Bill of attainder
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Bill of attainder


A bill of attainder is an act of a
legislature declaring a person or group of persons guilty of some crime and
punishing them 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. Bills
of attainder were passed in England between about 1300 and 1800 and resulted
in the executions of a number of notable historical figures.
The use of these bills by Parliament eventually fell into disfavor due to the
obvious potential for abuse and the violation of several legal principles,
most importantly the separation of powers, the right to due process, and
the precept that a law should address a particular form of behavior rather than
a specific individual or group. For these reasons, bills of attainder are
expressly banned by Article I, section 9, of the United States Constitution as
well as by the constitutions of all 50 US states.
Jurisdictions=Australia=
Unlike the United States Constitution there is no specific provision
forbidding the Commonwealth Government from passing Bills of attainder, however
the High Court of Australia has ruled that Bills of attainder are
unconstitutional as it is a violation of the separation of powers doctrine for
any body other than a Chapter III court to wield 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 their power and Bills of attainder are considered permissible as
there is no entrenched separation of powers at the state level. However s77
of The Australian Constitution invests State Courts with Commonwealth
Jurisdiction and any State Law that makes a State Court unable to function
as 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 laws that seek to direct
Judicial Power are unconstitutional but laws that concern; mandatory sentencing,
rules of evidence, non-punitive imprisonment, or tests are
constitutional.=Canada=
In two cases of attempts to pass laws inflicting a judicial penalty on a
specific person, 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.
In the province of Quebec, the Michaud Affair is one case in which a provincial
parliament expressed public disapproval of an individual. However, the motion
passed by the National Assembly was worded as an opinion of the Assembly
rather than a bill of attainder per se.=England=
Usage under English law The word “attainder”, meaning
“taintedness”, 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 execution—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. 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 criticized 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. The first use of attainder was in 1321
against both 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 during his struggle with the queen and barons.
In England, those executed subject to attainders include George Plantagenet,
1st Duke of Clarence, Thomas Cromwell, Margaret Pole, Countess of Salisbury,
Catherine Howard, Thomas Seymour, 1st Baron Seymour of Sudeley, Thomas Howard,
Thomas Wentworth, Archbishop of Canterbury, William Laud; 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 assent personally to
the execution of his wife. After defeating Richard III and
replacing him on the throne of England, 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 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 of Attainder 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:
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.
In 1753, the Jacobite leader Archibald Cameron of Locheil 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.
The Great Act of Attainder In 1688, the English King James II,
driven off by the ascent of William and Mary in the Glorious Revolution, came to
Ireland with the sole purpose of reclaiming his throne. After his
arrival, the Parliament of Ireland assembled a list of names in 1689 of
those reported to have been disloyal to him, eventually tallying between two and
three thousand, in a bill of attainder. 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 parliament became known in the 1800s as
the “Patriot Parliament”. Later defenders of the Patriot
Parliament pointed out that the ensuing “Williamite Settlement forfeitures” of
the 1690s named an even larger number of Jacobite suspects, most of whom had been
attainted by 1699. Private bills
In the Westminster system, a similar concept is covered by the term private
bill. 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. 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 a “Pains and Penalties Bill” was Pains and
Penalties Bill 1820 and was passed by the House of Lords in 1820, but not
considered by the House of Commons; it sought to divorce Queen Caroline from
King George IV and adjust her titles and property accordingly, on grounds of her
alleged adultery, as did many private bills dealing with divorces of private
persons. No bills of attainder have been passed
since 1820 in the UK. 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. 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. 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. He was
dissuaded by cabinet minister Richard Law who pointed out that the United
States and Soviet Union still favoured trials.
=United States=Bills of attainder were used through the
