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. Any peerage titles would also revert to the Crown. The convicted person might also 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 indeed any evidence at all.

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 also 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 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 also passed both Houses on the same day. House of Commons Journal Volume 8, 15 May 1660 House of Commons Journal Volume 8, 4 December 1660 Journal of the House of Commons: volume 8

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 any 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 also 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.

Up until 2002, only five acts of Congress had ever been overturned on bill of attainder grounds. The Elizabeth Morgan Act was overturned in 2003 as a bill of attainder. Many suggested that the Palm Sunday Compromise in the case of Terri Schiavo was also a bill of attainder.

The 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

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. John Crossland Churchill: execute Hitler without trial in the Sunday Times, January 1, 2006