Bill of attainder

Last updated

A bill of attainder (also known as an act of attainder or writ of attainder or bill of penalties) is an act of a legislature declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person's civil rights, most notably the right to own property (and thus pass it on to heirs), the right to a title of nobility, and, in at least the original usage, the right to life itself.

Contents

In the history of England, the word "attainder" refers to people who were declared "attainted", meaning that their civil rights were nullified: they could no longer own property or pass property to their family by will or testament. Attainted people would normally be punished by judicial execution, with the property left behind escheated to the Crown or lord rather than being inherited by family. The first use of a bill of attainder was in 1321 against Hugh le Despenser, 1st Earl of Winchester and his son Hugh Despenser the Younger, Earl of Gloucester, who were both attainted for supporting King Edward II. Bills of attainder passed in Parliament by Henry VIII on 29 January 1542 resulted in the executions of a number of notable historical figures.

The use of these bills by Parliament eventually fell into disfavour due to the potential for abuse and the violation of several legal principles, most importantly the right to due process, the precept that a law should address a particular form of behaviour rather than a specific individual or group, and the separation of powers, since a bill of attainder is necessarily a judicial matter. The last use of attainder was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798. The House of Lords later passed the Pains and Penalties Bill 1820, which attempted to attaint Queen Caroline, but it was not considered by the House of Commons. No bills of attainder have been passed since 1820 in the UK. [1] Attainder remained a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870. [2]

American dissatisfaction with British attainder laws resulted in their being prohibited in the United States Constitution in 1789. Bills of attainder are forbidden to both the federal government and the states, reflecting the importance that the Framers attached to this issue. Every state constitution also expressly forbids bills of attainder. [3] [4] The U.S. Supreme Court has invalidated laws under the Attainder Clause on five occasions. [5]

Jurisdictions

Australia

Unlike the United States Constitution, the Constitution of Australia contains no specific provision prohibiting the Commonwealth Parliament from passing bills of attainder. However, the High Court of Australia has ruled that bills of attainder are unconstitutional, because it is a violation of the separation of powers doctrine for any body to wield judicial power other than a Chapter III courtthat is, a body exercising power derived from Chapter III of the Constitution, the chapter providing for judicial power. [6] [7] [8] One of the core aspects of judicial power is the ability to make binding and authoritative decisions on questions of law, that is, issues relating to life, liberty or property. [9] [10] The wielding of judicial power by the legislative or executive branch includes the direct wielding of power and the indirect wielding of judicial power. [11]

The state constitutions in Australia contain few limitations on government power. Bills of attainder are considered permissible because there is no entrenched separation of powers at the state level. [12] [13] However, section 77 of the Constitution of Australia permits state courts to be invested with Commonwealth jurisdiction, and any state law that renders a state court unable to function as a Chapter III court is unconstitutional. [14] The states cannot structure their legal systems to prevent them from being subject to the Australian Constitution. [15]

An important distinction is that laws seeking to direct judicial power (e.g. must make orders) [16] are unconstitutional, but laws that concern mandatory sentencing, [17] [18] rules of evidence, [19] non-punitive imprisonment, [20] or tests, [21] are constitutional.

State parliaments are however free to prohibit parole boards from granting parole to specific prisoners. For instance, sections 74AA and 74AB of the Corrections Act 1986 in Victoria significantly restricts the ability of the parole board to grant parole to Julian Knight or Craig Minogue. These have been upheld by the High Court of Australia and are distinguished from bills of attainder since the original sentence (life imprisonment) stands; the only change is the administration of parole. [22] [23]

Canada

In two cases of attempts to pass bills (in 1984 for Clifford Olson and in 1995 for Karla Homolka) to inflict a judicial penalty on a specific person, the speakers of the House and Senate, respectively, have ruled that Canadian parliamentary practice does not permit bills of attainder or bills of pains and penalties. [24] [25]

United Kingdom

English law

The word "attainder" is part of English common law. [lower-alpha 1] Under English law, a criminal condemned for a serious crime, whether treason or felony (but not misdemeanour, which referred to less serious crimes), could be declared "attainted", meaning that his civil rights were nullified: he could no longer own property or pass property to his family by will or testament. His property could consequently revert to the Crown or to the mesne lord. Any peerage titles would also revert to the Crown. The convicted person would normally be punished by judicial execution  when a person committed a capital crime and was put to death for it, the property left behind escheated to the Crown or lord rather than being inherited by family. Attainder functioned more or less as the revocation of the feudal chain of privilege and all rights and properties thus granted.

