attainder

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 outlawing 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.^[1]

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.^[2]

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.^[3] However, this changed with Henry VII, as described below.

Regnants who used attainder include:

• Margaret of Anjou - 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 VII - initially attainted men after he ascended the throne.^[3] 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 VIII - 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 Boleyn. Before her execution, she was stripped of her title and her marriage annulled.
  • Catherine Howard. 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.^[4]
  • Edward Stafford, Duke of Buckingham, one of the wealthiest magnates in England, whom Henry had executed on flimsy charges in 1521.^[3]
  • Margaret Pole, 8th Countess of Salisbury. One of the last surviving Plantagenets.
  • Henry Howard, Earl of Surrey. The poet son of Thomas Howard, 3rd Duke of Norfolk.

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 system, 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.

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 (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.

Examples of cases where a person's property was subject to attainder

• Thomas Cromwell
• Attainder of the Earl of Strafford
• Parker Wickham
• Richard FitzAlan, 11th Earl of Arundel
• Henry Clifford, 10th Baron de Clifford
• John de la Pole, 1st Earl of Lincoln

References