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will render his guilt uncertain, and thereupon the present conviction may be quashed; he may obtain a pardon, or be allowed the benefit of clergy; both which suppose some latent sparks of merit which plead in extenuation of his But when judgment is once pronounced, both law and fact conspire to prove him completely guilty; and there is not the remotest possibility left of any thing to be said in his favour. Upon judgment, therefore, of death, and not before, the attainder of a criminal commences; or upon such circumstances as are equivalent to judgment of death; as judgment of outlawry on a capital crime pronounced for absconding or fleeing from justice, which tacitly confesses the guilt. And therefore, either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted.
The consequences of attainder are forfeiture and corruption of blood.
1. Forfeiture is twofold, of real and personal estates. First, as to real estates. By attainder in high treason(n) a man forfeits to the king all his lands and tenements of inheritance, whether fee-simple or fee-tail, and all his rights of entry on lands or tenements which he had at the time of the offence committed, or at any time afterwards, to be forever vested in the crown; and also the profits of all lands and tenements which he had in his own right for life or years, so long as such interest shall subsist. This forfeiture relates backwards to the time of the treason committed, so as to avoid all intermediate sales and encumbrances,(0) but not those before the fact; and therefore a wife's jointure is not forfeitable for the treason of her husband, because settled upon her previous to the treason committed. But her dower *is forfeited, by [*382 the express provision of statute 5 & 6 Edw. VI. c. 11. And yet the husband shall be tenant by the curtesy of the wife's lands if the wife be attainted of treason, (p) for that is not prohibited by the statute. But, though after attainder the forfeiture relates back to the time of the treason committed, yet it does not take effect unless an attainder be had, of which it is one of the fruits; and therefore if a traitor dies before judgment pronounced, or is killed in open rebellion, or is hanged by martial law, it works no forfeiture of his lands, for he never was attainted of treason. (1) But if the chief justice of the king's bench (the supreme coroner of all England) in person, upon the view of the body of one killed in open rebellion, records it, and returns the record into his own court, both lands and goods shall be forfeited.(r)
The natural justice of forfeiture or confiscation of property for treason(s) is founded on this consideration: that he who hath thus violated the fundamental principles of government, and broken his part of the original contract between king and people, hath abandoned his connections with society, and hath no longer any right to those advantages which before belonged to him purely as a member of the community; among which social advantages the right of transferring or transmitting property to others is one of the chief. Such forfeitures, moreover, whereby his posterity must suffer as well as himself, will help to restrain a man, not only by the sense of his duty and dread of personal punishment, but also by his passions and natural affections, and will interest every dependant and relation he has, to keep him from offending, according to that beautiful sentiment of Cicero,(t) "nec vero me fugit quam sit acerbum, parentum scelera filiorum pœnis lui; sed hoc præclare legibus comparatum est, ut caritas liberorum amiciores parentes reipublicæ redderet." And therefore Aulus Cascellius, a Roman lawyer in the time of the triumvirate, used to boast that he had two reasons for *despising the power of the tyrants, his old age and his want of children; for children are pledges to the prince of the father's [*383 obedience.(t) Yet many nations have thought that this posthumous punishment savours of hardship to the innocent, especially for crimes that do not strike at the very root and foundation of society, as treason against the government expressly does. And therefore, though confiscations were very frequent in the times of the earlier emperors, yet Arcadius and Honorius, in every other
(*) Co. Litt. 392. 3 Inst. 319. 1 Hal. P. C. 240. 2 Hawk.
R. C. 448.
(•) 3 Inst. 211.
(P) 1 Hal. P. C. 359.
(a) Co. Litt. 13.
(*) 4 Rep. 57.
() See book i. page 259.
ins'ance but that of treason, thought it more just, "ibi esse pœnam, ubi noxa est," and ordered that "peccata suos teneant auctores, nec ulterius progrediatur metus, quam reperiatur delictum :”(u) and Justinian also made a law to restrain the punishment of relations,(v) which directs the forfeiture to go, except in the case of crimen majestatis, to the next of kin to the delinquent. On the other hand, the Macedonian law extended even the capital punishment of treason, not only to the children, but to all the relations, of the delinquent :(w) and of course their estates must be also forfeited, as no man was left to inherit them. And in Germany, by the famous golden bulle,(r) (copied almost verbatim from Justinian's code,)(y) the lives of the sons of such as conspire to kill an elector are spared, as it is expressed, by the emperor's particular bounty. But they are deprived of all their effects and rights of succession, and are rendered incapable of any honour, ecclesiastical or civil: "to the end that, being always poor and necessitous, they may forever be accompanied by the infamy of their father; may languish in continual indigence; and may find (says this merciless edict) their punishment in living, and their relief in dying."
