Misplaced Pages

Bill of attainder

Article snapshot taken from[REDACTED] with creative commons attribution-sharealike license. Give it a read and then ask your questions in the chat. We can research this topic together.

This is an old revision of this page, as edited by 71.198.185.162 (talk) at 17:56, 13 March 2006 (Remove ref to Jimmy Wales to appease whiny, immature Wikipedians). The present address (URL) is a permanent link to this revision, which may differ significantly from the current revision.

Revision as of 17:56, 13 March 2006 by 71.198.185.162 (talk) (Remove ref to Jimmy Wales to appease whiny, immature Wikipedians)(diff) ← Previous revision | Latest revision (diff) | Newer revision → (diff)
This article's tone or style may not reflect the encyclopedic tone used on Misplaced Pages. See Misplaced Pages's guide to writing better articles for suggestions. (Learn how and when to remove this message)

You must add a |reason= parameter to this Cleanup template – replace it with {{Cleanup|March 2006|reason=<Fill reason here>}}, or remove the Cleanup template.

A bill of attainder (also known as an act or writ of attainder) was an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial. It now has a status akin smallpox: after being recognized and cured in the USA, it is has since been eradicated in most of the civilized world, with only a few pockets remaining.

Bills of attainder were abolished in the the USA in 1787 and in the United Kingdom in 1870. Only failed states, dictatorships and the few remaining traditional monarchies, namely, Malaysia and the United Arab Emirates, now still allow what amounts to bills of attainder. The Vatican City can still issue a Papal Bull, such as Regnans in Excelsis, which incidentally amounted to little more than a death warrant, although the Vatican now no longer burns heretics at the stake. The Huns of Europe have pretty much stopped burning the books of others, but note that David Irving was recently jailed for his thoughtcrime. A punitive fatwa can approximate a bill of attainder.

Origin

The word "attainder", meaning "taintedness", is part of English common law. Under English law, a criminal condemned for some crime, usually treason, could be declared "attainted", meaning that his civil rights were nullified: he could no longer own property or pass property to his family by will or testament. His property would consequently revert to the Crown. Any peerage titles would also revert to the Crown. The convicted person might also be punished in other ways; for example, in the case of attainder for treason, he could be executed.

Bills of attainder evolved into a convenient way for the King to convict subjects of crimes, and confiscate their property, without the bother of a trial--and without the need for a conviction, or indeed any evidence at all.

In some cases (at least regarding the peerage) the Crown would eventually re-grant the convicted peer's lands and titles to his heir. It was also possible, as political fortunes turned, for a bill of attainder to be reversed. This might even happen long after the convicted person was dead.

The first use of attainder was in 1321 against the Earl of Winchester and the Earl of Gloucester, who both shared the name Hugh le Despenser, and the last in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798.

In Britain, those executed after the passing of Attainders include Thomas Cromwell (1540), Catherine Howard (1542), Thomas Howard (1572), Thomas Wentworth (1641), and the Duke of Monmouth. In the case of Catherine Howard, in 1541 King Henry VIII was the first monarch to delegate Royal Assent, to avoid having to assent personally to the act. During the English Civil War the use of attainder was also extended to people who were already dead, as a mechanism for seizing their property.

Yet another victim of such Royal abuses was martyr and Saint Thomas More who is memorialized in A Man for All Seasons with the following applicable exchange:

Wife: While you talk he's gone!
More: And go he should, if he were the Devil himself, until he broke the law!
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!),do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

In the longer historical perspective, "bill of attainder" is merely a fancy name for the sequella of the failure of the ruling body or monarch to write appropriate law or to control their base emtions and impulses, or more generally, those evil parts of our common human Nature that cause us to sin. Taking the perspective of the rule body, we can recognize the evil within our own individual selves, we attempt to cast the blame on someone else. If a ruling body cannot prove some other offense such as treason, then it is very tempting to resort to the made-up almost magical-sounding "bill of attainder" to nail the other guy whom we simply do not like. In modern times, only bodies like the CIA can punish others in a legally sanctioned fashion (often by effecting their deaths) simply because they do not like them and they can hide in the cloak of secrecy for the sake of "national security". For that particular group, they are barred from effecting their "bills of attainder" on American citizens, but the rest of the world had best take them into account when considering actions contrary to declared American foreign policy.

