hanged up

Bill of attainder

A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial. The United States Constitution forbids both the federal and state governments to enact bills of attainder, in Article 1, Sections 9 and 10, respectively. It was considered an excess or abuse of 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.

Origin

The word "attainder", 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 escheated to the Crown or lord rather than being inherited by family.

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, including those killed during the commission of crimes, 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 critizised 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 (Where both were attainted, 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 Thomas Cromwell (1540), Margaret Pole, Countess of Salisbury (1540), Catherine Howard (1542), Thomas Seymour, Baron Seymour of Sudeley (1549), Thomas Howard (1572), Thomas Wentworth (1641), Archbishop 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. Josephine Tey points out that this bill contains no mention of Edward and Richard, the Princes in the Tower, and argues that this is evidence that Richard III had not murdered them, and that the young Princes may have been alive when Henry became king.

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.

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 Bill of Pains and Penalties was passed by Lords in 1820, but not considered by Commons; it sought to divorce Queen Caroline from King George IV and adjust her titles and property accordingly, on grounds of her alleged adultery, like many private bills dealing with divorces of private persons did.

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 Revolution 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). 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 constitution of every State also expressly forbids 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 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.

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

The cases of U.S. v. Brown, U.S. v. Lovett, and In re Yung Sing Hee establish bills of pains and penalties as punishment without trial, and included within the prohibitions of bills of attainder. The precedent that best reflects most of the original intention of the mandates is from Cummings v. Missouri. It states,

"A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment."

U.S. v. Lovett was a case historically relevant to taking away pay checks of government workers Congress could accuse of being Communists. This was an asset forfeiture case. It states:

"Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a trial, are 'bills of attainder' prohibited under this clause."

This expansive interpretation, however, makes it difficult for the legislatures to settle any individual cases and to pass any private bills, because taking away private property or rights could be construed as "punishment" even when the goal is to meet justified claims of some other party to the controversy.

In recent years Congress has been passing a number of statutes, mainly for gun control, that legislatively disable rights on the basis of either judicial due process having been done, perhaps in a different jurisdiction, but in which the right was not disabled as part of the sentence, or disabled on the basis of an ex parte judicial or quasi-judicial administrative procedure, such as confinement for psychological evaluation. Although conviction of violation might involve a trial, the defendant is not permitted to challenge the disablement. It has been argued that this kind of disablement constitutes a bill of attainder.

Canadian usage

In two cases of attempts to pass laws inflicting a judicial penalty on a specific person (in the first case Clifford Olson, 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.

The Great Act of Attainder

The English King James II (James VII of Scots), 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.

World War II

Previously secret British War Cabinet 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 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. He was dissuaded from this by cabinet minister Richard Law who pointed out that the United States and Russia still favoured trials.