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A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial. A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a Criminal case whereby the Prosecutor offers A presentence investigation report ( PSI) is a Legal term referring to the investigation into the history of person convicted of a crime before sentencing to determine The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e Civil procedure is the body of law that sets out the process that Courts will follow when hearing cases of a civil nature (a " Civil action " as opposed to In English Criminal law, attainder or attinctura is the metaphorical 'stain' or 'corruption of blood' which arises from being condemned for a serious Capital A legislature is a type of representative Deliberative assembly with the power to create amend and change Laws The law created by a legislature is called Legislation The United States Constitution forbids both the federal and state governments to enact bills of attainder, in Article 1, Sections 9 and 10, respectively. The Constitution of the United States of America is the supreme Law of the United States. It was considered an excess or abuse of the British monarchy and Parliament. They are fundamentally impossible to abolish in the United Kingdom because of parliamentary sovereignty - any statute purporting to abolish bills of attainder would be superseded and by implication repealed by any later parliament actually passing an act of attainder - though no bills of attainder have been passed since 1798. Parliamentary sovereignty, Sovereignty of Parliament, parliamentary supremacy, or legislative supremacy is a concept in Constitutional law 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 [1]
Contents |
Origin
The word "attainder", meaning "taintedness", is part of English common law. In English Criminal law, attainder or attinctura is the metaphorical 'stain' or 'corruption of blood' which arises from being condemned for a serious Capital Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive Under English law, a criminal condemned for a serious crime, whether treason or felony (but not misdemeanour, 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. A mesne lord was a Lord in the Feudal system who had vassals who held land from him but who was himself the vassal of a higher lord Any peerage titles would also revert to the Crown. The Peerage is a system of Titles of Nobility in the United Kingdom, part of the British honours system. 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. Capital punishment, the death penalty or execution, is the Killing of a person by judicial process as Punishment.
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. This article is about the method of execution See Crusher for a description of the manufacturing process and mechanisms for it
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 critizised 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. TalkCommonewalth realm.--> The monarchy
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, (note that they were attainted 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. Hugh le Despenser (1262 &ndash October 27, 1326) sometimes referred to as " the elder Despenser " was for a time the chief adviser to King Hugh Despenser 1st Lord Despenser (1286 &ndash 24 November 1326, sometimes referred to as " the younger Despenser " was the son and heir of Hugh le Despenser (or Hugh Despenser) was the name of five English lords during the 13th and 14th centuries in a direct line of descent Year 1798 ( MDCCXCVIII) was a Common year starting on Monday (link will display the full calendar of the Gregorian calendar (or a Lord Edward FitzGerald (15 October 1763 &ndash 4 June 1798 was an Irish aristocrat and revolutionary The Irish Rebellion of 1798 (Éirí Amach 1798 Turn Oot 1798 or 1798 rebellion as it is known locally was an uprising in 1798 lasting several months against the
In England, those executed after the passing of Attainders include Thomas Cromwell (1540), Margaret Pole, Countess of Salisbury (1540), Catherine Howard (1542), Thomas Seymour, Baron Seymour of Sudeley (1549), Thomas Howard (1572), Thomas Wentworth (1641), Archbishop William Laud (1645), and the Duke of Monmouth. England is a Country which is part of the United Kingdom. Its inhabitants account for more than 83% of the total UK population whilst its mainland Thomas Cromwell 1st Earl of Essex (c 1485 &ndash 28 July 1540) was an English statesman who served as King Henry VIII 's chief minister Margaret Pole ( née Plantagenet) 8th Countess of Salisbury ( 14 August 1473 &ndash 27 May 1541) was an For other Catherine Howards see Catherine Howard (disambiguation Catherine Howard (between 1520 and 1525 – 13 February 1542 also called Thomas Howard 4th Duke of Norfolk ( 10 March, 1536 &mdash 2 June 1572) was an English nobleman also the 1st Earl of Southampton Thomas Wentworth 1st Earl of Strafford ( April 13, 1593 &ndash May 12, 1641) was an English statesman and a major figure in Archbishop William Laud (7 October 1573 - 10 January 1645 was Archbishop of Canterbury from 1633 to 1645 James Crofts, later James Scott 1st Duke of Monmouth and 1st Duke of Buccleuch ( April 9 1649 &ndash July 15 1685) was an English 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. Henry VIII (28 June 1491 &ndash 28 January 1547 was King of England and Lord of Ireland, later King of Ireland and claimant to the Kingdom of The granting of Royal Assent is the formal method by which a constitutional monarch completes the legislative process of Lawmaking by formally assenting to an
