Definition
ATTAINT (historical). An obsolete English legal term with two distinct but related meanings in the law:
1. ATTAINT AS A WRIT (procedure). In old English practice, a writ that lay to inquire whether a jury of twelve men had given a false verdict, for the purpose of reversing the judgment that followed from it. The inquiry was conducted by a grand assize or jury of twenty-four persons — a larger body convened specifically to evaluate the integrity of the original jury's finding. If the twenty-four found the verdict false, the original judgment was reversed, and the twelve jurors were themselves subject to penalties. The writ thus functioned as a mechanism for reviewing jury verdicts, predating modern appellate review.
2. ATTAINT AS A CONDITION (status). Separately, and more broadly in criminal law, attaint referred to the legal condition — also expressed through the noun attainder — resulting from a sentence of death or outlawry for treason or felony. A person so attainted was considered civilly dead: stripped of property through forfeiture or escheat, incapable of inheriting or transmitting property (corruption of blood), and excluded from the courts as a suitor. This is the sense most closely linked to bills of attainder and the constitutional prohibition against them.
Though sharing a root and sometimes used interchangeably in older sources, the procedural writ (meaning 1) and the status of civil death (meaning 2) are distinct concepts. Context determines which meaning applies.
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Common Language
Modern common usage (Wiktionary): A blow or strike, especially in jousting; a wound on the leg of a horse caused by a blow; also, the giving of a false verdict by a jury.
Historical common usage (Webster's 1913): To find guilty; to convict — said especially of a jury found to have given a false verdict. Also, to subject a person to the legal condition resulting from a sentence of death or outlawry.
The jousting sense — a physical blow or strike — has no connection whatsoever to the legal term and will not appear in legal sources. The Webster's 1913 entry correctly captures both legal senses but frames them as active verbs (to attaint a jury; to attaint a person), while legal dictionaries treat the term primarily as a noun (the writ; the condition). Researchers encountering "attainted" in historical documents should determine from context whether a jury's verdict or a person's civil status is at issue — these carry entirely different procedural and substantive consequences.
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Common Confusion
ATTAINT vs. ATTAINDER. These terms are closely related and frequently conflated. Attainder is the broader noun describing the full legal consequence of conviction for a capital offense — corruption of blood, forfeiture, civil death. Attaint, in its writ sense, is the procedural device targeting a false jury verdict and has nothing to do with attainder's civil-death consequences. In its status sense, attaint overlaps substantially with attainder, and some historical sources use them as synonyms. Black's and Bouvier's both treat attaint primarily as the jury writ, reserving attainder for the criminal-status doctrine. Researchers should not assume the two terms are interchangeable without checking context and source.
ATTAINT vs. BILL OF ATTAINDER. A bill of attainder is a legislative act, not a judicial one, that imposes punishment — including the attainted condition — without trial. The writ of attaint is a judicial instrument. The U.S. Constitution prohibits bills of attainder (Art. I, §§ 9–10); the writ of attaint, as a common-law procedural device, became obsolete independently of constitutional prohibition.
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Why It Matters in Research
Attaint is a term researchers will encounter in two distinct bodies of material — early English common-law procedural sources and criminal-law materials dealing with capital punishment and forfeiture — and the meaning differs substantially between them. Conflating the two will produce errors in both contexts.
For the writ of attaint: This is a pre-modern mechanism for reviewing jury verdicts and has no surviving procedural equivalent. It appears prominently in Bracton, Britton, Fitzherbert's Natura Brevium, and Blackstone's Commentaries (Book III). Researchers working in early English legal history or tracing the origins of appellate review will encounter it there. The writ was effectively obsolete well before abolition; understanding it contextualizes how early common law handled the problem of unreliable jury findings.
For attaint as status: This meaning saturates English criminal-law sources from the medieval period through the nineteenth century. In England, the Forfeiture Act of 1870 (33 & 34 Vict. c. 23) abolished attainder upon conviction — corruption of blood, forfeiture, and escheat — as Bouvier's notes. Researchers working with English criminal records before that date must account for the civil consequences of conviction that extended beyond the sentence itself.
In American sources, attaint in the status sense is relevant primarily through its constitutional negative: the prohibition on bills of attainder in Article I. The doctrine had little practical application in American courts as an affirmative legal condition. Bouvier's correctly observes that "the doctrine of attainder is now scarcely known" in the United States. Researchers should not expect to find attaint operating as an active legal status in American cases.
Historical Law Mind corpus materials will show attaint appearing in English ecclesiastical and common-law sources, in colonial American legal writing, and in constitutional commentary. The term drops out of active American legal usage rapidly after the Founding era except in constitutional analysis of the bills-of-attainder clause.
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Historical Dictionary Support
The four source dictionaries present a consistent account of the writ of attaint but vary in how much attention they give the status meaning.
Black's (both editions) and Burrill define attaint almost exclusively as the jury writ, citing Blackstone's Commentaries (3 Bl. Comm. 402) and Bracton (fol. 288b–292) as primary sources. Both editions describe the twenty-four-person grand assize as the mechanism of inquiry. This is the narrower, procedural definition.
Bouvier's is the outlier in useful ways: it addresses both the writ and the attainted condition as a criminal-law status, noting the consequences for the convicted person — inability to sue, corruption of blood, forfeiture, escheat — and flags the English statutory abolition in 1870. Bouvier's also acknowledges that American law had largely left the doctrine behind by the time of his writing. This makes Bouvier's the more complete source for researchers interested in attaint's criminal-law dimensions.
Burrill provides the most thorough treatment of the writ's procedure, noting the role of the grand assize of twenty-four and describing what followed from a finding of false verdict. His entry is grounded in the same primary sources as the others but with greater procedural detail.
None of the historical dictionaries adequately bridges the gap between the writ meaning and the status meaning or explains how the two uses developed from the same root concept. Researchers relying solely on Black's may miss the status meaning entirely. The constitutional dimension — bills of attainder — is not addressed in any of the four entries, reflecting the assumption in English-focused dictionaries that the constitutional prohibition belongs to a separate entry (see ATTAINDER).
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Jurisdictional Note
The writ of attaint was an English common-law device that did not transplant to American practice. American jurisdictions inherited the vocabulary of attainder primarily through constitutional prohibition rather than through active use of the doctrine. English law abolished the civil consequences of attainder by statute in 1870; no equivalent abolition was necessary in most American states because the condition had no established footing.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Attainder (for the criminal-law status and its consequences); Bills of Attainder (for the constitutional prohibition and American doctrine); Jury Trial — Historical Development (for the writ of attaint as an early form of verdict review).
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