A bill of attainder (also known as an act of attainder or writ of attainder or bill of penalties) is an act of a
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial. As with
attainder
In English criminal law, attainder or attinctura was the metaphorical "stain" or "corruption of blood" which arose from being condemned for a serious capital crime (felony or treason). It entailed losing not only one's life, property and hereditar ...
resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person's
civil rights
Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of ...
, most notably the right to own property (and thus pass it on to heirs), the right to a title of nobility, and, in at least the original usage, the right to life itself.
In the
history of England
England became inhabited more than 800,000 years ago, as the discovery of stone tools and footprints at Happisburgh in Norfolk have indicated.; "Earliest footprints outside Africa discovered in Norfolk" (2014). BBC News. Retrieved 7 February ...
, the word "
attainder
In English criminal law, attainder or attinctura was the metaphorical "stain" or "corruption of blood" which arose from being condemned for a serious capital crime (felony or treason). It entailed losing not only one's life, property and hereditar ...
" refers to people who were declared "attainted", meaning that their civil rights were nullified: they could no longer own property or pass property to their family by will or testament. Attainted people would normally be punished by
judicial execution
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
, with the property left behind
escheat
Escheat is a common law doctrine that transfers the real property of a person who has died without heirs to the crown or state. It serves to ensure that property is not left in "limbo" without recognized ownership. It originally applied to a ...
ed to the Crown or lord rather than being inherited by family. The first use of a bill of attainder was in 1321 against
Hugh le Despenser, 1st Earl of Winchester
Hugh le Despenser (1 March 126127 October 1326), sometimes referred to as "the Elder Despenser", was for a time the chief adviser to King Edward II of England. He was created a baron in 1295 and Earl of Winchester in 1322. One day after being c ...
and his son
Hugh Despenser the Younger, Earl of Gloucester, who were both attainted for supporting
King Edward II
Edward II (25 April 1284 – 21 September 1327), also called Edward of Caernarfon, was King of England and Lord of Ireland from 1307 until he was deposed in January 1327. The fourth son of Edward I, Edward became the heir apparent to th ...
. Bills of attainder passed in Parliament by
Henry VIII
Henry VIII (28 June 149128 January 1547) was King of England from 22 April 1509 until his death in 1547. Henry is best known for his six marriages, and for his efforts to have his first marriage (to Catherine of Aragon) annulled. His disa ...
on 29 January 1542 resulted in the executions of a number of notable historical figures.
The use of these bills by Parliament eventually fell into disfavour due to the potential for abuse and the violation of several legal principles, most importantly the right to
due process
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
, the precept that a law should address a particular form of behaviour rather than a specific individual or group, and the
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
, since a bill of attainder is necessarily a
judicial
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudication, adjudicates legal disputes/disagreements and interprets, defends, and app ...
matter. The last use of attainder was in 1798 against
Lord Edward FitzGerald
Lord Edward FitzGerald (15 October 1763 – 4 June 1798) was an Irish aristocrat who abandoned his prospects as a distinguished veteran of British service in the American War of Independence, and as an Irish Parliamentarian, to embrace the caus ...
for leading the
Irish Rebellion of 1798
The Irish Rebellion of 1798 ( ga, Éirí Amach 1798; Ulster-Scots: ''The Hurries'') was a major uprising against British rule in Ireland. The main organising force was the Society of United Irishmen, a republican revolutionary group influence ...
. The House of Lords later passed the
Pains and Penalties Bill 1820
The Pains and Penalties Bill 1820 was a bill introduced to the British Parliament in 1820, at the request of King George IV, which aimed to dissolve his marriage to Caroline of Brunswick, and deprive her of the title of queen.
George and Caroline ...
, which attempted to attaint
Queen Caroline, but it was not considered by the House of Commons. No bills of attainder have been passed since 1820 in the UK. Attainder remained a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.
American dissatisfaction with British attainder laws resulted in their being prohibited in the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
in 1789. Bills of attainder are forbidden to both the federal government and the states, reflecting the importance that the
Framers
The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Although the convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention fr ...
attached to this issue. Every
state constitution also expressly forbids bills of attainder. The
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has invalidated laws under the Attainder Clause on five occasions.
Jurisdictions
Australia
Unlike the United States Constitution, the
Constitution of Australia
The Constitution of Australia (or Australian Constitution) is a written constitution, constitutional document that is Constitution, supreme law in Australia. It establishes Australia as a Federation of Australia, federation under a constitutio ...
contains no specific provision prohibiting the
Commonwealth Parliament
The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the governor-g ...
from passing bills of attainder. However, the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
has ruled that bills of attainder are unconstitutional, because it is a violation of the separation of powers doctrine for any body to wield judicial power other than a Chapter III courtthat is, a body exercising power derived from Chapter III of the Constitution, the chapter providing for judicial power.
[.][.][.] One of the core aspects of judicial power is the ability to make binding and authoritative decisions on questions of law, that is, issues relating to life, liberty or property.
[.][.] The wielding of judicial power by the legislative or executive branch includes the direct wielding of power and the indirect wielding of judicial power.
[.]