After defeating Richard III and replacing him on the throne of England, Henry VII had Parliament pass a Bill of Attainder against his predecessor. Richard III ( 2 October 1452 &ndash 22 August 1485) was King of England from 1483 until his death Josephine Tey [2] points out that this bill contains no mention of Edward and Richard, the Princes in the Tower, and argues that this is evidence that Richard III had not murdered them, and that the young Princes may have been alive when Henry became king. Josephine Tey was one of many Pseudonyms used by Elizabeth Mackintosh ( July 25 1896 &ndash February 13 1952) a Scottish The Princes in the Tower, Edward V of England ( November 4 1470 &ndash 1483? and his brother Richard of Shrewsbury 1st Duke of York (
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 January 1, 1649 (NS). The English Restoration, or simply The Restoration began in 1660 when the English monarchy, Scottish monarchy and Irish monarchy were restored Regicides of Charles I are considered to be the fifty-nine Commissioners (Judges who sat in judgement at the trial of King Charles I of England and signed his death John Bradshaw ( 1602 - October 31, 1659) was an English judge Oliver Cromwell (25 April 1599 Old Style &ndash 3 September 1658 Old Style) was an English military and political leader best known Henry Ireton ( 1611 - November 26, 1651) was an English general in the army of Parliament during the English Civil War Thomas Pride (died October 23, 1658) was a parliamentarian general in the English Civil War, and best known as the instigator of " Pride's Events 1252 - Pope Innocent IV issues the Papal bull Ad exstirpanda, which authorizes but also limits the New Year See also New Year The Ancient Romans began their consular year on January 1st since 153 BC Old Style (or OS) and New Style (or NS) are used in English language historical studies either to indicate that the start of the Julian year After the committee stages the Bill of Attainder passed both the Houses of Lords and Commons and was ingrossed on 4 December 1660. "December 4th" redirects here For the song by Jay-Z, see December 4th (song. 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. [3][4][5]
Private Bills
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). A private bill is an act considered or acted upon by a Legislature that helps a single individual group of individuals or corporate entity by affording relief from another 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 with death. Previously, private bills were used in some Commonwealth countries to effect divorce. 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 Lords in 1820, but not considered by 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
Bills of attainder were used through the 18th century in England, and were applied to British colonies as well. The 18th century lasted from 1701 to 1800 in the Gregorian calendar, in accordance with the Anno Domini / Common Era numbering system 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. In this article the inhabitants of the thirteen colonies that supported the American Revolution are primarily referred to as "Americans" with occasional references to "Patriots" The name United Empire Loyalists is a honorific name which has been given after the fact to those American Loyalists who resettled in British North America and other In the political tradition of some English-speaking countries, the term Tory has referred to a variety of political parties and Creeds since it was American dissatisfaction with attainder laws motivated their prohibition in the Constitution (see the case of Parker Wickham). Parker Wickham ( February 28, 1727 &ndash May 22, 1785) is famous for being a Loyalist politician who was banished from the State of 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. Separation of powers, a term ascribed to French Enlightenment Political philosopher Baron de Montesquieu, is a model for the Governance In Law, the judiciary or judicial system is the system of Courts which administer Justice in the name of the sovereign or State Second, they embody the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution. Due process (more fully due process of law) is the principle that a person has a right to receive notice and be heard in an orderly proceeding in order to protect his or her The Fifth Amendment ( Amendment V) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure 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.
