Bill of attainder
Encyclopedia
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.
”, meaning "taintedness", is part of English common law
. Under English law, a criminal condemned for a serious crime, whether treason
or felony
(but not misdemeanour
, 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 or to the mesne lord
. Any peerage
titles would also revert to the Crown. The convicted person would normally be punished by judicial execution as well—when a person committed a capital crime and was put to death for it, the property left behind escheat
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, 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
), 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.
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 might even happen long after the convicted person was dead.
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 criticized as 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.
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
(they were both attained, not for opposing the King, but for supporting the King) and the last in 1798 against Lord Edward FitzGerald
for leading the Irish Rebellion of 1798
.
In England
, those executed after the passing of attainders include George Plantagenet, 1st Duke of Clarence
(1478), Thomas Cromwell (1540), Margaret Pole, Countess of Salisbury (1540), Catherine Howard
(1542), Thomas Seymour, 1st Baron Seymour of Sudeley
(1549), Thomas Howard
(1572), Thomas Wentworth
(1641), Archbishop of Canterbury
, William Laud
(1645), 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 execution of his wife.
After defeating Richard III
and replacing him on the throne of England, Henry VII
had Parliament pass a Bill of Attainder against his predecessor. It is noteworthy that this bill made no mention whatsoever of the Princes in the Tower
.
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 May 15, 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 engrossed on December 4, 1660. This was followed with a resolution:
This also passed both Houses on the same day.
(James VII of Scotland), driven off by the ascent of William and Mary in the Glorious Revolution
, came to Ireland
intent on reclaiming his throne. After his arrival, the Parliament of Ireland
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
, 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. The parliament became known in the 1800s as the "Patriot Parliament
".
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.
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 and adjust her titles and property accordingly, on grounds of her alleged adultery, as many private bills dealing with divorces of private persons did.
Winston Churchill
had then advocated a policy of summary execution
with the use of an Act of Attainder to circumvent legal obstacles. He was dissuaded from this by cabinet minister Richard Law
who pointed out that the United States and Soviet Union still favoured trials.
, in the second case Karla Homolka
), the speakers of the House
and Senate, respectively, have ruled that Canadian parliamentary practice does not permit bills of attainder or bills of pains and penalties.
In various states, acts have been passed during the 1990s to allow the continued detention of dangerous criminals after their term which applied to specific individuals such as Gregory Wayne Kable in NSW or Garry David
in Victoria. These acts are similar to bills of attainder, but do not declare a person guilty of a crime; they merely permit extended detention. More recently, Australian parliaments have preferred the practice of applying preventative and indefinite detention to any criminal who meets specific conditions, rather than to named criminals.
was anger at the injustice of attainder—though the Americans themselves used bills of attainder to confiscate the property of British loyalists
(called Tories
) during the revolution. American dissatisfaction with attainder laws motivated their prohibition in the Constitution (see the case of Parker Wickham
).
forbids legislative bills of attainder under Article I, Section 9. It was considered an excess or abuse by the British monarchy and Parliament. No bills of attainder have been passed since 1798 in the UK. Attainder as such was also a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.
The provision forbidding state law bills of attainder, Article I, Section 10, 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
or executive 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 partially reinforced by the Fifth Amendment
to the Constitution, except in the case of executive orders. 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 constitution of every State also expressly forbids bills of attainder. For example, Wisconsin's constitution
Article I, Section 12 reads:
Contrast this with the subtly more modern variation of the Texas version: Article 1 (Titled Bill of Rights) Section 16, entitled Bills of Attainder; Ex Post Facto or Retroactive Laws: Impairing Obligation of Contracts: "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made".
's first decisions on the meaning of the bill of attainder clause came after the American Civil War
. In Ex parte Garland
, 71 U.S. 333 (1866), the court struck down a federal law requiring attorneys practicing in federal court to swear that they had not supported the rebellion. In Cummings v. Missouri, 71 U.S. 277 (1867), the Missouri
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.
Just two decades later, however, the Court upheld similar laws. In Hawker v. New York
, 170 U.S. 189 (1898) a state law barred convicted felons from practicing medicine. In Dent v. West Virginia
, 129 U.S. 114 (1889) a state law imposed a new requirement that practicing 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. That was not true in Garland or Cummings.
