bill of attainder
| Dictionary: bill of attainder |
n., pl., bills of attainder.
A legislative act pronouncing a person guilty of a crime, usually treason, without trial and subjecting that person to capital punishment and attainder. Such acts are prohibited by the U.S. Constitution.
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| US Supreme Court: Bills Of Attainder |
During the sixteenth and seventeenth centuries the British Parliament often employed enactments called bills of attainder to inflict the death penalty on persons deemed guilty of seditious acts, such as attempting to overthrow the government. In addition to the death sentence, a bill of attainder usually carried with it a “corruption of blood,” which meant that the attainted party's property could not pass to his heirs. If the bill imposed a punishment short of death, such as banishment, confiscation of goods, or loss of the right to vote, it was called a bill of pains and penalties. These two kinds of bills were not restricted to England. During the American Revolution, the legislatures of many states enacted bills of attainder or bills of pains and penalties against persons deemed guilty of disloyalty to the American cause.
Article I, section 9, clause 3 of the U.S. Constitution forbids the federal government from passing bills of attainder. The same prohibition is imposed on the states by Article I, section 10, clause 1. The U.S. Supreme Court decided at an early time, without argument, that these two clauses covered bills of pains and penalties as well as bills of attainder proper. Although this conclusion is not compelled by the language of the Constitution, it becomes entirely persuasive when the purpose of the prohibition is considered. Both bills of attainder and bills of pains and penalties are legislative acts that inflict punishment without a judicial trial. Regardless of whether the punishment decreed is death or something less than death, such enactments violate principles deeply embedded in the constitutional structure. The Constitution separates the judicial power from the legislative power (see Separation of Powers). Legislative bodies are supposed to enact general rules, applicable to all persons or certain classes of people, which grant rights to them or impose duties, prohibitions, or disabilities on them. It is the function of the judicial branch to decide, under structured procedures containing safeguards against error and abuse of power, whether a specific person is entitled to a right, or subject to a duty, prohibition, or disability established by the legislatures. Bills of attainder and bills of pains and penalties are thoroughly at odds with these principles. They inflict punitive sanctions in disregard of judicial methods of proof designed to insure fairness in fact‐finding. The history of bills of attainder has also shown that their passage was often induced by popular passion or motivated by unproved suspicions.
In the context of the bill of attainder clauses of the Constitution, the concept of punishment has not been restricted by the courts to the typical sanctions employed by the system of criminal justice, such as capital punishment, imprisonment, punitive fines, and confiscation of property. The bill of attainder clauses have been broadly construed to include deprivations of rights, civil or political, disqualification from office, and legislative bars to participation in specific employments or professions. Essential to a finding of attainder is a determination by the court that it was the legislature's intent to punish rather than to regulate for a legitimate political purpose.
Traditionally, most bills of attainder designated the persons subjected to punishment by name. In some cases, however, legislatures imposed punishment on groups whose individual members could be ascertained without much difficulty. For example, a federal statute made it a crime for members of the Communist party to serve as officers of a labor union. The purpose of the statute was to protect the national economy by minimizing the danger of political strikes. The Court in United States v. Brown (1965) invalidated the statute as a bill of attainder. Since not all members of the Communist party were likely to incite political strikes, and since noncommunist agitators might also engage in such conduct, the decision whether the activities of a particular person presented the danger to be guarded against should have been left to the judicial branch. The Supreme Court suggested that Congress could validly enact a general rule barring persons expected to initiate political strikes from union office instead of imputing the undesirable trait to specific persons, namely members of the Communist party (see Communism and Cold War).
