534
Opinion of the Court
a profound unfairness in Parliament's retrospectively altering the very rules it had established, simply because those rules prevented the conviction of the traitor—notwithstanding the fact that Fenwick could not truly claim to be "inno-cent." (At least one historian has concluded that his guilt was clearly established, see 9 Macaulay 203-204, and the debate in the House of Commons bears out that conclusion, see, e. g., Proceedings 219, 230, 246, 265, 289.) Moreover, the pertinent rule altered in Fenwick's case went directly to the general issue of guilt, lowering the minimum quantum of evidence required to obtain a conviction. The Framers, quite clearly, viewed such maneuvers as grossly unfair, and adopted the Ex Post Facto Clause accordingly.24
VI
The United States as amicus asks us to revisit the accuracy of the fourth category as an original matter. None of its reasons for abandoning the category is persuasive.
24 Fenwick's case also illustrates how such ex post facto laws can operate similarly to retrospective increases in punishment by adding to the coercive pressure to accept a plea bargain. When Fenwick was first brought before the Lord Justices, he was given an opportunity to make a confession to the King. Though he squandered the opportunity by authoring a plain contrivance, Fenwick could have reasonably assumed that a sincere confession would have been rewarded with leniency—the functional equivalent of a plea bargain. See 9 Macaulay 125. When the bill of attainder was taken up by the House of Commons, there is evidence that this was done to pressure Fenwick into making the honest confession he had failed to make before. See, e. g., Proceedings 197 (" 'Tis a Matter of Blood, 'tis true, but I do not aim at this Gentleman's Life in it . . . all I Propose by it, is to get his Confession"); id., at 235 ("[W]e do not aim at Sir John Fenwick's Blood, (God forbid we should) but at his Confession"); id., at 255 ("Why, give me leave to say to you, 'tis a new way not known in England, that you will Hang a Man unless he will Confess or give Evidence . . ."). And before the House of Lords, Fenwick was explicitly threatened that unless he confessed, they would proceed to consider the bill against him. 9 Macaulay 218.
Page: Index Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NextLast modified: October 4, 2007