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 which 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. 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. All three new prongs of the bill of attainder test were met in Lovett.
The Court shifted its position again just a few years later. The Taft-Hartley Act
(enacted in 1947) sought to ban political strikes
by Communist
-dominated labor unions
by requiring all elected labor leaders to take an oath that they were not and have never been members of the Communist Party USA
, 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 labor unions. In American Communications Association v. Douds
, 339 U.S. 382 (1950), the Supreme Court had said that 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. The Court went to great length in Douds to approve of the specific focus on Communists by noting what a threat communism was. Now the Court had added an "escape clause" test to determining whether a law was a bill of attainder. But just a year later, in United States v. Brown, 381 U.S. 437 (1965), the Court invalidated the section of the statute that made it a crime to serve on a union's executive board. Clearly, the Act had focused on past behavior and had specified a specific class of people to be punished. But if this specific focus in Brown was constitutionally invalid, why wasn't it constitutionally invalid in Douds? (Many legal scholars assumed that Douds was effectively, if not officially, overruled.) Additionally, the Court did not apply the punishment prong of its test, leaving legal scholars confused as to whether the Court still wished it to apply.
The Supreme Court returned to emphasizing the narrowness and rationality of bills of attainder in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). In 1974, Congress passed the Presidential Recordings and Materials Preservation Act
, which required the General Services Administration
to confiscate former President Richard Nixon
'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 President constituted a "class of one." 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. The Court further 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 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.
As of 1984, only four acts of Congress had been overturned as bills of attainder. However, several recent cases (which have not reached the Supreme Court) have raised the bill of attainder issue. In 1990, in the wake of the Exxon Valdez oil spill
, Congress enacted the Oil Pollution Act
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 has been challenged as a bill of attainder by the shipping division of ExxonMobil
. In 2003, the United States Court of Appeals for the District of Columbia Circuit
struck down the Elizabeth Morgan Act
as a bill of attainder. There is argument over whether the Palm Sunday Compromise
in the case of Terri Schiavo
was also a bill of attainder. Some analysts consider the ultimately unsuccessful bill Congress proposed to confiscate 90 percent of the bonus money paid to executives at federally-rescued investment bank American International Group
a bill of attainder, although disagreement exists on the issue. In another recent case, the community organizing group Association of Community Organizations for Reform Now
(ACORN) sued the U.S. government after the United States House of Representatives passed a resolution in early 2009 barring the group from receiving federal funding. Another, broader bill, the Defund ACORN Act, was enacted by Congress later that year. In March 2010, a federal district court declared the funding ban an unconstitutional bill of attainder. On August 13, 2010, the United States Court of Appeals for the Second Circuit
reversed and remanded on the grounds that only 10 percent of ACORN's funding was federal and that did not constitute "punishment."
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.
English law
The word “attainderAttainder
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 . It entails losing not only one's property and hereditary titles, but typically also the right to pass them on to one's heirs...
”, meaning "taintedness", is part of English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. Under English law, a criminal condemned for a serious crime, whether 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...
or 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...
(but not misdemeanour
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
, 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 or to the mesne lord
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. A mesne lord did not hold land directly of the king, that is to say he was not a tenant-in-chief. His subinfeudated estate was called a "mesne estate"...
. Any peerage
Peerage
The Peerage is a legal system of largely hereditary titles in the United Kingdom, which constitute the ranks of British nobility and is part of the British honours system...
titles would also revert to the Crown. The convicted person would normally be punished by judicial execution as well—when a person committed a capital crime and was put to death for it, the property left behind escheat
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
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, 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
Felo de se, Latin for "felon of himself", is an archaic legal term meaning suicide. In early English common law, an adult who committed suicide was literally a felon, and the crime was punishable by forfeiture of property to the king and what was considered a shameful burial – typically with...
), 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.
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 might even happen long after the convicted person was dead.
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 criticized as a convenient way for the King
British monarchy
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
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.