The
state constitutions in Australia contain few limitations on government power. Bills of attainder are considered permissible because there is no entrenched separation of powers at the state level. However,
section 77 of the Constitution of Australia
In Australian constitutional law, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these co ...
permits state courts to be invested with Commonwealth jurisdiction, and any state law that renders a state court unable to function as a Chapter III court is unconstitutional. The states cannot structure their legal systems to prevent them from being subject to the Australian Constitution.
An important distinction is that laws seeking to direct judicial power (e.g. must make orders) are unconstitutional, but laws that concern mandatory sentencing, rules of evidence, non-punitive imprisonment, or tests, are constitutional.
State parliaments are however free to prohibit parole boards from granting parole to specific prisoners. For instance, sections 74AA and 74AB of the Corrections Act 1986 in
Victoria
Victoria most commonly refers to:
* Victoria (Australia), a state of the Commonwealth of Australia
* Victoria, British Columbia, provincial capital of British Columbia, Canada
* Victoria (mythology), Roman goddess of Victory
* Victoria, Seychelle ...
significantly restricts the ability of the parole board to grant parole to
Julian Knight or
Craig Minogue
Craig William John Minogue (born 1962) is an Australian convicted murderer responsible for the 1986 bombing of the Russell Street Police Headquarters in Russell Street, Melbourne, Victoria, Australia. Minogue was sentenced to life imprisonment ...
. These have been upheld by the High Court of Australia and are distinguished from bills of attainder since the original sentence (life imprisonment) stands; the only change is the administration of parole.
Canada
In two cases of attempts to pass bills (in 1984 for
Clifford Olson
Clifford Robert Olson Jr. (January 1, 1940 – September 30, 2011) was a convicted Canadian serial killer who confessed to murdering 11 children and teenagers between the ages of 9 and 18 in the early 1980s.
Murders
Christine Weller, 12, from ...
and in 1995 for
Karla Homolka
Karla Leanne Homolka (born May 4, 1970), also known as Karla Leanne Teale, Leanne Teale, and Leanne Bordelais, is a Canadian serial killer who acted as an accomplice to her husband, Paul Bernardo, taking active part in the actual rapes and murde ...
) to inflict a judicial penalty on a specific person, the speakers of the
House
A house is a single-unit residential building. It may range in complexity from a rudimentary hut to a complex structure of wood, masonry, concrete or other material, outfitted with plumbing, electrical, and heating, ventilation, and air condi ...
and
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, respectively, have ruled that Canadian
parliamentary practice does not permit bills of attainder or bills of pains and penalties.
United Kingdom
English law
The word "
attainder
In English criminal law, attainder or attinctura was the metaphorical "stain" or "corruption of blood" which arose from being condemned for a serious capital crime (felony or treason). It entailed losing not only one's life, property and hereditar ...
" is part of English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
. Under English law, a criminal condemned for a serious crime, whether
treason
Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
or
felony
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...
(but not
misdemeanour
A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than adm ...
, which referred to less serious crimes), 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 could consequently revert to
the Crown
The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
or to the
mesne lord
A mesne lord () was a lord in the feudal system who had vassals who held land from him, but who was himself the vassal of a higher lord. Owing to ''Quia Emptores'', the concept of a mesne lordship technically still exists today: the partitionin ...
. Any
peerage
A peerage is a legal system historically comprising various hereditary titles (and sometimes non-hereditary titles) in a number of countries, and composed of assorted noble ranks.
Peerages include:
Australia
* Australian peers
Belgium
* Belgi ...
titles would also revert to the Crown. The convicted person would normally be punished by
judicial execution
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
when a person committed a capital crime and was put to death for it, the property left behind
escheat
Escheat is a common law doctrine that transfers the real property of a person who has died without heirs to the crown or state. It serves to ensure that property is not left in "limbo" without recognized ownership. It originally applied to a ...
ed to the Crown or lord rather than being inherited by family. Attainder functioned more or less as the revocation of the feudal chain of privilege and all rights and properties thus granted.
Due to
mandatory sentencing
Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are inst ...
, the due process of the courts provided limited flexibility to deal with the various circumstances of offenders. The property of criminals caught alive and put to death because of a guilty plea or jury conviction on a not guilty plea could be forfeited, as could the property of those who escaped justice and were outlawed; but the property of offenders who died before trial, except those killed during the commission of crimes (who fell foul of the law relating to ''
felo de se
''Felo de se'' (from Medieval Latin ''fel'' 'lō dē sē'', "felon of him-/herself") was a concept applied against the personal estates (assets) of adults who ended their own lives.
Early English common law, among others, by this concept cons ...
''), could not be forfeited, nor could the property of offenders who refused to plead and who were tortured to death through ''
peine forte et dure
' (Law French for "hard and forceful punishment") was a method of torture formerly used in the common law legal system, in which a defendant who refused to plead ("stood mute") would be subjected to having heavier and heavier stones placed upon h ...
''.
On the other hand, when a legal conviction did take place, confiscation and "corruption of blood" sometimes appeared unduly harsh for the surviving family. 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 sometimes occurred long after the convicted person was executed.
Unlike the mandatory sentences of the courts, acts of Parliament provided considerable latitude in suiting the punishment to the particular conditions of the offender's family. Parliament could also impose non-capital punishments without involving courts; such bills are called bills of pains and penalties.
