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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.

I. Forfeiture is twofold ; of real and personal estates. First, as to real esLates: 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 for ever 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 forfeita ure relates backwards to the time of the treason committed : so as to avoid all intermediate sales and incumbrances (o), 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 the express provision of statute 5 & 6 [*382] Edw. VI. c. 11. And yet the husband shall be tenant by the courtesy of the wife's lands, if the wise 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 (9). 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 fun. damental principles of government, and broken his part of the original contract between king and people, hath abandoned his connexions 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 (1), “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 of the tyrants ; his old [*383] (n) Co. Litt. 392. 3 Inst. 319. 1 Hal. P. C. 240. (9) Co. Litt. 13.

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(T) 4 Rep. 57.

(9) See book I. page 259. (p) i Hal. P. C. 359.

(1) ad Brutum, ep. 12.

2 Hawk. P. C. 448.

(0) 3 Inst. 211.

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age and his want of children: for children are pledges to the prince of the 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 govermnent expressly does. And therefore, though

confiscation were very frequent in the tinies of the earlier emperors, yet · Arcadius and Honorius in every other instance but that of treason thought it

more just,“ ibi esse poenam, 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 (0), 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 Germa.

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, ecclesiastiqol 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 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 sys. [*381] tem in this island ; *being transmitted from our Saxon ances.

tors (a), and forming a part of the ancient Scandinavian constitu

But in certain treasons relating to the coin (which, as we formerly observed, seem 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 (?). 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 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 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

tion (6).

(z) See Book. II. page 251.
(a) LL. Aelfr. c. 4. Canut. c. 54.
(6) Stiernb. de jure Goth. 7. 2, c. 6, 4 1.3, c. 3.

(1) Gravin. 1, 6 68.
(u) Cod. 9. 47. 22.
(v) Nov. 134, c. 13.
(10) Qu. Curt. 1. 6.
(2) cap. 24.
(y) 1. 9, 1. 8, 7.5.

(c) Stat. 5 Eliz: c. 11. 18 Eliz. c. 1.

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

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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 (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. [*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.
in Considerations on the law of forfeiture, 6.
(g) See Fost. 230.

(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 I. page 244.)

(i) 2 Inst. 37.
(k) ch. ill. v. 29.
(1) ch. vj. v. 11.
(m) Mirr. c. 4, $ 16. Flet. l. 1, c. 28.
(n) 9 Hen. III. c. 22.
(0) Mirr. c. 5, 02. 2 Inst. 37.

(6) By the 39 Geo. III. c. 93. the clause in treason, petit treason, murder, or abetting, &c. the 7 Ann. c. 21. and that in the 17 Geo. II. c. the same, shall extend to the disinheriting any 39. limiting the periods when forfeiture for heir, nor to the prejudice of the right or title treason should be abolished, are repealed. So of any person, except the offender during his that the law of forfeiture in cases of high trea- life only, and every person to whom the right son, is now the same as it was by the common or interest of any lands or tenements should law, or as it stood prior to the seventh year of or might after the death of such offender have the reign of queen Anne. Also by 54 Geo. III. appertained, if no such attainder had been, may c. 145. no attainder for felony, except in high enter thereon.

Vol. II.


(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 forseits 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 oflender : 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 (), 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, selonies of all sorts, whether clergyable or not, selfmurder or felony de se, petit larceny, standing mute, and the above-mentioned offences of striking, fc. in Westminster-hall. For flight also, on an accusation of treason, selony, or even petit larceny, whether the party be found guilty or acquitted, if the jury find the flighi, the party shall forseit his goods and chaitels : for the very flight is an oflence, 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 forseited 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.

(s) Staundf. P. C. 183. b.
(1) 3 Inst. 232.

(9) Ibid. 218. (r) Ibid. 141.

(7) By 7 and 8 G. IV. c. 28, s. 5, it is enact. concerning his lands, tenements, or goods, nor ed, that where any person shall be indicted whether he fled for such treason or felony." for treason or felony, the jury impanelled 10 The practice had been wholly discontinued for try such person shall not be charged to inquire some years.


time of the fact committed, so as to avoid all subsequent sales and incumbrances; but the forseiture 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 bonâ 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 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 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

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 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 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 (r), 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 will extend to the disinheriting any heir, nor the prejudice of any

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(z) Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. 8 & 9W (v) See Book II. page 251, () Stat. 5 Eliz. c. I.

(u) 2 Hawk. P. C. 454.

III. c. 26.

15 & 16 Geo. II. c. 28.

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