Due to mandatory sentencing, the due process of the courts provided limited flexibility to deal with the various circumstances of offenders. The property of criminals caught alive and put to death because of a guilty plea or jury conviction on a not guilty plea could be forfeited, as could the property of those who escaped justice and were outlawed; but the property of offenders who died before trial, except those killed during the commission of crimes (who fell foul of the law relating to felo de se ), could not be forfeited, nor could the property of offenders who refused to plead and who were tortured to death through peine forte et dure .

On the other hand, when a legal conviction did take place, confiscation and "corruption of blood" sometimes appeared unduly harsh for the surviving family. In some cases (at least regarding the peerage) the Crown would eventually re-grant the convicted peer's lands and titles to his heir. It was also possible, as political fortunes turned, for a bill of attainder to be reversed. This sometimes occurred long after the convicted person was executed.

Unlike the mandatory sentences of the courts, acts of Parliament provided considerable latitude in suiting the punishment to the particular conditions of the offender's family. Parliament could also impose non-capital punishments without involving courts; such bills are called bills of pains and penalties.

Bills of attainder were sometimes criticised as a convenient way for the king to convict subjects of crimes and confiscate their property without the bother of a trial – and without the need for a conviction or indeed any evidence at all. It was however relevant to the custom of the Middle Ages, where all lands and titles were granted by a king in his role as the "fount of honour". Anything granted by the king's wish could be taken away by him. This weakened over time as personal rights became legally established.

The first use of a bill of attainder was in 1321 against Hugh le Despenser, 1st Earl of Winchester and his son Hugh Despenser the Younger, Earl of Gloucester. They were both attainted for supporting King Edward II during his struggle with the queen and barons.

In England, those executed subject to attainders include George Plantagenet, Duke of Clarence (1478); Thomas Cromwell (1540); Margaret Pole, Countess of Salisbury (1540); Catherine Howard (1542); Thomas, Lord Seymour (1549); Thomas Wentworth, Earl of Strafford (1641); Archbishop William Laud of Canterbury (1645); and James Scott, Duke of Monmouth. In the 1541 case of Catherine Howard, King Henry VIII was the first monarch to delegate royal assent, to avoid having to assent personally to the execution of his wife.

After defeating Richard III and replacing him on the throne of England following the Battle of Bosworth Field, Henry VII had Parliament pass a bill of attainder against his predecessor. [27] It is noteworthy that this bill made no mention of the Princes in the Tower, although it does declare him guilty of "shedding of Infants blood". [28]

Although deceased by the time of the Restoration, the regicides John Bradshaw, Oliver Cromwell, Henry Ireton, and Thomas Pride were served with a bill of attainder on 15 May 1660 backdated to 1 January 1649 (NS). After the committee stages, the bill passed both the Houses of Lords and Commons and was engrossed on 4 December 1660. This was followed with a resolution that passed both Houses on the same day: [29] [30] [31]

That the Carcases of Oliver Cromwell, Henry Ireton, John Bradshaw, and Thomas Pride, whether buried in Westminster Abbey, or elsewhere, be, with all Expedition, taken up, and drawn upon a Hurdle to Tiburne, and there hanged up in their Coffins for some time; and after that buried under the said Gallows: And that James Norfolke Esquire, Serjeant at Arms attending the House of Commons, do take care that this Order be put in effectual Execution.

In 1685, when the Duke of Monmouth landed in West England and started a rebellion in an effort to overthrow his uncle, the recently enthroned James II, Parliament passed a bill of attainder against him. After the Battle of Sedgemoor, this made it possible for King James to have the captured Monmouth put summarily to death. Though legal, this was regarded by many as an arbitrary and ruthless act.

In 1753, the Jacobite leader Archibald Cameron of Lochiel was summarily put to death on the basis of a seven-year-old bill of attainder, rather than being put on trial for his recent subversive activities in Scotland. This aroused some protests in British public opinion at the time, including from people with no Jacobite sympathies.

The last use of attainder was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798.

The Great Act of Attainder

In 1688, King James II of England (VII of Scotland), driven off by the ascent of William III and Mary II in the Glorious Revolution, came to Ireland with the sole purpose of reclaiming his throne. After his arrival, the Parliament of Ireland assembled a list of names in 1689 of those reported to have been disloyal to him, eventually tallying between two and three thousand, in a bill of attainder. Those on the list were to report to Dublin for sentencing. One man, Lord Mountjoy, was in the Bastille at the time and was told by the Irish Parliament that he must break out of his cell and make it back to Ireland for his punishment, or face the grisly process of being drawn and quartered. [32] The parliament became known in the 1800s as the "Patriot Parliament".