The concept of bill of attainder was the equipments of terrorism and those with a will to power, dressed up civilian and legal clothes, designed to pick off individuals just as the diseased mind of Charles Whitman with his weapons held the lawful Capitol of State at bay by making examples out of a few, thereby herding the rest into his derranged notion of compliance.

American usage

Bills of attainder were used through the 18th century in England, and were applied to English colonies as well. One of the motivations for the American revolution was anger at the injustice of attainder—though the Americans themselves used bills of attainder to confiscate the property of English loyalists (called tories) during the revolution.


Bill of Attainder Clause

American dissatisfaction with attainder laws motivated their prohibition in the Constitution (see the case of Parker Wickham). The provision forbidding state law bills of attainder reflects the importance that the framers attached to this issue, since the unamended constitution imposes very few restrictions on state governments' power.

The original 1787 United States Constitution has, and mostly likely always will, forbid both the federal and state governments from enacting bills of attainder, in Article 1, Sections 9 and 10, respectively. It was considered an excess or abuse of royal power, and several of the grievances enumerated in the Declaration of Independence could be characterized as such.

Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial functions—since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution. The text of the Constitution, Article I, Section 9; Clause 3, hereafter referred to simply as the Clause:

No Bill of Attainder or ex post facto Law shall be passed.

The constituions of each and every State within the American Union also expressly forbid bills of attainder. For example, Wiscon'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.

Contrast this with the subtly more modern variation with the Texas version: Article 1 (Titled Bill of Rights) Section 16, entitled Bills of Attainder; Ex Post Facto or Retroactive Laws: Imparing Obligation of Contracts:

No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.

Up until 2002, only five acts of Congress had ever been overturned on bill of attainder grounds:

  • Ex Parte Garland, 4 Wallace 333 (1866) - Requirement for admission to practice law in the federal courts of an oath that a lawyer had not taken part in the rebellion was invalid as a bill of attainder.
  • Cummings v. Missouri, 4 Wallace 277 (1866).
  • U.S. v. Brown, 381 U.S. 437 (1965).
  • Nixon v. Administrator of General Services, 433 U.S.425 (1977).
  • Selective Service Administration v. Minnesota PIRG, 468 U.S. 841 (1984).

It is helpful to summarize the lines of authority in the U.S government, from highest to lowest:

  • The Law
  • Judiciary
  • Legislators
  • Executive
  • The People

The Law is an authority unto itself, but Judges the highest officers. The "bill of attainder" clause protects the People from the legislators, who would otherwise be inclined to turn themselves into the nobility and the people back into serfs as in feudal times, trapping the People with laws either one-by-one or all together. The executive, which is now a demoted version of the Monarch, has the lowest level of authority but operates most directly and decisively and rapidly upon the People. The judiciary now best approprimates the ideal of the wise and benevolent dictator without having direct access upon the people for criminal purposes until individuals have been sued or arrested by the executive and brought before these modern-day Solomons. The Legislators also have power of the purse over the Executive and can impeach the Executive. In most sensible governments, judges are appointed, for long terms or for life, but they can be removed if they demonstrate their unfitness for the office. There are several other lesser safeguards in place not mentioned here for the sake of brevity.

The model is a re-balanced version of the Catholic Church hierarchy with the Bible on top and the Monarch of the Pope and the rest of the all-male church hierarchy. Note that they church is subject to imposing serfdom upon the people with its tithes and how it treats the third world in its missionary work in cases such as the American Indian. The Church retains its option to single out individuals for sins real or imagined. It is not by accident that a judge's business attire is akin to the vestments of a Catholic priets. It is not by accident that God on the Day Last is presented as Judge, notably in Dies Irae.

Note that the U.S. model is not the only possible model, but the great continuity of male primogeniture Moarchies and the Papacy worked longer than all the others over large landmasses that had the potential to rule empires by not devouring itself or benig subject to conquest. Bill of attainer is like an important little valve in a car engine: it proects the Law from fatal corrosion by keeping the Law clean of at least some ridiculous special cases, helping to inspire the best talent to enter the Bar and the judiciary. It also acts like a good fence, protecting the individual person, with their precious individual mind, from being bullied, intimidated and ultimately destroyed by powerful legislators (see the Inquisition of Galileo Galilei for a fine example of such).

