particular crime. When used it was typically invoked for political reasons to
secure either or both of two outcomes. (i) It was used to attack and usually
execute an opponent. (ii) In cases of treason it was used to confiscate the
property of the person attainted including any title they possessed which could
then be used by the Crown or granted to a supporter of the Crown. This was
possible because forfeiture of property and rank was one of the penalties for
treason. In a number of cases people were attainted posthumously for the very
purpose of confiscting their property by dispossessing their heirs of it. The
last Act of Attainder in the United Kingdom was in 1798 posthumously against
Lord Edward FitzGerald for leading the Irish Rebellion of 1798.
Justice According to Law
Acts of attainder are objectionable in that they violate a fundamental principle
of justice which is part of the rule of law. This consists of the universality that
all laws should possess to ensure the equality of all before the law. For this
reason, some constitutions forbid attainder. They can do this specifically and
directly. For example, the United States Constitution
in Article 1 Section 9
explicitly forbids Congress to pass any bills of attainder. It provides as follows:
"No Bill of Attainder or ex post facto Law will be passed”. A constitution can
also prohibit attainder on the basis that it violates separation of powers since it
entails a legislative body performing a judicial task.
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Latter Day Illustrations
There are several latter day uses or would be uses of attainder. (i) During
World War II the British War Cabinet
discussed how they would punish
leading Nazis if captured. Cabinet
papers released on 1 January 2006
reveal
that the then Prime Minister
had advocated a policy of
authorised by an Act of Attainder. He was, however,
dissuaded from this by pressure from the United States later in the war. (ii) In
2003 the United States Congress passed the Elizabeth Morgan Act as a rider
to a major transportation bill. It was held unconstitutional as an attainder in
Foreditch v United States (2003). (iii) On 21 March 2005 Congress passed an
Act formally known as the Act for the relief of the parents of Theresa Marie
Schiavo. It was named the Palm Sunday Compromise by the majority leader
in the House of Representatives Tom DeLay, and is now popularly referred to
by this name. Arguably this was an act of attainder. (iv) In 1994 the New South
Wales parliament passed the Community Protection Act 1994
to authorise a
six month preventative detention order against one Gregory Kable. However,
this Act was held to be invalid by the High Court of Australia.
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See, for example, Community Protection Act 1994 (NSW). However, this was
held to be constitutionally invalid in Kable
v Director of Public Prosecutions
(1996)
189 CLR 51.
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Kable v Director of Public Prosecutions (1996) 189 CLR 51
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