Later defenders of the Patriot Parliament pointed out that the ensuing "Williamite Settlement forfeitures" of the 1690s named an even larger number of Jacobite suspects, most of whom had been attainted by 1699. [33]

Private bills

In the Westminster system (and especially in the United Kingdom), a similar concept is covered by the term "private bill" (a bill which upon passage becomes a private Act). Note however that "private bill" is a general term referring to a proposal for legislation applying to a specific person; it is only a bill of attainder if it punishes them; private bills have been used in some Commonwealth countries to effect divorce. [34] Other traditional uses of private bills include chartering corporations, changing the charters of existing corporations, granting monopolies, approving of public infrastructure and seizure of property for those, as well as enclosure of commons and similar redistributions of property. Those types of private bills operate to take away private property and rights from certain individuals, but are usually not called "bill of pains and penalties". Unlike the latter, Acts appropriating property with compensation are constitutionally uncontroversial as a form of compulsory purchase.

The last United Kingdom bill called a "Pains and Penalties Bill" was the Pains and Penalties Bill 1820 and was passed by the House of Lords in 1820, but not considered by the House of Commons; it sought to divorce Queen Caroline from King George IV and adjust her titles and property accordingly, on grounds of her alleged adultery, as did many private bills dealing with divorces of private persons.

No bills of attainder have been passed since 1820 in the UK. [35] Attainder as such remained a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870. [2]

World War II

Previously secret British War Cabinet papers released on 1 January 2006 have shown that, as early as December 1942, the War Cabinet had discussed their policy for the punishment of the leading Axis officials if captured. British Prime Minister Winston Churchill had then advocated a policy of summary execution with the use of an act of attainder to circumvent legal obstacles. He was dissuaded by Richard Law, a junior minister at the Foreign Office, who pointed out that the United States and the Soviet Union still favoured trials. [36] [37]

United States

Colonial era

Bills of attainder were used throughout the 18th century in England, and were applied to British colonies as well. However, at least one American state, New York, used a 1779 bill of attainder to confiscate the property of British loyalists (called Tories) as both a penalty for their political sympathies and means of funding the rebellion, American dissatisfaction with British attainder laws resulted in their being prohibited in the U.S. Constitution ratified in 1789.

Constitutional bans

Excerpt from Article One, Section 9 of the United States Constitution, prohibiting the passing of bills of attainder Constitution Pg2of4 AC-attainder.jpg
Excerpt from Article One, Section 9 of the United States Constitution, prohibiting the passing of bills of attainder

The United States Constitution forbids legislative bills of attainder: in federal law under Article I, Section 9, Clause 3 ("No Bill of Attainder or ex post facto Law shall be passed"), and in state law under Article I, Section 10. The fact that they were banned even under state law reflects the importance that the Framers attached to this issue.

Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforce the separation of powers by forbidding the legislature to perform judicial or executive functions, as a bill of attainder necessarily does. Second, they embody the concept of due process, which is reinforced by the Fifth Amendment to the Constitution.

Every state constitution also expressly forbids bills of attainder. [38] [39] For example, Wisconsin's constitution Article I, Section 12 reads:

No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.

In contrast, the Texas Constitution omits the clause that applies to heirs. [40] It is unclear whether a law that called for heirs to be deprived of their estate would be constitutional in Texas. [41]

Supreme Court cases

The U.S. Supreme Court has invalidated laws under the Attainder Clause on five occasions. [42]

Two of the United States Supreme Court's first decisions on the meaning of the bill of attainder clause came after the American Civil War. In Ex parte Garland , 71 U.S. 333 (1866), the court struck down a federal law requiring attorneys practising in federal court to swear that they had not supported the rebellion. In Cummings v. Missouri , 71 U.S. 277 (1867), the Missouri Constitution required anyone seeking a professional's license from the state to swear they had not supported the rebellion. The Supreme Court overturned the law and the constitutional provision, arguing that the people already admitted to practice were subject to penalty without judicial trial. [43] The lack of judicial trial was the critical affront to the Constitution, the Court said. [44]

Two decades later, however, the Court upheld similar laws. In Hawker v. New York , 170 U.S. 189 (1898), a state law barred convicted felons from practising medicine. In Dent v. West Virginia , 129 U.S. 114 (1889), a West Virginia state law imposed a new requirement that practising physicians had to have graduated from a licensed medical school or they would be forced to surrender their license. The Court upheld both laws because, it said, the laws were narrowly tailored to focus on an individual's qualifications to practice medicine. [45] That was not true in Garland or Cummings. [45] [46]

