Attainder (Fr. teindre, Lat. tingere, to stain), in old English law, the extinction of civil rights, and the forfeiture of estate which followed, when a person was condemned to death for treason or felony, or where judgment of outlawry had been pronounced against him for not appearing to answer to a capital crime. It might also take place by act of parliament, called bill of attainder. In the case of high treason the effect was forfeiture of real and personal estate, and corruption of blood, so as to interrupt hereditary descent of any civil right. For capital crimes less than high treason, there was a forfeiture of personal property absolutely, and of the profits of freehold estates during life; and after the death of the criminal all his lands in fee went to the crown for a year and a day. The corruption of blood caused also an escheat of lands. But in its operation escheat was subordinate to forfeiture. In high treason the forfeiture intervened to defeat the escheat altogether, and in the lesser offences it interrupted it for the sovereign's year and day. But the escheat did not take place merely in respect to the lands held by the offender.
Thus if a father was seized in fee, and his son committed treason and was attainted, and then the father died, the father's lands even in that case escheated, because at his death the son was incapable of inheriting them, and the son's heirs could not take them because they could only deduce their title through the son. But there was no forfeiture in such a case, because the criminal never had the lands. This corruption of blood and its consequences could not be remedied save by act of parliament. By statute 7 Anne, ch. 21 (the operation of which was suspended at first during the life of the pretender, and afterward during the lives of his sons, but which suspension was repealed by 39 George III., ch. 93), it was enacted that no attainder for treason should extend to the disinheriting of any heir, or to the prejudice of any person other than the traitor himself. By the statute 54 George III., ch. 145, it was provided that no attainder for a felony, except treason or murder, should extend to the disinheriting of any person, nor to the prejudice of the right or title of any person other than the offender himself, during his natural life only; and any person who might otherwise inherit, might on his death claim his hind.
There have been several subsequent enactments of a similar tendency. - A bill of attainder was a legislative conviction for alleged crimes with judgment of death. The great act of attainder passed in 1688 by the parliament of James II., by which more than 2,000 persons were attainted and their property confiscated, is one of the most noteworthy illustrations of this sort of legislative convictions. Other acts of the same character were those relating to the earl of Strafford in 1641, to Sir John Fenwick in 1696, to Lord Clarendon in 1699, and to Bishop Atterbury in 1723. The so-called bills of pains and penalties were of the same character, though of a milder form, inflicting punishment less than that of death. - Not only probably on account of the mere injustice of all legislative acts of this character, but as well in the fear that the power to inflict such punishments intrusted to the legislature of a democratic state might lead to unusual excesses and abuse in times of political excitement, the founders of our government by a distinct constitutional provision prohibited the enactment of any such laws here.
The constitution of the United!
States declares that no bill of attainder shall be passed either by congress or by any state. But as it still remained competent for the judiciary to convict of treason or to declare attainders, the constitution, still further to guard against this odious form of enactments, also provided (art. 3, sec. 3) that congress should have power to declare the punishment of treason, but that no attainder of treason should work complete corruption of blood or forfeiture except during the life of the person attainted. In the cases familiarly known as the test oath cases, Cummings v. Missouri, and ex parte Garland, reported in 4th Wallace, U. S. Supreme Court Reports, pp. 277 to 399, where all these constitutional provisions were very fully discussed, it was held by the court that within the meaning of the constitution bills of pains and penalties are included in the prohibition of bills of attainder. The former case involved the oath of loyalty prescribed by the constitution of Missouri adopted in 1865. Under the several sections of the second article of that instrument priests and clergymen (and the plaintiff fell within this description) were required, in order that they might continue to exercise their functions as such, to take this oath of loyalty, which was to the effect that they had not committed certain designated acts of disloyalty to the United States, some of them being at the time of their commission offences involving penalties, and others innocent in themselves; and it was held that these provisions constituted a bill of attainder within the meaning of the federal constitution.
The case of Garland involved an act of congress of Jan. 24, 1865, which provided that after its passage no person should be admitted as a counsellor to the bar of the supreme court, and after March 4, 1865, to the bar of any circuit or district court of the United States, unless he should first have taken the oath required by the act of July 2, 1862. This oath was much like that in Cum-mings's case, and was to the effect generally that the affiant had never been guilty of any disloyalty to the United States; and it was held that exclusion from the practice of the law in the federal courts for past misconduct was punishment for such conduct; that the exaction of the oath was the means provided for ascertaining the persons on whom the act was intended to operate; and that for these reasons the act partook of the nature of a bill of pains and penalties, and was within the constitutional inhibition of bills of attainder. The court in both these cases consisted of nine judges, and in each four of the judges, including the chief justice, dissented; and the prevailing opinion of the court has not commanded the concurrence of some of our ablest jurists.