Attainder

In English criminal law, attainder or attinctura was the metaphorical "stain" or "corruption of blood" which arose from being condemned for a serious capital crime (felony or treason). It entailed losing not only one's property and hereditary titles, but typically also the right to pass them on to one's heirs. Both men and women condemned of capital crimes could be attainted.

Attainder by confession resulted from a guilty plea at the bar before judges or before the coroner in sanctuary. Attainder by verdict resulted from conviction by a jury. Attainder by process resulted from a legislative act outlawing a fugitive. The latter form is obsolete in England (and prohibited in the United States), and the other forms have been abolished.

Attainders of British aristocracy in the Middle Ages and Renaissance

Medieval and Renaissance English kings and queens used acts of attainder to deprive nobles of their lands and often their lives. Once attainted, the descendants of the noble could no longer inherit his lands or income. Attainder essentially amounted to the legal death of the attainted's family.^[1]

Kings typically used attainders against political enemies and those who posed potential threats to the king's position and security. The attainder eliminated any advantage the noble would have in a court of law; nobles were exempt from many of the techniques used to try commoners, including torture. Likewise, in many cases of attainder, the king could coerce the parliament into approving the attainder and there would be a lower or non-existent burden of proof (evidence) than there would be in court.^[2]

Prior to the Tudors, most rulers reversed their attainders in return for promises of loyalty. For example, Henry VI reversed all 21 attainders, Edward IV 86 of 120, and Richard III 99 of 100.^[3] However, this changed with Henry VII, as described below.

Regnants who used attainder include:

• Margaret of Anjou: her attainder of Richard of York compelled him to invade England and attempt to seize the throne after the Battle of Northampton, which led to the penultimate phases of the War of the Roses.
• Henry VII: initially attainted men after he ascended the throne.^[3] He used the threat of attainder as a means to keep the few nobles who survived the War of the Roses in line. Often, however, he would penalize them with exorbitant fees and fines, or force them to have bonds which would be forfeit unless they exhibited good behaviour (his goal was to reduce the number of nobles with private armies of retainers.) Henry VII attainted 138 men, of whom he reversed only 46 attainders, and some of these were conditional.
• Henry VIII: compelled parliament to attaint many nobles during his lifetime, including magnates with major land holdings, and any magnates whom he came to mistrust. Examples include:
  • Anne Boleyn: Before her execution, she was stripped of her title, and her marriage was annulled.
  • Catherine Howard: Henry VIII had an Act of Attainder passed against Catherine Howard, which made it treason for a woman with an unchaste reputation to marry the king.^[4]
  • Edward Stafford, Duke of Buckingham, one of the wealthiest magnates in England, whom Henry had executed on flimsy charges in 1521.^[3]
  • Margaret Pole, Countess of Salisbury: One of the last surviving noble Plantagenets of senior line.
  • Henry Howard, Earl of Surrey: The poet son of Thomas Howard, 3rd Duke of Norfolk.

Once attainted, nobles were considered commoners, and as such, could be subjected to the same treatments, including torture and methods of execution. For example, commoners could be burned at the stake, whereas nobles could not.

Often, nobles would refer to the act of being attainted (and then executed) as the person's "destruction."

Passage in Parliament

In the Westminster system, a bill of attainder is a bill passed by Parliament attainting persons condemned for high treason, or, in rare cases, a lesser crime. Notably, a person thus attainted need not have been convicted of treason in a court of law. Consequently, attainder has historically been used for political purposes against people whose guilt would have been difficult to prove, or indeed who were entirely innocent. Bills of attainder are also available to condemn criminals who cannot be brought to justice. A rumour circulated that a bill of attainder against Thomas Jefferson occurred in 1774 because of his authorship of A Summary View of the Rights of British America.^[5]

A bill of attainder was last passed in Britain in 1798. Attainders by confession, verdict and process were abolished in the United Kingdom by the Forfeiture Act 1870 (33 & 34 Vict., c.23).

Section 9 of Article One of the United States Constitution provides that no bill of attainder or ex post facto law shall be passed by Congress.^[6] The following section forbids states from passing them.^[7]

Corruption of blood

Corruption of blood is one of the consequences of attainder. The descendants of an attainted person could not inherit either from the attainted criminal (whose property had been forfeited on conviction) or from their other relatives through the criminal. For example, if a person is executed for a crime leaving innocent children, the property of the criminal is forfeited to the crown and will not pass to the children. If the criminal's innocent father subsequently dies, his property cannot be inherited by the criminal's children either: it will be distributed among other family members.

The United States Constitution prohibits corruption of blood as a punishment for treason.^[8] Likewise, in England and Wales corruption of blood has been abolished.

Examples of cases where a person's property was subject to attainder

• Earl of Strafford
• John de la Pole, 1st Earl of Lincoln
• Mervyn Tuchet, 2nd Earl of Castlehaven
• Parker Wickham
• Richard FitzAlan, 11th Earl of Arundel
• Thomas Cromwell

References