Attainder
Encyclopedia
In English criminal law
, attainder or attinctura is the metaphorical 'stain' or 'corruption of blood' which arises from being condemned for a serious capital crime (felony
or treason
). It entails losing not only one's property and hereditary titles, but typically also the right to pass them on to one's heirs. Both men and women condemned of capital crimes could be attainted.
Attainder by confession results from a guilty plea at the bar before judges or before the coroner
in sanctuary. Attainder by verdict results from conviction by a jury. Attainder by process results from a legislative act outlaw
ing a fugitive.
Kings typically used attainders against political enemies and those who posed potential threats to the king's position and security. The attainder eliminated any advantage the noble would have in a court of law; nobles were exempt from many of the techniques used to try commoners, including torture. Likewise, in many cases of attainder, the king could coerce the parliament into approving the attainder and there would be a lower or non-existent burden of proof (evidence) than there would be in court.
Prior to the Tudors, most rulers reversed their attainders in return for promises of loyalty. For example, Henry VI
reversed all 21 attainders, Edward IV 86 of 120, and Richard III 99 of 100. However, this changed with Henry VII
, as described below.
Regnants who used attainder include:
Once attainted, nobles were considered commoners, and as such, could be subjected to the same treatments, including torture and methods of execution. For example, commoners could be burned at the stake, whereas nobles could not.
Often, nobles would refer to the act of being attainted (and then executed) as the person's "destruction."
, a bill of attainder
is a bill passed by Parliament
attainting persons condemned for high treason
, or, in rare cases, a lesser crime. Notably, a person thus attainted need not have been convicted of treason in a court of law. Consequently, attainder has historically been used for political purposes against people whose guilt would have been difficult to prove, or indeed who were entirely innocent. Bills of attainder are also available to condemn criminals who cannot be brought to justice.
A bill of attainder was last passed in Britain in 1798. Attainders by confession, verdict and process were abolished in the United Kingdom by the Forfeiture Act 1870
(33 & 34 Vict., c.23).
Section 9 of Article One of the United States Constitution
provides that no bill of attainder or ex post facto law
shall be passed by Congress. Article One, Section 10 forbids states from passing them.
While the United States Constitution
(in article III, section 3) prohibits corruption of blood, it is nonetheless possible in many states for a crime to affect the inheritance rights of innocent relatives due to the slayer rule
.
In England and Wales
, where a judge considers it just, the Forfeiture Act 1982 applies in murder and in some forms of manslaughter, to simplify the common law rule. The rule applied to felony before the Forfeiture Act 1870
.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, attainder or attinctura is the metaphorical 'stain' or 'corruption of blood' which arises from being condemned for a serious capital crime (felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
or treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
). It entails losing not only one's property and hereditary titles, but typically also the right to pass them on to one's heirs. Both men and women condemned of capital crimes could be attainted.
Attainder by confession results from a guilty plea at the bar before judges or before the coroner
Coroner
A coroner is a government official who* Investigates human deaths* Determines cause of death* Issues death certificates* Maintains death records* Responds to deaths in mass disasters* Identifies unknown dead* Other functions depending on local laws...
in sanctuary. Attainder by verdict results from conviction by a jury. Attainder by process results from a legislative act outlaw
Outlaw
In historical legal systems, an outlaw is declared as outside the protection of the law. In pre-modern societies, this takes the burden of active prosecution of a criminal from the authorities. Instead, the criminal is withdrawn all legal protection, so that anyone is legally empowered to persecute...
ing a fugitive.
Attainders of British aristocracy in the Middle Ages and Renaissance
Medieval and Renaissance British kings and queens used acts of attainder to deprive nobles of their lands and often their lives. Once attainted, the descendents of the noble could no longer inherit his lands or income. Attainder essentially amounted to the legal death of the attainted's family.Kings typically used attainders against political enemies and those who posed potential threats to the king's position and security. The attainder eliminated any advantage the noble would have in a court of law; nobles were exempt from many of the techniques used to try commoners, including torture. Likewise, in many cases of attainder, the king could coerce the parliament into approving the attainder and there would be a lower or non-existent burden of proof (evidence) than there would be in court.
