II. Consequences II. We have next to consider certain proceedings which may be of judgment. consequent on judgment. The consequences of attainder (u) for high treason or murder are: 1. Forfeiture; and 2. Corruption of blood. 1. Forfeiture. [* 488] *1. By attainder for treason, a man forfeits absolutely to the crown all his lands and tenements of inheritance, whether in fee simple or fee tail, and all rights of entry thereon, which he had at, or after, the time of committing the offence, and also the profits of lands and tenements, which he had in his own right for life or years, so long as such interest shall subsist (x). This forfeiture relates backwards to the time of the treason committed; so as to avoid all intermediate sales and incumbrances (y). 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, this works no forfeiture of his lands: for he never was attainted of treason (z). All personal property of the traitor vests on his attainder in the crown (a). Arguments justifying the forfeiture or confiscation of property for high treason have been founded on these considerations that he who has thus violated the fundamental principles of government, has abandoned his connection with society; and has 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; also that the apprehension of such forfeiture, [* 489] whereby his posterity must suffer as well as himself, will help to restrain a man from committing crime; and will interest every dependent and relative he has to keep him from offending: according to the sentiment of Cicero (b), "nec vero me fugit quam sit acerbum, parentum scelera filiorum pænis lui: sed hoc præclare legibus comparatum est, ut caritas liberorum amiciores parentes reipublicæ redderet." Indeed the only plausible ground of upholding forfeiture for crime seems to be that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into a social community. If therefore a member of the state violates the so called fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he might claim under that contract; and the state may justly resume such property, or any part of it, as the law had before assigned to him. Nevertheless all post (u) A person capitally sentenced for treason is said to be attaint, attinctus, stained, or blackened, and by an anticipation of his punishment, is already dead in law (3 Inst. 213). This is after judgment: for, after conviction only, a man is liable to no such disability as mentioned in the text; since there is still, in contemplation of law, a possibility of his innocence. As to the law of attainder, see Kynnaird v. Leslie, L. R. 1 C. P. 397. (x) Co. Litt. 392 b; 3 Inst. 19. Copyhold estates are forfeited to the lord, not to the crown, unless there be an act of humous punishment savours of hardship to the innocent; and must especially do so when applied to crimes which do not strike at the very root and foundation of society, as treason against the government expressly does (c). [* 490] With us in England, forfeiture of lands and tenements to the crown for treason is by no means derived from the feudal policy, but was transmitted to us from our Saxon ancestors (d), and formed a part of the ancient Scandinavian constitution (e). The infliction of such a penalty is essentially opposed to the more just and merciful views now prevalent, and an effort which nearly proved successful was long since made to mitigate the severity of this law, and to abolish entirely the hereditary punishment entailed by it, for it was enacted by statute 7 Ann. c. 21, s. 10, that, after the decease of the pretender, and the efflux of three years from the demise of the then sovereign, no attainder for treason should extend to the disinheriting of any heir, nor to the prejudice of any person other than the traitor himself during his lifetime. 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 of observation. At the time of the union with Scotland, the crime of treason was, by the Scotch law, in many respects different from that in England; and particularly in its consequence of working the forfeiture 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 kingdom. In new-modelling these laws, the Scotch nation and the English house of commons struggled hard, respectively to maintain and 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, and established by the above-mentioned statute (f), viz. that the same crimes, and no other, should be treasons in [* 491] 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 pretender, and the expiration of three years after the next succession to the crown; and then cease throughout the whole of Great Britain (g): the lords artfully proposing this temporary clause, in hopes (it is said (h)) that the prudence of succeeding parliaments would make it perpetual (i), and this was partly done by the statute 17 Geo. 2, c. 39, s. 8, which further suspended the operation of the clauses specified till the death of the sons of the pretender. However, by the 39 Geo. 3, c. 93, the above mentioned clauses in the 7 Ann. c. 21, and the 17 Geo. 2, c. 39, limiting the periods when forfeiture for treason should be abolished, were repealed, and the law of forfeiture, in the case of high treason, is now the same as it was by the common law, or as it stood prior to the seventh year of the reign of Queen Anne. It is nevertheless proper majestatis, to the next of kin of the delinquent. (c) Therefore, though confiscations were frequent in the times of the earlier emperors, yet Arcadius and Honorius in every instance except that of treason thought it just, "ibi esse pœnam, ubi et noxa est," and ordered that "peccata suos teneant auctores, nec ulterius progrediatur metus, quàm reperiatur delictum" (Cod. 9, 47, 22); and Justinian also made a law to restrain the punishment of relatives (Nov. 134, c. 13); which directs the forfeiture to go, except in the case of crimen (d) Anc. Laws & Inst. Eng. pp. 28, 29, 175. (e) Stiernh. de Jure Goth. 1. 