With us in England, forfeiture of lands and tenements to the crown for treason is by no means derived from the feodal policy, (as has been already observed,)(2) but was antecedent to the establishment of that system in this *384] island, *being transmitted from our Saxon ancestors,(a) and forming a part of the antient Scandinavian constitution.(b) But in certain treasons relating to the coin (which, as we formerly observed, seem rather a species of the crimen falsi than the crimen læsæ majestatis) it is provided by some of the modern statutes(c) which constitute the offence, that it shall work no forfeiture of lands, save only for the life of the offender; and, by all, that it shall not deprive the wife of her dower.(d) And, in order to abolish such hereditary punishment entirely, it was enacted, by statute 7 Anne, c. 21, that after the decease of the late pretender no attainder for treason should extend to the disinheriting of any heir, nor to the prejudice of any person other than the traitor himself; by which the law of forfeitures for high treason would by this time have been at an end, had not a subsequent statute intervened to give them a longer duration. The history of this matter is somewhat singular, and worthy observation. At the time of the union, the crime of treason in Scotland was, by the Scots law, in many respects different from that of treason in England, and particularly in its consequence of forfeitures of entailed estates, which was more peculiarly English; yet it seemed necessary that a crime so nearly affect ing government should, both in its essence and consequences, be put on the same footing in both parts of the united kingdoms. In new-modelling these laws, the Scotch nation and the English house of commons struggled hard, partly to maintain, and partly to acquire, a total immunity from forfeiture and corruption of blood, which the house of lords as firmly resisted. At length a compromise was agreed to, which is established by this statute,-viz., that the same crimes, and no other, should be treason in Scotland that are so in England; and that the English forfeitures and corruption of blood should take place in Scotland till the death of the then pretender, and then cease throughout the whole of Great Britain :(e) the lords artfully proposing this temporary clause, in *hopes, it is said,(f) that the prudence of succeeding parliaments would *385] make it perpetual.(g) This has partly been done by the statute 17 Geo. II. c. 39, (made in the year preceding the late rebellion,) the operation of these indemnifying clauses being thereby still further suspended till the death of the sons of the pretender.(h)
By the 39 Geo. III. c. 93, the clause in the 7 Anne, c. 21, and that in the 17 Geo. II.
In petit treason and felony, the offender also forfeits all his chattel interests absolutely, and the profits of all estates of freehold during life; and, after his death, all his lands and tenements in fee-simple (but not those in tail) to the erown, for a very short period of time; for the king shall have them for a year and a day, and may commit therein what waste he pleases, which is called the king's year, day and waste.(i) Formerly the king had only liberty of committing waste on the lands of felons by pulling down their houses, extirpating their gardens, ploughing their meadows, and cutting down their woods. Ani a punishment of a similar spirit appears to have obtained in the Oriental countries, from the decrees of Nebuchadnezzar and Cyrus in the books of Daniel(k) and Ezra,() which, besides the pain of death inflicted on the delinquents there specified, ordain "that their houses shall be made a dunghill." But, this tending greatly to the prejudice of the public, it was agreed, in the reign of Henry the First, in this kingdom, that the king should have the profits of the land for one year and a day, in lieu of the destruction he was otherwise at liberty to commit;(m) and therefore magna carta(n) provides that the king shall only hold such lands for a year and a day, and then restore them to the lord of the fee, without any mention made of waste. But the statute 17 Edw. II. de prærogativa regis seems to suppose that the king shall have his year, day, and waste, and not the year and day instead of waste; which Sir Edward Coke (and the author of the Mirror, before him) very justly look upon as an en- [*386
croachment, though a very antient one, of the royal prerogative.(0) This year, day, and waste are now usually compounded for, but otherwise they regularly belong to the crown; and, after their expiration, the land would have naturally descended to the heir, (as in gavelkind tenure it still does,) did not its feodal quality intercept such descent and give it by way of escheat to the lord. These forfeitures for felony do also arise only upon attainder; and therefore a felo de se forfeits no land of inheritance or freehold, for he never is attainted as a felon.(p) They likewise relate back to the time of the offence committed, as well as forfeitures for treason, so as to avoid all intermediate charges and conveyances. This may be hard upon such as have unwarily engaged with the offender; but the cruelty and reproach must lie on the part, not of the law, but of the criminal, who has thus knowingly and dishonestly involved others in his own calamities.
