Attainder

Attainder, in English law, the extinction of civil and political rights resulting from a sentence of death or outlawry after a conviction of treason or a felony.

The most important consequences of attainder were forfeiture and corruption of blood. For treason, an offender’s lands were forfeited to the king. For felonies, lands were forfeited to the king for a year and a day and then, because felonies were considered a breach of the feudal bond, escheated (forfeited) to the lord from whom the offender held his tenure. Subsequently, in Magna Carta (1215), the crown renounced its claim to forfeiture in the case of felony. Even harsher than attainder was the doctrine of corruption of blood, by which the person attainted was disqualified from inheriting or transmitting property and his descendants were forever barred from any inheritance of his rights to title. All forms of attainder—except the forfeiture that followed indictment for treason—were abolished during the 19th century.

As a result of the English experience, the framers of the Constitution of the United States provided (Article III, Section 3) that “the Congress shall have Power 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 attainted.”

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Historically, a legislative act attainting a person without a judicial trial was known as a bill of attainder or—if punishment was less than death—as a bill of pains and penalties. The power of Parliament to declare guilt and impose punishment by such measures was well established by the 15th century. During the Wars of the Roses (1455–85), bills of attainder were used by rival factions to rid themselves of each other’s leaders, and later King Henry VIII (reigned 1509–47) induced both the House of Lords and the House of Commons to pass such bills against ministers whom he had ceased to trust. Unlike impeachment, which is a judicial proceeding in the House of Lords on charges made by the House of Commons, a bill of attainder was a legislative act adopted by both houses with the formal consent of the king. The offenses charged in such bills were usually characterized as treason but did not have to satisfy established legal definitions of that or any other crime. Thus, bills of attainder have generally been deplored not only because they deprived the accused of a fair trial but also because of their typically ex post facto quality. The dominant faction of the legislature could make any past conduct that it found offensive into a crime. In England the last bill of attainder was against Lord Edward Fitzgerald, who was condemned to death by an act of Parliament for leading the 1798 rebellion in Ireland. The last bill of pains and penalties, introduced in 1820, led to a legislative trial of Queen Caroline, wife of King George IV, on charges of adultery, but the bill was not passed.

Acts of attainder or of pains and penalties were passed by some of the American colonial legislatures until the Constitution forbade them. In applying these prohibitions, the Supreme Court of the United States has expanded the historical conception of attainder. It invoked these clauses in 1867 in Cummings v. Missouri and Ex parte Garland to strike down loyalty oaths passed after the American Civil War to disqualify Confederate sympathizers from practicing certain professions. Similarly, in United States v. Lovett (1946), the court invalidated as a bill of attainder a section of an appropriation bill forbidding the payment of salaries to named government officials who had been accused of being subversive. Later decisions, however, have declined to treat requirements of loyalty oaths as bills of attainder, though they have invalidated such requirements on other grounds.

Nixon v. Administrator of General Services (1977) held that the Presidential Recordings and Materials Preservation Act was not a bill of attainder even though the law referred to President Richard Nixon by name. This law directed the administrator of the General Services Administration to seize tape recordings, papers, and other materials then in Nixon’s possession. The law did not impose a punishment and did not evidence a congressional intent to punish. In light of the fact that Nixon was the only president to resign under threat of impeachment by the House of Representatives, the court held that the “appellant constituted a legitimate class of one.”