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and penalties which, in times of comparative moderation and tranquility, have somtimes been thought necessary to visit some unforeseen and anamolous transgression beyond the reach of our penal code. There are many, indeed, whose system absolutely rejects all such retrospective punishment, either from the danger of giving too much scope to vindictive passion, or on some more abstract principle of justice. Those who may incline to admit that the moral competence of the sovereign power to secure itself by the punishment of a heinous offender, even without the previous warning of law, is not to be denied, except by reasoning which would shake the foundation of its right to inflict punishment in ordinary cases, will still be sensible of the mischief which any departure from stable rules, under the influence of the most public-spirited zeal, is likely to produce." 16 The penalty in cases of attainder of treason and felony was death, accompanied with forfeiture of land and goods and corruption of blood.1

§ 104. Same-Defined by United States supreme court.-A bill of attainder is a legislative act, which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exrcises the powers and office of judge; it assumes judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proof produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense. These bills are generally directed against individuals by name; but they may be directed against a whole class; they inflict punishment absolutely, or conditionally.18

§ 105. Limitations upon the power of the government in prosecutions by impeachment. The provisions of the federal constitution upon the subject of impeachments, written, of course, in the light of the history of parliamentary inpeach

16 Hallam's Const. Hist. 298. 17 Blackst. Com. II, 251; ib. III, 102, 351; ib. IV, 381, 385, 386, 387.

18 Cummings v. Missouri, 3 Wall. 227 (18:356).

ments in England, while they contain a grant of a distinct substantive power to the government, which it would not otherwise have possessed, also clearly define and limit that power, both as to the class of crimes and offenders subject to prosecution by impeachment, and also as to the punishment that may be inflicted upon conviction.19 The English parliament, at the time of our Revolution, had been for centuries "the supreme court of the kingdom, not only for the making, but also for the execution of laws, by the trial of great and enormous offenders, whether lords or commons, in the method of parliamentary impeachment;" and that court possessed the power to impose heavy fines and penalties, and to inflict capital punishment, and exercised that power with an unsparing hand.20 Blackstone states that: "A commoner cannot, however, be impeached before the lords for any capital offense, but only for high misdemeanors; a peer may be impeached for any crime." 21 But Hallam, after a careful examination of the precedents, states, in the language of a resolution of the commons, "that it is the undoubted right of the commons, in parliament assembled, to impeach before the lords in parliament any peer or commoner for treason, or any other crime or misdemeanor; and that the refusal of the lords to proceed in parliament upon such impeachment is a denial of justice, and a violation of the constitution of parliament." And he adds: "The inadvertent position, therefore, of Blackstone, that a commoner cannot be impeached for high treason, is not only difficult to be supported upon ancient authorities, but contrary to the latest determination of the supreme tribunal." 22

§ 106. Same-History and character of the procedure in England-The commons the grand inquest of the realm.-At an early period in the parliamentary history of England, the commons, as the grand inquest of the realm, took upon themselves the character of accusers before the lords, of persons charged with treason, or other high crimes and misdemeanors

19 U. S. Const. Art. I, sec. 2, cl. 5; Art. I, sec. 3, cl. 6; Art. I, sec. 3, cl. 7; Art. II, sec. 2, cl. 1; Art. II, sec. 4, cl. 1; Art. III, sec. 2, cl. 2.

20 4 Blackst. Com. IV, 259; Hal

lam's Const. Hist. England, 329, 464-467, 469, 482, 602-608; Dwarris on Statutes, 247-254.

21 Blackst. Com. IV, 259, 260. 22 Hallam's Const. Hist. England, 482, 483.

against the state; and this act of the commons assuming the invidious office, and, as the representative of the people at large, standing forward as the prosecutors of the highest and mose powerful offenders against the state, forms a remarkable feature in the criminal jurisprudence of England. The assertion of this principle, of the duty of the commons to carry up complaints to the lords of any grevious maladministration, did, undoubtedly, contribute much toward controlling and repressing those acts of injustice and oppression, which ministers of state in more despotic governments, protected by their great rank and overbearing power, often exercised against those who offended them, and was often the means of bringing to punishment those "great apostates of the commonwealth," who, by their actions or counsels, endeavored to subvert the fundamen-. tal laws of the country, and to introduce an arbitrary and tyrrannical government. At the same time, while it was in earlier times absolutely necessary for the preservation of the liberties of the English people, and the safety of the English constitution, that the commons should possess the extraordinary power assumed by them of bringing great offenders to justice, it should have been, in the opinion of England's greatest statesmen, more sparingly exercised, and confined to matters not within the cognizance of the ordinary tribunals, such as breaches of high offices of trust, judicial corruption, and the counseling of pernicious and dishonorable measures.