Relationship to Legislative Intervention

The applicability of the Clause can be eventually discovered by the Courts in the crude tool of legislative intervention if such intervention is used to decide the outcome a difficult court case. In fact, it is nearly impossible to grant one side of a competently contested court case a privilege without at the same time penalizing the other side, thereby making most such interventions ipso facto unconstitutional. Surprisingly, this legal nit sometimes either escapes the attention of or sometimes is deliberately ignored by legislators; this can apply even to those legislators who are well-trained and otherwise conscientious lawyers. When legislators make such errors, as demonstrated by the Courts, only the constituency, or more generallly the People, if they can comprehend the issues and maintain the attention span required to remember such errors, have the power to take more decisive remedial action. Even then, provided that the current government of the United States stands and that all other legal proscriptions are obeyed, the People can only take action at the polling booth, or upon other legitimate aspects of the re-election campaign.

Context within personal liberty law heritage

While the electoral college, with all of its complexities, was a necessary compromise to accomodate the concerns of smaller states who wished to avoid the typical tyranny of the majority that might be the price paid for the benefits accrued from Union and collaboration, the Clause was a quantum leap forward in governmental self-actuallization and self-conciousness. One could argue that such an obscure legal artifact is, in fact, the missing link between an era of rule based on the last savage and vestigial structures of the Dark Ages, and one that would be initiated by a generation who were the final and best product of the Age of Enlightenment. It represented a small insight with vast benefits far beyond well-placed but merely inspiration slogans such as Patrick Henry's "Give me libeary or give me Death", because the schemes of politicians can always come up with news ways to ensure that the People got the latter rather than the former.

The Clause was invented by the Founding Fathers whose intentions were to avoid the abuses of the past not only by those past Monarchs but also, and most importantly, by the new govenment itself. Their intentions, well-documented in the Federalist Papers, were to advance the American experiment beyond simple democracy and further towards a self-government that would stand the test of time. The Clause was that first voluntary and self-initiated baby step, in that milieu of experiment and discovery that characterized that birth of a remarkale new Nation, who were tasting a level of indepence only possible in the New World, that would be towards the concept that is now axiomatic: with U.S. citizenship comes individual rights that are not viewed merely as priviledges granted by the current ruling authority structure, but that such are inalienable rights not just from that citizenry as a whole, but from each and every individual citizen, except for felons.

The Clause was the first legal expression that some human being in a position of power recoginzed that it was, not armies or empires, but that it was the individual human mind that bequeathed upon humanity a potential for advancement, and that tolerance of the minor irritation of a Great Mind's owner, who might not conform to one social norm or fad might still yet bequeath rich and lasting benefits for mankind's progeny, if only that owner's contemporary generation could endure that mind's owner's emphemeral irregularities and that any such intolerance of those irregularies in fact, represented not a significant flaw in the nature of that mind's owner, but that it was a more general flaw in Human Nature that was represented by that intorance, and in particular, in the minds of those who would not tolerate that individual for the duration his brief time here on Earth.

The Clause was the zeroth member of the Bill of Rights; it was the Rights of Man still in embryonic legal codification, with only the much more traditional Writ of habeus corpus provision being a viable but still rather poor contender for that position. Note that the Writ could be trumped by Warfare, but the Clause's "Thou shall not.." was unconditional and absolute. The Clause was written by Godly men who finally recognized, looking back on thousands of years of failed governments after God had given us His Law, that the Ten Commandments was written not just to be imposed on the individual, but on govenment itself and they were not willing to wait for the hand of God to descend and write the text of an eleventh line upon the tablets for them. By comparision to this new idea of absolute self-control that a govenment shall not be a bully upon the individual, the Magna Carta was merely a convenient concession enacted by a defeated monarch. The concession that the new and still-fragile government of the USA made was to its own psyche, an insult to its own new-found power, still yet a vulnerable babe in the wilderness, and yet some Patriot struck while the iron was still hot and ensured that the Clause was added to the founding documentment of the government of the USA and can thereby claim priority as the inventor of the concept embodied in the slogan: "Never again!".

