nralien,
Good !
A definate grey area here ! Remember, at common law, no victum, no crime... and the STATE can't be an injured party.
(I have no time to address this at the moment..
so I'm going to cut/paste real quick in hopes this will help. I'll get back to you...)
INFRACTION. The breach of a law or agreement; <u>the violation of a compact</u>. In the French law this is the generic expression to designate all actions which are punishable by the code of France. Bouvier's 1856
CRIME. A crime is an offence against a public law. This word, in its most general signification, comprehends all offences but, in its limited sense, <u>it is confined to felony</u>. 1 Chitty, Gen. Pr. 14.
5. Crimes are mala in se, or bad in themselves; and these include. all offences against the moral law; or they are mala prohibita, <u>bad because prohibited</u>, as being against sound policy; which, unless prohibited, would be innocent or indifferent. Bouvier's 1856
MALUM IN SE. Evil in itself.
2. An offence malum in se is one which is naturally evil, as murder, theft, and the like; offences at common law are generally mala in sese.
3. An offence malum prohibitum, on the contrary, <u>is not naturally an evil, but becomes so in consequence of its being forbidden</u>; as playing at games, which <u>being innocent before, have become unlawful in consequence of being forbidden</u>. Vide Bac. Ab. Assumpsit, A, note; 2 Rolle's Ab. 355. Bouvier's 1856
MALA PROHIBITA. Those things which are prohibited by law, and therefore unlawful.
2. A distinction was formerly made in respect of contracts, between mala prohibita and mala in se; <u>but that distinction has been exploded</u>, and, it is now established that when the provisions of an act of the legislature have for their object the protection of the public, it makes no difference with respect to contracts, whether the thing be prohibited alsolutely or under a penalty. 5 B. & A 5, 340; 10 B. & C. 98; 3 Stark. 61; 13 Pick. 518; 2 Bing. N. C. 636, 646. Bouvier's 1856
BILLS OF ATTAINER
An act is a Bill of Attainder when the punishment is death and a Bill of pains and penalties when the punishment is less severe; both kinds of punishment fall within the scope of the constitutional prohibition. U.S. Constitution, Article 1, section 9, clause 3 (as to Congress); Article 1, Section 10 (as to state legislators). Black's Law Dictionary, Fifth Edition, page 150.
Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons
<u>because the legislature thinks them guilty of conduct which deserves punishment</u>. They intended to safeguard the people of this country from punishment without trial by duly constituted courts. See Duncan v. Kahanamoku, 327 U.S. 304.
And even the courts to which this important function was entrusted were commanded to stay their hands until and unless certain tested safeguards were observed. <u>An accused in court must be tried by an impartial jury</u> [emphasis added], has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction no cruel and unusual punishment can be inflicted upon him. See Chambers v. Florida, 309 U.S. 227, 235-238.
When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned. And so they proscribed bills of attainder... United States v. Lovett, 328 U.S. 303, 315-319 (1946
In 1810 , Chief Justice Marshall, speaking for the Court in Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162,178 (1810) , stated that "[a] bill of attainder may affect the life of an individual, or may confiscate his property, or may do both. In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained... "
This means, of course, that what were known at common law as bills of pains and penalties are outlawed by the Bill of Attainder Clause. The Court's pronouncement therefore served notice that the Bill of Attainder Clause was not to be given a narrow historical reading (which would exclude bills of pains and penalties), but was instead to be read in light of the evil the Framers had sought to bar: Legislative punishment, of any form or severity, of specifically designated persons or groups. See also Ogden v. Sauders, 12 Wheat. 213, 286. United States v. Brown, 381 U.S. 437, 447 (1964
If the punishment be less than death, the act is termed a bill of pain 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, exercises the powers and office of judge; it assumes, in the language of the text books, 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 proofs 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.
"Bills of this sort," says Mr. Justice Story, "have been most usually passed in England in times of rebellion, or gross subserviency to the Crown, or of violent political excitement; periods in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others." Story, Com. ยง 1344. Cummings v Missouri, (1867) 71 U.S. 277, 323
Hope this helps,
Akira
