AUTREFOIS ATTAINT - The Law Mind Legal Dictionary

AUTREFOIS ATTAINTAuthored

The Law Mind • 947 words

Definition

A common law plea in bar to a criminal indictment, by which a defendant asserts that he has already been attainted — condemned and declared civilly dead — for a prior felony or treason, and therefore cannot be prosecuted for a subsequent felony while that attainder remains in force. The logic was that attainder rendered a person dead in law: having already forfeited all civil existence, the attainted person could neither stand trial nor be subjected to further criminal judgment on a new charge.

The plea belongs to the family of double jeopardy defenses alongside autrefois acquit and autrefois convict, but it rests on a distinct and archaic foundation. It does not assert a prior prosecution for the same offense. It asserts that the defendant's legal personhood has already been extinguished, making any further criminal proceeding a legal nullity.

Common Confusion

Autrefois attaint is routinely conflated with autrefois acquit and autrefois convict, the two double jeopardy pleas that survive in modern practice. The confusion is understandable — all three are Norman French "autrefois" pleas, all are pleas in bar to a second prosecution, and all appear together in Blackstone and in the historical dictionaries. The critical distinction is that autrefois acquit and autrefois convict require a prior prosecution for the same or a substantially identical offense. Autrefois attaint requires no such identity of offense; it operates on the theory that prior attainder for any felony bars prosecution for any subsequent felony. A second source of confusion is conflating attainder itself with conviction. Attainder was the legal consequence that followed judgment of death for treason or felony — it included corruption of blood and civil death — and was not synonymous with conviction alone.

Why It Matters in Research

Autrefois attaint is an extinct plea in virtually all modern jurisdictions. Researchers encountering it in primary sources should treat it as a marker of historical English criminal procedure rather than living doctrine.

The plea's practical abolition came early. The English statute 7 & 8 Geo. IV, c. 28, § 4 (1827) stripped attainder of its bar to subsequent indictment except for the same offense, effectively collapsing autrefois attaint into autrefois convict and rendering the independent plea superfluous. American jurisdictions largely never adopted attainder as an operative criminal law concept — the U.S. Constitution expressly prohibits bills of attainder (Art. I, §§ 9 and 10) — which foreclosed the factual predicate for the plea entirely.

Researchers working in pre-nineteenth-century English criminal records, Old Bailey proceedings, or early American territorial courts may encounter the plea in pleading records. Its presence signals a defendant who had previously been condemned and not yet executed, pardoned, or had the attainder reversed. The plea would appear at arraignment, before the defendant was required to plead to the merits.

The plea also appears in treatises discussing the structure of pleas in bar, where it serves as the limiting example illustrating how far the common law extended protection from re-prosecution. Its inclusion in those discussions should not be read as evidence that the plea was commonly raised; it was largely theoretical even before statutory abolition.

For researchers tracing the development of double jeopardy doctrine, autrefois attaint is the ancestor that illuminates how broadly the common law originally conceived the bar against multiple prosecution — a conception rooted not in fairness to the defendant as a living legal subject but in the brutal logic of civil death.

Historical Dictionary Support

The four source dictionaries converge on the core definition but differ in emphasis and utility.

Rapalje & Lawrence is the most practically useful entry, explicitly noting the abolition of the plea by 7 & 8 Geo. IV, c. 28, § 4 and concluding that the plea "is now obsolete." That editorial judgment — rare in a reference dictionary — reflects sound historical judgment and is the piece most likely to be overlooked by researchers relying on Black's or Bouvier's alone.

Black's Law Dictionary offers the foundational statement with a citation to Blackstone (4 Bl. Comm. 336), which remains the primary analytical authority for the plea's common law operation.

Burrill's Law Dictionary closely tracks Blackstone and adds a reference to Stephen's Commentaries (4 Steph. Com. 405-6), useful for researchers seeking a nineteenth-century synthesis of the earlier doctrine.

Bouvier's Law Dictionary presents a fragment that reads as an excerpt from a longer entry on autrefois acquit rather than a standalone treatment of autrefois attaint. The passage discusses the evidentiary standard for double jeopardy pleas generally — whether evidence sufficient for a first conviction would support the second indictment — which is the test for autrefois acquit, not the logic of autrefois attaint. Researchers should use Bouvier's with caution on this entry; the fragment is incomplete and potentially miscontextualized.

None of the historical dictionaries address the American constitutional dimension, which is not a gap so much as a reflection of the plea's irrelevance to American practice from the founding forward.

