Bill of Attainder - English Law

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 (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. Any peerage titles would also revert to the Crown. 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. 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 (who fell foul of the law relating to felo de se), 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 (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 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 attained, 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.

In England, those executed after the passing of attainders include George Plantagenet, 1st Duke of Clarence (1478), Thomas Cromwell (1540), Margaret Pole, Countess of Salisbury (1540), Catherine Howard (1542), Thomas Seymour, 1st Baron Seymour of Sudeley (1549), Thomas Howard (1572), Thomas Wentworth (1641), Archbishop of Canterbury, William Laud (1645), 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 whatsoever 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 (NS). 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 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.