18th century in England, and were applied to British colonies as well.
Some colonists were inspired to the American Revolution because of anger at
the injustice of attainder. Although at least one American state used a bill of
attainder to confiscate the property of a British loyalist during the war,
American dissatisfaction with British attainder laws resulted in their being
prohibited in the U.S. Constitution ratified in 1789.
Constitutional bans The United States Constitution forbids
legislative bills of attainder under Article I, Section 9. The provision
forbidding state law bills of attainder, Article I, Section 10, reflects the
importance that the framers attached to this issue.
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 or executive functions—since the outcome of
any such acts of legislature would of necessity take the form of a bill of
attainder. Second, they embody the concept of due process, which was
partially reinforced by the Fifth Amendment to the Constitution. 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 Texas version: Article 1 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”. It is unclear whether a
contract that calls for heirs to be deprived of their estate is allowed
under this law. Cases before the U.S. Supreme Court
The U.S. Supreme Court has invalidated laws under the Attainder Clause on only
five occasions. Two of the United States Supreme Court’s
first decisions on the meaning of the bill of attainder clause came after the
American Civil War. In Ex parte Garland, 71 U.S. 333, the court struck down a
federal law requiring attorneys practicing in federal court to swear
that they had not supported the rebellion. In Cummings v. Missouri, 71
U.S. 277, the Missouri constitution required anyone seeking a professional’s
license from the state to swear they had not supported the rebellion. The Supreme
Court overturned the law and the constitutional provision, arguing that
the people already admitted to practice were subject to penalty without judicial
trial. The lack of judicial trial was the critical affront to the
Constitution, the Court said. Two decades later, however, the Court
upheld similar laws. In Hawker v. New York, 170 U.S. 189 a state law barred
convicted felons from practicing medicine. In Dent v. West Virginia, 129
U.S. 114 a state law imposed a new requirement that practicing physicians
had to have graduated from a licensed medical school or they would be forced
to surrender their license. The Court upheld both laws because, it said, the
laws were narrowly tailored to focus on an individual’s qualifications to
practice medicine. That was not true in Garland or Cummings.
The Court changed its “bill of attainder test” in 1946. In United States v.
Lovett, 328 U.S. 303, the Court confronted a federal law that named
three people as subversive and excluded them from federal employment.
Previously, the Court had held that lack of judicial trial and the narrow way in
which the law rationally achieved its goals were the only tests of a bill of
attainder. But the Lovett Court said that a bill of attainder 1) Specifically
identified the people to be punished; 2) Imposed punishment; and 3) Did so
without benefit of judicial trial. As all three prongs of the bill of
attainder test were met in Lovett, the court held that a congressional statute
that bars particular individuals from government employment qualifies as
punishment prohibited by the bill of attainder clause.
The Taft–Hartley Act sought to ban political strikes by Communist-dominated
labor unions by requiring all elected labor leaders to take an oath that they
were not and had never been members of the Communist Party USA, and that they
did not advocate violent overthrow of the U.S. government. It also made it a
crime for members of the Communist Party to serve on executive boards of labor
unions. In American Communications Association v. Douds, 339 U.S. 382, the
Supreme Court had said that the requirement for the oath was not a bill
of attainder because: 1) Anyone could avoid punishment by disavowing the
Communist Party, and 2) It focused on a future act and not a past one.
Reflecting current fears, the Court commented in Douds on approving the
specific focus on Communists by noting what a threat communism was. The Court
had added an “escape clause” test to determining whether a law was a bill of
attainder. In United States v. Brown, 381 U.S. 437,
the Court invalidated the section of the statute that criminalized a former
communist serving on a union’s executive board. Clearly, the Act had focused on
past behavior and had specified a specific class of people to be punished.
But if this specific focus in Brown was constitutionally invalid, why was it not
constitutionally invalid in Douds? Additionally, the Court did not apply
the punishment prong of its test, leaving legal scholars confused as to
whether the Court still intended it to apply.
The Supreme Court emphasized the narrowness and rationality of bills of
attainder in Nixon v. Administrator of General Services, 433 U.S. 425. During
the Watergate scandal, in 1974 Congress passed the Presidential Recordings and
Materials Preservation Act, which required the General Services
