The First Use of a Bill of Attainder Was in the 1300s
Video Transcribed: My name is Brian L. Jackson. I’m a Tulsa lawyer working with the Wirth Law Office. I wanted to talk a little bit about some more historical aspects of the law, and we’re going to talk about bills of attainder. What are they? Historically, how were they used, and what is the legal status of a bill of attainder today?
Bills of attainder are a very, very old legal tool that was used in Medieval England as a means of declaring criminality and punishing it against an individual. They were typically a political tool used by the Crown and the Parliament to deal with political enemies.
The first use of a bill of attainder would be back in the 1300s against both Hugh Despenser, 1st Earl of Winchester, and his son, Hugh Despenser the Younger, Earl of Gloucester, and the effect of these basically was that both were found to be guilty of treason against the Crown and were subject to death. Under old English common law, a bill of attainder always resulted in a sentence of death. It also would be used to strip that person of land and titles and to make it so that their heirs couldn’t inherit.
Some other examples of the use of a bill of attainders in England, Henry VIII used one to get rid of his wife, Catherine Howard. She was subject to a bill of attainder, again, for treason.
A couple of key things about bills of attainder, it is not a judicial process. A bill of attainder is something that would be passed out… In England, it was passed out of the Parliament. In modern America, if such a bill were to be attempted to pass, it would be passed out of Congress, either state legislature or the federal legislature.
Essentially, the elements of a bill of attainder are it will identify an individual or a definite group of individuals, declare them to be guilty of a particular crime, in common law England it was typically treason but it could be anything and assess punishment. There’s no trial, and once that bill of attainder passes is the subject of the bill of attainder, or the subjects, plural, are subject to immediate punishment.
Some examples of bills of attainder in more recent history, and I will note that this type of measure is specifically prohibited under Article 1 of the Federal Constitution. It is something that is specifically prohibited by the federal government, and it is incorporated against the states through the 14th Amendment. I’m going to talk more about that in a minute.
Some modern examples have the case of the United States versus Lovett in 1946. This was during the height of the McCarthy era, and basically what this was dealing with was a law that made it illegal for communist party members or communist sympathizers. It made it so that they were prohibited, just for that affiliation, from serving in federal posts, and anyone who already served in a federal post would be immediately removed and denied pay.
The long and short of it is the Supreme Court declared that was a bill of attainder, and it was illegal because it did identify particular wrongdoing, that is being affiliated with communism, and assessed a punishment, you can’t work for the federal government. The Court struck that down.
Another example, there was a case involving Richard Nixon after he stepped down from office, and Congress at that time passed a law to prevent him from destroying records from his presidency and specifically said that he was to surrender the records to the government for the purposes of archiving. He sued and claimed that was a bill of attainder. Now that particular law was upheld, but that’s the waybill of attainder looks.
Now, as I said, it is specifically prohibited under the Constitution, and there are reasons why. The first and most obvious reason is that it is a problem for separation of powers. That is, when you look at federal and state constitutions, there are very specific delineated roles for each branch of government.
The Executive enforces the law. So their powers are those of enforcement. They get to go out, and examples of executives are the police who go out and arrest people, prosecutors who go to court and prosecute crime. The military is under the Executive. They actually carry out the actions, like if Congress declares war, the military goes and fights that war. They prosecute that war. That’s the Executive. The Legislature, their job is to make law. They’re the ones that get to write laws, and that’s pretty much their sole province.
The ability though to interpret the law, to identify what types of conduct fall under criminal statutes and what types of conduct don’t fall under criminal statutes, that is reserved to the Judiciary. That’s a judicial power. When you file a criminal charge, whether it’s by information or by grand jury indictment, it’s a statement to the court that there’s probable cause to believe that this individual is guilty of this crime. That is, they violated this criminal statute.
Then the court is to determine, using systems of due process, whether or not that individual is actually guilty. Now one of the practical reasons for this is the courts are supposed to be outside of the political process, whereas the Executive and especially the Legislature are not.