The first use of attainder was in 1321 against the Earl of Winchester
Hugh le Despenser, 1st Earl of Winchester
Hugh le Despenser , sometimes referred to as "the Elder Despenser", was for a time the chief adviser to King Edward II of England....
and the Earl of Gloucester
Hugh the younger Despenser
Hugh Despenser, 1st Lord Despenser , also referred to as "the younger Despenser", was the son and heir of Hugh le Despenser, Earl of Winchester , and Isabella daughter of William, 9th Earl of Warwick.-Titles and possessions:Hugh Despenser the younger was knight of Hanley Castle, Worcestershire,...
, who both shared the name Hugh le Despenser
Hugh le Despenser
Le Despenser is a surname, most commonly associated with Norman-English barons of the 13th- and 14th- centuries and their descendants.* Sir Hugh le Despenser I , High Sheriff of Berkshire* Sir Hugh le Despenser II...
(they were both attained, not for opposing the King, but for supporting the King) and the last in 1798 against Lord Edward FitzGerald
Lord Edward FitzGerald
Lord Edward FitzGerald was an Irish aristocrat and revolutionary. He was the fifth son of the 1st Duke of Leinster and the Duchess of Leinster , he was born at Carton House, near Dublin, and died of wounds received in resisting arrest on charge of treason.-Early years:FitzGerald spent most of his...
for leading the Irish Rebellion of 1798
Irish Rebellion of 1798
The Irish Rebellion of 1798 , also known as the United Irishmen Rebellion , was an uprising in 1798, lasting several months, against British rule in Ireland...
.
In England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, those executed after the passing of attainders include George Plantagenet, 1st Duke of Clarence
George Plantagenet, 1st Duke of Clarence
George Plantagenet, 1st Duke of Clarence, 1st Earl of Salisbury, 1st Earl of Warwick, KG was the third son of Richard Plantagenet, 3rd Duke of York, and Cecily Neville, and the brother of kings Edward IV and Richard III. He played an important role in the dynastic struggle known as the Wars of the...
(1478), Thomas Cromwell (1540), Margaret Pole, Countess of Salisbury (1540), Catherine Howard
Catherine Howard
Catherine 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"....
(1542), Thomas Seymour, 1st Baron Seymour of Sudeley
Thomas Seymour, 1st Baron Seymour of Sudeley
Thomas Seymour, 1st Baron Seymour of Sudeley, KG was an English politician.Thomas spent his childhood in Wulfhall, outside Savernake Forest, in Wiltshire. Historian David Starkey describes Thomas thus: 'tall, well-built and with a dashing beard and auburn hair, he was irresistible to women'...
(1549), Thomas Howard
Thomas Howard, 4th Duke of Norfolk
Thomas Howard, 4th Duke of Norfolk, KG, Earl Marshal was an English nobleman.Norfolk was the son of the poet Henry Howard, Earl of Surrey. He was taught as a child by John Foxe, the Protestant martyrologist, who remained a lifelong recipient of Norfolk's patronage...
(1572), Thomas Wentworth
Thomas Wentworth, 1st Earl of Strafford
Thomas 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...
(1641), Archbishop of Canterbury
Archbishop of Canterbury
The Archbishop of Canterbury is the senior bishop and principal leader of the Church of England, the symbolic head of the worldwide Anglican Communion, and the diocesan bishop of the Diocese of Canterbury. In his role as head of the Anglican Communion, the archbishop leads the third largest group...
, William Laud
William Laud
William Laud was Archbishop of Canterbury from 1633 to 1645. One of the High Church Caroline divines, he opposed radical forms of Puritanism...
(1645), and the Duke of Monmouth
James Scott, 1st Duke of Monmouth
James Scott, 1st Duke of Monmouth, 1st Duke of Buccleuch, KG, PC , was an English nobleman. Originally called James Crofts or James Fitzroy, he was born in Rotterdam in the Netherlands, the eldest illegitimate son of Charles II and his mistress, Lucy Walter...
. In the case of Catherine Howard, in 1541 King Henry VIII
Henry VIII of England
Henry 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...
was the first monarch to delegate Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
, to avoid having to assent personally to the execution of his wife.
