Attainder

• An Act of Parliament for putting a man to death or for otherwise punishing him without trial in the usual form

    Attainder

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    A bill of attainder may be defined to be an Act of Parliament for putting a man to death or for otherwise punishing him without trial in the usual form. Thus by a legislative act a man is put in the same position as if he had been convicted after a regular trial. It is an act whereby the judicature of the entire parliament is exercised, and may be contrasted with the procedure by impeachment in which the accusation, presented by the Commons acting as a grand jury of the whole realm, is tried by the Lords, exercising at once the functions of a high court of justice and of a jury. In a strictly technical sense it may be said that a Bill of Attainder is a legislative act inflicting the punishment of death without a trial, and that a Bill of Pains and Penalties is such an act inflicting a milder punishment. In the popular sense, however, the term "Bill of Attainder" embraces both classes of acts, and in that sense it is evidently used in the Constitution of the United States, as the Supreme Court has declared in Fletcher v. Peck, 6 Cranch, 138, that "a bill of attainder may affect the life of an individual, or may confiscate his property or both". Such a bill deals with the merits of a particular case and inflicts penalties, more or less severe, ex post facto, without trial in the usual form. While bills of attainder were used in England as early as 1321 in the procedure employed by Parliament in the banishment of the two Despensers (1 St. tr. pp. 23, 38), it was not until the period of passion engendered by the civil war that the summary power of Parliament to punish criminals by statute was for the first time perverted and abused. Then it was that this process was first freely used, not only against the living, but sometimes against the dead, the main object in the latter case being, of course, the confiscation of the estate of the attainted person. In the flush of victory which followed the battle of Towton, Edward IV obtained the passage of a sweeping bill of attainder through which the crown was enriched by forfeiture of the estates of fourteen lords and more than a hundred knights and esquires. In the seventeenth year of that reign was passed the Act of Attainder of the Duke of Clarence in which, after an oratorical preface setting out at length the offence imputed to him, it is enacted "that the said George Duke of Clarence be convicted, and atteynted of high treason". Then follows the appointment of the Duke of Buckingham as lord high steward for that occasion to do execution. It is a remarkable fact that during a period of one hundred and sixty-two years (1459-1621) there is no record of a parliamentary impeachment either in the rolls of Parliament or in the Lords' journal. After the impeachment of Lord Stanley in 1459, for not sending his troops to the battle of Bloreheath, there was not another impeachment until that of Sir Giles Mompesson and Sir Francis Mitchell in 1621. During the interval, covering a little more than the reigns of the house of Tudor, enemies of the State were disposed of either by bills of attainder, by trials in the Star Chamber, or by trials for treason in the courts of common law. In the reign of Henry VIII Bills of attainder were often used instead of impeachments, as in the cases of Wolsey, Thomas Cromwell, Queen Katherine Howard, the Duke of Norfolk, and the Earl of Surrey. During that reign religious persecution was carried on rather through the legal machinery devised for the punishment of high treason as defined by the Act of Supremacy than by bills of attainder. By the Act of Supremacy, the King was declared Head of the Church with "the title and style thereof"; by the penal act which followed as a corollary thereto, it was declared that any attempt to deprive him "of the dignity, title, or name" of his royal estate should constitute high treason; under the special act providing the amended oath, it was possible to call upon anyone to declare his belief in the validity of the new title, and a failure to do so was sufficient evidence of guilt. By that legal machinery were dashed to pieces the Charterhouse monks of London, who are admitted on every hand to have been the noblest and purest of all churchmen. Even =46roude admits that they were "gallant men, whose high forms, in the sunset of the old faith, stand transfigured on the horizon, tinged with the light of its dying glory". The legal proceedings through which the Bishop of Rochester and Sir Thomas More were brought to the block were but a repetition of what had been gone through with in the case of the Carthusians. After the Tudor time the most remarkable bills of attainder are those that were directed against Lord Strafford, Lord Danby, the Duke of Monmouth, and Sir John Fenwick. As instances of bills of pains and penalties, reference may be made to those against Bishop Atterbury and Queen Caroline, usually referred to as the last instances of such legislation. When Queen Caroline returned to England, in July, 1830, all the ministers, except Canning, were induced to consent to the introduction in the House of Lords of a bill of pains and penalties, providing for the dissolution of her marriage with the King, upon the ground of adultery, and for her degradation. When the charges contained in the preamble came on to be heard, Brougham and Denman, by their bold and brilliant defence of the Queen, so aroused popular sympathy in her favour, by holding her up as a deserted and persecuted woman, that the ministry deemed it wise to drop the bill after the majority in its favour in the Lords had dwindled to nine. Reference is made to this case as an illustration of the nature of the procedure upon such bills. "The proceedings of parliament in passing bills of attainder, and of pains and penalties, do not vary from those adopted in regard to other bills. They may be introduced in either house, but ordinarily commence in the House of Lords: they pass through the same stages; and when agreed to by both houses they receive the royal assent in the usual form. But the parties who are subjected to these proceedings are admitted to defend themselves by counsel and witnesses, before both houses; and the solemnity of the proceedings would cause measures to be taken to enforce the attendance of members upon their service in parliament" (May, Parl. Practice, 744). It thus appears that, in the modern form, procedure by attainder admits the right of proof and argument. Entirely apart from the judicature of Parliament, attainder is defined by the common law of England to be the stain or corruption of blood which follows as an immediate and inseparable consequence of a death sentence. Such attainder took place after judgment of death, or upon such circumstances as were equivalent to such a judgment or outlawry on a capital crime, pronounced for absconding from justice. Conviction without judgment was not followed by attainder. The consequences of attainder were: first, forfeiture; second, corruption of the blood. The extent of the forfeiture depended on the nature of the crime for which the criminal was convicted; and by corruption of blood, "both upwards and downwards," the attainted person could neither inherit nor transmit lands. After it was clear beyond dispute that the criminal was no longer fit to live, he was called attaint, stained, or blackened, and before 6 and 7 Vict., c. 85 p. 1, could not be called as a witness in any court. The doctrine of attainder has, however, ceased to be of much practical importance since 33 and 34 Vict., c. 23, wherein it was provided that henceforth no confession, verdict, inquest, conviction, or judgment of or for any treason or felony, or felo-de-se shall cause any attainder or corruption of blood or any forfeiture or escheat.

    HANNIS TAYLOR

    Transcribed by Janet Grayson