These are all the forfeitures of real estates created by the common law, as consequential upon attainders by judgment of death or outlawry. I here omit the particular forfeitures created by the statutes of præmunire and others, because I look upon them rather as a part of the judgment and penalty inflicted by the respective statutes than as consequences of such judgment, as in treason and felony they are. But I shall just mention, as a part of the forfeiture of real estates, the forfeiture of the profits of lands during life, which extends to two other instances besides those already spoken of,-misprision of treason,(q) and striking in Westminster hall, or drawing a weapon upon a judge there sitting in the king's courts of justice.(r)
The forfeiture of goods and chattels accrues in every one of the higher kinds
(1) 2 Inst. 37.
(*) Ch. iii, v. 29.
(2) Ch. vi. v. 11.
() Mirr. c. 4, 16. Flet. l. 1, c. 28.
(") 9 Hen. III. c. 22.
() Mirr. c. 5, 2. 2 Inst. 37.
(P) 3 Inst. 55.
(9) Ibid. 218.
c. 39, limiting the periods when forfeiture for treason should be abolished, are repealed. So that the law of Forfeiture in cases of high treason is now the same as it was by the common law, or as it stood prior to the seventh year of the reign of queen Anne.— CHRISTIAN.
Also, by 54 Geo. III. c. 145, no attainder for felony, except in high treason, petit treason, murder, or abetting, &c. the same, shall extend to the disinheriting any heir, nor to the prejudice of the right or title of any person, except the offender during his life only; and every person to whom the right or interest of any lands or tenements should or might after the death of such offender have appertained, if no such attainder had been, may enter thereon.-CHITTY.
of offence: in high treason or misprision *thereof, petit treason, felonies *387] of all sorts, whether clergyable or not, self-murder or felony de se, petit larceny, standing mute, and the above-mentioned offences of striking, &c. in Westminster hall. For flight, also, on an accusation of treason, felony, or even petit larceny, whether the party be found guilty or acquitted, if the jury find the flight, the party shall forfeit his goods and chattels; for the very flight is an offence carrying with it a strong presumption of guilt, and is at least an endeavour to elude and stifle the course of justice prescribed by the law. But the jury very seldom find the flight,(s) forfeiture being looked upon, since the vast increase of personal property of late years, as too large a penalty for an offence to which a man is prompted by the natural love of liberty."
There is a remarkable difference or two between the forfeiture of lands and of goods and chattels. 1. Lands are forfeited upon attainder, and not before: goods and chattels are forfeited by conviction. Because in many of the cases where goods are forfeited there never is any attainder, which happens only where judgment of death or outlawry is given: therefore in those cases the forfeiture must be upon conviction or not at all; and, being necessarily upon conviction in those, it is so ordered in all other cases; for the law loves uniformity. 2. In outlawries for treason or felony, lands are forfeited only by the judgment; but the goods and chattels are forfeited by a man's being first put in the exigent, without staying till he is quinto exactus, or finally outlawed; for the secreting himself so long from justice is construed a flight in law.(t) The for feiture of lands has relation to the time of the fact committed, so as to avoid all subsequent sales and encumbrances; but the forfeiture of goods and chattels has no relation backwards, so that those only which a man has at the time of conviction shall be forfeited. Therefore a traitor or felon may bona fide sell any of his chattels, real or personal, for the sustenance of himself and family between the fact and conviction;(u) for personal property is of *so fluctu *388] ating a nature that it passes through many hands in a short time; and no buyer could be safe if he were liable to return the goods which he had fairly bought provided any of the prior vendors had committed a treason or felony. Yet if they be collusively and not bona fide parted with, merely to defraud the crown, the law (and particularly the statute 13 Eliz. c. 5) will reach them, for they are all the while truly and substantially the goods of the offender; and as he, if acquitted, might recover them himself, as not parted with for a good consideration, so in case he happens to be convicted the law will recover them for the king.
