Bill of attainder

A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial. The United States Constitution forbids both the federal and state governments from enacting bills of attainder, in Article 1, Sections 9 and 10, respectively. It was considered an excess or abuse of the British monarchy and Parliament. They were abolished in the United Kingdom in 1870, but, even at the time of the American Revolution, they were rarely used.

Origin

The word "attainder", meaning "taintedness", is part of English common law. Under English law, a criminal condemned for some crime, usually treason, could be declared "attainted", meaning that his civil rights were nullified: he could no longer own property or pass property to his family by will or testament. His property would consequently revert to the Crown. Peerage titles would revert to the Crown. The convicted person might be punished in other ways; for example, in the case of attainder for treason, he could be executed.

Bills of attainder evolved into a convenient way for the King to convict subjects of crimes, and confiscate their property, without the bother of a trial--and without the need for a conviction or the presentation of evidence.

In some cases (at least regarding the peerage) the Crown would eventually re-grant the convicted peer's lands and titles to his heir. It was possible, as political fortunes turned, for a bill of attainder to be reversed. This might even happen long after the convicted person was dead.

The first use of attainder was in 1321 against the Earl of Winchester and the Earl of Gloucester, who both shared the name Hugh le Despenser, and the last in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798.

In Britain, those executed after the passing of Attainders include Elizabeth Barton (1534), Thomas Cromwell (1540), Margaret Pole, Countess of Salisbury (1540), Katherine Howard (1542), Thomas Howard (1572), Thomas Wentworth (1641), and the Duke of Monmouth. In the case of Catherine Howard, in 1541 King Henry VIII was the first monarch to delegate Royal Assent, to avoid having to assent personally to the act.

Although deceased by the time of the Restoration, the regicides John Bradshaw, Oliver Cromwell, Henry Ireton and Thomas Pride were served with a Bill of Attainder on 15 May 1660 backdated to January 1 1649 (NS). After the committee stages the Bill of Attainder passed both the Houses of Lords and Commons and was ingrossed on 4 December, 1660. This was followed with a resolution "That the Carcases of Oliver Cromwell, Henry Ireton, John Bradshaw, and Thomas Pride, whether buried in Westminster Abbey, or elsewhere, be, with all Expedition, taken up, and drawn upon a Hurdle to Tiburne, and there hanged up in their Coffins for some time; and after that buried under the said Gallows: And that James Norfolke Esquire, Serjeant at Arms attending the House of Commons, do take care that this Order be put in effectual Execution." This passed both Houses on the same day.

American usage

Bills of attainder were used through the 18th century in England, and were applied to English colonies as well. One of the motivations for the American revolution was anger at the injustice of attainder—though the Americans themselves used bills of attainder to confiscate the property of English loyalists (called tories) during the revolution. American dissatisfaction with attainder laws motivated their prohibition in the Constitution (see the case of Parker Wickham). The provision forbidding state law bills of attainder reflects the importance that the framers attached to this issue, since the unamended constitution imposes very few restrictions on state governments' power.

Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial functions—since the outcome of such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution. The text of the Constitution, Article I, Section 9; Clause 3 is:

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

The constitutions of each and every State within the American Union expressly forbid bills of attainder. For example, Wisconsin's constitution Article I, Section 12 reads:

No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.

Contrast this with the subtly more modern variation with the Texas version: Article 1 (Titled Bill of Rights) Section 16, entitled Bills of Attainder; Ex Post Facto or Retroactive Laws: Imparing Obligation of Contracts:

No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.

Rarity

The bill of attainder clause in the U.S. and States Constitutions remains obscure to the average U.S. citizen, primarily because Congress rarely makes such a mistake. Up until 2003, only six acts of the federal Congress had ever been overturned on bill of attainder grounds:

• Ex Parte Garland, 4 Wallace 333 (1866) - Requirement for admission to practice law in the federal courts of an oath that a lawyer had not taken part in the rebellion was invalid as a bill of attainder.
• Cummings v. Missouri, 4 Wallace 277 (1866).
• U.S. v. Brown, 381 U.S. 437 (1965).
• Nixon v. Administrator of General Services, 433 U.S.425 (1977).
• Selective Service Administration v. Minnesota PIRG, 468 U.S. 841 (1984).
• Elizabeth Morgan Act

The Palm Sunday Compromise in the case of Terri Schiavo might have been able to be overturned on bill of attainder grounds.

Great Act of Attainder

The British King James II, driven off by the ascent of William and Mary in the Glorious Revolution, came to Ireland intent on reclaiming his throne. With his arrival, the Parliament of Ireland began work on a list of names, eventually tallying around three thousand. Those on the list were to report to Dublin for sentencing. One man, Lord Mountjoy, was in the Bastille at the time and was told by the Irish Parliament that he must break out of his cell and make it back to Ireland for his punishment, or face the grisly process of being drawn and quartered.

Private Bills

Main article: Private bill

In the Westminster system (and especially in the United Kingdom), a similar concept is covered by the term private bill (which upon passage become private acts). Note however that private bill is a general term referring to a proposal for legislation applying to a specific person; it is only a bill of attainder if it punishes them. The only type of private bill accepted today is the one which grants them some privilege they would otherwise not be entitled to, which are not bills of attainder at all. A private bill is only a "bill of attainder" if it is to its subject's detriment. Previously, private bills were used in some Commonwealth countries to affect divorce.

World War II

Previously secret British War Cabinet papers released on January 1 2006, have shown that, as early as December 1942, the War Cabinet had discussed their policy for the punishment of the leading Nazis if captured. British Prime Minister Winston Churchill had then advocated a policy of summary execution with the use of an Act of Attainder to circumvent legal obstacles, and was only dissuaded from this by pressure from the U.S. later in the war.

See also

• Eminent domain, the taking of private property with compensation, for public purpose

External links

British tradition

• British Impeachment and Attainder

American tradition

• Definition at Tech Law Journal
• Insigtfull but brief definition and Bill of Pains and Penalties
• The Act for the attainder of Thomas Wentworth, 1st Earl of Strafford
• Bill of Attainder: Trial by Legislature
• Defining Bills Of Attainder by Thomas M. Saunders and Alternate URL
• Extended annotation at FindLaw
• Catholic Encyclopedia definition
• Psychiatric damages caused by Bills of Attainder
• Confessions of a Pilgrim. Re: Schiavo
• Palmer v. Clarke and a change in Evidentiary Rules as a Bill of Attainder
• Mention of Attainder in Federalist Papers, for example, by Madison and again by Madison and by Hamilton
• Can a Reparations Package Be a Bill of Attainder?
• The Rule of Law and the Origins of the Bill of Attainder Clause