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 [*385] 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) (6). 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 Nebuchadnezzar and Cyrus in the books of Daniel (k) and Ezra (7); 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. [*386] Which sir Edward Coke (and the author of the Mirror, before him) very justly look upon as an encroachment, though a very ancient one, of the royal prerogative (o). 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 : (e) Burnet's Hist. A. D. 1709. (f) Considerations on the law of forfeiture, 6. (g) See Fost. 250. (A) 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 4. D. 1744. (See (6) By the 39 Geo. III. c. 93. the clause in he 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 treaBon, is now the same as it was by the common law, or as it stood prior to the seventh year of he reign of queen Anne. Also by 54 Geo. III. 145. no attainder or felony, except in high VOL II. Book 1. page 244.) (i) 2 Inst. 37. (m) Mirr. c. 4, 16. Flet. l. 1, c. 28. (0) Mirr. c. 5, 2. 2 Inst. 37. 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. 88 (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 cffender 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 (9), and striking in Westminsterhall, 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 [387] higher kinds of offence: in high treason or misprision thereof, petit treason, felonies of all sorts, whether clergyable or not, selfmurder 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 for feit 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 (7). 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 forfeiture of lands has relation to the (p) 3 Inst. 55. Ibid. 218. (7) Ibid. 141. (7) By 7 and 8 G. IV. c. 28, s. 5, it is enact d."that where any person shall be indicted for treason or felony, the jury impanelled to try such person shall not be charged to inquire (s) Staundf. P. C. 183. b. concerning his lands, tenements, or goods, not whether he fled for such treason or felony." The practice had been wholly discontinned t❤ some years. time of the fact committed, so as to avoid all subsequent sales and incum brances; but the forfeiture of goods and chattels has no relation back wards; so that those only which a man has at the time of conviction shall be forfeited. Therefore a traitor or felon may bonâ fide sell any of his chattels, real or personal, for the sustenance of himself and family be tween the fact and conviction (u); for personal property if of *so fluctuating a nature, that it passes through many hands in a [*388] 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 particu larly 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 blond, 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 feo dal 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 o. 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. [*389] 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. I. 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 () 2 Hawk. P. C. 454. (v) See Book II. page 251. Stat 5 Eliz. c. 1. (z) Stat. 5 Eliz. c. 11. 18 Eliz. c 1. 8 & 9 W III c. 26. 15 & 16 Geo. II. c. 28 person, other than the offender himself; which virtually abolishes all cor ruption of blood or treason, though (unless the legislature should interpose) it will still continue for many sorts of felony (8). CHAPTER XXX. OF REVERSAL OF JUDGMENT. WE are next to consider how judgments, with their several connected conseqences, of attainder, forfeiture, and corruption of blood, may be set aside. There are two ways of doing this; either by falsifying or revers ing 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 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 pre [*391] sence of either A. or B.: in this case all proceedings, trials, con 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 misdemeanor 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. Se likewise if a man purchases land of another; and afterwards the vender is, either by outlawry or his own confession, convicted and attainted of treason or felo ny 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 wai committed after the alienation, and not before (6). (a) 2 Hawk. P. C. 459. (8) In New-York, no forfeiture is caused by any offeno except upon an outlawry for treason, (2 R 3. 701, § 22 ) and on such out (b) 3 Inst. 231. 1 Hal. P. C. 361. lawry his goods are all forfeited absolutely and his lands during his life. (ld. 656 43 Secondly, a judgment may be reversed by writ of error (1): which lies from all inferior criminal jurisdictions to the court of king's bench, and from the king's bench to the house of peers; and may be brought for notorious mistakes in the judgment or other parts of the record: as where a man is found guilty of perjury and receives the judgment of felony, or for other less palpable errors; such as any irregularity, omission, or want of form in the process of outlawry, or proclamations; the want of a proper addition to the defendant's name, according to the statute of additions; for not properly naming the sheriff or other officer of the court, or not duly describing where his county court was held; for laying an offence committed in the time of the late king, to be done against the peace of [*392] the present; and for other similar causes, which (though allowed out of tenderness to life and liberty) are not much to the credit or advance ment of the national justice (2). These writs of error, to reverse judg ments in case of misdemeanors, are not to be allowed of course, but on sufficient probable cause shewn to the attorney-general; and then they are understood to be grantable of common right, and ex debito justitiae. But writs of error to reverse attainders in capital cases are only allowed ex gra tia; and not without express warrant under the king's sign manual, or at least by the consent of the attorney-general (c). These therefore can rarely be brought by the party himself, especially where he is attainted for an offence against the state: but they may be brought by his heir, o executor, after his death, in more favourable times; which may be some consolation to his family. But the easier, and more effectual way, is, Lastly, to reverse the attainder by act of parliament. This may be and hath been frequently done, upon motives of compassion, or perhaps from the zeal of the times, after a sudden revolution in the government, without examining too closely into the truth or validity of the errors assigned And sometimes, though the crime be universally acknowledged and con fessed, yet the merits of the criminal's family shall after his death obtain a restitution in blood, honours, and estate, or some, or one of them, by act of parliament; which (so far as it extends) has all the effect of reversing the attainder without casting any reflections upon the justice of the preceding sentence (3). The effect of falsifying, or reversing, an outlawry, is that the party shall be in the same plight as if he had appeared upon the capias; and, if it be before plea pleaded, he shall be put to plead to the indictment; if, after conviction, he shall receive the sentence of the law; for all the other proceedings, except only the process of outlawry for his non-appearance, remain good and effectual as before. But when judgment [393] pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused; restored in his credit, his capacity, his blood, and his estates with regard to which last, though they may be granted away by the crown, yet the owner may enter upon the grantee, with as little ceremony as he might enter upon a disseisor (d). But he still remains liable |