The Clause was an innovation whose example would be followed both immediately and in succeeding generations by a list of constitutional ammendments designed to avoid the tyranny of the majority or some other form of democratic oligarchy: the Bill of rights, the triptychal 13th, 14th, 15th, and the 19th and 24th Amendments. If one is bewildered by that latter reference, it is to that war hero and singular Catholic U.S President JFK stepping bravely right up to the edge of the abyss offerred by the Cuban Missile Crisis and not even breaking a sweat as he faced off with the pseudo-European tyrant and liar in Moscow such was Kennedy's faith in his righteousness, his God, his Country and his nuclear sword harkening back to his New England heritage, if not the root of Puritanism, and that same long tradition of abolitionism and the Clause itself.

It is useful to note that after the bill of attainder clause and the Bill of Rights was in place, the Nation would not again be ready to further advance the experiment until it had passed through the crucible of Civil War (where, in fact, the Write of habeus corpus was suspended by Abraham Lincoln, within the border state of Maryland) and that several of the other listed Amendments closely followed periods of significant warfare, during that heady time of Victory. One could argue that these Amendments were, in effect, America innovating and finding new ways to maximize the advancement of the experiment, rather than simply lettng the Spoils of War translate into a ephemerally self-indulgent mass raping of the defeated states and countries. At each step, that American blood and treasure that was lost seemed to provoke not a rapine revenge, but instead an insistence on a maximum long-range return on such a staggeringly high investment. One could further argue that it was the immense wealth and power of the United States at each of these phases, starting with that first Victory of the American Revolution, that allowed it to pause, contemplate and plan for a better future for itself and, incidentally, for the rest of the World.

The Confederate States Constitution, in an perversion, chose to marry its own bill of attainder clause with the scourge of the Dark ages: slavery.

No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed;

It was neither a happy marriage, nor a long one. The Sins of the Father, namely 281 post-Constitution bills of attainer in Georiga against royalists, and the more recent perversion were finally punished by th annihilation that bastion of chivalric buffoonery in the holocaust of Atlanta (which the Great Atlanta fire of 1917 cannot hold a candle to), razing it to the ground as if it and Savannah were Sodom and Gomorrah. William Tecumseh Sherman telegrammed Lincoln specfically about this special Christmas present at the end of Sherman's March to the Sea during the Advent season through the slavery-addicted Georgia and onwards.

Recall the question of Rodney King: "Can we all get along?" Obviously, we can, if we simply take a more reverent approach to what the Clause offers us and recall the milieu within which it was promulgated. One does even better if one bothers to study the thousands of years to excruciately slow progress that finally results in the end-product: the sacred nature of American jurisprudence. It is a curious historical fact that there is now a Roman Catholic majority on the Supreme Court, despite the fact that Kennedy was the only Roman Catholic President, the rest of them being WASP's. Specifically that American judges can be trusted to concern themselves with individual citizens and legislators cannot be so trusted because they tend to treat individuals as completely expendable pawns, ever-ready to sacrifice the happiness, welfare and even lives of others for a few more votes. Some States still elect their judges. Those States a curious amalgam of progessive States at the leading edge of the legal initiatives and ones, on a relative basis, still wallowing in their own corruption. Sigh. Whatever keeps the Peace.

The Clause is the one true political correctness that is often perverted by a Chicken Lady or girlie men mentality or who appear to have surrendered their intellects to one religion or another.

Worldwide proliferation of Clause

With America well on its way to creating a new world order, the first focal point was, naturally, the country that it had a special relationship with and America cast a intense scowl across the Ocean of the Atlantic from the ruins of Altanta towards England, which having so recently tut-tutted the South about its slavery and then proceeded to hypocritically have looked the other way and then having sold and released to it several highly-destructive vessels that were designed to run the rigtheous Union blockade, such as the CSS Alabama, which had prolonged America's agony, and then even to have dared to contemplate even for a single moment becoming the South's ally by recognizing its suzerainty. Note that it was under the overwhelming glare of newly-unified and advanced American military might towards England, she enacted her own bill of attainder prohibition for herself only four generations after America had already taught her how to do it.

