ATTAINDER

in English law, the extinction of civil and political rights resulting from a sentence of death or outlawry after a conviction of treason or a felony. The most important consequences of attainder were forfeiture and corruption of blood. For treason, the offender's lands were forfeited to the king. For felony, they were forfeited to the king for a year and a day and then escheated (forfeited) to the lord from whom the offender held his tenure, a result of the concept that felony was a breach of the feudal bond. Subsequently, in Magna Carta, the crown renounced its claim to forfeiture in the case of felony. Even harsher was the doctrine of corruption of blood, by which the person attainted was disqualified from inheriting or transmitting property and his descendants were forever barred from any inheritance of his rights to title. All forms of attainder except the forfeiture that followed indictment for treason were abolished during the 19th century. As a result of the English experience, the planners of the U.S. Constitution provided (Article III, Section 3) that The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. Historically, a legislative act attainting a person without a judicial trial was known as a bill of attainder, or, if punishment was less than death, as a bill of pains and penalties. The power of Parliament to declare guilt and impose punishment by such measures was well established by the 15th century. During the Wars of the Roses (145585), bills of attainder were used by rival factions to rid themselves of each other's leaders, and, later, the Tudor king Henry VIII induced both houses of Parliament to pass such bills against ministers whom he had ceased to trust. Unlike impeachment, which is a judicial proceeding in the House of Lords on charges made by the House of Commons, a bill of attainder was a legislative act adopted by both houses with the formal consent of the king. The offenses charged in such bills were usually characterized as treason but did not have to satisfy established legal definitions of that or any other crime. Thus, bills of attainder have generally been deplored not only because they deprived the accused of a fair trial but also because of their typically ex post facto quality. The dominant faction of the legislature could make any past conduct that it found offensive into a crime. In England, the last bill of attainder was that against Lord Edward Fitzgerald, who was condemned to death by act of Parliament for leading the 1798 rebellion in Ireland. The last bill of pains and penalties, introduced in 1820, led to a legislative trial of Queen Caroline, George IV's wife, on charges of adultery, but the bill was not passed. Acts of attainder or of pains and penalties were passed by some of the American colonial legislatures until the U.S. Constitution forbade them (Article I, Section 8). In applying these prohibitions, the U.S. Supreme Court has expanded the historical conception of attainder. It invoked these clauses in 1867 in Cummings v. Missouri and Ex parte Garland to strike down test oaths passed after the American Civil War to disqualify Confederate sympathizers from practicing certain professions. Similarly, in United States v. Lovett in 1946, the court invalidated as a bill of attainder a section of an appropriation bill forbidding the payment of salaries to named government officials who had been accused of being subversive. Later decisions, however, have declined to treat requirements of loyalty oaths as bills of attainder, although they have invalidated such requirements on other grounds.