BILL OF ATTAINDER, and BILL OF PAINS AND PENALTIES, are bills in parliament, introduced for penally enacting the attaint and punishment of persons who have crimi nally offended against the state and public peace. Such a legislative proceeding was had recourse to generally in times of turbulence, when, either from the peculiar nature of the offense, or in consequence of difficulties in the application of the ordinary laws, it became necessary to resort to parliament. During the reign of Henry VIII., persons of the highest rank were frequently brought to the scaffold by such means; among whom may be mentioned the earl of Surrey, the earl of Essex, and others, who suffered for denying the king's supremacy; and during other reigns, both before and after that .
of Henry VIII., these bills were more or less had recourse to. There were greater 'facilities for conviction by this penal legislation than by the ordinary judicial procedure at law; because, while in the latter the strict rules of legal evidence must have been observed, the inquiry under a bill of attainder, or of pains and penalties, was entirely in the hand of parliament, who might dispense at their pleasure with such rules and forms of law as appeared inconvenient or unsuitable to the purpose in hand. Accordingly, in most of the cases to which we have referred, the bills were passed upon evidence which could never have been received as sufficient or even admissible in a court of law; and there are even instances where parties were attainted, and punished, without there being any evidence against them at all, and even without their being heard in their defense. Under the Stuarts, the extraordinary mode of proceeding in parliament was seldom had recourse to in England, and it has been still seldomer used since the accession of the house of Hanover. The Jacobite movement in Scotland, after tho Union with that country, was productive of several instances of parliamentary attainder. which, how ever, resulted merely in the forfeiture of the estates of the attainted parties, and these attainders were likewise unattended with the harsh, and in too many instances, capital consequences, which were formerly the inevitable results of treason so discovered. In
regard to bills of pains and penalties, perhaps the two most remarkable instances are Ulnae of bishop Atterbury, in 1722 (see ArrEmumv), and of queen Caroline, wife of George IV., in 1S20.
The proceedings of parliament in passing bills of attainder, and of pains and penal ties, do not vary from those adopted in regard to other bills. But the parties who arc subjected to these proceedings are admitted to defend themselves by counsel and wit nesses before both houses. In the best of times, this summary power of parliament to punish criminals by statute, should be regarded with jealousy; but whenever a fitting occasion arises for its exercise, it is undoubtedly the highest form of parliamentary judicature. In impeachments, the commons are but accusers and advocates:. while the lords alone are judges of the crime. On the other hand, in passing bills of attainder. the commons commit themselves by no accusation, nor are their powers directed agains the offender; but they are judges of equal jurisdiction, and with the same responsibili ties as the lords; and the accused can only be condemned by the unanimous judgment of the crown, the lords, and the commons.—May's Proceedings of Parliament, L'd edition. p. 509. In passing bills of attainder, the bishops, contrary to the practice in capita impeachments, take part in the proceedings. and vote.
In such parliamentary attainders, the hill sets out, by way of preamble, the facts.am evidence on which it is founded, and concludes, by. way of enactment, that the accuses. "is hereby convicted and attainted of high treason, and shall suffer the pains of death, and incur all forfeitures as a person attainted of high treason." In the case of pains and penalties, again, the preamble generally assumes the facts as proved, and proceeds to enact the pains and penalties; that is, the derivations, indignities, and other punish ment awarded. See ATTAIRDKR, AND% YENALTIESi BILL PARDLAMENT.