Bill of attainder
Attainted people would normally be punished by judicial execution, with the property left behind escheated to the Crown or lord rather than being inherited by family.
Bills of attainder passed in Parliament by Henry VIII on 29 January 1542 resulted in the executions of a number of notable historical figures.
The use of these bills by Parliament eventually fell into disfavour due to the potential for abuse and the violation of several legal principles, most importantly the right to due process, the precept that a law should address a particular form of behaviour rather than a specific individual or group, and the separation of powers, since a bill of attainder is necessarily a judicial matter.
[7][8][9] 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.
These have been upheld by the High Court of Australia and are distinguished from bills of attainder since the original sentence (life imprisonment) stands; the only change is the administration of parole.
On the other hand, when a legal conviction did take place, confiscation and "corruption of blood" sometimes appeared unduly harsh for the surviving family.
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.
After defeating Richard III and replacing him on the throne of England following the Battle of Bosworth Field, Henry VII had Parliament pass a bill of attainder against his predecessor.
[29] 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).
This was followed with a resolution that passed both Houses on the same day:[30][31][32] 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 1685, when the Duke of Monmouth landed in West England and started a rebellion in an effort to overthrow his uncle, the recently enthroned James II, Parliament passed a bill of attainder against him.
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.
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.
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.
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 Richard Law, a junior minister at the Foreign Office, who pointed out that the United States and the Soviet Union still favoured trials.
However, at least one American state, New York, used a 1779 bill of attainder to confiscate the property of British loyalists (called Tories) as both a penalty for their political sympathies and means of funding the rebellion.
First, they reinforce the separation of powers by forbidding the legislature to perform judicial or executive functions, as a bill of attainder necessarily does.
[4][39] 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.In contrast, the Texas Constitution omits the clause that applies to heirs.
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.
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.
In American Communications Association v. Douds, 339 U.S. 382 (1950), 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 (overthrow of the government) and not a past one.
[49] Reflecting current fears, the Court commented in Douds on approving the specific focus on Communists by noting what a threat communism was.
[49] In United States v. Brown, 381 U.S. 437 (1965), the Court invalidated the section of the statute that criminalized a former communist serving on a union's executive board.
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.
[54] The Supreme Court upheld the law in Nixon, arguing that specificity alone did not invalidate the act because the President constituted a "class of one".
[55] The Court modified its punishment test, concluding that only those laws which historically offended the bill of attainder clause were invalid.
[59][60] 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.
[63] 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".
[69][70] In 2009, the city of Portland, Oregon's attempt to prosecute more severely those on a "secret list" of 350 individuals deemed by police to have committed "liveability crimes" in certain neighbourhoods was challenged as an unconstitutional bill of attainder.
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.
