XX. Habeas Corpus, Bill of Attainder & Ex Post Facto Law

Catechism of the Constitution Book CoverThe Federalist Papers has posted a PDF copy of an Elementary Catechism on the Constitution from 1828 written by Arthur J. Stansbury. I’m publishing it on Mondays in a series of posts. Because the date of publication was 1828, some content has been changed by later Constitutional amendments. There are no sections in the book, so I’m dividing it into any natural breaks of topics and the posts will vary in length. Any emphases within the text are Stansbury’s.

Article I, Section 9, Clause 2

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Article I, Section 9, Clause 3

No Bill of Attainder or ex post facto Law shall be passed.

XX. Habeas Corpus, Bill of Attainder, and Ex Post Facto Law

Q. Suppose any American citizen is seized and put in prison, may he be kept there as long as those who seized him think fit?

A. No; he may get a writ of Habeas Corpus.

Q. What is that?

A. It is a command from Court, by which the jailor is forced to allow the prisoner to be brought up before a Judge, that the cause of his being put in prison may be examined into ; in order, that if there is no law to keep him there, he may immediately be set at liberty.

Q. Must this command be given whenever it is applied for?

A. Yes, except at certain times, when this privilege is suspended; (that is, interrupted for a time, but not taken away).

Q. When may this right of having a writ of Habeas Corpus, which belongs by the Constitution to every citizen, be suspended?

A. Only in cases of rebellion by our own citizens, or invasion of the country by an enemy; when the public danger is so great as to require persons to be kept in prison, who might otherwise be set at liberty. As soon as this extreme danger is past, the right of Habeas Corpus must be immediately restored.

Q. Is this a very great and important privilege, and ought all Americans to guard it with the greatest care?

A. It is one of the greatest rights of a freeman—and Americans must never surrender it, under any pretext, if they value and would preserve their liberty.

Q. May a man’s children be punished by law for his offence?

A. In some countries, where a man has been guilty of treason, (that is, making war against the Government) a law is passed called a bill of attainder, by which his children are prevented from being, heirs to him or to any other person ; and, if he belonged to what in those countries is called the nobility, and his children would have belonged to it too, they are prevented ; nor can they nor their children, nor their children’s children, recover this privilege, till an act is passed for that purpose. No such law can be made in this country ; it is expressly forbidden by (he Constitution.

Q. May a citizen of the United States be punished for doing what, when he did it, was not forbidden by any law, but against which a law was passed afterwards?

A. No. A law that attempts to punish actions that were done before the law was made, is called an “ex-post-facto law.” This also is expressly forbidden by the Constitution.

In the heading under Charters of Freedom, you will find a copy of the Constitution as well as links to other pertinent primary documents and commentary on the Constitution.

Essays at The Heritage Guide to The Constitution:

Elementary Catechism on the Constitution posts:

Elementary Catechism on the Constitution (Preface)
I. The Necessity of Government and Its Forms
II. The American Revolution
III. The Occasion and Purpose of the Constitution
IV. State and National Laws
V. The House of Representatives
VI. The Senate
VII. Impeachment
VIII. Impeachment of the President & The Rule of Law
IX. Meetings of Congress
X. Members of Congress
XI. The Making of Federal Laws
XII. Taxes, Duties, Imposts, and Excises
XIII. Finance and Commerce
XIV. Courts & International Offences
XV. Declaration of War
XVI. State Militia
XVII. Congressional Governance of Washington, D.C. & Military Facilities
XVIII. Congressional Authority On Enactment Of Laws
XIX. Slaves
Book image from The Federalist Papers. Other reading formats of the Elementary Catechism on the Constitution can be found here.


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