Bills of attainder were sometimes criticised as a convenient way for the
king
King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king.
*In the context of prehistory, antiquity and contemporary indigenous peoples, the tit ...
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. It was however relevant to the custom of the Middle Ages, where all lands and titles were granted by a king in his role as the "
fount of honour The fount of honour ( la, fons honorum) is a person, who, by virtue of his or her official position, has the exclusive right of conferring legitimate titles of nobility and orders of chivalry on other persons.
Origin
During the High Middle Ages, ...
". Anything granted by the king's wish could be taken away by him. This weakened over time as personal rights became legally established.
The first use of a bill of attainder was in 1321 against
Hugh le Despenser, 1st Earl of Winchester
Hugh le Despenser (1 March 126127 October 1326), sometimes referred to as "the Elder Despenser", was for a time the chief adviser to King Edward II of England. He was created a baron in 1295 and Earl of Winchester in 1322. One day after being c ...
and his son
Hugh Despenser the Younger, Earl of Gloucester. They were both attainted for supporting
King Edward II
Edward II (25 April 1284 – 21 September 1327), also called Edward of Caernarfon, was King of England and Lord of Ireland from 1307 until he was deposed in January 1327. The fourth son of Edward I, Edward became the heir apparent to th ...
during his struggle with the
queen
Queen or QUEEN may refer to:
Monarchy
* Queen regnant, a female monarch of a Kingdom
** List of queens regnant
* Queen consort, the wife of a reigning king
* Queen dowager, the widow of a king
* Queen mother, a queen dowager who is the mother ...
and
baron
Baron is a rank of nobility or title of honour, often hereditary, in various European countries, either current or historical. The female equivalent is baroness. Typically, the title denotes an aristocrat who ranks higher than a lord or knig ...
s.
In England, those executed subject to attainders include
George Plantagenet, Duke of Clarence
George Plantagenet, Duke of Clarence (21 October 144918 February 1478), was the 6th son of Richard Plantagenet, 3rd Duke of York, and Cecily Neville, and the brother of English kings Edward IV and Richard III. He played an important role in t ...
(1478);
Thomas Cromwell
Thomas Cromwell (; 1485 – 28 July 1540), briefly Earl of Essex, was an English lawyer and statesman who served as chief minister to King Henry VIII from 1534 to 1540, when he was beheaded on orders of the king, who later blamed false charge ...
(1540);
Margaret Pole, Countess of Salisbury
Margaret Plantagenet, Countess of Salisbury (14 August 1473 – 27 May 1541), also called Margaret Pole, as a result of her marriage to Richard Pole (courtier), Sir Richard Pole, was the only surviving daughter of George Plantagenet, Duke ...
(1540);
Catherine Howard
Catherine Howard ( – 13 February 1542), also spelled Katheryn Howard, was Queen of England from 1540 until 1542 as the fifth wife of Henry VIII. She was the daughter of Lord Edmund Howard and Joyce Culpeper, a cousin to Anne Boleyn (the s ...
(1542);
Thomas, Lord Seymour (1549);
Thomas Wentworth, Earl of Strafford
Thomas Wentworth, 1st Earl of Strafford, (13 April 1593 ( N.S.)12 May 1641), was an English statesman and a major figure in the period leading up to the English Civil War. He served in Parliament and was a supporter of King Charles I. From 1 ...
(1641); Archbishop
William Laud
William Laud (; 7 October 1573 – 10 January 1645) was a bishop in the Church of England. Appointed Archbishop of Canterbury by Charles I in 1633, Laud was a key advocate of Charles I's religious reforms, he was arrested by Parliament in 1640 ...
of
Canterbury
Canterbury (, ) is a City status in the United Kingdom, cathedral city and UNESCO World Heritage Site, situated in the heart of the City of Canterbury local government district of Kent, England. It lies on the River Stour, Kent, River Stour.
...
(1645); and
James Scott, Duke of Monmouth
James Scott, 1st Duke of Monmouth, 1st Duke of Buccleuch, Order of the Garter, KG, Her Majesty's Most Honourable Privy Council, PC (9 April 1649 – 15 July 1685) was a Dutch-born English nobleman and military officer. Originally called James Cr ...
. In the 1541 case of Catherine Howard, King
Henry VIII
Henry VIII (28 June 149128 January 1547) was King of England from 22 April 1509 until his death in 1547. Henry is best known for his six marriages, and for his efforts to have his first marriage (to Catherine of Aragon) annulled. His disa ...
was the first monarch to delegate
royal assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in other ...
, to avoid having to assent personally to the execution of his wife.
After defeating
Richard III
Richard III (2 October 145222 August 1485) was King of England and Lord of Ireland from 26 June 1483 until his death in 1485. He was the last king of the House of York and the last of the Plantagenet dynasty. His defeat and death at the Battl ...
and replacing him on the throne of England following the
Battle of Bosworth Field
The Battle of Bosworth or Bosworth Field was the last significant battle of the Wars of the Roses, the civil war between the houses of Lancaster and York that extended across England in the latter half of the 15th century. Fought on 22 Augu ...
