Sivut kuvina

feiture 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, (2) and striking in Westminster-hall, or drawing a weapon upon a judge there sitting in the king's courts of justice. (7)

The forfeiture of goods and chattels accrues in every one of the higher kind of offence: in high treason or misprision *thereof, petit treason, felonies of all sorts, whether clergyable or not, self-murder or felony de se, petit [*387] 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 endeavor to allude 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 eractus, 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 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 nature, that it passes through many hands in a short time; [*388] 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, (8) 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 feudal

(r) Ibid. 141

(s) Staundf. P. C. 183, b. (v) See book II, page 251.

(t) 3 Inst. 232.

(q) Ibid. 218.
(u) 2 Hawk. P. C. 454.

(7) [By 7 and 8 Geo. IV, c. 28, s. 5, it is enacted, "that where any person shall be indicted for treason or felony, the jury impaneled to try such person shall not be charged to inquire con cerning his lands, tenements, or goods, nor whether he fled for such treason or felony." [The practice has been wholly discontinued for some years.]

(8) [But now descents are not thus obstructed. See statute 3 and 4 Wm. IV, c. 106, s. 10.)

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 feudal 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, (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 st stute 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.




WE are next to consider how judgments, with their several connected con sequences 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, the cause is 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 presence *of either A or B: in this case all proceedings, trials, convictions, and judg [*391] ments, are void for want of a proper authority in the commissioners, and may be falsified upon bare inspection without the trouble of writ of error; (a) (1)

(w) Stat. 5 Eliz. c. 1.

(a) Stat. 5 Eliz. c. 11. 8 Eliz. c. 1. 18 and 9 W. III, c. 26. 15 and 16 Geo. II, c. 28. (a) 2 Hawk. P. C. 459.

(1) That is, if the court had no jurisdiction of the case, its proceedings may be treated a void whenever they come in question. Even the prosecution may treat them as void, and

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. So, likewise, if a man purchases land of another; and afterwards the vendor is, either by outlawry 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)

Secondly, a judgment may be reversed by writ of error: 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 proclamation; 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 the present; and for many other similar causes, which [*392] (though allowed out of tenderness to life and liberty) are not much to the credit or advancement of the national justice. These writs of error, to reverse judgments in case of misdemeanors, are not to be allowed of course, but on sufficient probable cause shown to the attorney-general; and then they are understood to be grantable of common right, and ex debito justitiæ. (2) But writs of error to reverse attainders in capital cases are only allowed ex gratia; 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, or 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 confessed, 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.

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

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put the accused party on trial again for the same offence. Commonwealth v. Goddard. 13 Mass. 455: People v. Tyler, 7 Mich. 161.

(2) See Mansell v. Reg. 8 E. and B. 54; Ex purte Newton, 4 id. 869.

[*393] the process of outlawry for his non-appearance, *remain good and effectual as before. But when judgment 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 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 to another prosecution for the same offence; for the first being error cous, he never was in jeopardy thereby. (3)



THE only other remaining ways of avoiding the execution of the judgment are by a reprieve or a pardon; whereof the former is temporary only, the latter permanent.

I. A reprieve, (1) from reprendre, to take back, is the withdrawing of a sentence for an interval of time; whereby the execution is suspended. This may be, first, ex arbitrio judicis; either before or after judgment; as, where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offence be within clergy; or sometimes if it be a small felony, or any favourable circumstances appear in the criminal's character, in order to give room to apply to the crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their session be finished, and their commission expired: but this rather by common usage, than of strict right. (a)

Reprieves may also be ex necessitate legis: as, where a woman is capitally convicted, and pleads her pregnancy; though this is no cause to stay the judgment, yet it is to respite the execution till she be delivered. This is a mercy *dic[*395] tated by the law of nature, in favorem prolis; and therefore no part of the bloody proceedings, in the reign of Queen Mary, hath been more justly detested than the cruelty that was exercised in the island of Guernsey, of burning a woman big with child: and when, through the violence of the flames, the infant sprang forth at the stake, and was preserved by the bystanders, after some deliberation of the priests who assisted at the sacrifice, they cast it again into the fire as a young heretic. (b) A barbarity which they never learned from the laws of ancient Rome; which direct, (c) with the same humanity as our own," quod prægnantis mulieris damnate pono differatur, quod pariat," which doctrine has also prevailed in England as early as the first memorials of our law will reach. (d) In case this plea be made in stay of execution, the judge (b) Fox, Acts and Mon. (c) Ff. 48, 19, 3.

(2 Hawk. P. C. 462, (d Flet. l. 1, c. 38.

(a) 2 Hal. P. C. 412.