Historically, bills of attainder were very often used to deal with political rivals of the Crown. If somebody became an inconvenience to the Crown in England, for one reason or another, and they couldn’t be convicted of treason in court or the Crown didn’t believe they would be convicted of treason in court for one reason or another, then the Crown could turn to the Parliament and bear in mind that about half of the Parliament was the House of Lords.
That was the Upper Chamber, and the House of Lords was made up of, as the name implies, the Lords of the Realm. That is the nobility appointed by the King, the Crown. He could turn to the Parliament and ask for a bill of attainder to go around the judicial process to get rid of a political rival.
These types of measures were used for a specific political purpose in many cases. The same could be true in modern times. When we’re talking about, for example, the communist case I mentioned earlier. That was political, without a doubt. There may have been some legitimate concerns about the subversion of the government, but it was political. At the time you were talking about the height of the red scare. People were terrified of a communist takeover.
They oppose this type of ideology vehemently, and this was the reason why a law like this would pass, was to put a lid on that and make it undesirable to affiliate with communism. So it was absolutely political.
That’s the danger with these types of laws because the judiciary is supposed to be apolitical and they are supposed to be outside of it, but the legislature is not. That’s why you have that separation of powers.
Now the other issue is due process. Under Constitutional norms in the United States, when you’re accused of a crime you have a right to trial. You are presumed innocent until proven guilty beyond a reasonable doubt.
You have the right to try your case in front of 6 or 12 citizens of your locality who determined if they believe you’re guilty or innocent. That’s your jury right. You have a bunch of other procedural rights that come into play that are there to make sure you are treated fairly.
With a bill of attainder, all of that goes out the window in favor of let’s have a vote in the legislature and figure out if we think we want to punish this person or not if we think we want to find them guilty or not. They’re not afforded the opportunity to be judged by their peers. They’re not afforded the procedural protections that go along with a traditional criminal prosecution. They’re not afforded the opportunity to present a defense. Basically, it’s just we’re going to vote to determine that you’re guilty, and now we’re going to punish you without ever having a hearing.
That’s what the bill of attainder does, and there’s a reason that it is unconstitutional. Outside of just the separation of powers issue, that is there to protect you and your due process rights.
Now when you go back to the actual time of when the constitution was written into American law, bills of attainder were still used by the British Parliament and the British Crown, and it was again used as a political weapon. It was also some use of that in the Colonies by colonial governments.
But what really made the founding fathers choose to specifically prohibit this in American law was the fact that the British Parliament and Crown were using it against citizens of the Colonies. That made people very angry because it was another example of where they were not represented in the Parliament and they were not considered by the Crown, and now you have the Parliament coming along and saying, “We’re going to just punish you without a trial. You’re criminal, you’re outlawed, you get punished.”
That would sound highly offensive to our modern sense of what’s decent and right, but that’s the kind of thing that went on and that’s why that got written into the Constitution. These types of legislative acts were devastating, and as I said, historically, a bill of attainder meant you lost your life and you lost your right to leave your estate, that is, your earthly property, whatever lands you had, whatever personal property you had to your family.
So it could not only end your life but it would impoverish your survivors because everything is sheeted to the state and you never got to trial. To our Founding Fathers, it’s anathema to the idea of having the right to life, liberty, and property, and not to be deprived of them without due process of law.
So that’s what bills of attainder are, and that’s, historically speaking, how they were used. As I mentioned, they are prohibited under the Constitution. There are some more recent historical examples where you had laws that ran afoul of that prohibition, and happily, our courts have been fairly consistent in slapping them down.
This is an interesting historical topic, which is why I wanted to talk to you guys about it. It’s a little different than what I usually talk about, but I think it’s an interesting historical topic, and it gives you an appreciation for how our modern sense of what’s right and wrong in terms of the legal due process came into being.