7ZS 



ATTAINDER. 



ATTAINDER. 



129 



ATTAINDER, from the Latin word attinrtux, " attaint," " stained," 

 is a consequence which the law of England has attached to the passing 

 of sentence of death upon a criminal. Attainder does not follow upon 

 mere conviction of a capital offence; because, after conviction, the 

 judgment may still be arrested, and the conviction itself cancelled, or 

 the prisoner may obtain a pardon; in either of which cases no attainder 

 ensues. But as soon as sentence of death is passed, or a judgment of 

 outlawry given where the person accused flies from justice, which is 

 equivalent to sentence of death, the prisoner becomes in contemplation 

 of law attaint, stained, or blackened in reputation. He cannot sue or 

 be a witness in a court of justice ; he loses all power over his property, 

 and is rendered incapable of performing any of the duties, or enjoying 

 any of the privileges, of a freeman. The person of a man attainted is, 

 however, not absolutely at the disposal of the crown. It is so for 

 the ends of public justice, but for no other purpose. Until execution, 

 his creditors have an interest in his person for securing their debts ; 

 and he himself, as long as he lives, is under the protection of the law. 

 (Hacdonald's case, Howell's ' State Trials,' voL xviii. p. 862.) 



We shall consider, first, the subject of attainder as it exists by the 

 ordinary laws of the realm ; and, secondly, give some account of those 

 extraordinary enactments of the legislature, commonly known by the 

 name of Bills of Attainder. 



1. The principal consequences of attainder, according to the ordinary 

 course of law, are forfeiture of the real and personal estates, and what 

 is technically called corruption of the blood of the offender. The 

 forfeiture of the personal estate dates from the time of his conviction, 

 but extends only to the goods and chattels of which he was actually 

 possessed at that time. Real estate is not forfeited until attainder ; 

 but then the forfeiture (except in the case of attainder upon outlawry) 

 has relation to the time when the offence was committed, so as to avoid 

 all intermediate sales and incumbrances. (' Co. Litt.' 390 b.) 



The extent and nature of the forfeiture of real estate upon attainder 

 differ in the case of high treason, and in cases of murder or other 

 felony. Attainder for high treason is followed by an immediate and 

 absolute forfeiture to the crown, of all freehold estates, whether of 

 inheritance or otherwise, of which the person attainted was seised at 

 the time of the treason committed. This consequence of attainder for 

 high treason is said by Sir \V. Blackstone to have been derived from 

 Anglo-Saxon jurisprudence. Copyholds are in like manner forfeited to 

 the lord of the manor of which they are holden, upon the attainder of 

 the tenant. 



By stat. 546 Edw. VI. c. 11, the dower of the widow of a person 

 attainted for high-treason is also forfeited. But it is to be remem- 

 bered that there is no forfeiture unless an actual attainder takes place ; 

 and therefore if a traitor dies before judgment, or is killed in open 

 rebellion, or is put to death by martial law, his lands are not forfeited, 

 unless a special Act of Parliament it passed for the purpose. It is 

 aid, however, that if the Chief Justice of England in person, upon the 

 view of the body of one killed in open rebellion, records the facts and 

 returns the record into the Court of King's Bench, both the lands and 

 the goods of the rebel shall be forfeited. 



This absolute and entire forfeiture of the estate* of persona con- 

 victed of high treason, was often productive of extreme hardships and 

 injustice, by making their families, who were no parties to their crimes, 

 participate in their punishment. In what might be termed, while they 

 existed as such, modern treasons, such as offences relating to the coin, 

 it waa expressly provided by the statutes creating them petty treason, 

 that they should work no forfeiture of lands except for the life of the 

 offender, and that they should not deprive his widow of her dower. 



In cases of attainder for murder r other felony, the forfeiture of 

 lands to the crown does not extend for a longer term than a year and 

 a day, with an unlimited power of committing waste upon the lands 

 during that period. This is called in our old law-books ' The Ktmj'i 

 year day and watte.' 



After the expiration of the king's year day and waste, the lands, 

 instead of descending as they naturally would to the heir of the 

 person attainted, were by the feudal law of escheat for corruption of 

 blood, transferred or escheated to the lord of whom they were holden. 

 In order to understand the doctrine of escheat for corruption of blood, 

 we must remember, that, by the feudal law, from which our modern 

 law of real property is chiefly derived, all Lands were, or were supposed 

 to be, held by gift from a superior lord, subject to certain services and 

 conditions, upon neglect or breach of which (as well as upon failure 

 of issue of the grantee) the lands reverted, or in feudal language, 

 escheated, that is, fell back to the original giver. Now, by the 

 attainder of a tenant in fee-simple for felony, the compact between 

 him and his lord was totally dissolved ; his blood was supposed to be 

 corrupted, and he was disabled not only from inheriting lands himself, 

 but from transmitting them to his descendants. Even though he had 

 no lands in possession at the time of the attainder, and acquired none 

 afterwards upon which the law of forfeiture could operate, the law of 

 escheat might operate after his death to the prejudice of his descend- 

 ants. For, owing to the corruption of his blood, which completely 

 stopped up the course of descent, it was impossible to derive a title to 

 any lands, either from him directly, or from a more remote ancestor 

 through him. The inevitable consequence was an escheat to the lord. 

