BILL OF ATTAINDER, and BILL OF PAINS AND PENALTIES, are bills in parliament, introduced for penalty enacting the attaint and punishment of persons who have criminally 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 offence, 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. The inquiry under a bill of attainer was entirely in the hands 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, the bills were often 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 defence. Under the Stuarts, this extraordinary mode of proceeding in parliament was seldom had recourse to in England, and it has been still more rarely used since the accession of the House of Hanover. It has been much debated whether the attainer of Strafford (q.v.) in 1641 was constitutional. The Jacobite movement in Scotland, after the union with that country, was productive of several instances of parliamentary attainer, which, however, resulted merely in the forfeiture of the estates of the attainted parties, and in many such cases the attainer has since been removed by statute. The last instance of bill of attainer for treason was that of Lord Edward Fitzgerald, one of the leaders of the Irish rebellion of 1798. In regard to bills of pains and penalties, perhaps the two most remarkable instances are those of Bishop Atterbury, in 1722 (see ATTERBURY), and of Queen Caroline, wife of George IV., in 1820.
The proceedings of parliament in passing bills of attainer, and of pains and penalties, do not vary from those adopted in regard to other bills. But the parties who are subjected to these proceedings are admitted to defend themselves by counsel and witnesses 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 attainer, the Commons commit themselves by no accusation, nor are their powers directed against the offender; but they are judges of equal jurisdiction and with the same responsibilities as the Lords; and the accused can only be condemned by the unanimous judg- ment of the Crown, the Lords, and the Commons.—May's Proceedings of Parliament, 3d edition, p. 509. See also FORFEITURE, IMPEACHMENT, TREASON.