After defeating Richard III
Richard III of England
Richard III was King of England for two years, from 1483 until his death in 1485 during the Battle of Bosworth Field. He was the last king of the House of York and the last of the Plantagenet dynasty...
and replacing him on the throne of England, 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....
had Parliament pass a Bill of Attainder against his predecessor. It is noteworthy that this bill made no mention whatsoever of the Princes in the Tower
Princes in the Tower
The Princes in the Tower is a term which refers to Edward V of England and Richard of Shrewsbury, 1st Duke of York. The two brothers were the only sons of Edward IV of England and Elizabeth Woodville alive at the time of their father's death...
.
Although deceased by the time of the Restoration
English Restoration
The Restoration of the English monarchy began in 1660 when the English, Scottish and Irish monarchies were all restored under Charles II after the Interregnum that followed the Wars of the Three Kingdoms...
, the regicides John Bradshaw
John Bradshaw (judge)
John Bradshaw was an English judge. He is most notable for his role as President of the High Court of Justice for the trial of King Charles I and as the first Lord President of the Council of State of the English Commonwealth....
, Oliver Cromwell
Oliver Cromwell
Oliver Cromwell was an English military and political leader who overthrew the English monarchy and temporarily turned England into a republican Commonwealth, and served as Lord Protector of England, Scotland, and Ireland....
, Henry Ireton
Henry Ireton
Henry Ireton was an English general in the Parliamentary army during the English Civil War. He was the son-in-law of Oliver Cromwell.-Early life:...
and Thomas Pride
Thomas Pride
Thomas Pride was a parliamentarian general in the English Civil War, and best known as the instigator of "Pride's Purge".-Early Life and Starting Career:...
were served with a Bill of Attainder on May 15, 1660 backdated to January 1, 1649 (NS
Old Style and New Style dates
Old Style and New Style are used in English language historical studies either to indicate that the start of the Julian year has been adjusted to start on 1 January even though documents written at the time use a different start of year ; or to indicate that a date conforms to the Julian...
). After the committee stages the Bill of Attainder passed both the Houses of Lords and Commons and was engrossed on December 4, 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.
The Great Act of Attainder
In 1688, the English King James IIJames II of England
James II & VII was King of England and King of Ireland as James II and King of Scotland as James VII, from 6 February 1685. He was the last Catholic monarch to reign over the Kingdoms of England, Scotland, and Ireland...
(James VII of Scotland), driven off by the ascent of William and Mary in the Glorious Revolution
Glorious Revolution
The Glorious Revolution, also called the Revolution of 1688, is the overthrow of King James II of England by a union of English Parliamentarians with the Dutch stadtholder William III of Orange-Nassau...
, came to Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
intent on reclaiming his throne. After his arrival, the Parliament of Ireland
Parliament of Ireland
The Parliament of Ireland was a legislature that existed in Dublin from 1297 until 1800. In its early mediaeval period during the Lordship of Ireland it consisted of either two or three chambers: the House of Commons, elected by a very restricted suffrage, the House of Lords in which the lords...
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
William Stewart, 1st Viscount Mountjoy
William Stewart, 1st Viscount Mountjoy , was an Anglo-Irish peer and soldier.Steawrt was born in 1653, the son of Sir Alexander Stewart, 2nd Baronet, of Ramelton. He married the Honourable Mary Coote, daughter of Richard Coote, 1st Lord Coote, Baron Coloony...
, was in the Bastille
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. The Bastille was built in response to the English threat to the city of...
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
The Patriot Parliament is the name given to the session of the Irish Parliament called by King James II of Ireland during the War of the Two Kings in 1689. The parliament met in one session, from 7 May 1689 to 20 July 1689, and was the only session of the Irish Parliament under King James II.The...
".
Later defenders of the Patriot Parliament pointed out that the ensuing "Williamite Settlement forfeitures" of the 1690s named an even larger number of Jacobite
Jacobitism
Jacobitism was the political movement in Britain dedicated to the restoration of the Stuart kings to the thrones of England, Scotland, later the Kingdom of Great Britain, and the Kingdom of Ireland...
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 (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. Previously, private bills were 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". The last United Kingdom bill called a "Pains and Penalties Bill" was Pains and Penalties Bill 1820Pains 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 of the United Kingdom....
and was passed by the House of Lords in 1820, but not considered by the House of Commons; it sought to divorce Queen Caroline
Caroline of Brunswick
Caroline of Brunswick-Wolfenbüttel was the Queen consort of King George IV of the United Kingdom from 29 January 1820 until her death...
from King George IV and adjust her titles and property accordingly, on grounds of her alleged adultery, as many private bills dealing with divorces of private persons did.
