The State Bill of Attainder Clause

No State shall . . . pass any Bill of Attainder. . . .

—Matthew Steilen

Introduction

A bill of attainder is “a legislative act which inflicts punishment without a judicial trial.”¹ There are two Bill of Attainder Clauses in the Constitution. Article I, Section 9, Clause 3 applies to federal laws; Article I, Section 10, Clause 1 applies to state laws. Since most of the cases to reach the U.S. Supreme Court have concerned the ban on federal bills of attainder in section 9, we consider the Court’s modern bill of attainder doctrine in Essay No. 69. Here, in the entry for section 10, we consider the history of the bills of attainder, which were relatively widespread in the American states during the Revolution.

History Before 1787

The bill of attainder is conventionally dated to the late fourteenth or early fifteenth century.² Beginning in this period, Parliament would condemn individuals who could not be brought before ordinary common-law courts but whose crimes were sufficiently “notorious” that they might be convicted in a summary proceeding without presenting evidence.³ Lords in Parliament asserted that “the law and course of Parliament” did not require the presence of the accused during proceedings.⁴ The process could be used against those who had taken flight or were too strong to be captured. On other occasions, bills of attainder were employed to confiscate the property of rebellious nobles who had died. Parliamentary condemnation allowed the king to preempt legal challenges to the confiscation of their lands.

In this context, “attainder” (from the French atteindre or “attain”) meant “to convict.” A “bill of attainder” was a means of convicting an individual in Parliament by introduction of a “bill,” which was an informal written complaint.⁵ “Bills” were also used to introduce legislation. In 1641, Lord Digby attributed to Parliament “a double Power of Life and Death by bill, a Judicial Power, and a Legislative; the measure of the one, is what’s legally just; of the other, what is Prudentially and Politically fit for the good and preservation of the whole.”⁶

English legal treatises have been affected by confusions about the meaning and etymology of “attainder.”⁷ For example, according to Sir William Blackstone, the word “attaint” derived from attinctus, a Latin expression meaning “stained” or “blackened,” which was applied to someone sentenced to death.⁸ Blackstone therefore viewed the “bill of attainder” as a legislative death sentence. It had been used, he wrote, when a “criminal is no longer fit to live upon the earth, but is to be exterminated as a monster.”⁹

It is worth noting that other English commentators, including some writing around the same time as Blackstone, framed bills of attainder quite differently.¹⁰ Moreover, although some bills of attainder certainly did contain death sentences, this was not a universal feature.¹¹ Medieval bills of attainder, for example, rarely included an explicit death sentence because their targets were often already dead. Sometimes the condemned or their heirs were able to recover their confiscated property by obtaining a repeal and royal pardon.¹²

During the Revolutionary War, Mass-achusetts, New York, Pennsylvania, and Virginia enacted bills of attainder targeting named individuals.¹³ Typically, these acts targeted British officials and American loyalists. For example, New York’s “Act for the Forfeiture and Sale of the Estates of Persons who had adhered to the Enemies of this State” named the two most recent colonial governors, members of their executive council, judges of the colonial supreme court, and several dozen other prominent individuals. The act declared that “the public justice and safety of this state absolutely require, that the most notorious offenders should be immediately hereby convicted and attainted” of the crime of adhering to the king and then banished them from the state and confiscated their property.¹⁴

Bills of attainder of this type formed part of a much larger mass of legislation and executive action, examples of which can be found in every state, which subjected “enemies” to various disabilities, including loyalty oaths, disenfranchisement, removal from public office, bars on practicing a profession or owning property, arrest, quarantine, and banishment.¹⁵ Not every Revolutionary-era bill of attainder was used to punish disloyalty, however. In Virginia, Thomas Jefferson authored “An act to attaint Josiah Philips and others.” This bill targeted the leader and unnamed members of a gang of laborers and escaped slaves who hid in Virginia’s Great Dismal Swamp and were thought to have murdered a militia captain.¹⁶ Jefferson argued that to wait until Philips was captured by ordinary methods would subject the state to great danger.