Prior to the Tudors, most rulers reversed their attainders in return for promises of loyalty. For example, Henry VI
Henry VI of England
Henry VI was King of England from 1422 to 1461 and again from 1470 to 1471, and disputed King of France from 1422 to 1453. Until 1437, his realm was governed by regents. Contemporaneous accounts described him as peaceful and pious, not suited for the violent dynastic civil wars, known as the Wars...
reversed all 21 attainders, Edward IV 86 of 120, and Richard III 99 of 100. However, this changed with Henry VII
Henry VII of England
Henry VII was King of England and Lord of Ireland from his seizing the crown on 22 August 1485 until his death on 21 April 1509, as the first monarch of the House of Tudor....
, as described below.
Regnants who used attainder include:
- Margaret of AnjouMargaret of AnjouMargaret of Anjou was the wife of King Henry VI of England. As such, she was Queen consort of England from 1445 to 1461 and again from 1470 to 1471; and Queen consort of France from 1445 to 1453...
- whose attainder of Richard of York compelled him to invade England and attempt to seize the throne after the Battle of Northampton, which led to the penultimate phases of the War of the Roses. - Henry VIIHenry VII of EnglandHenry VII was King of England and Lord of Ireland from his seizing the crown on 22 August 1485 until his death on 21 April 1509, as the first monarch of the House of Tudor....
- initially attainted men after he ascended the throne. He used the threat of attainder as a means to keep the few nobles who survived the War of the Roses in line. Often, however, he would penalize them with exorbitant fees and fines, or force them to have bonds which would be forfeit unless they exhibited good behavior. (His goal was to reduce the number of nobles with private armies of retainers.) Henry VII attainted 138 men of whom he reversed only 46 attainders - and some of these were conditional. - Henry VIIIHenry VIII of EnglandHenry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
- compelled parliament to attaint many nobles during his lifetime, including magnates with major land holdings, and any magnates whom he came to mistrust. Examples include:- Anne BoleynAnne BoleynAnne Boleyn ;c.1501/1507 – 19 May 1536) was Queen of England from 1533 to 1536 as the second wife of Henry VIII of England and Marquess of Pembroke in her own right. Henry's marriage to Anne, and her subsequent execution, made her a key figure in the political and religious upheaval that was the...
. Before her execution, she was stripped of her title and her marriage annulled. - Catherine HowardCatherine HowardCatherine Howard , also spelled Katherine, Katheryn or Kathryn, was the fifth wife of Henry VIII of England, and sometimes known by his reference to her as his "rose without a thorn"....
. Henry VIII had an Act of Attainder passed against Catherine Howard, which made it treason for a woman with an unchaste reputation to marry the king. - Edward StaffordEdward Stafford, 3rd Duke of BuckinghamEdward Stafford, 3rd Duke of Buckingham, KG was an English nobleman. He was the son of Henry Stafford, 2nd Duke of Buckingham and the former Lady Catherine Woodville, daughter of the 1st Earl Rivers and sister-in-law of King Edward IV.-Early life:Stafford was born at Brecknock Castle in Wales...
, Duke of Buckingham, one of the wealthiest magnates in England, whom Henry had executed on flimsy charges in 1521. - Margaret Pole, 8th Countess of SalisburyMargaret Pole, 8th Countess of SalisburyMargaret Pole, Countess of Salisbury was an English peeress, one of two women in sixteenth-century England to be a peeress in her own right with no titled husband, the daughter of George of Clarence, the brother of King Edward IV and King Richard III...
. One of the last surviving Plantagenets. - Henry Howard, Earl of SurreyHenry Howard, Earl of SurreyHenry Howard, KG, , known as The Earl of Surrey although he never was a peer, was an English aristocrat, and one of the founders of English Renaissance poetry.-Life:...