Administration to confiscate former President Richard Nixon’s presidential
papers to prevent their destruction, screen out those which contained
national security and other issues which might prevent their publication, and
release the remainder of the papers to the public as fast as possible. The
Supreme Court upheld the law in Nixon, arguing that specificity alone did not
invalidate the act because President constituted a “class of one.” Thus,
specificity was constitutional if it was rationally related to the class
identified. The Court modified its punishment test, concluding that only
those laws which historically offended the bill of attainder clause were
invalid. The Court also found it significant that Nixon was compensated
for the loss of his papers, which alleviated the punishment. The Court
modified the punishment prong by holding that punishment could survive scrutiny
if it was rationally related to other, nonpunitive goals. Finally, the Court
concluded that the legislation must not be intended to punish; legislation
enacted for otherwise legitimate purposes could be saved so long as
punishment was a side-effect rather than the main purpose of the law.
Cases considered by lower courts A number of cases which raised the bill
of attainder issue did not reach or have not reached the Supreme Court, but were
considered by lower courts. In 1990, in the wake of the Exxon Valdez
oil spill, Congress enacted the Oil Pollution Act to consolidate various oil
spill and oil pollution statutes into a single unified law, and to provide for a
statutory regime for handling oil spill cleanup. This law was challenged as a
bill of attainder by the shipping division of ExxonMobil.
In 2003, the United States Court of Appeals for the District of Columbia
Circuit struck down the Elizabeth Morgan Act as a bill of attainder.
After the United States House of Representatives passed a resolution in
late 2009 barring the community organizing group Association of
Community Organizations for Reform Now from receiving federal funding, the
group sued the U.S. government. Another, broader bill, the Defund ACORN Act, was
enacted by Congress later that year. In March 2010, a federal district court
declared the funding ban an unconstitutional bill of attainder. On
13 August 2010, the United States Court of Appeals for the Second Circuit
reversed and remanded on the grounds that only 10 percent of ACORN’s funding
was federal and that did not constitute “punishment.”
Possible cases There is argument over whether the Palm
Sunday Compromise in the Terri Schiavo case was a bill of attainder.
Some analysts considered a proposed Congressional bill to confiscate 90
percent of the bonus money paid to executives at federally rescued
investment bank American International Group a bill of attainder, although
disagreement exists on the issue. The bill was not passed by Congress.
In 2011, the House voted to defund Planned Parenthood. Democratic
Representative Jerry Nadler called that vote a bill of attainder, saying it was
unconstitutional as such because the legislation was targeting a specific
group. In June 2012, the House Foreign Affairs
Committee reported the Magnitsky Act to the House. It was a bill to punish
Russian officials who were thought to be responsible for the death of Sergei
Magnitsky by prohibiting their entrance to the United States and use of the US
banking system. See also
Ex post facto, a law that retroactively changes the legal consequences of
actions committed prior to the enactment of the law.
Footnotes External links
=British tradition=British Impeachment and Attainder
Fred-Goodwin must surrender pension, Harriet Harman insists
=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[Citation needed; dead link] Confessions of a Pilgrim. Re: Schiavo
Palmer v. Clarke and a change in Evidentiary Rules as a Bill of Attainder
Mention of Attainder in The Federalist Papers, for example, by Madison and
again by Madison and by Hamilton Can a Reparations Package Be a Bill of
Attainder? Bills of Attainder: The Constitutional
Implications of Congress Legislating Narrowly Congressional Research Service

2 Comments

  • nick masterson

    the govt. cant make laws of attainder making a person automatically guilty of serious crimes such as treason without normal court proceedings.this is desighned to protect criminal defendents their rights from being taken away without due process.the govt cant find a loophole that one is not a criminal defendant and take away life,liberty or property without due process from a civilian not guilty of a political crime qualifying them under the 1st and 9th in the outside of a court of law aspect of the justice system.other parts of the constitution protect a civilian from this.

  • nick masterson

    Livingston back in the 1830s held the floor of congress for hours.one of the things he spoke on was constitutional oppression.using the 1st and 9th or the 4th and fourth inproperly as tyranny.he said he was confident the people will  straiten the government out concearning reasessing people.ones that are complete citizens that don't belong under the outside of a court of law aspect of our justice system whome are constitutionally inosent.

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