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 MinisterPrime Minister of the United Kingdom
The Prime Minister of the United Kingdom of Great Britain and Northern Ireland is the Head of Her Majesty's Government in the United Kingdom. The Prime Minister and Cabinet are collectively accountable for their policies and actions to the Sovereign, to Parliament, to their political party and...
Winston Churchill
Winston Churchill
Sir Winston Leonard Spencer-Churchill, was a predominantly Conservative British politician and statesman known for his leadership of the United Kingdom during the Second World War. He is widely regarded as one of the greatest wartime leaders of the century and served as Prime Minister twice...
had then advocated a policy of summary execution
Summary execution
A summary execution is a variety of execution in which a person is killed on the spot without trial or after a show trial. Summary executions have been practiced by the police, military, and paramilitary organizations and are associated with guerrilla warfare, counter-insurgency, terrorism, and...
with the use of an Act of Attainder to circumvent legal obstacles. He was dissuaded from this by cabinet minister Richard Law
Richard Law, 1st Baron Coleraine
Richard Kidston Law, 1st Baron Coleraine PC was a British Conservative politician. He was the youngest son of former Conservative Prime Minister Andrew Bonar Law and his wife Annie. He was educated at Shrewsbury School and St...
who pointed out that the United States and Soviet Union still favoured trials.
Canadian usage
In two cases of attempts to pass laws inflicting a judicial penalty on a specific person (in the first case Clifford OlsonClifford Olson
Clifford Robert Olson, Jr. was a convicted Canadian serial killer who confessed to murdering two children and nine youths in the early 1980s.-Murders:...
, in the second case Karla Homolka
Karla Homolka
Karla Leanne Homolka, also known as Karla Leanne Teale , is a Canadian serial killer. She attracted worldwide media attention when she was convicted of manslaughter following a plea bargain in the 1991 and 1992 rape-murders of two Ontario teenage girls, Leslie Mahaffy and Kristen French, as well as...
), the speakers of the House
Canadian House of Commons
The House of Commons of Canada is a component of the Parliament of Canada, along with the Sovereign and the Senate. The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament...
and Senate, respectively, have ruled that Canadian parliamentary practice does not permit bills of attainder or bills of pains and penalties.
Australian usage
Although the Commonwealth Constitution establishes the principle of separation of powers for the Commonwealth, it is not extended to states. Therefore, states remain free to structure their constitutions to permit bills of attainder.In various states, acts have been passed during the 1990s to allow the continued detention of dangerous criminals after their term which applied to specific individuals such as Gregory Wayne Kable in NSW or Garry David
Garry David
Garry David, also known as Garry Webb, was an Australian criminal. Born on 20 November 1954, to Rupert and Betty David. Rupert David is said to have served more time in prison than any other person in the history of the State of Victoria. His mother was an alcoholic and David and his siblings...
in Victoria. These acts are similar to bills of attainder, but do not declare a person guilty of a crime; they merely permit extended detention. More recently, Australian parliaments have preferred the practice of applying preventative and indefinite detention to any criminal who meets specific conditions, rather than to named criminals.
American usage
Bills of attainder were used through the 18th century in England, and were applied to British colonies as well. One of the motivations for the American RevolutionAmerican Revolutionary War
The American Revolutionary War , the American War of Independence, or simply the Revolutionary War, began as a war between the Kingdom of Great Britain and thirteen British colonies in North America, and ended in a global war between several European great powers.The war was the result of the...
was anger at the injustice of attainder—though the Americans themselves used bills of attainder to confiscate the property of British loyalists
United Empire Loyalists
The name United Empire Loyalists is an honorific given after the fact to those American Loyalists who resettled in British North America and other British Colonies as an act of fealty to King George III after the British defeat in the American Revolutionary War and prior to the Treaty of Paris...
(called Tories
Tory
Toryism is a traditionalist and conservative political philosophy which grew out of the Cavalier faction in the Wars of the Three Kingdoms. It is a prominent ideology in the politics of the United Kingdom, but also features in parts of The Commonwealth, particularly in Canada...