Jurisdictional Note

The plea has no operative existence in any American jurisdiction. The constitutional prohibition on bills of attainder eliminates the predicate condition. In England and Wales, statutory reform beginning in 1827 and completed by the Forfeiture Act 1870 dismantled attainder as a legal status, making the plea formally as well as practically defunct. Researchers should not expect to find the plea raised in any Anglo-American court after the mid-nineteenth century.

Encyclopedia Cross-Reference

See Law Mind Encyclopedia: Double Jeopardy; Attainder; Pleas in Bar.

AUTREFOIS ATTAINTmain

Black's Law Dictionary • 1891

In criminal law. Formerly attainted. A plea that the defendant has already been attainted for one felony, and therefore cannot be criminally prosecuted for another. 4 Bl. Comm. 336. 219; 32 N. Y. 224.

AUTREFOIS ATTAINTmain

Bouvier's Law Dictionary • 1928

evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first; 1 Bish. Cr. L. 1012-1047; 2-Leach 708; 1 B. & Β. 473; 3 B. & C. 502; 2 Conn. 54; 12 Pick. 504; 13 La. Ann. 243; 45 id. 936. Thus, if a prisoner indicted for burglar- iously breaking and entering a house and stealing therein certain goods of A is ac- quitted, he cannot plead this acquittal in bar of a subsequent indictment for bur- glariously breaking and entering the same house and stealing other goods of B. Per Buller, J., 2 Leach 718, 719; 21 Tex, App. 406. The plea of autrefois acquit involves ques- tions of mixed law and fact, and is properly referred to the jury when not demurrable on its face; 45 La. Ann. 936. The plea in the celebrated case of Regina v. Bird, 5 Cox, Cr. Cas. 12; Templ. & M. 438; 2 Den. Cr. Cas. 224, is of peculiar value as a precedent. See Train & H. Prec. Ind. 481; 32 Cent. Law J. 406. AUTREFOIS ATTAINT (Fr. for- merly attainted). In Criminal Pleading. A plea that the defendant has been attainted for one felony, and cannot, therefore, be criminally prosecuted for another; 4 Bla. Com. 336; 12 Mod. 109; R. & R. 268. This is not a good plea in bar in the United States, nor in England in modern law; 1 Bish. Cr. L. § 692; 3 Chit. Cr. L. 464; Stat. 7 & 8 Geo. IV. c. 28, § 4. See Mart. & Y. 122; 10 Ala. 475; 1 Bay 334. AUTREFOIS CONVICT (Fr. for- merly convicted). In Criminal Plead- ing. A plea made by a defendant indicted for a crime or misdemeanor, that he has formerly been tried and convicted of the same. This plea is substantially the same in form as the plea of autrefois acquit, and is grounded on the same principle, viz.: that no man's life or liberty shall be twice put in jeopardy for the same offence; Whart. Cr. Pl. § 435; 1 Bish. Cr. Law SS 651-680; 1 Green, N. J. 362; 1 McLean 429; 7 Ala. 610; 2 Swan 493; 43 Wis. 395. A plea of autrefois convict, which shows that the judgment on the former indict- ment has been reversed for error in the judgment, is not a good bar to another indictment for the same offence; Cooley's Const. Lim. 326-328; 1 Ariz. 56; 10 Mart. 549; 64 Cal. 260; 112 N. C. 857; otherwise, if the reversal were not for insufficiency in the indictment nor for error at the trial; but for matter subsequent, and dehors both the conviction and the judgment; 25 N. Y. 407; 26 id. 167. A prior conviction by judgment before a justice of the peace, and a performance of the sentence pur- suant to the judgment, constitute a bar to an indictment for the same offence, al- though the complaint on which the justice proceeded was so defective that his judg- ment might have been reversed for error; 3 Metc. Mass. 328; 8 id. 532. Where a person has been convicted for failing to support his wife and being disorderly, it is no bar to a second prosecution on a similar charge, where at the time of the second offence he was not in prison on account of his first sentence; 126 N. Y. 647. Where one has been convicted of an assault but discharged without sentence on giving security for good behavior, he cannot after- wards be convicted on an indictment for the same assault; 24 Q. B. Div. 423. See

AUTREFOIS ATTAINTmain

Rapalje & Lawrence • 1888

- Formerly attainted. A plea in bar to a prosecution. Formerly if a man was attainted of treason or felony he could not be indicted for another felony while the attainder remained in force, because he was considered dead in law. But by the Stat. 7 and 8 Geo. IV. c. 28, § 4, attainder is no bar to an indictment, except for the same offence, and in effect the plea of autrefois attaint is now obsolete. Archb. Cr. Pl. 143.

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