. The poet son of Thomas Howard, 3rd Duke of NorfolkThomas Howard, 3rd Duke of NorfolkThomas Howard, 3rd Duke of Norfolk, KG, Earl Marshal was a prominent Tudor politician. He was uncle to Anne Boleyn and Catherine Howard, two of the wives of King Henry VIII, and played a major role in the machinations behind these marriages...
.
- Anne Boleyn
Once attainted, nobles were considered commoners, and as such, could be subjected to the same treatments, including torture and methods of execution. For example, commoners could be burned at the stake, whereas nobles could not.
Often, nobles would refer to the act of being attainted (and then executed) as the person's "destruction."
Passage in Parliament
In the Westminster systemWestminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
, a bill of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
is a bill passed by Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
attainting persons condemned for high treason
High treason
High treason is criminal disloyalty to one's government. Participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplomats, or its secret services for a hostile and foreign power, or attempting to kill its head of state are perhaps...
, or, in rare cases, a lesser crime. Notably, a person thus attainted need not have been convicted of treason in a court of law. Consequently, attainder has historically been used for political purposes against people whose guilt would have been difficult to prove, or indeed who were entirely innocent. Bills of attainder are also available to condemn criminals who cannot be brought to justice.
A bill of attainder was last passed in Britain in 1798. Attainders by confession, verdict and process were abolished in the United Kingdom by the Forfeiture Act 1870
Forfeiture Act 1870
The Forfeiture Act 1870 is a British Act of Parliament that abolished forfeiture of goods and land as a punishment for treason and felony. It does not apply to Scotland...
(33 & 34 Vict., c.23).
Section 9 of Article One of the United States Constitution
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
provides that no bill of attainder or ex post facto law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
shall be passed by Congress. Article One, Section 10 forbids states from passing them.
Corruption of blood
Corruption of blood is one of the consequences of attainder. The descendants of an attainted person could not inherit either from the attainted criminal (whose property had been forfeited on conviction) or from their other relatives through the criminal. For example, if a son is executed for a crime leaving innocent grandsons as orphans, and the innocent grandfather has other children besides the criminal, the property of the criminal is forfeited to the crown. But when the grandfather dies, the property of the grandfather will not be seized by the Crown or pass to the grandchildren: it passes to the other children of the grandfather.While the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
(in article III, section 3) prohibits corruption of blood, it is nonetheless possible in many states for a crime to affect the inheritance rights of innocent relatives due to the slayer rule
Slayer rule
The slayer rule, in the common law of inheritance, is a doctrine that prohibits inheritance by a person who murders someone from whom he or she stands to inherit: e.g. a murderer does not inherit from parents they killed...
.
In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, where a judge considers it just, the Forfeiture Act 1982 applies in murder and in some forms of manslaughter, to simplify the common law rule. The rule applied to felony before the Forfeiture Act 1870
Forfeiture Act 1870
The Forfeiture Act 1870 is a British Act of Parliament that abolished forfeiture of goods and land as a punishment for treason and felony. It does not apply to Scotland...
.
Examples of cases where a person's property was subject to attainder
- Thomas Cromwell
- Attainder of the Earl of StraffordThomas Wentworth, 1st Earl of StraffordThomas Wentworth, 1st Earl of Strafford 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 1632 to 1639 he instituted a harsh rule as Lord Deputy of Ireland...
- Parker WickhamParker WickhamParker Wickham is famous for being a Loyalist politician who was banished from the State of New York under dubious circumstances....
- Richard FitzAlan, 11th Earl of ArundelRichard FitzAlan, 11th Earl of ArundelRichard FitzAlan, 11th Earl of Arundel and 9th Earl of Surrey KG was an English medieval nobleman and military commander.-Lineage:...
- Henry Clifford, 10th Baron de Clifford
- John de la Pole, 1st Earl of LincolnJohn de la Pole, 1st Earl of LincolnJohn de la Pole, 1st Earl of Lincoln was the eldest son of John de la Pole, 2nd Duke of Suffolk and Elizabeth of York, Duchess of Suffolk. His mother was the sixth child and third daughter born to Richard Plantagenet, 3rd Duke of York and Cecily Neville...