Attainder (through Fr. from Lat. attingere, 'to touch upon,' supposed erroneously to be through Fr. from Lat. tingere, 'to dye,' 'taint'), in English law, is the legal consequence of sentence of death or outlawry, in respect of treason or felony. The erroneous explanation of the word warped its original meaning, and hence the idea of the stain came to be considered as essential. It was followed by forfeiture of estate and corruption of blood; and generally it imported extinction of civil rights and capacities. Thus, an attainted person cannot sue in a court of justice; he loses all power over his property; and he is by his attainder rendered incapable of performing any of the duties, or enjoying any of the privileges of a free citizen. It was only in cases of treason that there was an absolute forfeiture of real estate. In cases of murder and other felony (and formerly the majority of crimes were felonies), the forfeiture of lands to the crown lasted only for a year and day; and even this limited forfeiture was in 1814 confined to the case of murder. But then in such cases, by the doctrine of corruption of blood, the heir of the traitor or felon was incapacitated from succeeding, and the land reverted to the lord or superior, who was frequently the crown. Legis- lation was passed at the time of the Jacobite rebellions to confine the effect of attainder to the person actually convicted, but it was not till 1833 that it became possible in England to trace descent through an attainted person. The forfeiture applied to honours and dignities as well as land; but where land or honours were entailed, it was held that the remainder-men or substitutes were unaffected. In Scotland, the whole law on this subject has been widely different. Forfeiture of movable estate (or escheat) occurred in every case of capital sentence—i.e. almost every felony in former times, and also in every case of outlawry. This must be distinguished from the penalty of escheat of movables which was by statute imposed for such crimes as deforcement, perjury, and bigamy. Some doubt exists as to how far civil death followed in the case of a condemned felon, as in the case of an outlaw. But in Scotland, except in cases of treason, the forfeiture never extended to the fee of real estate. There was a liferent escheat in favour of the superior, but even the outlaw retained a right of disposing of land. Nor was there in Scotland, except in the case of treason, anything resembling corruption of blood. Upon the other hand, the Scottish law of treason prior to the Union was in some respects more stringent than that of England. It forfeited all interests in an entailed estate or dignity. The laws of the two countries were assimilated by statute, which introduced to Scotland (though with less practical effect) the doctrine of corruption of blood. Those who desire to trace the effect of such laws on the political history of the time should examine Lord Hardwicke's work on the law of forfeiture. Formerly, an attainted person could not give evidence in a court of justice; but that disability in England has been removed by the 6 and 7 Vict. chap. 85, and in Scotland by the 15 and 16 Vict. chap. 27.
But in 1870 the law on this subject was revised and made more consistent with reason by the Act 33 and 34 Vict. chap. 23. No conviction for treason or felony now causes any attainder or corruption of blood, or forfeiture or escheat. When a convicted person is sentenced to any punishment more severe than twelve months' hard labour, he is deprived of any public office or employment, and of any public pension, or of the right of voting at elections. He may be condemned to pay the costs or expenses incurred in procuring his conviction, and in cases of felony to make payment of a sum not exceeding £100, as compensation for any loss of property caused by such felony. He cannot sue for any property, debt, or damage. While he is a convict undergoing any imprisonment, the sovereign may appoint paid administrators to take charge of his property at the convict's expense, to deal with the property, and pay debts, and do what is needful. They may also pay out of his property satisfaction for any loss or injury suffered by third parties in consequence of his criminal or fraudulent acts, though no proof of such criminal or fraudulent acts may have been made in any court of law. They may also make allowances to support the convict's family. If the crown does not appoint an administrator, justices of the peace may appoint interim curators, if satisfied that it will benefit the convict or his family, or the due administration of his property and affairs. Should any person intermeddle with the convict's property, the Attorney-general or next of kin may call them to account. When the sentence expires, then the administrators or curators are to account to him for his property. If during the sentence any property be acquired by the convict, it is not to vest in the administrators, but is to be his own.
Attainder was sometimes inflicted after death; thus, four of the regicides—Cromwell, Ireton,
Bradshawe, and Pride—were attainted posthumously.
In the United States, attainer, as it existed in England prior to the Act 33 and 34 Vict., is absolutely unknown. The Constitution of the United States forbids the enactment of any bill of attainer by congress or any of the states. Prior to the adoption of the Constitution, it was held that state laws banishing the persons and confiscating the property of individuals named for their treason, were valid; but an act of congress disbaring lawyers unless they would take an oath denying past acts of treason, has been held to be unconstitutional as a bill of attainer.