(3) [Where the indictment has been preferred in the court of queen's bench, or where it has been removed thither by certiorari, a new trial will be granted by that court in a case of misdemeanor, or even of felony-as for misdirection or surprise (Reg. v. Whitehouse, Dearsl. 1), or the improper admission of evidence (Reg. v. Scaife, 17 Q. B. 238), to further the ends of justice. But after acquittal on a charge of felony, or with certain peculiar exceptions, of misdemeanor, a new trial will not be granted. Reg. v. Russell, 3 E. and B. 942.]

(1) [In addition to the reprieves mentioned by the learned commentator is that ex mandatio regis, or from the mere pleasure of the crown, expressed in any way to the court by whom the execution is to be awarded. 2 Hale, 412; 1 id. 368; Hawk. D. 2, c. 51. s. 8.1

must direct a jury of twelve matrons or discreet women to inquire the fact: and if they bring in their verdict quick with child (for, barely with child, unless it be alive in the womb, is not sufficient), execution shall be staid generally till the next session; and so from session to session, till either she is delivered, or proves by the course of nature not to have been with child at all. But if she once hath had the benefit of this reprieve, and been delivered, and afterwards becomes pregnant again, she shall not be entitled to the benefit of a farther respite for that cause. (e) For she may now be executed before the child is quick in the womb; and shall not, by her own incontinence, evade the sentence of justice. (2)

Another cause of regular reprieve is, if the offender becomes non compos between the judgment and the award of execution:(f) for regularly, as was formerly (g) observed, though a man be compos when he commits a capital crime, yet if he becomes non compos after, he shall not be indicted; if after indictment, he shall not be convicted; if after conviction, he shall not receive judgment; if after judgment, he *shall not be ordered for execution: for "furiosus solo furore punitur," and the law knows not but he might have offered [*396] some reason, if in his senses, to have stayed these respective proceedings. It is therefore an invariable rule, when any time intervenes between the attainder and the award of execution, to demand of the prisoner what he hath to allege why execution should not be awarded against him: and if he appears to be insane, the judge in his discretion may and ought to reprieve him. (3) Or, the party may plead in bar of execution; which plea may be either pregnancy, the king's pardon, and act of grace, or diversity of person, viz., that he is not the same as was attainted, and the like. In this last case a jury shall be impaneled to try this collateral issue, namely, the identity of his person; and not whether guilty or innocent; for that has been decided before. And in these collateral issues the trial shall be instanter, (h) and no time allowed the prisoner to make his defence or produce his witnesses, unless he will make oath that he is not the person attainted: (i) neither shall any peremptory challenges of the jury be allowed the prisoner; (j) though formerly such challenges were held to be allowable, whenever a man's life was in question. (k)

II. If neither pregnancy, insanity, non-identity, nor other plea, will avail to avoid the judgment, and stay the execution consequent thereupon, the last and surest resort is in the king's most gracious pardon; the granting of which is the most amiable prerogative of the crown. Law (says an able writer) cannot be framed on principles of compassion to guilt; yet justice, by the constitution of England, is bound to be administered in mercy; this is promised by the king in his coronation oath, and it is that act of his government which is the most personal, and most entirely his own. (1) The king himself condemns no man; that rugged task he leaves to his courts of justice: the great operation of his sceptre is *merey. His power of pardoning was said by our Saxon ancestors (m) to be derived a lege suæ dignitatis: and it is declared in parliament, by statute 27 Hen. VIII, c. 24, that no other person hath power to pardon or remit any treason or felonies whatsoever: but that the king hath the

(e) 1 Hal. P. C. 369.


(1) Law of Forfeit. 99.

(f) Ibid. 370.
(g) See page 24.
(k) Staundr. P. C. 163.
(m) LL. Edw. Conf. c. 18.

(h) 1 Sid. 72. See Appendix, § 3. Co. Litt. 157. Hal. Sum. 259.

(i) Fost. 42. (j) 1 Lev. 61. Fost. 42, 46.

(2) [It is usual for the clerk of assize to ask women, who receive sentence of death, if they have any thing to say why execution shall not be awarded according to the judgment. As the execution of the law in the first instance is respited not from regard for the mother, but from tenderness towards the innocent infant; if then it should happen that she became quick of a second child, this surely is as much an object of compassion and humanity as the first.]

(3) [See ante, 25, n., as to the trial of an insane person.

By the 56 Geo. III, c. 117, provision is made for convicted criminals who become insane. See also the 55 Geo. III, c. 46, and 5 Geo. IV, c. 71 ]

Also statute 3 and 4 Vic. c. 54, and 30 and 31 Vic. c. 12.

VOL. II.-68


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