Article 1, Section 9, Clause 3

Document 8

Records of the Federal Convention

[2:375; Madison, 22 Aug.]

Mr. Gerry & Mr. McHenry moved to insert after the 2d. sect. art: 7. the clause following, to wit, "The Legislature shall pass no bill of attainder nor any ex post facto law"

Mr. Gerry urged the necessity of this prohibition, which he said was greater in the National than the State Legislature, because the number of members in the former being fewer, they were on that account the more to be feared.

Mr. Govr. Morris thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder

Mr Elseworth contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It cannot then be necessary to prohibit them.

Mr. Wilson was against inserting anything in the Constitution as to ex post facto laws. It will bring reflexions on the Constitution--and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so.

The question being divided, The first part of the motion relating to bills of attainder was agreed to nem. contradicente.

On the second part relating to ex post facto laws--

Mr Carrol remarked that experience overruled all other calculations. It had proved that in whatever light they might be viewed by civilians or others, the State Legislatures had passed them, and they had taken effect.

Mr. Wilson. If these prohibitions in the State Constitutions have no effect, it will be useless to insert them in this Constitution. Besides, both sides will agree to the principle & will differ as to its application.

Mr. Williamson. Such a prohibitory clause is in the Constitution of N. Carolina, and tho it has been violated, it has done good there & may do good here, because the Judges can take hold of it

Docr. Johnson thought the clause unnecessary, and implying an improper suspicion of the National Legislature.

Mr. Rutlidge was in favor of the clause.

On the question for inserting the prohibition of ex post facto laws.

N-- H-- ay-- Mas. ay. Cont. no. N. J-- no. Pa. no. Del--ay. Md. ay. Virga. ay N-- C. divd. S. C. ay-- Geo. ay. [Ayes--7; noes--3; divided--1.]

[2:448; Madison, 29 Aug.]

Mr. Dickenson mentioned to the House that on examining Blackstone's Commentaries, he found that the terms "ex post facto" related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for this purpose would be requisite.

[2:571, 596; Committee of Style]

The Legislature shall pass no bill of attainder nor any ex post facto laws.

. . . . .

(b) No bill of attainder shall be passed, nor any ex post facto law.

[2:617; Madison, 14 Sept.]

Col: Mason moved to strike out from the clause (art I sect 9.) "No bill of attainder nor any expost facto law shall be passed" the words "nor any ex post facto law". He thought it not sufficiently clear that the prohibition meant by this phrase was limited to cases of a criminal nature--and no Legislature ever did or can altogether avoid them in Civil cases.

Mr. Gerry 2ded. the motion but with a view to extend the prohibition to "Civil cases", which he thought ought to be done.

On the question; all the States were--no

[2:640; Mason, 15 Sept.]

Both the general legislature and the State legislature are expressly prohibited making ex post facto laws; though there never was nor can be a legislature but must and will make such laws, when necessity and the public safety require them; which will hereafter be a breach of all the constitutions in the Union, and afford precedents for other innovations.

The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 3, Document 8
The University of Chicago Press

Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.

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