,
Henry VII had Parliament pass a bill of attainder against his predecessor. It is noteworthy that this bill made no mention of the
Princes in the Tower
The Princes in the Tower refers to the apparent murder in England in the 1480s of the deposed King Edward V of England and Richard of Shrewsbury, Duke of York. These two brothers were the only sons of King Edward IV and Elizabeth Woodville sur ...
, although it does declare him guilty of "shedding of Infants blood".
Although deceased by the time of the
Restoration
Restoration is the act of restoring something to its original state and may refer to:
* Conservation and restoration of cultural heritage
** Audio restoration
** Film restoration
** Image restoration
** Textile restoration
* Restoration ecology
...
, the
regicides
Regicide is the purposeful killing of a monarch or sovereign of a polity and is often associated with the usurpation of power. A regicide can also be the person responsible for the killing. The word comes from the Latin roots of ''regis'' ...
John Bradshaw,
Oliver Cromwell
Oliver Cromwell (25 April 15993 September 1658) was an English politician and military officer who is widely regarded as one of the most important statesmen in English history. He came to prominence during the 1639 to 1651 Wars of the Three Ki ...
,
Henry Ireton
Henry Ireton ((baptised) 3 November 1611 – 26 November 1651) was an English general in the Parliamentarian army during the Wars of the Three Kingdoms, and the son-in-law of Oliver Cromwell. He died of disease outside Limerick in November 16 ...
, and
Thomas Pride
Colonel Thomas Pride (died 23 October 1658) was a Parliamentarian commander during the Wars of the Three Kingdoms, best known as one of the regicides of Charles I and as the instigator of Pride's Purge.
Personal details
Thomas Pride was born ...
were served with a bill of attainder on 15 May 1660 backdated to 1 January 1649 (
NS). After the committee stages, the bill passed both the
Houses of Lords and
Commons
The commons is the cultural and natural resources accessible to all members of a society, including natural materials such as air, water, and a habitable Earth. These resources are held in common even when owned privately or publicly. Commons ...
and was engrossed on 4 December 1660. This was followed with a resolution that passed both Houses on the same day:
In 1685, when the
Duke of Monmouth
Duke is a male title either of a monarch ruling over a duchy, or of a member of royalty, or nobility. As rulers, dukes are ranked below emperors, kings, grand princes, grand dukes, and sovereign princes. As royalty or nobility, they are ranked ...
landed in
West England and started
a rebellion in an effort to overthrow his uncle, the recently enthroned
James II, Parliament passed a bill of attainder against him. After the
Battle of Sedgemoor
The Battle of Sedgemoor was the last and decisive engagement between the Kingdom of England and rebels led by the Duke of Monmouth during the Monmouth rebellion, fought on 6 July 1685, and took place at Westonzoyland near Bridgwater in Somerse ...
, this made it possible for King James to have the captured Monmouth put summarily to death. Though legal, this was regarded by many as an arbitrary and ruthless act.
In 1753, the Jacobite leader
Archibald Cameron of Lochiel
Archibald Cameron of Lochiel (1707 – 7 June 1753) was a Scottish physician and a prominent leader in the Jacobite rising of 1745. The personal physician of Prince Charles Edward Stuart, On 7 June 1753, at Tyburn, he was the last Jacobite to ...
was summarily put to death on the basis of a seven-year-old bill of attainder, rather than being put on trial for his recent subversive activities in Scotland. This aroused some protests in British public opinion at the time, including from people with no Jacobite sympathies.
The last use of attainder was in 1798 against
Lord Edward FitzGerald
Lord Edward FitzGerald (15 October 1763 – 4 June 1798) was an Irish aristocrat who abandoned his prospects as a distinguished veteran of British service in the American War of Independence, and as an Irish Parliamentarian, to embrace the caus ...
for leading the
Irish Rebellion of 1798
The Irish Rebellion of 1798 ( ga, Éirí Amach 1798; Ulster-Scots: ''The Hurries'') was a major uprising against British rule in Ireland. The main organising force was the Society of United Irishmen, a republican revolutionary group influence ...
.
The Great Act of Attainder
In 1688, King
James II of England
James VII and II (14 October 1633 16 September 1701) was King of England and King of Ireland as James II, and King of Scotland as James VII from the death of his elder brother, Charles II, on 6 February 1685. He was deposed in the Gloriou ...
(VII of Scotland), driven off by the ascent of
William III William III or William the Third may refer to:
Kings
* William III of Sicily (c. 1186–c. 1198)
* William III of England and Ireland or William III of Orange or William II of Scotland (1650–1702)
* William III of the Netherlands and Luxembourg ...
and
Mary II
Mary II (30 April 166228 December 1694) was Queen of England, Scotland, and Ireland, co-reigning with her husband, William III & II, from 1689 until her death in 1694.
Mary was the eldest daughter of James, Duke of York, and his first wife ...
in the
Glorious Revolution
The Glorious Revolution; gd, Rèabhlaid Ghlòrmhor; cy, Chwyldro Gogoneddus , also known as the ''Glorieuze Overtocht'' or ''Glorious Crossing'' in the Netherlands, is the sequence of events leading to the deposition of King James II and ...