 The practical injustice and hardship caused by the doctrine of the 

 corruption of blood in punishing the offences of the guilty by a heavy 



punishment upon the innocent, frequently attracted the attention of 

 the legislature ; and it consequently became usual, where a new felony 

 was created by Act of Parliament, to make an express provision that it 

 should not extend to corruption of blood. By the statute 7 Anne, 

 c. 21 (the operation of which was deferred by 17 Geo. II. c. 39), it 

 was enacted, that after the death of the then Pretender and his sons, no 

 attainder for treason should extend to the disinheriting any heir, nor 

 the prejudice of any person other than the offender. But, both these 

 statutes being repealed by 39 Geo. III. c. 93, the ancient law of 

 forfeiture for treason was restored. By the statute 54 Geo. III. c. 145, 

 corruption of blood was next taken away for attainder, except in cases 

 of treason, petit treason (that is, where a wife had murdered her 

 husband, a servant his master, or an ecclesiastic his superior), and other 

 murders. Finally, the worst consequence of the doctrine of corruption 

 of blood, namely, the impossibility of descents being traced through 

 attainted persons, was removed by the statute 3 & 4 Wm. IV. c. 106, 

 s. W, which enacts, that no attainder for the future shall prevent 

 descent from being traced through the attainted person. 



A dignity descendible to the heirs general is forfeited to the crown 

 both for treason and for felony. An entailed dignity is forfeited for 

 treason, but not for felony. Thus Lawrence Earl Ferrers, whose 

 peerage was limited to the heirs male of the body of his ancestor, 

 being attainted for murder in the reign of Geo. II., was succeeded by 

 Washington Earl Ferrers, his next brother. 



The corruption of blood produced by attainder cannot be effectually 

 removed except by authority of Parliament. " The king," says Black- 

 stone, " may excuse the public punishment of an offender. He may 

 remit a forfeiture in which the interest of the crown is alone con- 

 cerned ; but he cannot wipe away the corruption of blood ; for therein 

 a third person hath an interest, the lord, who claims by escheat." But 

 it appears from the same author, that the king's pardon is so far 

 effectual after an attainder, that it imparts new inheritable blood to the 

 person attainted, so that his children born after the pardon may inherit 

 from bun. 



2. Besides the modes of attainder by the common law, as above 

 described, there have been frequent instances in the history of England, 

 of attainders, by express legislative enactment, called bills of attainder. 

 This has happened when, either from the extraordinary nature of the 

 crime, or from unforeseen obstacles to the execution of the ordinary 

 laws, it has been thought necessary to have recourse to the supreme 

 power of the legislature, for the purpose of punishing particular 

 offences. These enactments, either in the shape of bills of attainder 

 or bills of pains and penalties, have been made at intervals from an 

 early period of our history, down to very recent times. The moral 

 justice, as well as the policy of these ex pott facto laws, has been often 

 questioned ; and they have generally occurred in times of turbulence 

 or of arbitrary government ; but the number of them is sufficiently 

 large to form a formidable list of precedents for any future suspension 

 of the ordinary law. There were some instances of them under the 

 Plantagenet princes, as the bills of attainder against Roger Mortimer 

 and Edmund earl of Arundel, in the reign of Edward III. Both of 

 these, however, were reversed in the same reign. It was not till the 

 reign of Henry VIII., which was fertile in new crimes and extra- 

 ordinary punishments, that the proceeding by bill of attainder became 

 so common as almost to supersede trials according to the ordinary 

 process of law. Scarcely a year passed without persons of the highest 

 rank and most distinguished character being brought to the scaffold by 

 bill of attainder. Among them were the celebrated earl of Surrey, 

 Cromwell earl of Essex, who is said to have been the adviser of these 

 measures, and most of those persons who suffered for denying the 

 supremacy of the crown in matters ecclesiastical. All of these were 

 attainted upon mere hearsay evidence ; and some not only upon no 

 evidence at all, but without being heard in their defence. In the 

 following reign of Edward VI., the Protector Somerset encouraged a 

 bill of attainder for treason against his brother Lord Seymour of 

 Sudley, the lord high admiral of England and husband of the queen 

 dowager Catharine Parr, which was hurried through both houses of 

 Parliament, without the accused being permitted to say anything in 

 his defence. But, as the nation became better acquainted with the 

 principles of constitutional freedom, parliamentary attainders became 

 less frequent. Under the Stuarts recourse was seldom had to this 

 extraordinary mode of proceeding. It was thought necessary to adopt 

 it in the time of James I., with respect to Catesby, Percy, and several 

 other persons, who were killed in the insurrection that ensued upon 

 the discovery of the Gunpowder Plot, or died before they could be 

 brought to trial, as they, not having been tried, could not have been 

 attainted by the ordinary process of law. It was again adopted by the 

 Long Parliament in Lord Strafford's case, on the ground that he was 

 an extraordinary criminal, who would have escaped comparatively 

 uninjured, if no other penalties than those of the existing laws had been 

 awarded against him. But even Lord Strafford's attainder was reversed 

 after the restoration of Charles II., and all the records of the pro- 

 ceedings cancelled by Act of Parliament. The duke of Monmouth 

 also, on his appearing openly in arms against the government, in 1685, 

 was attainted by statute. A remarkable instance of a proceeding by 

 bill of attainder occurred in the case of Sir John Fenwick, who, in the 

 year 1696, was attainted for a conspiracy to assassinate William III. 

 There is no question that Sir John Fenwick might have been tried by 



