Blair v. Ridgely

• Citation: 41 Mo. 63
• Parties: FRANCIS P. BLAIR, Plaintiff in Error, v. STEPHEN RIDGELY and JOHN S. THOMPSON, Defendants in Error.
• Decision Date: 31 March 1867
• Court: United States State Supreme Court of Missouri

41 Mo. 63

FRANCIS P. BLAIR, Plaintiff in Error,

v.STEPHEN RIDGELY and JOHN S. THOMPSON, Defendants in Error.

Supreme Court of Missouri.

March Term, 1867.

Error to St. Louis Circuit Court.

S. T. Glover, for plaintiff in error.^a1

The general proposition which I shall endeavor to establish is, that the supposed constitutional provisions relied on by the defendants to support their demurrer are no constitutional provisions at all; that they are binding on nobody and effect nobody's rights; that they are in violation of the Constitution of the United States, and mere nullities.

The plaintiff will contend (1) that sec. 3 of art. 2 is a bill of attainder in the meaning of the Constitution of the United States (art. 1, § 10); and being null and void, for that reason all other sections in aid of it are also null and void. Attainder is a legal term which we derive from the English common law. From the same source we learn there were two sorts of attainder--1. Attainder by judicial conviction in the ordinary course of law; 2. Attainder by bill, that is, by legislative or parliamentary enactment. Now, if we can clearly ascertain what judicial attainder is, it will assist us in identifying the qualities of an attainder by bill. All the criminal law writers assert that attainder means literally a staining. And inasmuch as one convicted of a capital offence at common law was thereby deprived of all credit, reputation and right as a citizen and a man, he was by that law considered stained or blackened in his name and character. The word employed in the law Latin to express this staining or blackening was attinctus, and hence the word “attainder.” “This attainder (says Stephens, 4 com. 446) is the stain or corruption of the blood of a criminal capitally condemned. He is no longer of any credit or reputation; he cannot be a witness in any court, neither is he capable of performing the functions of another man.” Another consequence of the attainder at the common law was forfeiture and corruption of blood of the convict, so that he could neither inherit lands nor other hereditaments from his ancestors, nor retain those he was already in possession of, nor transmit them by descent to any heir”--1 Tom. Jac. Law Dic. 163. So we perceive it was not conviction which constituted attainder, but it was the disabilities, disqualifications and disfranchisements annexed to the conviction. The conviction was one thing, the attainder another. A man may be tried judicially and condemned as a felon, but he is not attainted unless, as at common law, these disabilities, or some of them, are inseparably annexed to his conviction. It is perfectly in the power of the Legislature to limit the extent of the attainder, or to take it entirely away, leaving the conviction in full force. The British Parliament, in 1798, passed an act so far limiting the force of attainder within the realm as to declare that “no attainder should work corruption of blood or forfeiture longer than the life of the convict.”

The same limit has been fixed by the Constitution of the United States, and many, if not all, our State Constitutions, and by the course of American legislation the extent of a judicial attainder is often made to vary according to the crime to which it is annexed.

In Missouri, the disabilities which constitute the judicial attainder on conviction of crime are as follows: Disqualification to serve as juror in any case; to vote at any election; to hold any office of honor, profit or trust; to be sworn as a witness in any cause, or to practice as an attorney or counsellor at law within the State--R. C. 1855, p. 557, § 13; p. 568, § 46; p. 586, § 70; p. 608, § 47; p. 635, § 56; pp. 278-9, §§ 6 & 11.

The Court will observe that under some of these statutes the convict is so far deprived of his credit and honor, and stained in his reputation as a citizen, that he is by conviction denied the right to vote at an election or hold an office; that by others he is prohibited, after conviction to sit as a juror in any court, and by others he is so completely attainted as to be declared infamous as a man as well as a citizen, unworthy to be sworn as a witness because deemed incapable of speaking the truth.

In every one of these statutes the attainder is annexed to the offence of the convict as part of his punishment as distinctly as the other penalties of the criminal code, whether it be fine, forfeiture, imprisonment or death; and a pardon by the Governor of the offence removes the disabilities just as it does the other punishments of the offender--R. C. 1855, p. 643, § 26. Having ascertained the nature of a judicial attainder, we are prepared for the consideration of attainder by bill.