Bibliography
- Laurence H. Tribe, American Constitutional Law,
2d ed. (1988), pp. 641–656
— Edgar Bodenheimer
| Political Dictionary: bill of attainder |
A law that indicates the guilt of an individual without trial. In effect, this transfers the functions of ascertaining guilt and sentencing from the judiciary to the legislature. Under Article One, sections nine and ten of the US Constitution, ‘No Bill of Attainder shall be passed by either Congress or State legislature’. Acts of Attainder were employed by the British Parliament between the fifteenth and early eighteenth century, but have not been used since.
| US Government Guide: bill of attainder |
A bill of attainder is a law that punishes a person without permitting him a trial or fair hearing in a court of law. It is punishment by legislation. Article 1, Section 9, of the U.S. Constitution forbids Congress to pass a bill of attainder, and Article 1, Section 10, prohibits any state government from enacting one. If the Constitution permitted bills of attainder, government officials could, by law, force the person attained or punished by legislative act to forfeit his liberty, property, or income. Using a bill of attainder, government officials could punish an individual who criticizes them or who belongs to an unpopular group. The U.S. Constitution protects the rights of individuals by denying to the government the power to pass a bill of attainder.
| Law Encyclopedia: Bill of Attainder |
This entry contains information applicable to United States law only.
A special legislative enactment that imposes a death sentence without a judicial trial upon a particular person or class of persons suspected of committing serious offenses, such as treason or a felony.
A bill of attainder is prohibited by Article I, Section 9, Clause 3 of the Constitution because it deprives the person or persons singled out for punishment of the safeguards of a trial by jury.
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A bill of attainder (also known as an act or writ of attainder) is an act of the legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.
Contents |
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 misdemeanor, 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. 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, 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 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 (where both were 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 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
- 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.[1][2][3]
Private bills
Main article: Private bill
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[4]. 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 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, like many private bills dealing with divorces of private persons did.
American usage
The United States Constitution forbids both the federal and state governments to enact bills of attainder, in Article 1, Section 9 ("No bill of attainder…shall be passed.") and Section 10, ("No State shall…pass any Bill of Attainder") 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.[5]
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".
Traditionally, most bills of attainder designated the persons subjected to punishment by name. In some cases, however, legislatures imposed punishment on groups whose individual members could be ascertained without much difficulty. For example, a federal statute made it a crime for members of the Communist party to serve as officers of a labor union. The purpose of the statute was to protect the national economy by minimizing the danger of political strikes. The Court in United States v. Brown (1965) invalidated the statute as a bill of attainder. Since not all members of the Communist party were likely to incite political strikes, and since noncommunist agitators might also engage in such conduct, the decision whether the activities of a particular person presented the danger to be guarded against should have been left to the judicial branch.
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,[6] U.S. v. Lovett,[7] and In re Yung Sing Hee[8] 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.[9] 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.
Many analysts considered the ultimately unsuccessful bill Congress proposed to confiscate 90% of the bonus money paid to AIG executives, H.R. 1575, a bill of attainder [1].
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.[10][11]
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.[12]
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 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.[13]
See also
- Eminent domain, the taking of private property with compensation, for public use.
Footnotes
- ^ House of Commons Journal Volume 8, 15 May 1660
- ^ House of Commons Journal Volume 8, 4 December 1660
- ^ Journal of the House of Commons: volume 8
- ^ Paul Millar and Sheldon Goldenberg (1998). “Explaining Child Custody Determinations in Canada”, Canadian Journal of Law and Society, Vol. 13, No. 1, p. 209-225.
- ^ Impeachment & Attainder
- ^ U.S. v. Brown, 381 U.S. 437 (1965)
- ^ U.S. v. Lovett, 328 U.S. 303 (1946)
- ^ In re Yung Sing Hee, 36 F. 437 (1888)
- ^ Cummings v. Missouri, 71 U.S. 277 (1867)
- ^ Debates of the House of Commons, May 14, 1983
- ^ Debates of the Senate, November 28, 1995
- ^ Macaulay, History of England from the Accession of James the Second (London, 1855), 216-220
- ^ John Crossland Churchill: execute Hitler without trial in the Sunday Times, January 1, 2006
External links
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?
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Mentioned in
- Ex Parte Garland (American history)
- Bill
- United States v. Lovett
- Thomas Wentworth Strafford
- William Laud (English theologian)
- Confiscation Acts (American history)
- Fletcher v. Peck (legal term)
- Test Laws (American history)
- 1468 (chronology)
- 1696 (chronology)
