Bills of Attainder in English Law
A Concise Modern Summary, By R. J. Bronner (1999).
Published by J. E. I. (2023).
I. Introduction to the American Experience.
The U.S. Constitution states: “No Bill of Attainder or ex post facto Law shall be passed.” (U.S. Const. Art. 1, § 9, Cl. 3.)
⬖ The U.S. Supreme Court’s description of Bills of Attainder:
“The bill of attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government.”
— Nixon v. Adm’r of Gen. Servs., 433 U. S. 425, 468 (1977) (construing an analogous constitutional provision prohibiting the States from enacting bills of attainder, the Supreme Court held the clause is directed against legislative action only, and does not reach erroneous or inconsistent decisions by courts); Frank v. Magnum, 237 U. S. 309, 344 (1915); see also Ross v. Oregon, 227 U. S. 150, 161 (1913).
That description is thirty-three percent correct, but it is a fine start. Nevertheless, it is our law, so in that sense it absolutely is correct.
There is a related English legal device called a “bill of pains-and-penalties,” that also utilized legislation to impose extrajudicial punishments less severe than death, including banishment and deprivation of political rights. Both Attainders and Pains-and-Penalties were legal in England during the American colonial experience.
⬖ The Framers’ Motivations.
James Madison outlined the motivation for prohibiting bills of attainder in discussing the merits of the text of the proposed U.S. Constitution.
[Concerning the Proposal] ‘‘ ‘To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained.’
As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. ”
— Federalist Papers, № 43 (Madison).
“Bills of attainder … are contrary to the first principles of the social compact, and to every principle of sound legislation. The [practice is] expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and lessinformed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.”
— Federalist Papers, № 44 (Madison).
⬖ Professor (and Justice) Joseph Story.
According to Joseph Story, in Commentaries on the Constitution of the United States § 1338 (1833):
In bill of attainder cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.
⬖ A Historical Footnote: The American Civil War.
As should be clear, the rule against bills of attainder was also a concept used by confederate states during the American Civil War as a means for seeking to protect the slave trade.
- Constitutional scholars frequently are surprised when I point out that the charter of the Confederate states had an expansionist design that sought to use slavery as the means for future territorial acquisitions — the American Civil War was not a mere fight against ‘self determination,’ but rather a battle to safeguard the entire United States and lands and peoples far beyond U.S. territorial boundaries.
II. English Criminal Law.
(A) Activity Subject to Attainder.
Attainder is a status change due to criminal culpability, whether proven or legislatively declared, for the crimes of “felony,” “treason” or “outlawry.”*
- * Outlawry is crime that places a person beyond the protection of law for refusal to submit to a court having legal jurisdiction. Actions for Civil Outlawry were abolished in England in 1879 and may only have possible application to one accused of criminal charges. The crimes of felony and treason were known as forms of “Major Outlawry.” In England of antiquity the offender (the outlaw) was often killed on sight or during the effort to arrest him. If the offender was captured, all of the same consequences were also possibilities.
(B) Three Models of Attainder.
There were three general types of Attainder:
- Attainder by Confession,
- Attainder by Jury Verdict, and
- Attainder by Legislative Process.
The third type is what our U.S. Supreme Court has described as a type of illegitimate activity; the other two types are activities we might consider to be closer to (though not perfect representations of) modern trial procedures. An Attainder by Confession was an admission before a judge or coroner, so it was something akin to a guilty plea (an admission).
(C) Consequences.
A successful attainder ordinarily resulted in termination of one’s right to:
- life,
- property
- hereditary titles,
- general civil rights,
- receive property (or inherit), and
- transfer property and titles on to heirs.
(D) “Corruption of Blood” — its meaning.
A “corruption of blood” refers to the ‘degree of impurity’ assigned by law that results from attainder. The attainted is disqualified from inheriting or transmitting property and the attainted’s descendants are forever barred from any inheritance of rights to title in accordance with their ‘degree of impurity.’
English law of antiquity describing the degree of impurity is shown below:
⬖ Additional Standard Texts.
⬖ Background on The First Earl of Strafford who was Attainted and Put to Death.
In the mid 1600s, the House Commons sought to impeach Thomas Wentworth, The First Earl of Strafford, for ruthless behavior that engendered a great deal of public outcry (some public complaints described Wentworth as a ‘rabid animal that should be put out of his misery’). King Charles the First was particularly fond of the Earl of Strafford.
Nevertheless, Wentworth proved to be no push-over when the Commons sought to take his life: He argued that all he did was in service of the King, so it could not be treasonous because treasonable acts were by definition only acts of disloyalty.
The Commons saw the writing on the wall and anticipated that its attempted impeachment had been poorly formulated. Impeachment carried a death sentence under English law — the Commons’ objective — but was becoming an increasingly remote possibility. To save face the Commons terminated the impeachment and passed a bill of attainder by a vote of 204 to 59, leading to the the First Earl of Strafford being put to death on Tower Hill.
Image Below: “An Act for the Attainder of Thomas Earl of Strafford for High Treason” (1641) [Catalogue number HL/PO/PB/1/1640/16&17C1n23], Parliamentary Archives.*
- With gratitude to the Parliamentary Archives
