[ 385 ]

in petit treason and felony, of chattels and the profits of

day.

[BOOK IV. 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 Britain: the lords artfully proposing this temporary clause, in hopes (it is said) 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 farther suspended, till the death of the sons of the pretender (181).

IN petit treason and felony, the offender also forfeits all. his chattel-interests absolutely, and the profits of all estates lands for a year and 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'. Formerly the king had only a liberty of committing waste on the lands of felons, by pulling down their houses, extirpating their gardens, ploughing their meadows,

and

(e) Burnet's Hist. A. D. 1709. (f) Considerations on the Law of Forfeiture, 6. (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 vol. I. page 244.) (i) 2 Inst. 37.

(181) But these provisions in both statutes are now re

pealed, by 39 Geo. III. c. 93, as mentioned in the last note.

and cutting down their woods. And a punishment of a
similar spirit appears to have obtained in the oriental coun-
tries, from the decrees of Nebuchadnezzar and Cyrus in the
books of Daniel 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 carta" 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 men-
tion made of waste. But the statute 17 Edw. II. de praero-
gativa 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 Mir-
ror, before him) very justly look upon as an encroachment,
though a very antient one, of the 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
lauds of inheritance or freehold, for he never is attainted as
a felon P. They likewise relate back to the time of the of-
fence 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 of-
fender; 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

[ 386 1

(k) Ch. iii. v. 29. 16. Flet l. 1. c. 28. 2. 2 Inst. 37.

You, IV.

(1) Ch. vi. v. 11.
(n) 9 Hen. III, c. 22.

(p) 3 Inst. 55.

D D

(m) Mirr. c. 4.
(0) Mirr. c. 5,

Forfeiture of chat

tels accrues in treason and felony;

[ 387 ]

if the flight be found by a jury.

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 Westminster hall, or drawing a weapon upon a judge there, sitting in the king's courts of justice'.

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 felony de se, petit larceny, standing mute, and the above-mentioned offences of striking, &c. in and also for flight, 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 endeavour 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 offence, to which a man is prompted by the natural love of liberty.

Difference between forfeiture of lands and of goods.

THERE is a remarkable difference or two between the for1. Lands are feiture of lands, and of goods and chattels. 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

(q) 3 Inst. 218.

(r) Ibid. 141.

(s) Staundf. P. C. 183. b..

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 incumbrances: but the forfeiture of goods and chattels has no relation backwards; so that those only which a man has at 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 in a 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 king.

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, where

ever

except as to tenants in gavelkind,

and in some other

cases by statute.

[389]

ever 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 antient 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. 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" 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 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 person, other than the offender him