The Court changed its "bill of attainder test" in 1946. In United States v. Lovett , 328 U.S. 303 (1946), the Court confronted a federal law that named three people as subversive and excluded them from federal employment. Previously, the Court had held that lack of judicial trial and the narrow way in which the law rationally achieved its goals were the only tests of a bill of attainder. But the Lovett Court said that a bill of attainder 1) specifically identified the people to be punished; 2) imposed punishment; and 3) did so without benefit of judicial trial. [47] [48] As all three prongs of the bill of attainder test were met in Lovett, the court held that a Congressional statute that bars particular individuals from government employment qualifies as punishment prohibited by the bill of attainder clause.

The Taft–Hartley Act (enacted in 1947) sought to ban political strikes by Communist-dominated labour unions by requiring all elected labour leaders to take an oath that they were not and had never been members of the Communist Party USA, and that they did not advocate violent overthrow of the U.S. government. It also made it a crime for members of the Communist Party to serve on executive boards of labour unions. In American Communications Association v. Douds , 339 U.S. 382 (1950), the Supreme Court had said that the requirement for the oath was not a bill of attainder because: 1) anyone could avoid punishment by disavowing the Communist Party, and 2) it focused on a future act (overthrow of the government) and not a past one. [49] Reflecting current fears, the Court commented in Douds on approving the specific focus on Communists by noting what a threat communism was. [50] The Court had added an "escape clause" test to determining whether a law was a bill of attainder. [49]

In United States v. Brown, 381 U.S. 437 (1965), the Court invalidated the section of the statute that criminalized a former communist serving on a union's executive board. Clearly, the Act had focused on past behaviour and had specified a specific class of people to be punished. [51] Many legal scholars assumed that the Brown case effectively, if not explicitly, overruled Douds. [52] The Court did not apply the punishment prong of the Douds test, leaving legal scholars confused as to whether the Court still intended it to apply. [53]

The Supreme Court emphasized the narrowness and rationality of bills of attainder in Nixon v. Administrator of General Services , 433 U.S. 425 (1977). During the Watergate scandal, in 1974 Congress passed the Presidential Recordings and Materials Preservation Act, which required the General Services Administration to confiscate former President Richard Nixon's presidential papers to prevent their destruction, screen out those which contained national security and other issues which might prevent their publication, and release the remainder of the papers to the public as fast as possible. [54] The Supreme Court upheld the law in Nixon, arguing that specificity alone did not invalidate the act because the President constituted a "class of one". [55] Thus, specificity was constitutional if it was rationally related to the class identified. [55] The Court modified its punishment test, concluding that only those laws which historically offended the bill of attainder clause were invalid. [56] The Court also found it significant that Nixon was compensated for the loss of his papers, which alleviated the punishment. [57] The Court modified the punishment prong by holding that punishment could survive scrutiny if it was rationally related to other, nonpunitive goals. [57] Finally, the Court concluded that the legislation must not be intended to punish; legislation enacted for otherwise legitimate purposes could be saved so long as punishment was a side-effect rather than the main purpose of the law. [58]

Lower court cases

A number of cases which raised the bill of attainder issue did not reach or have not reached the Supreme Court, but were considered by lower courts.

In 1990, in the wake of the Exxon Valdez oil spill, Congress enacted the Oil Pollution Act to consolidate various oil spill and oil pollution statutes into a single unified law, and to provide for a statutory regime for handling oil spill cleanup. This law was challenged as a bill of attainder by the shipping division of ExxonMobil. [59] [60]

In 2003, the United States Court of Appeals for the District of Columbia Circuit struck down the Elizabeth Morgan Act as a bill of attainder. [61]

After the United States House of Representatives passed a resolution in late 2009 barring the community organising group Association of Community Organizations for Reform Now (ACORN) from receiving federal funding, the group sued the U.S. government. [62] Another, broader bill, the Defund ACORN Act, was enacted by Congress later that year. In March 2010, a federal district court declared the funding ban an unconstitutional bill of attainder. [63] On 13 August 2010, the United States Court of Appeals for the Second Circuit reversed and remanded on the grounds that only 10 percent of ACORN's funding was federal and that did not constitute "punishment". [64] [65]

Possible cases

There is argument over whether the Palm Sunday Compromise in the Terri Schiavo case was a bill of attainder. [66] [67] [68]

