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 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-modeling 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,f the lords artfully proposing this temporary clause, in hopes [385] (it is saide) that the prudence of succeeding parliaments would make it perpetual. 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.i13 treason and In petit treason and felony the offender also forfeits all his In petit chattel interests absolutely, and the profits of all estates of free- felony. hold 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. Formerly the f Burnet's Hist., A.D. 1709. feiture, 6. b See Fost., 250. The justice and expediency of this provision were defended at the time, Law of Forfeiture, first published A.D. (13) By the 39 Geo. III., c. 93, the ting, &c., the same, shall extend to the clause in the 7 Ann., c. 21, and that in disinheriting any heis, nor to the prejuthe 17 Geo. II., c. 39, limiting the peri- dice of the right or title of any person, ods when forfeiture for treason should except the offender during his life ouly; be abolished, are repealed. So that the and every person to whom the right or law of forfeiture, in cases of high treason, interest of any lands or tenements should is now the same as it was by the com- or might, after the death of such offender, mon law, or as it stood prior to the sev- have appertained, if no such attainder enth year of the reign of Queen Anne.- had been, may enter thereon.-[CHIT[CHRISTIAN.] By 54 Geo. III., c. 145, TY.] And see 3 & 4 Will, IV., c. 106, no attainder for felony, except in high s. 10, post, p. 389, n. (19). treason, petit treason, murder, or abet king had only a liberty of committing waste on the lands of felons, by pulling down their houses, extirpating their gardens, plowing 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 Danielk 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; and, therefore, Magna Chartan 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 looks upon as an encroachment, though a very ancient one, of the [386] royal prerogative. 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 naturally have 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 lands of inheritance or freehold, for he never is attainted as a felon.P They likewise relate back to the time of the offense 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. Forfeitures of real estates by premunire, of treason, misprision striking in Westminster Hall, &c. 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 pramunire 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,ч Ch. iii., v. 29. 1 Ch. vi., v. 11. m Mirr., c. 4, § 16; Flet., 1. 1, c. 28. n 9 Hen. III., c. 22. Mirr., c. 5, § 1; 2 Inst., 37. a Ibid., 218. and striking in Westminster Hall, or drawing a weapon upon a judge there sitting in the king's courts of justice. of personal The forfeiture of goods and chattels accrues in every one of Forfeiture the higher kinds of offense; in high treason or misprision there- property. of, petit treason, felonies of all sorts, whether clergyable or not, [387] self-murder or felony de se, petit larceny," standing mute," and the above-mentioned offenses 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 offense, carrying with it a strong presumption of guilt, and is, at least, an endeavor to elude and stifle the course of justice prescribed by the law. But the jury very seldom find the flight; forfeiture being looked upon, since the vast increase of personal property of late years, as too large a penalty for an offense, to which a man is prompted by the natural love of liberty." between There is a remarkable difference or two between the forfeit- Difference ure of lands and of goods and chattels. 1. Lands are forfeited forfeiture of upon attainder, and not before; goods and chattels are forfeit- lands and of goods. ed 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. 3. The forfeiture 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 backward, 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;" for personal property is of so fluctuating a nature, that it passes through many hands [388] in a short time; and no buyer could be safe if he were liable to r3 Inst., 141. Staundf., P. C., 183, b. (14) See ante, p. 229, n. (1), (15) See ante, p. 325, n. (7). (16) In Bullock v. Dodds, 2 B. & Ald., 258, it was held that, by attainder, all the personal property, and rights of action in respect of property accruing to t 3 Inst., 232. "2 Hawk., P. C., 454. the party attainted, either before or aft- (17) And see now the 7 & 8 Geo. II. Corrup tion of blood. 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 upward and downward, 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.▾ 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 descent, 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 for[389] feiture 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 supremacyw and the public coin, 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 an ▾ See vol. ii., page 251. w 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. (18) See further on this subject, 1 Chit., Crim. L., 739 to 742.-[CHITTY.] tiquate 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 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.19* (19) The law of forfeiture in high treason was restored by the 39 Geo. III., c. 93. See ante, p. 385, n. (13). But by the 54 Geo. III., c. 145, corruption of blood was abolished in all cases except the crimes of high treason and murder; and by the 3 & 4 Will. IV., c. 106, s. 10, it is enacted, that when the person from whom a descent is to be traced shall have had any relation who, having been attaint cd, shall have died before such descent shall have taken place, his attainder shall not prevent any person from inheriting who would have been capable of inheriting by tracing his descent through such relation if he had not been attainted, unless the land had escheated in consequence of such attainder before 1st Jan., 1834. * In New York, no conviction for any offense whatever works a forfeiture of the goods, chattels, lands, tenements, or hereditaments, or of any right or interest therein, of the person convicted, unless the conviction be for treason, and judgment of outlawry be subsequently pronounced against him. If a person convicted of treason abscond or conceal himself so that he can not be apprehended, the court in which the conviction is had may make an order that he appear at the next term to receive judgment, or that judgment of outlawry will be rendered against him. If he make default, judgment of outlawry is entered against him, by which he forfeits to the people of the state during his lifetime (but no longer) every freehold estate or real property of which he was seized in his own right at the time of the treason committed, or at any time thereafter; and also forfeits all his goods and chattels. Outlawry in every other criminal case is abolished.-(2 R. S., 701, § 28; 745, § 10 to 20; 656, § 3.) Corruption of blood, as a consequence of attainder, was taken away in New York in 1801 by statute, enacting "that no attainder of any person of treason or misprision of treason shall extend to corrupt the blood of the offender, or to forfeit the dower of his wife."-(1 R. L., 147, 10.) This principle is not directly reasserted in the Revised Statutes, but it is indirectly. Corruption of blood on attainder, or on outlawry for treason, is an incident of the feudal tenures; and all feudal tenures of every description, with all their incidents, except rents and services certain, are abolished.-(1 R. S., 618, 3, 4.) Again: all punishments prescribed by the common law for offenses specified in the first chapter of the fourth part of the Revised Statutes, and for the punishment of which provision is therein made, are prohibited (2 R. S., 701, § 16); and the offense of treason being specified in that chapter, and provision being therein made for its punishment, of course the common-law punishment of corruption of blood no longer exists. 439 |