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. The Elizabeth Morgan Act refers to an Act of the United States Congress. Many suggested that the Palm Sunday Compromise in the case of Terri Schiavo was also a bill of attainder. The Palm Sunday Compromise, formally known as the Act for the relief of the parents of Theresa Marie Schiavo, is an Act of Congress Theresa Marie Schindler "Terri" Schiavo ( December 3 1963 – March 31 2005 was an American woman who suffered brain damage and became dependent on a Feeding tube
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.
In recent years Congress has been passing a number of statutes, mainly for gun control, that legislatively disable rights on the basis of either judicial due process having been done, perhaps in a different jurisdiction, but in which the right was not disabled as part of the sentence, or disabled on the basis of an ex parte judicial or quasi-judicial administrative procedure, such as confinement for psychological evaluation. A psychological evaluation or mental examination is an Examination into a person's Mental health by a mental health professional such as a Psychologist Although conviction of violation might involve a trial, the defendant is not permitted to challenge the disablement. It has been argued that this kind of disablement constitutes a bill of attainder. [10]
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. Clifford Robert Olson Jr (born January 1, 1940 in Vancouver British Columbia) is a convicted Canadian Serial killer who confessed Karla Leanne Homolka, also known as Karla Leanne Teale, (born May 4, 1970 in Port Credit, Ontario, Canada) is a Canadian The House of Commons (Chambre des communes is a component of the Parliament of Canada, along with the Sovereign (represented by the Governor General) and The Senate of Canada (Le Sénat du Canada is a component of the Parliament of Canada, along with the sovereign (represented by the governor general [11][12]
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. James II of England and Ireland James VII of Scotland (14 October 1633 &ndash 16 September 1701 was King of England, King of Scots, Later that same year James James II of England and Ireland James VII of Scotland (14 October 1633 &ndash 16 September 1701 was King of England, King of Scots, Later that same year James The Glorious Revolution, also called the Revolution of 1688, was the overthrow of King James II of England (VII of Scotland in 1688 by a union With his arrival, the Parliament of Ireland began work on a list of names, eventually tallying around three thousand. The Parliament of Ireland (Irish Parlaimint na hEireann) was a Legislature that existed from mediæval times until 1800. 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. The Bastille was a Fortress - Prison in Paris, known formally as Bastille Saint-Antoine —Number 232 Rue Saint-Antoine—best known today To be hanged drawn and quartered was the penalty once ordained in England for the crime of High treason. [13]
World War II
Previously secret British War Cabinet papers released on 1 January 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. A War Cabinet is a committee formed by a government in time of war New Year See also New Year The Ancient Romans began their consular year on January 1st since 153 BC Year 2006 ( MMVI) was a Common year starting on Sunday of the Gregorian calendar. 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. The Prime Minister of the United Kingdom of Great Britain and Northern Ireland is the political leader of the United Kingdom Sir Winston Leonard Spencer-Churchill, KG, OM, CH, TD, FRS, PC, PC (Can ( 30 November 1874 A summary execution is a type of Extrajudicial punishment in which a person is killed on the spot without Trial. He was dissuaded from this by cabinet minister Richard Law who pointed out that the United States and Russia still favoured trials. Richard Kidston Law 1st Baron Coleraine PC ( 27 February, 1901 – 15 November, 1980) was a British Conservative [14]
See also
- Eminent domain, the taking of private property with compensation, for public use. Eminent domain ( United States) compulsory purchase ( United Kingdom, New Zealand, Ireland) resumption/compulsory acquisition
Footnotes
- ^ Impeachment & Attainder
- ^ The Daughter of Time
- ^ 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
- ^ 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)
- ^ Public Safety or Bills of Attainder?, by Jon Roland, U. of West Los Angeles Law Review, Vol. 34, 2002.
- ^ 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?
Dictionary
bill of attainder
-noun
- A legislative determination imposing punishment without trial. In American law, the United States Constitution prohibits Congress from passing bills of attainder.
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