Some analysts considered a proposed Congressional bill to confiscate 90 percent of the bonus money paid to executives at federally rescued investment bank American International Group a bill of attainder, although disagreement exists on the issue. The bill was not passed by Congress. [69] [70]

In 2009, the city of Portland, Oregon's attempt to prosecute more severely those on a "secret list" of 350 individuals deemed by police to have committed "liveability crimes" in certain neighbourhoods was challenged as an unconstitutional bill of attainder. [71] [72]

In 2011, the House voted to defund Planned Parenthood. Democratic Representative Jerry Nadler called that vote a bill of attainder, saying it was unconstitutional as such because the legislation was targeting a specific group. [73]

In January 2017, the House reinstated the Holman Rule, a procedural rule that enables lawmakers to reduce the pay of an individual federal worker down to $1. [74] It was once again removed at the beginning of the 116th United States Congress in January 2019, after Democrats had taken control of the chamber. [75]

See also

Notes

  1. The word "attainder" does not, in fact, derive from a Latin expression meaning "tainted", but from a French expression meaning "to attain", in the sense of condemn. [26]

Related Research Articles

<span class="mw-page-title-main">Article Three of the United States Constitution</span> Portion of the US Constitution regarding the judicial branch

Article Three of the United States Constitution establishes the judicial branch of the U.S. federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress. Article Three empowers the courts to handle cases or controversies arising under federal law, as well as other enumerated areas. Article Three also defines treason.

<span class="mw-page-title-main">Australia Act 1986</span> Legislation by the UK and Australian Parliaments

The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom. In Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. They were enacted using legislative powers conferred by enabling Acts passed by the parliaments of every Australian state. The Acts came into effect simultaneously, on 3 March 1986.

In English criminal law, attainder was the metaphorical "stain" or "corruption of blood" which arose from being condemned for a serious capital crime. It entailed losing not only one's life, property and hereditary titles, but typically also the right to pass them on to one's heirs. Both men and women condemned of capital crimes could be attainted.

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.

<i>Kable v Director of Public Prosecutions (NSW)</i> Judgement of the High Court of Australia

Kable v DPP, is a decision of the High Court of Australia. It is a significant case in Australian Constitutional law.

The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.

<span class="mw-page-title-main">Australian legal system</span> Codified and uncodified forms of law of Australia

The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are substantially derived from that of the English legal system. Australia is a common-law jurisdiction, its court system having originated in the common law system of English law. The country's common law is the same across the states and territories.

The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation, and the judiciary interprets the laws; all independently of each other. The term, and its occurrence in Australia, is due to the text and structure of the Australian Constitution, which derives its influences from democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. However, due to the conventions of the Westminster system, a strict separation of powers is not always evident in the Australian political system, with little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature; a fusion.

Section 109 of the Constitution of Australia is the part of the Constitution of Australia that deals with the legislative inconsistency between federal and state laws, and declares that valid federal laws override inconsistent state laws, to the extent of the inconsistency. Section 109 is analogous to the Supremacy Clause in the United States Constitution and the paramountcy doctrine in Canadian constitutional jurisprudence, and the jurisprudence in one jurisdiction is considered persuasive in the others.

The reserved powers doctrine was a principle used by the inaugural High Court of Australia in the interpretation of the Constitution of Australia, that emphasised the context of the Constitution, drawing on principles of federalism, what the Court saw as the compact between the newly formed Commonwealth and the former colonies, particularly the compromises that informed the text of the constitution. The doctrine involved a restrictive approach to the interpretation of the specific powers of the Federal Parliament to preserve the powers that were intended to be left to the States. The doctrine was challenged by the new appointments to the Court in 1906 and was ultimately abandoned by the High Court in 1920 in the Engineers' Case, replaced by an approach to interpretation that emphasised the text rather than the context of the Constitution.

In Australian constitutional law, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in Chapter III of the Australian Constitution.

Section 51(vi) of the Australian Constitution, commonly called the defence power, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to the defence of Australia and the control of the defence forces. The High Court has adopted a different approach to the interpretation of the defence power, which emphasises the purpose of the legislation, primarily the defence of Australia, rather than the subject matter.

<i>Bank of New South Wales v Commonwealth</i> Judgement of the High Court of Australia

Bank of New South Wales v The Commonwealth, also known as the Bank Nationalisation Case, is a decision of the High Court of Australia that dealt with the constitutional requirements for property to be acquired on "just terms", and for interstate trade and commerce to be free. The High Court applied an 'individual rights' theory to the freedom of interstate trade and commerce that lasted until 1988, when it was overturned in favour a 'free trade' interpretation in Cole v Whitfield.

