Define: Bill Of Attainder

A bill of attainder is a legislative act that declares a person or group guilty of a crime without a trial or judicial process. It essentially serves as a conviction and punishment by the legislative branch, bypassing the normal judicial procedures. Bills of attainder are prohibited by the United States Constitution and many other legal systems around the world, as they violate the principle of due process and the separation of powers. The prohibition against bills of attainder is designed to protect individuals from arbitrary or tyrannical government actions and to ensure that individuals accused of crimes are afforded fair and impartial trials before being convicted and punished.

Beginning in the fourteenth century and lasting to the nineteenth, there was a law in England that enabled nobles and royalty to punish citizens without trial.

The British Bill of Attainder is perhaps one of the most interesting, creative, albeit potentially tyrannical, pieces of law ever enacted. It is not difficult to see why a king or other monarch would have so readily accepted and used such a device to further their own power.

Put simply, a Bill of Attainder is a direct writ issued by a King and handed down directly to a criminal who is usually guilty of something along the lines of treason. The writ would declare this person to be “tainted” (the word “attainder” is derived from the Middle English word “attainted,” meaning “having stigma imparted upon”), and in English Law prior to the latter half of the 19th century, was used by the monarch of the day in order to avoid the pesky ordeal of a trial.

The Effect Of A Bill Of Attainment

A Bill of Attainment, if imparted on a criminal (or suspected criminal, as the situation may be), would do several things: It would take away all of the person’s civil rights; all owned property would be taken by the state, along with all titles of nobility, and, if the crime was severe enough, the person might even be put to death, all without a trial.

These bills are known to have been issued as far back as 1321 and were not all that uncommon in England from this time until they were finally abolished in 1870, though it was also not entirely uncommon for the bill to be reversed by the King as an act of kindness after the person’s death, in which case their property might be returned to them and handed down the rightful heirs as a kind of post-mortem act of clemency, though such kindness really only ever happened in cases of nobility.

Specific Uses Of The Law

Perhaps the most interesting use of the Bill of Attainder is that of the punishment of those regicides of Charles I in 1660 (a regicide is a person who kills someone of royalty).

It happened like this: In 1653, several members of British parliament conspired to kill the King and take the throne for themselves, which they successfully did, leading to a period of British history known as the Protectorate, which lasted until the Restoration period in 1660 under King Charles II, in which the throne rightfully reverted back to the royal lineage. Now, at this point, several of the people responsible for the death of Charles I had already died, including Oliver Cromwell, who had been made Lord Protectorate for life during the Protectorate period. Nevertheless, Bills of Attainder for Cromwell as well as three of his co-conspirators were issued, and as a result, their titles were posthumously taken away, their bodies were unearthed, and they were executed, which of course wasn’t a big deal, seeing as how they were already dead.

But this goes to show just how flexible the Bill of Attainder could truly be.

Bill of Attainment Outside Of Britain

In America, the constitution expressly forbids the issuing of Bills of Attainder (for this was one of the main grievances the colonists had against the crown during the period leading up to the Revolutionary war). It explicitly states in Article 1, section 9, clause 3, that “No bill of attainder or ex post facto law shall be passed,” but it was certainly an issue that was argued during the constitutional convention.

In fact, just after the Revolutionary War and ten years before the constitution’s ratification, Thomas Jefferson himself, then part of the Virginia state legislature (he would become governor the following year), drafted a bill of attainder against a wartime traitor. To make matters much worse, the state of Pennsylvania issued such bills against nearly 500 Tories (those in America who sided with England). Soon after this, however, the colonies, one by one, began to do away with bills of attainder, until they were finally abolished completely via the constitution.

It would be nearly 100 years before such a law was passed in Britain.

References:

• “Bill of Attainder.” Tech Law Journal.
• “Attainder.” Catholic Encyclopaedia.
• Lynch, Jack. “A Patriot, A Traitor, and A Bill of Attainder.”

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 9th April, 2024.