ATTAINDER, from the Latin word attinetus," attaint," "stained," is a con sequence which the law of England has attached to the passing of sentence of death upon a criminal. Attainder does not follow upon mere conviction of a capital offence ; because, after conviction, the judgment may still be arrested, and the conviction itself cancelled, or the prisoner may ob tain a pardon : in either of which cases no attainder ensues. But as soon as sentence of death is passed, or a judgment of out lawry given, where the person accused flies from justice, which is equivalent to sentence of death, the prisoner becomes legally attaint, stained, or blackened in reputation. He cannot sue or be a witness in a court of justice; he loses all power over his property, and is rendered inca pable of performing any of the duties, or enjoying any of the privileges, of a free man. The person of a man attainted is, however, not absolutely at the disposal of the crown. It is so for the ends of public justice, but for no other purpose. Until execution, his creditors have an interest in his person for securing their debts ; and he himself, as long as he lives, is under the protection of the law. (Mac donald's case, vol. xviii. of Howell's Stag* Trials, p. 862.) We shall consider, first, the subject of attainder as it exists by the ordinary laws of the realm ; and, secondly, give some account of those extraordinary enact ments commonly known by the name of Bills of Attainder.
I. The principal consequences of at tainder, according to the ordinary course of law, are forfeiture of the attainted per son's real and personal estates, and what is technically called corruption of the blood of the offender. The forfeiture of the personal estate dates from the time of his conviction, but extends only to the goods and chattels of which he was actu ally possessed at that time. Real estate is not forfeited until attainder ; but then the forfeiture (except in the case of at tainder upon outlawry) has relation to the time when the offence was committed, so as to avoid all intermediate sales and in cumbrances. (Co. Litt. 390 b.)
The extent and nature of the forfeiture of real estate upon attainder differ in the case of high treason, and in cases of mur der or other felony. Attainder for high treason is followed by an immediate and absolute forfeiture to the crown of all freehold estates, whether of inheritance or otherwise, of which the person attainted was seised at the time of the treason com mitted. This consequence of attainder for high treason is said by Blackstone to be derived from Anglo-Saxon jurispru dence. Copyholds are forfeited to the lord of the manor upon the attainder of the tenant. Lands held in gavelkind are for feited on attainder for high treason, but they are not subject to escheat for felony. (Robinson, Gavelkind, 2261.) By stet. 5 & 6 Edw. VI. cap. 11, the dower of the widow of a person attainted for high-treason is also forfeited. But as there is no forfeiture unless an actual at tainder takes place, if a traitor dies before judgment, or is killed in open rebellion, or is put to death by martial law, his lands are not forfeited, unless a special act of parliament is passed for the purpose. It is said, however (Reports, iv. 57), that if the chief justice of England in person, upon the view of the body of one killed in open rebellion, records the facts and returns the record into the court of King's Bench, both the lands and the goods of the rebel shall be forfeited.
This forfeiture of the estates of persons convicted of high treason was often pro ductive of extreme hardship, by making their families, who were no parties to their crimes, participate in their punish ment. In certain modern treasons, there fore, relating to the coin, created by sta tute, it is expressly provided that they shall work no forfeiture of lands, except for the life of the offender, and that they shall not deprive his widow of her dower.