Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/218

ties.^[1] But in the sense of the constitution, it seems, that bills of attainder include bills of pains and penalties; for the Supreme Court have said, "A bill of attainder may affect the life of an individual, or may confiscate his property, or both."^[2] In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest powder of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions. Such acts have been often resorted to in foreign governments, as a common engine of state; and even in England they have been pushed to the most extravagant extent in bad times, reaching, as well to the absent and the dead, as to the living. Sir Edward Coke^[3] has mentioned it to be among the transcendent powers of parliament, that an act may be passed to attaint a man, after he is dead. And the reigning monarch, who was slain at Bosworth, is said to have been attainted by an act of parliament a few months after his death, notwithstanding the absurdity of deeming him at once in possession of the throne and a traitor.^[4] The punishment has often been inflicted without calling upon the party accused to

---

1. 2 Woodeson's Law Lect. 625.
2. Fletcher v. Peck, 6 Cranch, R. 138; S. C. 2 Peters's Cond. R. 322; 1 Kent's Comm. Lect. 19, p. 382.
3. 4 Coke. Inst. 36, 37.
4. 2 Woodeson's Lect. 623, 624.