One needs to sesarch the new Constitution of Iraq for the equivalent clauses (not strictly bill of attainder clause, partially because the "Saddamist Baath Party" is singled out and outlawed for obvious reasons). The ex post facto aspects are reflected in Section 2, Chapter 1, Article 19:

Second: There is no crime or punishment except by a stipulation. The punishment shall only be for an act that the law considers a crime when perpetrated. A harsher sentence than the applicable sentence at the time of the offense may not be imposed.
Ninth: A law does not have a retroactive effect unless the law stipulates otherwise. This exclusion shall not include laws relating to taxes and fees.
Tenth: Criminal law does not have a retroactive effect, unless it is to the benefit of the accused.

Contrast the text of the Clause with the motto of the Asian hoards, from Attila the Hun and before and on down the to present: "The nail that sticks out will be hammered back in."

One does best in one's attempts to recognize the present-day notability of the Clause by recalling the words of Newton: "If I have seen further, it is by standing upon the shoulders of giants." Not since Copernicus and not again until Darwin, Freud and Einstien would Man be reminded that he is not the center of the Universe, he is not a direct descendent of the gods, his conciousness is not ruled by Reason alone, he is expendable in this Reality and that he must learn self-control, even while in temporal power.

It is not surprising that Thomas More, the Chancellor of England, was, in fact a highly-introspective man, and that law centers today, such as the Thomas More Law Center remember his legacy. His worldview was highly evolved, highly prescient and finally began its codification in the bill of attainder clause of the origianl Constitution of the United States of America. Indeed, the bill of attainder clause is the single most tangible and immutable legally encoded demarcation point between past eons of Dark Ages and a new Age of Law that More anticipated and awaited but, with some assistance from his Monarch, did not live to see. Incidentally, in November 1541, the Henry VIII of England, upon learning of the possible affairs of Catherine Howard allowed Parliament, via Royal Assent, to consider a bill of attainder declaring it treason for an unchaste woman to marry the king. On February 14, 1542, two days after the bill was passed, Catherine had her stature shortened by eight inches and Henry moved on to wife #6, such were his newly-found heretical lusts.

Recent American bills of attainder

The Elizabeth Morgan Act, passed for a female that no American trial jury could make itself believe, was overturned in 2003 as a bill of attainder, but only after the point was moot. Many suggested that the 2005 Palm Sunday Compromise, also passed for the conservative religious right, the pro-life factions and their female poster child, was also a bill of attainder.

Some have argued that modern asset forfeiture laws, arbitrary exercise of eminent domain and arbitrary enforcement of broad laws such as RICO are essentially bills of attainder. One sees the applicability of the All Seaons excerpt in the plight of David Souter and the Lost Liberty Hotel.

The FCC vs. SBC case (and note esp. Section 271) had a bill of attainder finding.

Some feel that the recent Dubai Ports World controversy fell in the same category. . Now that Dubai has withdrawn from the field, we will have to look to additional research or some mock court to help us to determine if that assessment is fair.

The Great Act of Attainder

The British King James II, driven off by the ascent of William and Mary in the Glorious Revolution, came to Ireland intent on reclaiming his throne. With his arrival, the Parliament of Ireland began work on a list of names, eventually tallying around three thousand. Those on the list were to report to Dublin for sentencing. 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.

Private Bills

Main article: Private bill

In the Westminster system (and especially in the United Kingdom), a similar concept is covered by the term private bill (which upon passage become private acts). Note however that private bill is a general term referring to a proposal for legislation applying to a specific person; it is only a bill of attainder if it punishes them -- the only type of private bill accepted today is the one which grants them some privilege they would otherwise not be entitled to, which are not bills of attainder at all. That is, a private bill is only a bill of attainder if it acts to its subject's detriment.

Word War II

Previously secret British War Cabinet papers released on January 1 2006, have shown that, as early as December 1942, the War Cabinet had discussed their policy for the punishment of the leading Nazis if captured. 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, and was only dissuaded from this by pressure from the U.S. later in the war.

References

  1. John Crossland Churchill: execute Hitler without trial in the Sunday Times, January 1, 2006
  • The Rule of Law and the Origins of the Bill of Attainder Clause by Jacob Reynolds 177, St. Thomas Law Review, Volume 18, Issue 1, Fall 2005 (Text available via Westlaw or LexisNexis or contact the Review at USA Tel: 305-623-2380)

External links

British tradition

American tradition

Categories:
Bill of attainder Add topic