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Bill of attainder

A bill of attainder (or act of attainder) was 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 explicitly forbids Congress to pass any bills of attainder, while they were abolished in the United Kingdom in 1870. However, despite this forbidding, after the U.S. Civil War, Congress did alter the Constitution to allow for a form of bill of attainder strategy against Confederate elites.

The word "attainder", meaning "taintedness", is part of English common law. Under English law, a criminal condemned for some crime, usually treason, 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 would consequently revert to the Crown. Any peerage titles would also revert to the Crown. The convicted person might also be punished in other ways; for example, in the case of attainder for treason, he could be executed.

Bills of attainder evolved into 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.

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.

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 , and the last in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798.

In Britain, those executed after the passing of Attainders include Thomas Cromwell (1540), Catherine Howard (1542), Thomas Howard (1572), Thomas Wentworth (1641), 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 personally assent to the act. During the English Civil War the use of attainder was also extended to people who were already dead, as a mechanism for seizing their property.

American usage

Bills of attainder were used through the 18th century in England, and were applied to English 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 English loyalists (called tories) during the revolution. American dissatisfaction with attainder laws motivated their prohibition in the Constitution.

Within the U.S. Constitution, the clause forbidding attainder laws served two purposes. First, it 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, it embodied the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution. Any forfeiture of life, liberty or property without due process of law is by definition a bill of attainder. The U.S. "Drug War" has however been used to introduce forms of bill of attainder into the United States once more.

The Great Act of Attainder

James II was the last Stuart King of England. He was driven off by the ascent of William and Mary in the Glorious Revolution. After a brief stay in France, James 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.

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Last updated: 08-17-2005 13:44:58
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