, came to Ireland with the sole purpose of reclaiming his throne. After his arrival, the
Parliament of Ireland
The Parliament of Ireland ( ga, Parlaimint na hÉireann) was the legislature of the Lordship of Ireland, and later the Kingdom of Ireland, from 1297 until 1800. It was modelled on the Parliament of England and from 1537 comprised two chamb ...
assembled a list of names in 1689 of those reported to have been disloyal to him, eventually tallying between two and three thousand, in a bill of attainder. Those on the list were to report to Dublin for sentencing. One man,
Lord Mountjoy
The titles of Baron Mountjoy and Viscount Mountjoy have been created several times for members of various families, including the Blounts and their descendants and the Stewarts of Ramelton and their descendants.
The first creation was for Walter ...
, was in the
Bastille
The Bastille (, ) was a fortress in Paris, known formally as the Bastille Saint-Antoine. It played an important role in the internal conflicts of France and for most of its history was used as a state prison by the kings of France. It was sto ...
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. The parliament became known in the 1800s as the "
Patriot Parliament
Patriot Parliament is the name commonly used for the Irish Parliament session called by King James II during the Williamite War in Ireland which lasted from 1688 to 1691. The first since 1666, it held only one session, which lasted from 7 May 16 ...
".
Later defenders of the Patriot Parliament pointed out that the ensuing "
Williamite Settlement forfeitures" of the 1690s named an even larger number of
Jacobite suspects, most of whom had been attainted by 1699.
Private bills
In the
Westminster system (and especially in the United Kingdom), a similar concept is covered by the term "private bill" (a bill which upon passage becomes a private Act). 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; private bills have been used in some Commonwealth countries to effect divorce. Other traditional uses of private bills include
chartering corporations, changing the charters of existing corporations, granting monopolies, approving of public infrastructure and seizure of property for those, as well as enclosure of commons and similar redistributions of property. Those types of private bills operate to take away private property and rights from certain individuals, but are usually not called "bill of pains and penalties". Unlike the latter, Acts appropriating property with compensation are constitutionally uncontroversial as a form of
compulsory purchase
Compulsion may refer to:
* Compulsive behavior, a psychological condition in which a person does a behavior compulsively, having an overwhelming feeling that they must do so.
* Obsessive–compulsive disorder, a mental disorder characterized by i ...
.
The last United Kingdom bill called a "Pains and Penalties Bill" was the
Pains and Penalties Bill 1820
The Pains and Penalties Bill 1820 was a bill introduced to the British Parliament in 1820, at the request of King George IV, which aimed to dissolve his marriage to Caroline of Brunswick, and deprive her of the title of queen.
George and Caroline ...
and was passed by the House of Lords in 1820, but not considered by the House of Commons; it sought to divorce
Queen Caroline from
King George IV
George IV (George Augustus Frederick; 12 August 1762 – 26 June 1830) was King of the United Kingdom of Great Britain and Ireland and King of Hanover from the death of his father, King George III, on 29 January 1820, until his own death ten y ...
and adjust her titles and property accordingly, on grounds of her alleged adultery, as did many private bills dealing with divorces of private persons.
No bills of attainder have been passed since 1820 in the UK. Attainder as such remained a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.
World War II
Previously secret British
War Cabinet
A war cabinet is a committee formed by a government in a time of war to efficiently and effectively conduct that war. It is usually a subset of the full executive cabinet of ministers, although it is quite common for a war cabinet to have senior ...
papers released on 1 January 2006 have shown that, as early as December 1942, the War Cabinet had discussed their policy for the punishment of the leading
Axis
An axis (plural ''axes'') is an imaginary line around which an object rotates or is symmetrical. Axis may also refer to:
Mathematics
* Axis of rotation: see rotation around a fixed axis
*Axis (mathematics), a designator for a Cartesian-coordinate ...
officials if captured.
British Prime Minister
The prime minister of the United Kingdom is the head of government of the United Kingdom. The prime minister advises the sovereign on the exercise of much of the royal prerogative, chairs the Cabinet and selects its ministers. As modern p ...
Winston Churchill
Sir Winston Leonard Spencer Churchill (30 November 187424 January 1965) was a British statesman, soldier, and writer who served as Prime Minister of the United Kingdom twice, from 1940 to 1945 Winston Churchill in the Second World War, dur ...
had then advocated a policy of
summary execution
A summary execution is an execution in which a person is accused of a crime and immediately killed without the benefit of a full and fair trial. Executions as the result of summary justice (such as a drumhead court-martial) are sometimes include ...
with the use of an act of attainder to circumvent legal obstacles. He was dissuaded by
Richard Law, a junior minister at the Foreign Office, who pointed out that the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
and the
Soviet Union
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, it was nominally a federal union of fifteen national ...
still favoured trials.
United States
Colonial era
Bills of attainder were used throughout the 18th century in England, and were applied to
British colonies
A Crown colony or royal colony was a colony administered by The Crown within the British Empire. There was usually a Governor, appointed by the British monarch on the advice of the UK Government, with or without the assistance of a local Counci ...
as well. However, at least one American state,
New York
New York most commonly refers to:
* New York City, the most populous city in the United States, located in the state of New York
* New York (state), a state in the northeastern United States
New York may also refer to:
Film and television
* '' ...
, used a 1779 bill of attainder to confiscate the property of
British loyalists
Loyalists were colonists in the Thirteen Colonies who remained loyal to the The Crown, British Crown during the American Revolutionary War, often referred to as Tories, Royalists or King's Men at the time. They were opposed by the Patriot (Ame ...