Calder v. Bull, 3 U.S. 386 (1798), is a United States Supreme Court case in which the Court decided four important points of constitutional law.

<i>DEmden v Pedder</i>

D'Emden v Pedder was a significant Australian court case decided in the High Court of Australia on 26 April 1904. It directly concerned the question of whether salary receipts of federal government employees were subject to state stamp duty, but it touched on the broader issue within Australian constitutional law of the degree to which the two levels of Australian government were subject to each other's laws.

<i>Roche v Kronheimer</i>

Roche v Kronheimer is an early case in which the High Court considered the defence power and external affairs power of the Commonwealth under the Australian Constitution and the Parliament's power to delegate certain legislative powers to the Executive. The Court concluded that Federal Parliament had the power to implement the Treaty of Versailles under the defence power and to delegate that implementation to the Governor-General. Higgins J also saw it as a valid exercise of the external affair power.

<i>Deakin v Webb</i>

Deakin v Webb was one of a series of cases concerning whether the States could tax the income of a Commonwealth officer. The High Court of Australia overruled a decision of the Supreme Court of Victoria, holding that the States could not tax the income of a Commonwealth officer. This resulted in conflict with the Privy Council that was ultimately resolved by the passage of Commonwealth law in 1907 to permit the States to tax the income of a Commonwealth officer. The constitutional foundation of the decision was overturned by the subsequent decision of the High Court in the 1920 Engineers' Case.

<i>Baxter v Commissioners of Taxation</i> (NSW) Australian tax case

Baxter v Commissioners of Taxation (NSW), and Flint v Webb, were the last of a series of cases concerning whether the States could tax the income of a Commonwealth officer which had resulted in conflict between the High Court and the Privy Council. The two cases were heard together, however two separate judgments were issued with Baxter v Commissioners of Taxation (NSW) addressing the substantive issues, and Flint v Webb addressing the applications for a certificate to appeal to the Privy Council. The judgement of Griffith CJ in Flint v Webb suggested two ways in which that conflict could be resolved. Both suggestions were adopted by the Commonwealth Parliament by legislation that permitted the States to tax the income of a Commonwealth officer, and gave the High Court exclusive appellate jurisdiction on such constitutional questions. The constitutional foundation of the decision was overturned by the subsequent decision of the High Court in the 1920 Engineers' case.

<span class="mw-page-title-main">Constitution Act 1902</span> Australian legislation

The Constitution Act 1902 is the founding document of the State of New South Wales, and sets out many of the basic principles of the Government of New South Wales. This act created the foundation of the Executive, Legislative and Judicial branches of the Government of New South Wales. Most of the Constitution can be amended through ordinary Acts of Parliament, however some sections can only be amended through a referendum of NSW voters.

Judicial independence is regarded as one of the foundation values of the Australian legal system, such that the High Court held in 2004 that a court capable of exercising federal judicial power must be, and must appear to be, an independent and impartial tribunal. Former Chief Justice Gerard Brennan described judicial independence as existing "to serve and protect not the governors but the governed", albeit one that "rests on the calibre and the character of the judges themselves". Despite general agreement as to its importance and common acceptance of some elements, there is no agreement as to each of the elements of judicial independence.

