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, (s) "nec vero me fugit quam sit acerbum, parentum "scelera filiorum poenis lui: sed hoc praeclare legibus comparatum est, "ut caritas liberorum amiciores parentes reipublicae 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 [383] of the tyrants; his old age and his want of children: for children are pledges to the prince of his father's 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 instance but that of treason thought it more just," ibi esse poenam, ubi et noxa est ;" and ordered that "peccata suos teneant auctores, nec ulterius progrediatur metus, quam reperiatur delictum ;” (v) and Justinian also made a law to restrain the punishment of relations, (u) 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 laws 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 (x) (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 for ever be accompanied by the infamy of their father; may languish "in continual indigence; and may find (says this merciless edict) their pu"nishment in living, and their relief in dying."

66

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 [384] that system in this island; being transmitted from our Saxon ancestors, (a) and forming a part of the ancient Scandinavian constitution. (b) But in certain treasons relating to the coin (which, as we formerly observ. ed, seems rather a species of the crimen falsi, than the crimen laesae 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 Ann. 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

sad Brutum, ep. 12.

w Qu. Curt. l. 6.

a LL. Aelfr. c. 4.
e Stat. 5 Eliz. c. 11.

VOL. II.

t Gravin. 1. § 68.
v Cad. 9. 47.22.
x Cap. 24. y l. 9. t. 8. l. 5.
Canut. c. 54.

18 Eliz. c. 1.

u Nov. 134. c. 15. z See Book II: page 251.

b Stiernh. de jure Goth t. 2. 6. & 1. 3. 3.

d Ibid. 8 & 9 W. II. c. 26. 15 & 16 Geo. II. c. 28.

85

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 affecting government should, both in its essence and consequences, be put upon 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 [385] Britain (e) the lords artfully proposing this temporary clause, in

hopes (it is said) (f) that the prudence of succeeding parliaments would 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 farther suspended, till the death of the sons of the pretender. (h) 1o

10

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 crown, 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. And a punishment of a similar spirit appears to have obtained in the oriental countries, from the decrees of Nebuchadnezzer and Cyrus in the books of Daniel (k) and Ezra ; (1) 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 praerogativa 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

e Burnet's Hist. A. D. 1709.

f Considerations on the Law of Forfeiture, G. g See Fost. 250.

h The justice and expediency of this provision were defended at the time, with much learning and strength of argument, in the Considerations on the Law of Forfeiture, first published, A. D. 1744. (See Book 1. page 244.) i 2 Inst. 37. k ch. Ill, v. 29. m Mirr. c. 4. § 16. Flet. l. 1. c. 28.

ch. vi. v. 11.

n 9 Hen. III. c. 22.

(10) By the 39 Geo. III. c. 93. the clause in the 7 Ann. c. 21. and that in the 17 Geo. II. 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. 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.

look upon as an encroachment, though a very ancient one, of the royal prerogative. (0) This year, day, and waste, are now usually [386] 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 praemunire 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 draw. ing 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 of offence in high treason or misprision thereof, petit treason, felonies of all sorts, whether clergyable or not. self-murder or [387] felony de se, petit larciny, 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 larciny, 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.12

There is a remarkable difference or two between the forfeiture of lands, and of goods and chattels. 2. 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 is never 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 १ Ibid. 218. r Ibid. 141. s Staundf. P. C. 189. b.

o Mirr. c. 5. § 2. 2 Inst. 37. P Inst. 55.

(11) In 2 B. & A. 258. it was held that, by attainder, all the personal property, and rights of action in respect of property accruing to the party attainted, either before or after attainder, are vested in the crown without office found.

(12) Though the officer may still direct the jury to inquire whether the prisoner fled for it, yet the inquiry and verdict upon that point have long been entirely disused.

construed a flight in law. (t) The forfeiture of lands has relation to the time of the fact committed, so as to avoid all subsequent sales and incumbrances; 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 fluctuating a na[388] ture, that it passes through many hands in a short time; and no buy

er 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 13 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 ancient 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 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 [389] 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 Ann. 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

w Stat. 5 Eliz. c. 1.

v See Book II. page 251.

x Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. 8 & 9 W. III. c. 26. 15 & 16 Geo. II. c. 28.

(13) See further as to this, 1 Chit. C. L. 739 to 742.

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."

CHAP. XXX.

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 rec. tified. 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 shewing 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 presence of either A. or B.: in this case all proceedings, trials, con. [391] victions, and judgments, are void for want of a proper authority in the commissioners, and may be falsified upon bare inspection, without the trouble of a writ of error; (a) it being a high misdemesnor in the judges so proceeding, and little (if any thing) short of murder in them all, in case the person so attainted be executed and suffer death. So likewise if a man purchases land of another, and afterwards the vendor is, either by outlaw. ry or his own confession, convicted and attainted of treason or felony previous to the sale or alienation, whereby such land becomes liable to forfeiture or escheat: now upon any trial, the purchaser is at liberty, without bringing any writ of error, to falsify not only the time of the felony or treason supposed, but the very point of the felony or treason itself; and is not concluded by the confession or the outlawry of the vendor; though the vendor himself is concluded, and not suffered now to deny the fact, which he has by confession or flight acknowledged. But if such attainder of the vendor was by verdict, on the oath of his peers, the alienee cannot be received to falsify or contradict the fact of the crime committed; though he is at liberty to prove a mistake in time, or that the offence was committed after the alienation, and not before. (b)

(14) The criminal code of England is deemed by many unnecessarily sanguinary. The punishment annexed to the offence of stealing a sheep, is death in England, although in the United States it is but petit larceny, and punishable with imprisonment, whipping, &c. Great efforts are now making by philanthropists for an amelioration of their criminal code.

(1) See in general, 1 Chit. C. L. 2 ed. 743 to 756.