(called
Tories
A Tory () is a person who holds a political philosophy known as Toryism, based on a British version of traditionalism and conservatism, which upholds the supremacy of social order as it has evolved in the English culture throughout history. Th ...
) as both a penalty for their political sympathies and means of funding the rebellion, American dissatisfaction with British attainder laws resulted in their being prohibited in the U.S. Constitution ratified in 1789.
Constitutional bans
![Constitution Pg2of4 AC-attainder](https://upload.wikimedia.org/wikipedia/commons/9/9f/Constitution_Pg2of4_AC-attainder.jpg)
The
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
forbids legislative bills of attainder: in federal law under
Article I, Section 9, Clause 3 ("No Bill of Attainder or ex post facto Law shall be passed"), and in state law under
Article I, Section 10. The fact that they were banned even under state law reflects the importance that the
Framers
The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Although the convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention fr ...
attached to this issue.
Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforce the
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
by forbidding the legislature to perform
judicial
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudication, adjudicates legal disputes/disagreements and interprets, defends, and app ...
or executive functions, as a bill of attainder necessarily does. Second, they embody the concept of
due process
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
, which is reinforced by the
Fifth Amendment to the Constitution.
Every
state constitution also expressly forbids bills of attainder. For example,
Wisconsin's constitution Article I, Section 12 reads:
In contrast, the
Texas Constitution
The Constitution of the State of Texas is the document that establishes the structure and function of the government of the U.S. state of Texas, and enumerates the basic rights of the citizens of Texas.
The current document was adopted on Febr ...
omits the clause that applies to heirs. It is unclear whether a law that called for heirs to be deprived of their estate would be constitutional in Texas.
Supreme Court cases
The
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has invalidated laws under the Attainder Clause on five occasions.
Two of the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
's first decisions on the meaning of the bill of attainder clause came after the
American Civil War
The American Civil War (April 12, 1861 – May 26, 1865; also known by other names) was a civil war in the United States. It was fought between the Union ("the North") and the Confederacy ("the South"), the latter formed by states th ...
. In ''
Ex parte Garland
''Ex parte Garland'', 71 U.S. (4 Wall.) 333 (1866), was an important United States Supreme Court case involving the disbarment of former Confederate officials.
Background
In January 1865, the US Congress passed a law that effectively disbarred fo ...
'', 71 U.S. 333 (1866), the court struck down a federal law requiring attorneys practising in federal court to swear that they had not supported the rebellion. In ''
Cummings v. Missouri Cummings may refer to:
Places Canada
* Cummings, Saskatchewan, an unincorporated hamlet
United States
* Cummings, Mendocino County, California, an unincorporated community
* Cummings, Kansas
* Cummings, North Dakota, an unincorporated commu ...
'', 71 U.S. 277 (1867), the
Missouri
Missouri is a U.S. state, state in the Midwestern United States, Midwestern region of the United States. Ranking List of U.S. states and territories by area, 21st in land area, it is bordered by eight states (tied for the most with Tennessee ...
Constitution required anyone seeking a professional's license from the state to swear they had not supported the rebellion. The Supreme Court overturned the law and the constitutional provision, arguing that the people already admitted to practice were subject to penalty without judicial trial. The lack of judicial trial was the critical affront to the Constitution, the Court said.
Two decades later, however, the Court upheld similar laws. In ''
Hawker v. New York
''Hawker v. New York'', 170 U.S. 189 (1898), is a case in which the Supreme Court of the United States upheld a New York state law preventing convicted felons from practicing medicine, even when the felony conviction occurred before the law was ena ...
'', 170 U.S. 189 (1898), a state law barred convicted felons from practising medicine. In ''
Dent v. West Virginia
''Dent v. West Virginia'', 129 U.S. 114 (1889), was an important Supreme Court of the United States, United States Supreme Court case involving the reputable practice of physicians and state laws in the late 19th century. It was a direct challeng ...
'', 129 U.S. 114 (1889), a
West Virginia
West Virginia is a state in the Appalachian, Mid-Atlantic and Southeastern regions of the United States.The Census Bureau and the Association of American Geographers classify West Virginia as part of the Southern United States while the Bur ...
state law imposed a new requirement that practising physicians had to have graduated from a licensed medical school or they would be forced to surrender their license. The Court upheld both laws because, it said, the laws were narrowly tailored to focus on an individual's qualifications to practice medicine.
[Johnson, Theodore. ''The Second Amendment ControversyExplained.'' 2d ed. Indianapolis: iUniverse, 2002, p. 334.] That was not true in ''Garland'' or ''Cummings''.
["Beyond Process: A Substantive Rationale for the Bill of Attainder Clause". ''Virginia Law Review''. 70:475 (April 1984), pp. 481-483.]
The Court changed its "bill of attainder test" in 1946. In ''
United States v. Lovett'', 328 U.S. 303 (1946), the Court confronted a federal law that named three people as subversive and excluded them from federal employment. Previously, the Court had held that lack of judicial trial and the narrow way in which the law rationally achieved its goals were the only tests of a bill of attainder. But the ''Lovett'' Court said that a bill of attainder 1) specifically identified the people to be punished; 2) imposed punishment; and 3) did so without benefit of judicial trial. As all three prongs of the bill of attainder test were met in ''Lovett'', the court held that a Congressional statute that bars particular individuals from government employment qualifies as punishment prohibited by the bill of attainder clause.