References

  1. Zechariah Chafee, Jr., Three Human Rights in the Constitution of 1787 at 97 (Univ. of Kans. Press, 1956)
  2. 1 2 David Plant. "British Civil Wars, Commonwealth & Protectorate 1638–1660: Impeachment & Attainder". British Civil Wars Project. Archived from the original on 4 April 2004. Retrieved 28 July 2016.
  3. "Bills of Attainder and Ex Post Facto Laws". Justia Law. Retrieved 25 May 2020.
  4. https://fas.org/sgp/crs/misc/R40826.pdf [ bare URL PDF ]
  5. "Nonattainder as a Liberty Interest", Wisconsin Law Review, 2010, p. 1229.
  6. New South Wales v Commonwealth [1915] HCA 17 , (1915) 20 CLR 54 , High Court (Australia).
  7. Australian Communist Party v Commonwealth [1951] HCA 5 , (1951) 83 CLR 1 , High Court (Australia).
  8. R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 , (1956) 94 CLR 254, High Court (Australia).
  9. Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36 , (1909) 8 CLR 330 , High Court (Australia).
  10. Polyukhovich v Commonwealth (War Crimes Act case) [1991] HCA 32 , (1991) 172 CLR 501, High Court (Australia).
  11. Chu Kheng Lim v Minister of Immigration [1992] HCA 64 , (1992) 176 CLR 1, High Court (Australia).
  12. Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister of Industrial Relations (1986) 7 NSWLR 372, Court of Appeal (NSW, Australia).
  13. City of Collingwood v Victoria [No2] [1994] VicRp 46 , [1994] 1 VR 652, Supreme Court (Vic,Australia).
  14. Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 , (1996) 189 CLR 51, High Court (Australia).
  15. Kirk v Industrial Court of NSW [2010] HCA 1 , (2010) 239 CLR 531, High Court (Australia).
  16. International Finance Trust Company Ltd v New South Wales Crime Commission (Criminal Assets Recovery case) [2009] HCA 49 , (2009) 240 CLR 319, High Court (Australia).
  17. Wynbyne v Marshall [1997] NTSC 120 , (1997) 99 A Crim R 1, Supreme Court (NT,Australia).
  18. R v Moffatt [1998] 2 VR 229, Court of Appeal (Vic, Australia).
  19. Nicholas v The Queen [1998] HCA 9 , (1998) 193 CLR 173, High Court (Australia).
  20. Fardon v Attorney-General (QLD) [1998] HCA 46 , (2004) 223 CLR 575, High Court (Australia).
  21. Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 , (2013) 252 CLR 38, High Court (Australia).
  22. Julian Knight v The State of Victoria [2017] HCA 29 , High Court (Australia)
  23. Craig William John Minogue v The State of Victoria [2019] HCA 31 , High Court (Australia)
  24. Canada: 32nd Parliament, 2nd Session, 14 May 1984 "Debates of the House of Commons: "An Act respecting the execution of Clifford Robert Olson". Hansard. p. 3683. Retrieved 23 November 2015.
  25. Canada: 35th Parliament, 1st Session, 28 November 1995 "Debates of the Senate: "Bill Concerning Karla Homolka". Hansard. p. 236. Retrieved 23 November 2014.
  26. "Home : Oxford English Dictionary".
  27. "Richard III: The truth may yet be discovered". The Independent. Retrieved 13 October 2018.
  28. Kendall, Paul Murray (1956). Richard the Third . W. W. Norton. ISBN   0-393-00785-5.
  29. "House of Commons Journal Volume 8: 15 May 1660". British History Online. Retrieved 28 July 2016.
  30. "House of Commons Journal Volume 8: 4 December 1660". British History Online. Retrieved 28 July 2016.
  31. "Index: A–J". Journal of the House of Commons. Volume 8. Retrieved 28 July 2016 via British History Online.
  32. Macaulay (1855). History of England from the Accession of James the Second. London. pp. 216–220.
  33. Davis, T. O. (1843). The Irish Parliament of James II.
  34. Millar, Paul; Goldenberg, Sheldon (1998). "Explaining Child Custody Determinations in Canada". Canadian Journal of Law and Society. 13 (1): 209–225. doi:10.1017/S0829320100005792. S2CID   147117606.
  35. Chafee, Zechariah Jr. (1956). Three Human Rights in the Constitution of 1787 at 97. University of Kansas Press.
  36. Crossland, John (1 January 2006). "Churchill: execute Hitler without trial". The Sunday Times . Retrieved 12 February 2021.
  37. Holocaust Education and Archive Research Team. "The 1st Nuremberg Trial". Holocaust Research Project.
  38. "Bills of Attainder and Ex Post Facto Laws". Justia Law. Retrieved 25 May 2020.
  39. "Bills of Attainder: The Constitutional Implications of Congress Legislating Narrowly" (PDF).
  40. Texas Constitution of 1876, Article 1 (entitled Bill of Rights); Section 16, entitled Bills of Attainder; Ex Post Facto or Retroactive Laws: Impairing Obligation of Contracts: "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made".