The Constitution of the United States declares (art. 1, § 10)“no State shall pass * * * * any bill of attainder,” leaving judicial attainder still in the hands of the courts.

This is more evident from another clause in the Constitution of the United States--art. 3, § 3; “No attainder of treason shall work corruption of blood, forfeiture of estate, except during the life of the person attained.” This section can only allude to judicial attainder, since bills of attainder are prohibited.

What is a bill of attainder? It is fair to conclude that it is an infliction by a bill, by legislative or convention ordinance, of the same disqualifications and disabilities, or some of them, which constitute judicial attainder. In other words, it is an attempt to attaint one or more persons by a legislative act, contrary to the ordinary course of judicial proceedings, to the same effect that such persons might be attainted judicially. Whether an attainder be inflicted by the judgment of a court, or by an act of a legislative body, it is the same. The difference between judicial attainder and attainder by bill consists only in the hand that inflicts it. If the fastening upon the citizen the disability to vote, to hold office, or to sit on a jury, for some act of his, be attainder when inflicted in the ordinary course of judicial proceedings, the same disabilities must certainly be an attainder when for some act of his they are inflicted by a bill.

And so Judge Story supposes when he says, “Bills of attainder, as they are technically called, are such special acts of the Legislature as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason or felony, without any conviction in the ordinary course of judicial proceedings: * * * * if an act inflict a milder punishment than death, it is called a bill of pains and penalties. But in the sense of the Constitution it seems that bills of attainder include bills of pains and penalties”--3 Sto. Com. 209, § 1338. The meaning of which is that a mere bill of pains and penalties is prohibited by the Constitution. To constitute a bill of attainder it is not essential that every possible penalty or disability be inflicted, and every possible stain and dishonor be imposed. If any penalty or disability, or any stain or dishonor, be imposed on the person by bill, and for an offence either before or after the fact, and by means contrary to the ordinary course of judicial proceedings, that will constitute a bill of attainder. The remarks of the Supreme Court of Kentucky, 1 Dana, 510, may be well quoted here: “Bills of attainder have generally designated their victims by name; but they may do it also by classes, or by general description fitting a multitude of persons. Either mode is equally liable to moral and constitutional censure. They have generally been applied to punish offences already committed, or for criminal omissions thereafter incurring. A bill of attainder is not necessarily an ex post facto law. A British act of Parliament might declare that if certain individuals, or a class of individuals, failed to do a given act by a named day, they should be deemed and treated as convicted felons and traitors. Such an act comes precisely within the definition of a bill of attainder, and the English courts would enforce it without indictment or trial by jury.”

According to the Supreme Court of Kentucky, if the Legislature should pass a law declaring that all that class of persons who by a day named had failed to file an affidavit that they had kept the Sabbath laws, or the revenue laws should be deprived of suffrage, this would be a bill of attainder. The bill would wear the form of a general law, but would be in fact a special act applying only to those who could not take the oath. It would no more be a general law than an act which should declare that every person who by a day named has not filed an affidavit that he never answered to the name of John Smith, shall suffer death as a traitor. Such an act would apply only to John Smith, notwithstanding its form. It would be a special act inflicting death on John Smith; that is, it would be a legislative judgment, and nothing else.

In Fletcher v. Peck, 6 Cranch, 87, Marshall held an act repealing a law granting a title was an attainder and ex post facto law, forfeiting estate without a crime.

Let us again consider the force of Story's definition:

“Bills of attainder are such special acts of the Legislature as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason or felony, without any conviction in the ordinary course of judicial proceedings. If it inflict a milder punishment than death, it is called a bill of pains and penalties.”

In inquiring whether the sections above stated are literally and substantially within Story's definition of an attainder, three points only need be attended to.

I. Do they suppose the persons aimed at to have been guilty of any high offence, such as treason or felony?

II. Do they inflict punishment on these persons?

III. If so, do they inflict that punishment without any conviction in the ordinary course of judicial proceedings?

As to the first point:--The answer to this is written down in the plainest terms on...