The
Taft–Hartley Act
The Labor Management Relations Act of 1947, better known as the Taft–Hartley Act, is a United States federal law that restricts the activities and power of labor unions. It was enacted by the 80th United States Congress over the veto of Preside ...
(enacted in 1947) sought to ban
political strikes by
Communist
Communism (from Latin la, communis, lit=common, universal, label=none) is a far-left sociopolitical, philosophical, and economic ideology and current within the socialist movement whose goal is the establishment of a communist society, a s ...
-dominated
labour unions
A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and benefits ...
by requiring all elected labour leaders to take an oath that they were not and had never been members of the
Communist Party USA
The Communist Party USA, officially the Communist Party of the United States of America (CPUSA), is a communist party in the United States which was established in 1919 after a split in the Socialist Party of America following the Russian Revo ...
, and that they did not advocate violent overthrow of the U.S. government. It also made it a crime for members of the Communist Party to serve on executive boards of labour unions. In ''
American Communications Association v. Douds
''American Communications Association v. Douds'', 339 U.S. 382 (1950), is a 5-to-1 ruling by the United States Supreme Court which held that the Taft–Hartley Act's imposition of an anti-communist oath on labor union leaders does not violate the ...
'', 339 U.S. 382 (1950), the Supreme Court had said that the requirement for the oath was not a bill of attainder because: 1) anyone could avoid punishment by disavowing the Communist Party, and 2) it focused on a future act (overthrow of the government) and not a past one.
[Welsh, Jane. "The Bill of Attainder Clause: An Unqualified Guarantee of Process". ''Brooklyn Law Review''. 50:77 (Fall 1983), p. 97.] Reflecting current fears, the Court commented in ''Douds'' on approving the specific focus on Communists by noting what a threat communism was. The Court had added an "escape clause" test to determining whether a law was a bill of attainder.
In ''United States v. Brown'', 381 U.S. 437 (1965), the Court invalidated the section of the statute that criminalized a former communist serving on a union's executive board. Clearly, the Act had focused on past behaviour and had specified a specific class of people to be punished. Many legal scholars assumed that the ''Brown'' case effectively, if not explicitly, overruled ''Douds''. The Court did not apply the punishment prong of the ''Douds'' test, leaving legal scholars confused as to whether the Court still intended it to apply.
The Supreme Court emphasized the narrowness and rationality of bills of attainder in ''
Nixon v. Administrator of General Services
''Nixon v. General Services Administration'', 433 U.S 425 (1977), is a landmark court case concerning the principle of presidential privilege and whether the public is allowed to view a President's “confidential documents”.. The Presidential ...
'', 433 U.S. 425 (1977). During the
Watergate scandal
The Watergate scandal was a major political scandal in the United States involving the administration of President Richard Nixon from 1972 to 1974 that led to Nixon's resignation. The scandal stemmed from the Nixon administration's continual ...
, in 1974 Congress passed the
Presidential Recordings and Materials Preservation Act
The Presidential Recordings and Materials Preservation Act (PRMPA) of 1974 (, codified at note is an act of Congress enacted in the wake of the August 1974 resignation of President Richard M. Nixon.[General Services Administration
The General Services Administration (GSA) is an independent agency of the United States government established in 1949 to help manage and support the basic functioning of federal agencies. GSA supplies products and communications for U.S. gover ...]
to confiscate former President
Richard Nixon
Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
's presidential papers to prevent their destruction, screen out those which contained national security and other issues which might prevent their publication, and release the remainder of the papers to the public as fast as possible. The Supreme Court upheld the law in ''Nixon'', arguing that specificity alone did not invalidate the act because the President constituted a "class of one".
[Stark, Jack. ''Prohibited Government Acts: A Reference Guide to the United States Constitution''. Westport, Connecticut: Praeger, 2002, pp. 79–80.] Thus, specificity was constitutional if it was rationally related to the class identified.
The Court modified its punishment test, concluding that only those laws which historically offended the bill of attainder clause were invalid. The Court also found it significant that Nixon was compensated for the loss of his papers, which alleviated the punishment.
[Stark, ''Prohibited Government Acts: A Reference Guide to the United States Constitution'', 2002, p. 75.] The Court modified the punishment prong by holding that punishment could survive scrutiny if it was rationally related to other, nonpunitive goals.
Finally, the Court concluded that the legislation must not be intended to punish; legislation enacted for otherwise legitimate purposes could be saved so long as punishment was a side-effect rather than the main purpose of the law.
Lower court cases
A number of cases which raised the bill of attainder issue did not reach or have not reached the Supreme Court, but were considered by lower courts.
In 1990, in the wake of the
Exxon Valdez oil spill
The ''Exxon Valdez'' oil spill occurred in Prince William Sound, Alaska, on March 24, 1989. ''Exxon Valdez'', an oil supertanker owned by Exxon Shipping Company bound for Long Beach, California struck Prince William Sound's Bligh Reef, west o ...