) during the revolution. American dissatisfaction with attainder laws motivated their prohibition in the Constitution (see the case of Parker Wickham
Parker Wickham
Parker Wickham is famous for being a Loyalist politician who was banished from the State of New York under dubious circumstances....
).
Constitutional bans
The United States ConstitutionUnited 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...
forbids legislative bills of attainder under Article I, Section 9. It was considered an excess or abuse by the British monarchy and Parliament. No bills of attainder have been passed since 1798 in the UK. Attainder as such was also a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.
The provision forbidding state law bills of attainder, Article I, Section 10, 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
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, by forbidding the legislature to perform judicial
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
or executive 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
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
, which was partially reinforced by the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
to the Constitution, except in the case of executive orders. 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 constitution of every State also expressly forbids bills of attainder. For example, Wisconsin's constitution
Wisconsin Constitution
The Constitution of the State of Wisconsin is the governing document of the U.S. State of Wisconsin. It establishes the structure and function of state government, describes the state boundaries, and declares the rights of state citizens...
Article I, Section 12 reads:
- No bill of attainder, ex post facto lawEx post facto lawAn 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...
, 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 of the Texas version: Article 1 (Titled Bill of Rights) Section 16, entitled Bills of Attainder; Ex Post Facto or Retroactive Laws: Impairing Obligation of Contracts: "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made".
Cases
Two of the Supreme CourtSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
's first decisions on the meaning of the bill of attainder clause came after the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
. In Ex parte Garland
Ex parte Garland
Ex parte Garland, , was an important United States Supreme Court case involving the disbarment of former Confederate officials.-Case:In January 1865 the Congress of the United States passed a law that effectively disbarred former members of the Confederate government by requiring a loyalty oath be...
, 71 U.S. 333 (1866), the court struck down a federal law requiring attorneys practicing in federal court to swear that they had not supported the rebellion. In Cummings v. Missouri, 71 U.S. 277 (1867), the Missouri
Missouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
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.
Just two decades later, however, the Court upheld similar laws. In Hawker v. New York
Hawker v. New York
Hawker v. New York, 170 U.S. 189 , 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 enacted....
, 170 U.S. 189 (1898) a state law barred convicted felons from practicing medicine. In Dent v. West Virginia
Dent v. West Virginia
Dent v. West Virginia, , was an important United States Supreme Court case involving the reputable practice of physicians and state laws in the late nineteenth century.-The Case:...
, 129 U.S. 114 (1889) a state law imposed a new requirement that practicing 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. That was not true in Garland or Cummings.
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 which 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. 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. All three new prongs of the bill of attainder test were met in Lovett.
The Court shifted its position again just a few years later. The Taft-Hartley Act
Taft-Hartley Act
The Labor–Management Relations Act is a United States federal law that monitors the activities and power of labor unions. The act, still effective, was sponsored by Senator Robert Taft and Representative Fred A. Hartley, Jr. and became law by overriding U.S. President Harry S...
(enacted in 1947) sought to ban political strikes
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
by Communist
Communism
Communism is a social, political and economic ideology that aims at the establishment of a classless, moneyless, revolutionary and stateless socialist society structured upon common ownership of the means of production...
-dominated labor unions
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
by requiring all elected labor leaders to take an oath that they were not and have never been members of the Communist Party USA
Communist Party USA
The Communist Party USA is a Marxist political party in the United States, established in 1919. It has a long, complex history that is closely related to the histories of similar communist parties worldwide and the U.S. labor movement....
, 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 labor unions. In American Communications Association v. Douds
American Communications Association v. Douds
American Communications Association v. Douds, 339 U.S. 382 , 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 First Amendment to the United States Constitution, is not an ex...
, 339 U.S. 382 (1950), the Supreme Court had said that 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. The Court went to great length in Douds to approve of the specific focus on Communists by noting what a threat communism was. Now the Court had added an "escape clause" test to determining whether a law was a bill of attainder. But just a year later, in United States v. Brown, 381 U.S. 437 (1965), the Court invalidated the section of the statute that made it a crime to serve on a union's executive board. Clearly, the Act had focused on past behavior and had specified a specific class of people to be punished. But if this specific focus in Brown was constitutionally invalid, why wasn't it constitutionally invalid in Douds? (Many legal scholars assumed that Douds was effectively, if not officially, overruled.) Additionally, the Court did not apply the punishment prong of its test, leaving legal scholars confused as to whether the Court still wished it to apply.
