Attainder: Wikis

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In English criminal law, attainder or attinctura is the metaphorical 'stain' or 'corruption of blood' which arises from being condemned for a serious capital crime (felony or treason). It entails losing not only one's property and hereditary titles, but typically also the right to pass them on to one's heirs. Both men and women condemned of capital crimes could be attainted.

Attainder by confession results from a guilty plea at the bar before judges or before the coroner in sanctuary. Attainder by verdict results from conviction by a jury. Attainder by process results from a legislative act outlawing a fugitive.

Contents

Attainders of British Aristocracy in the Middle Ages and Renaissance

Medieval and Renaissance British kings and queens used acts of attainder to deprive nobles of their lands and often their lives. Once attainted, the descendents of the noble could no longer inherit his lands or income. Attainder essentially amounted to the legal death of the attainted's family.[1]

Kings typically used attainders against political enemies and those who posed potential threats to the king's position and security. The attainder eliminated any advantage the noble would have in a court of law; nobles were exempt from many of the techniques used to try commoners, including torture. Likewise, in many cases of attainder, the king could coerce the parliament into approving the attainder and there would be a lower or non-existent burden of proof (evidence) than there would be in court.[2]

Prior to the Tudors, most rulers reversed their attainders in return for promises of loyalty. For example, Henry VI reversed all 21 attainders, Edward IV 86 of 120, and Richard III 99 of 100.[3] However, this changed with Henry VII, as described below.

Regnants who used attainder include:

  • Margaret of Anjou - whose attainder of Richard of York compelled him to invade England and attempt to seize the throne after the Battle of Northampton, which ultimately led to the penultimate phases of the War of the Roses.
  • Henry VII - initially attainted men after he ascended the throne.[4] He used the threat of attainder as a means to keep the few nobles who survived the [War of the Roses] in-line. Often, however, he would penalize them with exorbitant fees and fines - or force them to have bonds which would be forfeit unless they exhibited good behavior. (Their goal was to reduce the number of nobles with private armies of retainers.) Henry VII attainted 138 men of whom he reversed only 46 attainders - and some of these were conditional.
  • Henry VIII - compelled parliament to attaint many nobles in his life, including magnates with major land holdings, and any magnates whom he came to mistrust. Examples include:

Once attainted, nobles were considered commoners, and as such, could be subjected to the same treatments, including torture and methods of execution. For example, commoners could be burned at the stake, wherease nobles could not.

Often, nobles would refer to the act of being attainted (and then executed) as the person's "destruction."

Passage in Parliament

In the Westminster system, a bill of attainder is a bill passed by Parliament attainting persons condemned for high treason, or, in rare cases, a lesser crime. Notably, a person thus attainted need not have been convicted of treason in a court of law. Consequently, attainder has historically been used for political purposes against people whose guilt would have been difficult to prove, or indeed who were entirely innocent. Bills of attainder are also available to condemn criminals who cannot be brought to justice.

A bill of attainder was last passed in Britain in 1798. Attainders by confession, verdict and process were abolished in the United Kingdom in 1870.

Section 9 of Article One of the United States Constitution provides that no bill of attainder or ex post facto law shall be passed by Congress. Article One, Section 10 forbids states from passing them.

Corruption of blood

Corruption of blood is one of the consequences of attainder. The descendants of an attainted person could not inherit either from the attainted criminal (whose property had been forfeited on conviction) or from their other relatives through the criminal. For example, if a son is executed for a crime leaving innocent grandsons as orphans, and the innocent grandfather has other children besides the criminal, the property of the criminal is forfeited to the crown. But when the grandfather dies, the property of grandfather will not be seized by the Crown, nor pass to the grandchildren: it passes to the other children of the grandfather.

While the United States Constitution (in article III, section 3) prohibits corruption of blood, it is nonetheless possible in many states for a crime to affect the inheritance rights of innocent relatives due to the slayer rule.

In England and Wales against murderers and some forms of manslaughterer where a judge considers it just the Forfeiture Act 1982 applies to simplify the common law rule. The rule applied to felony before the Forfeiture Act 1870.

