Bill of attainder
A bill of attainder is an act of a legislature declaring a person, or a group of people, guilty of some crime, and providing for a punishment, often without a trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person's civil rights, most notably the right to own property, the right to a title of nobility, and, in at least the original usage, the right to life itself.
In the history of England, the word "attainder" refers to people who were declared "attainted", meaning that their civil rights were nullified: they could no longer own property or pass property to their family by will or testament. Attainted people would normally be put to death, with the property left behind escheated to the Crown or lord rather than being inherited by family. The first use of a bill of attainder was in 1321 against Hugh le Despenser, 1st Earl of Winchester and his son Hugh Despenser the Younger, Earl of Gloucester, who were both attainted for supporting King Edward II. Bills of attainder passed in Parliament by Henry VIII on 29 January 1542 resulted in the executions of a number of notable historical figures.
The use of these bills by Parliament eventually fell into disfavour due to the potential for abuse and the violation of several legal principles, most importantly the right to due process, the precept that a law should address a particular form of behaviour rather than a specific individual or group, and the separation of powers, since a bill of attainder is necessarily a judicial matter. The last use of attainder was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798. The House of Lords later passed the Pains and Penalties Bill 1820, which attempted to attaint Queen Caroline, but it was not considered by the House of Commons. No bills of attainder have been passed since 1820 in the UK. Attainder remained a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.
American dissatisfaction with British attainder laws resulted in their being prohibited in the United States Constitution in 1789. Bills of attainder are forbidden to both the federal government and the states, reflecting the importance that the Framers attached to this issue. Every state constitution also expressly forbids bills of attainder. The U.S. Supreme Court has invalidated laws under the Attainder Clause on five occasions. Most common-law nations have prohibited bills of attainder, some explicitly and some implicitly.
Jurisdictions
Australia
The Constitution of Australia contains no specific provision permitting the Commonwealth Parliament to pass bills of attainder. The High Court of Australia has ruled that federal bills of attainder are unconstitutional, because it is a violation of the separation of powers doctrine for any body to wield judicial power other than a Chapter III courtthat is, a body exercising power derived from Chapter III of the Constitution, the chapter providing for judicial power. One of the core aspects of judicial power is the ability to make binding and authoritative decisions on questions of law, that is, issues relating to life, liberty or property. The wielding of judicial power by the legislative or executive branch includes the direct wielding of power and the indirect wielding of judicial power.The state constitutions in Australia contain few limitations on government power. Bills of attainder are considered permissible because there is no entrenched separation of powers at the state level. However, section 77 of the Constitution of Australia permits state courts to be invested with Commonwealth jurisdiction, and any state law that renders a state court unable to function as a Chapter III court is unconstitutional. The states cannot structure their legal systems to prevent them from being subject to the Australian Constitution.
An important distinction is that laws seeking to direct judicial power are unconstitutional, but laws that concern mandatory sentencing, rules of evidence, non-punitive imprisonment, or tests, are constitutional.
State parliaments are, however, free to prohibit parole boards from granting parole to specific prisoners. For instance, sections 74AA and 74AB of the Corrections Act 1986 in Victoria significantly restrict the ability of the parole board to grant parole to Julian Knight or Craig Minogue. These have been upheld by the High Court of Australia and are distinguished from bills of attainder since the original sentence handed down by the Supreme Court of Victoria is unchanged; the law relates only to the granting of parole, which is a privilege, not a right.
Canada
In two cases of parliamentary proposals for bills to inflict a judicial penalty on a specific person, the speakers of the House of Commons and Senate, respectively, have ruled that the Parliament of Canada considers only public bills of general applicability, or private bills to the benefit of some individual or corporation; inasmuch as a bill of attainder is manifestly not beneficial to its recipient, it is neither a public nor a private bill, and thus is not a proper subject for consideration by Parliament.United Kingdom
English law
The word "attainder" is part of English common law. Under English law, a criminal condemned for a serious crime, whether treason or felony, 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 executionwhen 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, except 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 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 sometimes occurred long after the convicted person was executed.
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 criticised 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. It was however relevant to the custom of the Middle Ages, where all lands and titles were granted by a king in his role as the "fount of honour". Anything granted by the king's wish could be taken away by him. This weakened over time as personal rights became legally established.
The first use of a bill of attainder was in 1321 against Hugh le Despenser, 1st Earl of Winchester and his son Hugh Despenser the Younger, Earl of Gloucester. They were both attainted for supporting King Edward II during his struggle with the queen and barons.
In England, those executed subject to attainders include George Plantagenet, Duke of Clarence ; Thomas Cromwell ; Margaret Pole, Countess of Salisbury ; Catherine Howard ; Thomas, Lord Seymour ; Thomas Wentworth, Earl of Strafford ; Archbishop William Laud of Canterbury ; and James Scott, Duke of Monmouth. In the 1541 case of Catherine Howard, 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 following the Battle of Bosworth Field, Henry VII had Parliament pass a bill of attainder against his predecessor. It is noteworthy that this bill made no mention of the Princes in the Tower, although it does declare him guilty of "shedding of Infants blood".
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 1 January 1649. After the committee stages, the bill passed both the Houses of Lords and Commons and was engrossed on 4 December 1660. This was followed with a resolution that passed both Houses on the same day:
In 1685, when the Duke of Monmouth landed in West England and started a rebellion in an effort to overthrow his uncle, the recently enthroned James II, Parliament passed a bill of attainder against him. After the Battle of Sedgemoor, this made it possible for King James to have the captured Monmouth put summarily to death. Though legal, this was regarded by many as an arbitrary and ruthless act.
In 1753, the Jacobite leader Archibald Cameron of Lochiel was summarily put to death on the basis of a seven-year-old bill of attainder, rather than being put on trial for his recent subversive activities in Scotland. This aroused some protests in British public opinion at the time, including from people with no Jacobite sympathies.
The last use of attainder was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798. Corruption of blood was outlawed in England and Wales by the Corruption of Blood Act 1814.