Duhaime's Law Dictionary


Bill of Attainder Definition:

Conviction and sentence to death directly by statute, as opposed to resulting from trial.

Conviction and sentence to exile or death by statute, as opposed to resulting from trial.

A disused form of disposition of a criminal suspect where a legislative assembly would draft and approve a statute which provided for the punishment of a specified person or group of persons, usually by death sentence.

Such a legislative disposition of a civil matter include forfeiture of property or of a person's livelihood, are also known as "bills of pain and penalties" (see R v Bowen below).

Thomas CromwellIn November 1988, in a case known as R. v. Bowen, (published at 91 A.R. 2641 (1989)), the Alberta Court of Queen's Bench defined a bill of attainder as:

"... a legislative finding of guilt of treason or felony and enactment of punishment therefor, by exile or death.

"Parliamentary acts inflicting milder punishments were entitled bills of pains and penalties, and provided for the forfeiture of civil rights, the loss of property rights, a prohibition against holding office, and other similar penalties in the nature of a deprivation of existing rights."

"In the United States of America, bills of attainder, including bills of pains and penalties, are constitutionally prohibited.

"As well, there is no longer a requirement for the legislature to convict a person of a specified crime or to inflict the historical punishments of pain and/or death in order for a statute to constitute a bill of attainder.

 "American law has never precluded the possibility that new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee; nor need the offending statute include any formal legislative pronouncement of moral blameworthiness or intent to punish the targeted individual, group, or corporation: Nixon v. Administrator of General Services et al., 433 U.S. 425 (1977).

"In the United States, the question is whether the legislation has a punitive objective or a legitimate, non-punitive, legislative purpose.

"According to the American jurisprudence, where such legitimate legislative purposes do not appear, it is reasonable to conclude, that punishment of individuals disadvantaged by the enactment was the purpose of the decision makers."

The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder ... will be passed."

Henry 8th was particularly fond of this abusive prerogative as he bullied Parliament into sending Thomas Cromwell (in 1540, pictured above) and one of his wives (Catherine Howard in 1542) to death by "Act of Attainder".

The last bill of attainder was passed against an Ireland independence leader, Edward Fitzgerald, in 1798 confiscating all his property.

In 1697, John Fenwick was prosecuted for treason when he was known for planning an assassination of Queen Mary. But the government was unable to convict him for treason because they had but one witness; two were required for treason at the time. It appears that Fenwick led the government to believe that a full confession was imminent but in the result, the second witness disappeared. This was rectified when the English Parliament passed a bill of attainder and on that basis, Fenwick was beheaded. The legal citation of the statute: 8 & 9 Will. III, c. 4 (1697). It read (with adjustments for contemporary language):

"Whereas Sir John Fenwick Baronett was upon the oaths of George Porter Esquire and Cardell Goodman Gentleman at the Sessions of Oyer and Terminer held for the City of London on the eight and twentieth day of May,  one thousand six hundred ninety six indicted of High Treason in compassing and imagining the death and destruction of his Majesty and adhering to his Majesties enemies by consulting and agreeing with several persons (whereof some have been already attainted and others not yet brought to their Trial for the said treasons) at several meetings to send Robert Charnock since attainted and executed for high treason in conspiring to assassinate his Majesties sacred Person (whom God long preserve) to the late King James in France to incite and encourage the French King to invade this kingdom with an armed force by promising to join with and assist him with men and arms upon such invasion of which treasons the said Sir John Fenwick is guilty. AND WHEREAS the said Sir John Fenwick did obtain his Majesty's favour to have his trial delayed from time to time upon his repeated promises of making an ingenious and full confession of his knowledge of any design or conspiracy against his Majesty's person or government and of the persons therein concerned; AND WHEREAS he has so far abused his Majesties great mercy and indulgence therein that instead of making such confession he hath contrived and framed false and scandalous papers as his informations reflecting on the fidelity of several noble peers divers members of the House of Commons and others only by hearsay and contriving thereby to undermine the government and create jealousies between the King and his subjects and to stifle the real conspiracy; AND WHEREAS Cardell Goodman, one of the witnesses against the said Sir John Fenwick to prove the said treason lately and since the several times appointed for the trial of the said Sir John Fenwick at one of which times the said Sir John Fenwick had been accordingly tried had it not been for the expectation of the said discoveries so often promised by him is withdrawn, so that the said Cardell Goodman cannot be had to give evidence upon any trial, BE IT ENACTED by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this Parliament assembled and by the authority of the same, that the said Sir John Fenwick be and is hereby convicted and attainted of high treason and shall suffer the pains of death and incur all forfeitures as a person attainted of high treason."

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