II. Another immediate consequence of attainder is the corruption of blood, both upwards and downwards, so that an attainted person can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir; but the same shall escheat to the lord of the fee, subject to the king's superior right of forfeiture: and the person attainted shall also obstruct all descents to his posterity, wherever they are obliged to derive a title through him to a remoter ancestor.(v)
This is one of those notions which our laws have adopted from the feodal constitutions at the time of the Norman conquest, as appears from its being unknown in those tenures which are indisputably Saxon, or gavelkind: wherein, though by treason, according to the antient Saxon laws, the land is forfeited to the king, yet no corruption of blood, no impediment of descents, ensues; and, on judgment of mere felony, no escheat accrues to the lord. And therefore, as every other oppressive mark of feodal tenure is now happily worn away in these kingdoms, it is to be hoped that this corruption of blood, with all
5 By 7 & 8 Geo. IV. c. 28, s. 5, it is enacted “that where any person shall be indicted for treason or felony, the jury impanelled to try such person shall not be charged to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason or felony." The practice had been wholly discontinued for some years.-CHITTY.
its connected consequences, not only of present escheat, but of future incapacities of inheritance even to the twentieth generation, may in process of time be abolished by act of parliament, as it stands upon a very different footing from the forfeiture of lands for high treason, affecting the king's person or government. And indeed the legislature has, from time to time, appeared very inclinable to give way to so equitable a provision, by enacting that in certain treasons respecting the papal supremacy (w) and the public coin,(x) and in many of the new-made felonies created since the reign of Henry the Eighth by act of parliament, corruption of blood shall be saved. But as in some of the acts for creating felonies (and those not of the most atrocious kind) this saving was neglected or forgotten to be made, it seems to be highly reasonable and expedient to antiquate the whole of this doctrine by one undistinguishing law: especially as, by the afore-mentioned statute of 7 Anne, c. 21, (the operation of which is postponed by statute 17 Geo. II. c. 39,) after the death of the sons of the late pretender no attainder for treason will extend to the disinheriting any heir nor the prejudice of any person, other than the offender himself, which virtually abolishes all corruption of blood for treason, though (unless the legislature should interpose) it will still continue for many sorts of felony."
OF REVERSAL OF JUDGMENT.
*WE are next to consider how judgments, with their several connected consequences of attainder, forfeiture, and corruption of blood, may be set aside. There are two ways of doing this; either by falsifying or reversing the judgment, or else by reprieve or pardon.
A judgment may be falsified, reversed, or avoided, in the first place, without a writ of error, for matters foreign to or dehors the record,-that is, not apparent upon the face of it; so that they cannot be assigned for error in the superior court, which can only judge from what appears in the record itself; and therefore if the whole record be not certified, or not truly certified, by the inferior court, the party injured thereby (in both civil and criminal cases) may allege a diminution of the record, and cause it to be rectified. Thus, if any judgment whatever be given by persons who had no good commission to proceed against the person condemned, it is void, and may be falsified by showing the special matter without writ of error. As where a commission issues to A. and B. and twelve others, or any of them, of which A. or B. shall be one, to take and try indictments, and any of the other twelve proceed without the interposition or
() Stat. 5 Eliz. c. 1.
() Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. 8 & 9 W. III. c. 26. 15 & 16 Geo. II. c. 28.
These statutes were, however, repealed, by stat. 39 Geo. III. c. 93; but, by stat. 54 Geo. III. c. 145, corruption of blood was abolished in all cases except the crimes of high treason and murder; and, by statute 3 & 4 W. IV. c. 106, s. 10, it is enacted that corruption of blood on attainder shall not obstruct descents to the posterity of the offender where they are obliged to derive a title through him or her to a remoter ancestor.— STEWART.
That is, if such judgment comes collaterally in question in any other cause or court, the party against whom it is used may so avoid it. But I do not see how it can be directly reversed, except by writ of error, either for error in fact-in which case it would lie before the same court, and the fact would be alleged-or for error in law. The case put of persons proceeding to judgment without a good commission is one of those decided illegalities for which the law seems to afford no preventive remedy: they who do so subject themselves, indeed, to punishments afterwards; but in the mean time they are acting in defiance of law, and are not, indeed, a court, to or from which any appeal can be formally made.-COLERIDGE.