Bills of attainder were controversial during the Revolution. As Jefferson’s involvement suggests, some lawyers supported their use in cases where the ordinary judicial process was thought to be incapable of handling a dire threat to the state. In support, they could cite English precedents. According to John Hatsell’s Proceedings in the House of Commons, first published in 1781, “Cases have arisen . . . and may arise again, where the public safety, which is the first object of all government, has called for this extraordinary interference,” although “this deviation from the more ordinary forms of proceeding by indictment or impeachment, ought never to be adopted, but in cases of absolute necessity.”¹⁷ Jefferson defended the Philips attainder in these terms and later described the Proceedings as his primary source for the manual of parliamentary practice he wrote for the United States Senate.¹⁸ Other commentaries, however, cast doubt on the value of English precedents. St. George Tucker, who taught law at the College of William and Mary, prepared an influential American edition of Blackstone’s Commentaries that condemned bills of attainder and cited the Josiah Philips case.¹⁹

The New York Constitution of 1777 banned bills of attainder except “for crimes . . . committed before the termination of the present war.”²⁰ The first draft had banned legislative attainders outright. Gouverneur Morris, who would later play a role in banning bills of attainder in the federal Constitution, persuaded the state’s constitutional convention to permit them for future crimes. But John Jay successfully moved to limit that power to crimes committed during the Revolution, producing the final text.²¹

When New York nonetheless passed a bill of attainder, however, Jay harshly condemned it. Writing to the government from Spain, where he held a federal diplomatic post, Jay declared that he felt “disgraced” by reports of the act.²² Alexander Hamilton, who represented attainted individuals in legal proceedings, also criticized the confiscation of loyalist property in an influential pamphlet, A Letter from Phocion.²³ Jay and Hamilton were part of a group that has been termed America’s “cosmopolitan minority,” whose leading concern was reintegration of the United States into the Atlantic commercial community. They regarded the security of property rights as an essential part of this project.²⁴

The Constitutional Convention

The Virginia Plan, which formed the basis of initial deliberations at the Constitutional Convention, contained nothing about attainder. After the Committee of Detail’s draft of the Constitution was introduced on August 6, however, both the federal and state bans fell quickly into place. The ban on federal bills of attainder was introduced on August 22. Gouverneur Morris seconded the motion. Though he had advocated their limited use in New York, Morris now described the prohibition as “essential.”²⁵ The ban on state bills of attainder was inserted on a motion by John Rutledge of South Carolina, who proposed to add it to language prohibiting the states from interfering in private contracts. The motion passed by a vote of 7 to 3, without any recorded objection.²⁶

The Ratification Debates

In Federalist No. 78, Hamilton cited bills of attainder as evidence of the need for judicial review. According to Hamilton, the bans could “be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” James Madison also mentioned bills of attainder in Federalist No. 44. Even though some state constitutions banned them, “[o]ur own experience has taught us nevertheless, that additional fences against these dangers ought not to be omitted” to protect “personal security and private rights.”

In the state conventions, the two clauses were the subject of little recorded debate.²⁷ The notable exception was Virginia. Edmund Randolph denounced the Josiah Philips attainder.²⁸ As noted earlier, St. George Tucker condemned bills of attainder and cited the Josiah Philips case in his influential American edition of Blackstone’s Commentaries.²⁹

Judicial Precedent

In a series of early cases, the Supreme Court invoked the Bill of Attainder Clause to develop the Constitution’s separation of legislative and judicial powers.³⁰ In Fletcher v. Peck (1810), Chief Justice John Marshall described a state statute purporting to declare a land grant legally invalid as equivalent to a bill of attainder.³¹ The comparison framed bills of attainder as a usurpation of judicial power and suggested that legislatures could not decide questions of individual property rights. In language reminiscent of Marbury v. Madison (1803), Marshall wrote that “[i]t is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.”³² This description is hard to square with the large mass of particular legislation and judicial activity that remained in state legislatures. Fletcher is probably best read as Marshall’s effort to reform those practices, particularly with respect to disputes over land.

The Supreme Court’s first important precedent on the Bill of Attainder Clause came after the Civil War in Cummings v. Missouri (1866). The Missouri Constitution of 1865 imposed disabilities on people who supported the Confederacy during the Civil War. Anyone who sought to vote, hold office, teach, practice law, or serve as a clergyman was required to swear that he had always been “truly and loyally on the side of the United States.” Disloyalty included not only having aided the Confederacy, but having “manifested . . . adherence to the cause” “by act or word.”³³ Cummings, a Catholic priest, was fined $500 and jailed for teaching and preaching without taking the oath. By a 5 to 4 vote, the Court reversed the judgment and ordered Cummings discharged. According to Justice Stephen Field’s majority opinion, the loyalty provisions “presume[d] the guilt of the priests and clergymen” and punished them by “deprivation of their right to preach or teach unless the presumption be first removed by their expurgatory oath.”³⁴

Cummings was the first case in which the Supreme Court found that a state law violated the ban on state bills of attainder in Section 10. The Court has done so only one other time. Pierce v. Carskadon (1872), an unsigned, two-sentence opinion, directed the lower court to apply Cummings.³⁵

Open Questions

• Are the Bill of Attainder Clauses effectively limited to the kinds of punishments used in English history or the American Revolution?
• Do the Bill of Attainder Clauses ban summary executive action of the sort used during the Revolution?

1. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1866). ↩︎
2. Allen Boyer & Mark Nichols, The Rise and Fall of Treason in English History 98–99 (2024). ↩︎
3. John Collins, Martial Law and English Laws, c.1500–c.1700, at 12, 18 (2016). ↩︎
4. 7 The Parliament Rolls of Medieval England, Richard II, 1385–1397, at 100–01 (Chris Given-Wilson ed., 2005). ↩︎
5. John P. Collas, Introduction to 70 Selden Society, at ix, xxi-lx (1951); Alan Harding, Plaints and Bills in the History of English Law, Mainly in the Period 1250–1350, in Legal History Studies 1972, at 65, 74–77, 80–82 (Dafydd Jenkins ed., 1975). ↩︎
6. 1 John Rushworth, The Tryal of Thomas Earl of Strafford 53 (1680). ↩︎
7. Boyer & Nichols, supra at 98; Matthew Steilen, Bills of Attainder, 53 Hous. L. Rev. 767, 823 (2016). ↩︎
8. 4 Blackstone 380. ↩︎
9. Id. ↩︎
10. 4 John Hatsell, Precedents of Proceedings in the House of Commons 90 (1796); 2 John Reeves, History of English Law 430 (1869). ↩︎
11. Anthony Dick, Note, The Substance of Punishment Under the Bill of Attainder Clause, 63 Stan. L. Rev. 1177, 1182–90 (2011). ↩︎
12. Steilen, Bills of Attainder, supra at 781, 789. ↩︎
13. Id. at 827 & n.340. ↩︎
14. 1 Laws of the State of New York 26–27 (1792). ↩︎
15. Bradley Chapin, The American Law of Treason 75–80 (1964); Claude Halstead Van Tyne, The Loyalists in the American Revolution 318–41 (1902). ↩︎
16. 9 The Statutes at Large, Being a Collection of All the Laws of Virginia 463–64 (William Waller Hening ed., 1821); Matthew Steilen, The Josiah Philips Attainder and the Institutional Structure of the American Revolution, 60 Howard L.J. 413, 421–29 (2017). ↩︎
17. 4 Hatsell, supra at 90. ↩︎
18. Wilbur Samuel Howell, Jefferson’s Parliamentary Writings 43 (1988). ↩︎
19. 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia 292–93 (1803). ↩︎
20. N.Y. Const. of 1777, art. XLI. ↩︎
21. 1 Journals of the Provincial Congress 846, 881–82, 898 (1842). ↩︎
22. Letter from John Jay to George Clinton (May 6, 1780), in 1 William Jay, The Life of John Jay 112 (1972 ed.). ↩︎
23. 1 The Law Practice of Alexander Hamilton 224–27 (Julius Goebel, Jr. ed., 1964). ↩︎
24. Daniel J. Hulsebosch, A Discrete and Cosmopolitan Minority: The Loyalists, the Atlantic World, and the Origins of Judicial Review, 81 Chi.–Kent L. Rev. 825, 826–29, 837 (2006). ↩︎
25. 2 Farrand’s 368, 375–76. ↩︎
26. Id. at 435–36, 440. ↩︎
27. Steilen, Bills of Attainder, supra at 893 n.760. ↩︎
28. Steilen, The Josiah Philips Attainder, supra at 430–32. ↩︎
29. 1 St. George Tucker, supra at 292–93. ↩︎
30. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798); Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310 (C.C.D. Pa. 1795) (opinion of Paterson, J.). ↩︎
31. 10 U.S. (6 Cranch) 87, 138–39 (1810). ↩︎
32. Id. at 136. ↩︎
33. Missouri Constitution of 1865, art. II, §§ 3, 6, 9. ↩︎
34. Cummings, 71 U.S. at 325. ↩︎
35. 83 U.S. (16 Wall.) 234 (1872). ↩︎