose are clear-to take away from a person by legislative fiat property which he has accumulated because he has acted in a certain way or embraced a certain ideology. That is a modern version of the bill of attainder-as plain, as direct, as effective as those which religious passions once loosed in England and which later were employed against the Tories here. ”

“ Next Sunday, after the bill passed the commons, the Puritanical pulpits resounded with declamations concerning the necessity of executing justice upon great delinquents. [**] The populace took the alarm. About six thousand men, armed with swords and cudgels, flocked from the city, and surrounded the houses of parliament. [***] The names of the fifty-nine commoners who had voted against the bill of attainder, were posted up under the title of “Straffordians, and betrayers of their country.” These were exposed to all the insults of the ungovernable multitude. ”

“ Under the line of cases just outlined, § 504 of the Labor-Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use such positions to bring about political strikes. ”

“ In the 17th century, during the disputes with Charles I., the Long Parliament made effective use of the same procedure, forcing the sovereign to give his consent. After the Restoration it became less frequent, though the Jacobite movement in Scotland produced several instances of attainder, without, however, the infliction of the extreme penalty of death. The last bill of attainder passed in England was in the case of Lord Edward Fitzgerald, one of the Irish rebel leaders of 1798. ”

“ For to prove its assertion that § 9 (h) was preventive rather than retributive in purpose, [32] the Court in Douds focused on the fact that members of the Communist Party could escape from the class of persons specified by Congress simply by resigning from the Party:
'Here the intention is to forestall future dangerous acts; there is no one who may not by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit. We cannot conclude that this section is a bill of attainder.' Id., at 414, 70 S.Ct. ”

“ Moreover, officially prepared and proclaimed governmental blacklists possess almost every quality of bills of attainder, the use of which was from the beginning forbidden to both national and state governments. U.S.Const. Art. I, §§ 9, 10. It is true that the classic bill of attainder was a condemnation by the legislature following investigation by that body, see United States v. ”

“ The Act is not a bill of a attainder. It attaches not to specified organizations but to described activities in which an organization may or may not engage. The singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons. ”

“ We believe that the contest in which the Parliament was engaged against the King was a contest for the security of our property, for the liberty of our persons, for everything which makes us to differ from the subjects of Don Miguel. We believe that the cause of the Commons was such as justified them in resisting the King, in raising an army, in sending thousands of brave men to kill and to be killed. An act of attainder is surely not more a departure from the ordinary course of law than a civil war. An act of attainder produces much less suffering than a civil war. ”

“ A cunning man, looking to what he thought to be his own interest, would have gratified him, and, vetoing the bill would have earned the praise, if not the approval, of a set of men whose voices extend far and are to some extent potent. A timid man, signing it, would have said nothing and left the legislature and the party leaders to share with him the buffets. I made the bill a law and gave my reasons, published with the statute, taking the full responsibility and thereby drew upon myself all of the javelins that could be hurled. ”

“ But in this country, and under our Constitution, the attainder works no corruption of blood; it works no forfeiture after the death of the guilty person. The punishment must fall upon him and his property while it is his; it cannot fall upon it, after it has become theirs. Suppose we now insert the word "sale" and see how the Constitution reads: "No attainder of treason shall work a sale, except during the life, &c." Would anybody suppose for a moment, that the language was designed for anything more than to protect the property of the heirs? ”

“ But no unanimity of politicians can uphold the baseless assumption, that a law, or any conglomerate of laws, under the name of Compromise, or howsoever called, is final. Nothing can be plainer than this; that, by no parliamentary device or knot, can say Legislature tie the hands of a succeeding Legislature, so as to prevent the full exercise of its constitutional powers. Each legislature, under a just sense of its responsibility, must judge for itself ”

“ But, sir, there is another answer, in my judgment, more conclusive, to all these objections to this second section, which is the vital part of the bill. Without it, it would scarcely be worth the paper on which the bill is written. A law without a penalty, without a sanction, is of little value to any body. What good does it do for the Legislature to say, 'Do this, and forbear to do that,' if no consequence is to follow the act of disobedience? ”

“ He feared Rebellion would grow a national malady! Danger is even to be apprehended from the method of putting this Bill in execution: should the Commissioners not act, it is a needless, an useless Bill—if they do, what is to encourage them? power and interest? and into what hands are you going to trust those formidable enemies? ”