The Supreme Court returned to emphasizing the narrowness and rationality of bills of attainder in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). In 1974, Congress passed the Presidential Recordings and Materials Preservation Act
Presidential Recordings and Materials Preservation Act
The Presidential Recordings and Materials Preservation Act of 1974 is an act of Congress enacted in the wake of the August 1974 resignation of President Richard M. Nixon. It placed Nixon's presidential records into federal custody to prevent their destruction...
, which required the General Services Administration
General Services Administration
The General Services Administration is an independent agency of the United States government, established in 1949 to help manage and support the basic functioning of federal agencies. The GSA supplies products and communications for U.S...
to confiscate former President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
'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 President constituted a "class of one." 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. The Court further 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 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.
As of 1984, only four acts of Congress had been overturned as bills of attainder. However, several recent cases (which have not reached the Supreme Court) have raised the bill of attainder issue. In 1990, in the wake of the Exxon Valdez oil spill
Exxon Valdez oil spill
The Exxon Valdez oil spill occurred in Prince William Sound, Alaska, on March 24, 1989, when the Exxon Valdez, an oil tanker bound for Long Beach, California, struck Prince William Sound's Bligh Reef and spilled of crude oil. It is considered to be one of the most devastating human-caused...
, Congress enacted the Oil Pollution Act
Oil Pollution Act of 1990
The Oil Pollution Act was passed by the 101st United States Congress, and signed by President George H. W. Bush, to mitigate and prevent civil liability for future oil spills off the coast of the United States....
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 has been challenged as a bill of attainder by the shipping division of ExxonMobil
ExxonMobil
Exxon Mobil Corporation or ExxonMobil, is an American multinational oil and gas corporation. It is a direct descendant of John D. Rockefeller's Standard Oil company, and was formed on November 30, 1999, by the merger of Exxon and Mobil. Its headquarters are in Irving, Texas...
. In 2003, the United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
struck down the Elizabeth Morgan Act
Elizabeth Morgan Act
The Elizabeth Morgan Act refers to an act of the United States Congress, , which was passed as part of .Hilary Antonia Foretich , later known as Ellen Morgan, was at the center of a well-publicized international custody case in the late 1980s...
as a bill of attainder. There is argument over whether the Palm Sunday Compromise
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...
in the case of Terri Schiavo
Terri Schiavo
The Terri Schiavo case was a legal battle in the United States between the legal guardians and the parents of Teresa Marie "Terri" Schiavo that lasted from 1998 to 2005...
was also a bill of attainder. Some analysts consider the ultimately unsuccessful bill Congress proposed to confiscate 90 percent of the bonus money paid to executives at federally-rescued investment bank American International Group
American International Group
American International Group, Inc. or AIG is an American multinational insurance corporation. Its corporate headquarters is located in the American International Building in New York City. The British headquarters office is on Fenchurch Street in London, continental Europe operations are based in...
a bill of attainder, although disagreement exists on the issue. In another recent case, the community organizing group Association of Community Organizations for Reform Now
Association of Community Organizations for Reform Now
The Association of Community Organizations for Reform Now was a collection of community-based organizations in the United States that advocated for low- and moderate-income families by working on neighborhood safety, voter registration, health care, affordable housing, and other social issues...
(ACORN) sued the U.S. government after the United States House of Representatives passed a resolution in early 2009 barring the group from receiving federal funding. Another, broader bill, the Defund ACORN Act, was enacted by Congress later that year. In March 2010, a federal district court declared the funding ban an unconstitutional bill of attainder. On August 13, 2010, the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
reversed and remanded on the grounds that only 10 percent of ACORN's funding was federal and that did not constitute "punishment."
See also
- Ex post facto, a law that retroactively changes the legal consequences of actions committed prior to the enactment of the law.
British tradition
American tradition
- Definition at Tech Law Journal
- Insightfull 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?