Examples of cases where a person's property was subject to attainder

References

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1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

ATTAINDER (from the O. Fr. ateindre, ateindre, to attain, i.e. to strike, accuse, condemn; Lat. attingere, tangere, to touch; the meaning has been greatly affected by the confusion with Fr. taindre, teindre, to taint, stain, Lat. tangere, to dye), in English law, was the immediate and inseparable consequence from the common law upon the sentence of death. When it was clear beyond all dispute that the criminal was no longer fit to live he was called attaint, and could not, before the Evidence Act 1843, be a witness in any court. This attainder took place after judgment of death, or upon such circumstances as were equivalent to judgment of death, such as judgment of outlawry on a capital crime, pronounced for absconding from justice. Conviction without judgment was not followed by attainder. The consequences of attainder were (1) forfeiture, (2) corruption of blood. On attainder for treason, the criminal forfeited to the crown his lands, rights of entry on lands, and any interest he might have in lands for his own life or a term of years. For murder, the offender forfeited to the crown the profit of his freeholds during life, and in the case of lands held in fee-simple, the lands themselves for a year and a day; subject to this, the lands escheated to the lord of the fee. These forfeitures related back to the time of the offence committed. Forfeitures of goods and chattels ensued not only on attainder, but on conviction for a felony of any kind, or on flight from justice, and had no relation backwards to the time of the offence committed. By corruption of blood, " both upwards and downwards," the attainted person could neither inherit nor transmit lands. The lands escheated to the lord of the fee, subject to the crown's right of forfeiture. The doctrine of attainder has, however, ceased to be of mud' importance. The Forfeiture Act 1870 enacted that henceforth no confession, verdict, inquest, conviction or judgment of or for any treason or felony, or felo de se, should cause any attainder or corruption of blood, or any forfeiture or escheat. Sentence of death, penal servitude or imprisonment with hard labour for more than twelve months, after conviction for treason or felony, disqualifies from holding or retaining a seat in parliament, public offices under the crown or otherwise, right to vote at elections, &c., and such disability is to remain until the punishment has been suffered or a pardon obtained. Provision was made for the due administration of convicts' estates, in the interests of themselves and their families. Forfeiture consequent on outlawry was exempted from the provisions of the act. The United States constitution (Art. III. s. 3) says: "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." Bills of Attainder, in English legal procedure, were formerly a parliamentary method of exercising judicial authority. They were ordinarily initiated in the House of Lords and the proceedings were the same as on other bills, but the parties against whom they were brought might appear by counsel and produce witnesses in both Houses. In the case of an impeachment, the House of Commons was prosecutor and the House of Lords judge; but such bills being legislative in form, the consent of crown, lords and commons was necessary to pass them. Bishops, who do not exercise but who claim the right to vote in cases of impeachment(q.v.), have a right to vote upon bills of attainder, but their vote is not conclusive in passing judgment upon the accused. First passed in 1459, such bills were employed, more particularly during the reigns of the Tudor kings, as a species of extrajudicial procedure, for the direct punishment of political offences. Dispensing with the ordinary judicial forms and precedents, they took away from the accused whatever advantages he might have gained in the courts of law; such evidence only was admitted as might be necessary to secure conviction; indeed, in many cases bills of attainder were passed without any evidence being produced at all. In the reign of Henry VIII. they were much used, through a subservient parliament, to punish those who had incurred the king's displeasure; many distinguished victims who could not have been charged with any offence under the existing laws being by this means disposed of. In the 17th century, during the disputes with Charles I., the Long Parliament made effective use of the same procedure, forcing the sovereign to give his consent. After the Restoration it became less frequent, though the Jacobite movement in Scotland produced several instances of attainder, without, however, the infliction of the extreme penalty of death. The last bill of attainder passed in England was in the case of Lord Edward Fitzgerald, one of the Irish rebel leaders of 1798.

A bill for reversing attainder took a form contrary too the usual rule. It was first signed by the sovereign and presented by a peer to the House of Lords by command of the crown, then passed through the ordinary stages and on to the commons, to whom the sovereign's assent was communicated before the first reading was taken, otherwise the whole proceedings were null and void.

A Bill of Pains and Penalties resembles a bill of attainder in object and procedure, but imposes a lesser punishment than death. The most notable instances of the passing of a bill of pains and penalties are those of Bishop Atterbury in 1722, and of Queen Caroline, wife of George IV., in 1820.

The constitution of the United States declares that "no bill of attainder or ex post facto law shall be passed."


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