, Congress enacted the
Oil Pollution Act
The Oil Pollution Act of 1990 (OPA) (101 H.R.1465, P.L. 101-380) was passed by the 101st United States Congress and signed by President George H. W. Bush. It works to avoid oil spills from vessels and facilities by enforcing removal of spilled o ...
to consolidate various oil spill and oil pollution statutes into a single unified law, and to provide for a statutory regime for handling oil spill cleanup. This law was challenged as a bill of attainder by the shipping division of
ExxonMobil
ExxonMobil Corporation (commonly shortened to Exxon) is an American multinational oil and gas corporation headquartered in Irving, Texas. It is the largest direct descendant of John D. Rockefeller's Standard Oil, and was formed on November 30, ...
.
In 2003, the
struck down the
Elizabeth Morgan Act The Elizabeth Morgan Act is an act of the 104th United States Congress that was declared unconstitutional in 2003 by the U.S. Court of Appeals for the District of Columbia as being a bill of attainder, because it was written to deny rights to a sp ...
as a bill of attainder.
After the
United States House of Representatives
The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the Lower house, lower chamber of the United States Congress, with the United States Senate, Senate being ...
passed a resolution in late 2009 barring the community organising group
Association of Community Organizations for Reform Now
The Association of Community Organizations for Reform Now (ACORN) is an international collection of autonomous community-based organizations that advocated for low- and moderate-income families by working on neighborhood safety, voter registrati ...
(ACORN) from receiving federal funding, the group sued the U.S. government. Another, broader bill, the Defund ACORN Act, was enacted by Congress later that year. In March 2010, a
federal district court
The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district cou ...
declared the funding ban an unconstitutional bill of attainder. On 13 August 2010, the
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
reversed and remanded on the grounds that only 10 percent of ACORN's funding was federal and that did not constitute "punishment".
Possible cases
There is argument over whether the
Palm Sunday Compromise
The Palm Sunday Compromise, formally known as the ''Act for the relief of the parents of Theresa Marie Schiavo'' (), is an Act of Congress passed on March 21, 2005, to allow the case of Terri Schiavo to be moved into a federal court. The name ...
in the
Terri Schiavo case
The Terri Schiavo case was a series of court and legislative actions in the United States from 1998 to 2005, regarding the care of Theresa Marie Schiavo (née Schindler) (; December 3, 1963 – March 31, 2005), a woman in an irreversible ...
was a bill of attainder.
Some analysts considered a proposed Congressional bill to confiscate 90 percent of the bonus money paid to executives at federally rescued investment bank
American International Group
American International Group, Inc. (AIG) is an American multinational finance and insurance corporation with operations in more than 80 countries and jurisdictions. , AIG companies employed 49,600 people.https://www.aig.com/content/dam/aig/amer ...
a bill of attainder, although disagreement exists on the issue. The bill was not passed by Congress.
In 2009, the city of
Portland, Oregon
Portland (, ) is a port city in the Pacific Northwest and the largest city in the U.S. state of Oregon. Situated at the confluence of the Willamette and Columbia rivers, Portland is the county seat of Multnomah County, the most populous co ...
's attempt to prosecute more severely those on a "secret list" of 350 individuals deemed by police to have committed "liveability crimes" in certain neighbourhoods was challenged as an unconstitutional bill of attainder.
In 2011, the House voted to defund
Planned Parenthood
The Planned Parenthood Federation of America, Inc. (PPFA), or simply Planned Parenthood, is a nonprofit organization that provides reproductive health care in the United States and globally. It is a tax-exempt corporation under Internal Reve ...
. Democratic Representative
Jerry Nadler
Jerrold Lewis Nadler (; born June 13, 1947) is an American lawyer and politician who since 2013 has served as the U.S. representative for , which includes Manhattan's west side and parts of Brooklyn. A member of the Democratic Party, he is in h ...
called that vote a bill of attainder, saying it was unconstitutional as such because the legislation was targeting a specific group.
In January 2017, the House reinstated the
Holman Rule, a procedural rule that enables lawmakers to reduce the pay of an individual federal worker down to $1. It was once again removed at the beginning of the
116th United States Congress
The 116th United States Congress was a meeting of the legislative branch of the United States federal government, composed of the Senate and the House of Representatives. It convened in Washington, D.C., on January 3, 2019, and ended on Januar ...
in January 2019, after Democrats had taken control of the chamber.
See also
*
Ex post facto law
An ''ex post facto'' law (from ) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may Criminalization, crim ...
, which retroactively changes the legal consequences of actions committed prior to its enactment
Notes
References
External links
British tradition
British Impeachment and Attainder
American tradition
*
ttp://caselaw.lp.findlaw.com/data/constitution/article01/47.html Extended annotation at FindLaw* Mention of Attainder in the Federalist Papers by
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
i
Federalist 43Federalist 44 and by
Alexander Hamilton
Alexander Hamilton (January 11, 1755 or 1757July 12, 1804) was an American military officer, statesman, and Founding Father who served as the first United States secretary of the treasury from 1789 to 1795.
Born out of wedlock in Charlest ...
i
Federalist 84
*
*
{{DEFAULTSORT:Bill Of Attainder
Common law
English legal terminology
Ethically disputed judicial practices
Legal history