  41. Reynolds, Jacob (2005). "The Rule of Law and the Origins of the Bill of Attainder Clause". St. Thomas Law Review. 18 (1): 177.
  42. "Nonattainder as a Liberty Interest". Wisconsin Law Review: 1229. 2010.
  43. Ely, John H. On Constitutional Ground. Princeton, N.J.: Princeton University Press, 1996, p. 98.
  44. Nabers, Deak. Victory of Law: The Fourteenth Amendment, the Civil War, and American Literature, 1852–1867. Baltimore, Md.: Johns Hopkins University Press, 2006, p. 30.
  45. 1 2 Johnson, Theodore. The Second Amendment Controversy Explained. 2d ed. Indianapolis: iUniverse, 2002, p. 334.
  46. "Beyond Process: A Substantive Rationale for the Bill of Attainder Clause". Virginia Law Review. 70:475 (April 1984), pp. 481-483.
  47. Cushman, Robert Fairchild and Koniak, Susan P. Cases in Civil Liberties. Englewood Cliffs, N.J.: Prentice Hall, 1994, p. 4.
  48. The Heritage Guide to the Constitution. Washington, D.C.: Heritage Foundation, 2005, p. 155.
  49. 1 2 Welsh, Jane. "The Bill of Attainder Clause: An Unqualified Guarantee of Process". Brooklyn Law Review. 50:77 (Fall 1983), p. 97.
  50. Wiecek, William M. History of the Supreme Court of the United States: The Birth of the Modern Constitution: The United States Supreme Court, 1941–1953. New York: Macmillan, 2006, p. 548.
  51. "Beyond Process: A Substantive Rationale for the Bill of Attainder Clause", Virginia Law Review, April 1984, p. 485.
  52. Rabinowitz, Victor. Unrepentant Leftist: A Lawyer's Memoir. Urbana, Illinois: University of Illinois Press, 1996, p. 56.
  53. Welsh, "The Bill of Attainder Clause: An Unqualified Guarantee of Process", Brooklyn Law Review, Fall 1983, p. 98.
  54. Ripley, Anthony. "U.S. Judge Rules Nixon Documents Belong to Nation", The New York Times, 1 February 1975.
  55. 1 2 Stark, Jack. Prohibited Government Acts: A Reference Guide to the United States Constitution. Westport, Connecticut: Praeger, 2002, pp. 79–80.
  56. Stark, Prohibited Government Acts: A Reference Guide to the United States Constitution, 2002, p. 74.
  57. 1 2 Stark, Prohibited Government Acts: A Reference Guide to the United States Constitution, 2002, p. 75.
  58. Stark, Prohibited Government Acts: A Reference Guide to the United States Constitution, 2002, p. 30.
  59. SeaRiver Maritime Fin. Holdings, Inc. v. Pena, 952 F.Supp. 9, D.D.C. 199.
  60. Carringan, Alison C. "The Bill of Attainder Clause: A New Weapon to Challenge the Oil Pollution Act of 1990", Boston College Environmental Affairs Law Review 28:119 (2000).
  61. Doris R. Foretich, et al. v. United States, 351 F.3d 1198 (D.C.App. 2003); Leonning, Carol D. "Appeals Court Rules Against Morgan Law", Washington Post 17 December 2003.
  62. Fahim, Kareem (12 November 2009). "Acorn Sues Over Funding Vote in House". The New York Times. Retrieved 14 November 2010.
  63. Farrell, Michael B. "Funding Gone, Scandal-Plagued ACORN to Disband". The Christian Science Monitor, 23 March 2010.
  64. "Federal Court Rules Against Acorn". Associated Press: 14 August 2010.
  65. "ACORN v. United States". Harvard Law Review. 20 January 2011. Retrieved 23 July 2015.
  66. Calabresi, Steven G. "The Terri Schiavo Case: In Defense of the Special Law Enacted by Congress and President Bush", Northwestern University Law Review 100:1 (2006).
  67. McGough, Michael. "Terri's Law: Is It Constitutional?" Pittsburgh Post-Gazette, 22 March 2005.
  68. Marks, Jr., Thomas C. "Terri Schiavo and the Law", Albany Law Review 67:843 (2004).
  69. Jones, Ashby. "Would an AIG-Bonus Tax Pass Constitutional Muster? (A Tribe Calls 'Yes!')" Wall Street Journal, 18 March 2009.
  70. Clarke, Connor (16 March 2009). "No Bill of Attainder... Shall Be Passed". The Atlantic.
  71. "Secret List on Trial". Portland Mercury.
  72. Green, Aimee (8 April 2009). "Judge declines to rule on constitutionality of Portland Police Bureau's secret list". The Oregonian/OregonLive. Retrieved 21 August 2020.
  73. Nocera, David Nather and Kate (18 February 2011). "House votes to defund Planned Parenthood". Politico . Retrieved 23 July 2015.
  74. "The Holman Rule Once Allowed Congress to Purge Leftists From Government Agencies Now It's Back".
  75. Bur, Jessie (3 January 2019). "House passes package dismantling fed-targeting rule". Federal Times. Retrieved 4 January 2019.

British tradition

American tradition