Bill of attainder
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A bill of attainder (also known as an act or writ of attainder) was 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 Royalty, and several of the grievances enumerated in the Declaration of Independence could be characterized as such. They were abolished in the United Kingdom in 1870.
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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), Catherine 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. <ref>House of Commons Journal Volume 8, 15 May 1660</ref> <ref>House of Commons Journal Volume 8, 4 December 1660</ref> <ref>Journal of the House of Commons: volume 8</ref>
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.
Relationship to Legislative Intervention
To elaborate, "bill of attainder" can be eventually discovered in the crude tool of legislative intervention if such intervention is used to cut the Gordian knot of a difficult court case. In fact, it is nearly impossible to grant one side of a competently contested court case a privilege without at the same time penalizing the other side, thereby making most such interventions ipso facto unconstitutional. Surprisingly, this legal nit sometimes either escapes the attention of or sometimes is deliberately ignored by legislators; this can apply even to those legislators who are well-trained and otherwise conscientious lawyers. When legislators make such errors, as demonstrated by the Courts, only the constituency, or more generally the People, if they can comprehend the issues and maintain the attention span to remember such errors, have the power to take more decisive remedial action, and even then, provided that the current government of the United States stands and that all other legal proscriptions are obeyed, only at the polling booth, or upon other legitimate aspects of the re-election campaign.
Context as experimental feature
While the electoral college, with all of its complexities, was a necessary compromise to accommodate the concerns of smaller states who wished to avoid the typical tyranny of the majority that might be the price paid for the benefits accrued from Union and collaboration, the bill of attainder clause was a quantum leap forward in governmental self-actualization and self-consciousness. One could argue that such an obscure legal artifact is, in fact, the missing link between an era of rule based on the last savage vestiges of the Dark Ages, and one initiated by a generation who were a product of the Age of Enlightenment.
The bill of attainder clause was invented by the Founding Fathers whose intentions were to avoid the abuses of the past not only by those past Monarchs but also, and most importantly, by the new government itself. Their intentions, well-documented in the Federalist Papers, were to advance the American experiment beyond simple democracy and further towards a self-government that would stand the test of time. The bill of attainder clause was that first voluntary and self-initiated baby step, in that milieu of experiment and discovery that characterized that birth of a remarkable new Nation, who were tasting a level of indepence only possible in the New World, towards the concept that is now axiomatic: with U.S. citizenship comes individual rights that are not viewed merely as privileges granted by the current ruling authority structure, but that such Rights are inalienable not just from that citizenry as a whole, but from each individual citizen.
In a sense, the bill of attainder clause was the "zeroeth" member of the Bill of Rights; the Rights of Man still in embryonic legal form, with only the much more traditional habeas corpus provision being a viable contender for that position. It was an innovation whose example would be followed both immediately and in succeeding generations by a list of constitutional amendments designed to avoid the tyranny of the majority or some other form of democratic oligarchy: the Bill of rights, the 13th, 14th, 15th, 19th, 24th Amendments.
It is useful to note that after the bill of attainder clause and the Bill of Rights were in place, the Nation would not again be ready to further advance the Experiment until it had passed through the crucible of Civil War and that several of the other listed Amendments closely followed periods of significant warfare, during that heady time of Victory. One could argue that these Amendments were, in effect, America innovating and finding new ways to maximize the advancement of the Experiment, rather than simply letting the Spoils of War translate into an ephemerally self-indulgent mass raping of the defeated states and countries. At each step, that American blood and treasure that was lost seemed to provoke not a rapine revenge, but instead an insistence on a maximum long-range return on such a staggeringly high investment. One could further argue that it was the immense wealth and power of the United States at each of these phases, starting with that first Victory of the American Revolution, that allowed it to pause, contemplate and plan for a better future for itself and, incidentally, for the rest of the World.
Recent American bills of attainder
The Elizabeth Morgan Act was overturned as a bill of attainder. Many suggested that the Palm Sunday Compromise was also a bill of attainer.
Some have argued that modern asset forfeiture laws are essentially bills of attainder. One sees the applicability of the All Seaons excerpt in the plight of David Souter and the Lost Liberty Hotel.
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. Or in other words - a private bill is only a bill of attainder if its to its subject's detriment.
Word 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. <ref>John Crossland Churchill: execute Hitler without trial in the Sunday Times, January 1, 2006</ref>
Footnotes
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External links
British tradition
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?