The first parliamentary impeachments were during the reign of Edward III, and the usual course seems to have been to present a memorial to the king in parliament, stating the offenses most injurious to the public at the time, and praying that the delinquents, without naming them, might meet the punishment of the law. After the petition had received encouragment from the crown, the commons exhibited articles of impeachment, specifying the particular culprits, and followed up the prosecution through its several stages, till finally, on conviction, they demanded judgment. During the reign of Richard II, an incident occurred which caused parliamentary impeachments to fall into disuse for a time. The commons with one accord came before the king, prelates and lords, and accused the Earl of Suffolk, late chancellor of England, of several crimes; and the king, having become desirous of abrogat

ing parliamentary impeachments, propounded to his judges the question, whether, since the king can at his pleasure remove any of his judges and officers, and justify or punish them for their offenses, the lords and commons can, without the will of the king, impeach them in parliament for any crime; and this question, the judges, with the basest prostitution of their judicial character, it is said, answered in the negative, and if any one should do so he is to be punished as a traitor. As a result of that opinion, impeachments lay still, “but only like a sword in the scabbard," after the accession of Henry IV, till twenty-eighth Henry VI, when the commons in the case of the Duke of Suffolk, proceeded irregularly, inasmuch as the articles of impeachment were directly addressed to the king, which gave him an opportunity and a reasonable pretext, of which he availed himself, to interfere in the judgment, and screen a favorite minister from punishment. Under the reign of the Tudors, the institution fell into disuse, from the preference given to bills of attainder and pains and penalties by those sovereigns, when they wished to turn the arm of parliament against an obnoxious subject. Under the Stuarts, the prac tice of impeachments was revived, though without frequent application. There seems no doubt, it is said, that the witan was the tribunal for the trial of all great delinquents, accused of the heaviest crimes; and under the Plantagenet dynasty, parliament was looked to as the great remedial court for the redress of all grievances, private and public, it being a maxim of the times that in the high court of parliament alone could a king of England learn when wrongs had been unpunished, and where rights had been delayed. The ordinary courts of law, if sufficiently intelligent, were not sufficiently bold and strong to redress the subject's injuries, when the powerful ministers or the great officers of the crown were parties, or where the nobles interfered. The accusation of the commons stood in the place of an indictment, and one of their members was directed to impeach the delinquents by oral accusation at the bar of the house of lords, in the name of the commons in parliament assembled, and of all the commons of the united kingdom, signifying that articles of impeachment against the accused would be exhibited in due time, and praying that he may be sequestered from his seat or committed. Upon trial

and conviction, the lords could not pronounce judgment until demanded by the commons, and that enabled them to spare the accused, even after he had been found guilty.23

§ 107. Same-Same-Objects and purposes of parliamentary Impeachments in England-Ministerial responsibility.—The history of parliamentary impeachments in England seem to indicate that their main objects and purposes were: (1) To inflict upon "great and enormous offenders," upon the "great apostates of the commonwealth," whether lords or commoners, the punishments which the law annexed to their crime. against the state.24 (2) To preserve the liberties of the people and the constitution and laws of England against the encroachments and delinquencies of the crown, the commons in such case holding the ministers of the crown responsible for its executive policy and measures. Ministerial responsibility for the administrative acts of the crown has long been an established principle of the English constitution; the nature of that constitution requires that such "acts should be issued out in his majesty's name, but, for all that, he is not responsible for them;" according to the constitution of the kingdom, the ministers are accountable for all. Even in an impeachment for treason, "no minister can shelter himself behind the throne by pleading obedience to the orders of his sovereign. He is considered, in the modern theory of the constitution, answerable for the justice, the honesty, the utility of all measures emanating from the crown, as well as for their legality; and thus the executive administration is rendered subordinate, in all great matters of policy, to the superintendence and virtual control of the two houses of parliament." 25 (3) Another object of parliamentary impeachments was to maintain the honesty and efficiency of the administration of public affairs, to punish unfaithful, corrupt and dishonest officers, ministers and judges, and to secure a faithful execution of the laws, and the impartial administration of justice.26 It cannot be overlooked that impeachments were sometimes used for the purposes of

23 Dwarris Ed.), 248-254.

on Statutes (2nd

24 IV Blackst. Com. 257-261: Dwarris on Statutes, 248; Hal

lam's Const. Hist. England, 205,
206.

25 Hallam's Const. Hist. Eng
land, 463, 619, note.

26 IV Blackst. Com. 257-261.

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