2, c. 6, & l. 3, to apprize the reader that the rigour of the law of forfeiture generally is in practice much tempered in virtue of certain modern enactments, for lands to which the crown becomes entitled "by reason of any forfeiture," may under the provisions of stat. 59 Geo. 3, c. 94 (k), be granted either unconditionally or in consideration of money to such person as the crown may be pleased to direct, and the powers thus conferred were extended to leasehold property by the stat. 6 Geo. 4, c. 17. When sentence of death has, in due course, been pronounced upon a person convicted of murder (which, as also treason, is excluded from the operation of the statute 54 Geo. 3, c. 145), the crown becomes entitled by forfeiture to the profits of all his estates of freehold during life, such estates escheating at his death by reason of the *corruption of blood caused by the attainder, and on sentence passed for felony generally the offender forfeits his * 492] [ chattel interests absolutely, and the profits of estates of freehold during life. On attainder for murder, moreover, the felon's lands in fee simple (but not those in tail) pass to the crown, for a 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 (1), and at the present day is usually compounded for. 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 cutting down their woods. But this tending greatly to the prejudice of the public, it was agreed, in the reign of Henry I., that the king should have the profits of the felon's 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. 2 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 look upon as an encroachment, though a very ancient one, of the royal prerogative (o). This year, day, and waste, if not compounded for, 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 feudal quality intercept such descent, and give it by way of escheat to the lord (p). These forfeitures for felony arise upon attainder; and therefore a felo de se forfeits no lands of inheritance or freehold, for he never was attainted as a felon (q). They, as well as forfeitures for treason, relate back to the time of the [*493 ] offence committed; so as to avoid all intermediate charges and conveyances. No mention is here made of the particular forfeitures created by the statutes of præmunire, because they may be looked upon rather as a part of the judgment and penalty inflicted thereunder, than as consequences of such judgment. But I may just mention that the profits of lands are forfeited during life in two other instances, besides those already spoken of: viz. misprision of (k) Sect. 1. The statute cited supra amends and extends the scope of some prior acts, conferring like powers on the crown. (1) 2 Inst. 37. (m) Mirr. c. 4, s. 16; Flet. 1. 1, c. 28. VOL. II.-82 (n) 9 Hen. 3, c. 22. (0) Mirr. c. 5, s. 1; 2 Inst. 37. treason (r), and striking in Westminster-hall, or drawing a weapon upon a judge there sitting (s). The forfeiture of goods and chattels (t) accrues in high treason or misprision thereof, also (with certain statutory exceptions (u)) in felony and self murder, and the above mentioned offences of striking, &c. in Westminsterhall (x). Formerly also on an accusation of treason, or felony, whether the party were found guilty or acquitted, if the jury found that he had fled, the accused forfeited his goods and chattels: for the very flight was regarded as an offence, carrying with it a strong presumption of guilt, and, as an endeavour to elude and stifle the course of justice prescribed by the law. But the jury very seldom found the flight (y): forfeiture being looked upon as too severe a penalty for an offence, to which a man was prompted by his natural love of liberty. And now by the stat. 7 & 8 Geo. 4, c. 28, s. 4, where a person is indicted for treason or felony, the jury impanelled to try the accused shall not be charged to inquire concerning his lands, tenements, or [* 494] goods, nor whether he fled for such treason or felony. A remarkable difference or two must here be noticed between the forfeiture of lands and that of goods and chattels. (1.) Lands are forfeited upon attainder: goods and chattels are forfeited by conviction (z); indeed in many cases where goods are forfeited, there is no 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 outlawry for treason or felony, lands are forfeited only by the judg ment: but the goods and chattels are forfeited by a man's being first put in the exigent, without staying till he is finally outlawed. (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 the time of conviction shall be forfeited. Therefore a traitor or felon may bona fide (a) sell any of his chattels, real or personal, for the sustenance of himself and family between the fact and conviction (b); for personal property is of so fluctuating a nature, and passes through so many hands in a short time, that 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 the goods were collusively, and not bona fide, parted with merely to defraud the crown, the law would reach them; as [* 495] being truly and substantially the goods of the offender; and recover them for the crown. 2. The other remarkable consequence of attainder for high treason or mur (r) Ib. 218. (8) 3 Inst. 141. (t) Goods confiscated were termed bona confiscata, by the civilians, because they belonged to the fiscus or imperial treasury; goods forfeited, or bona forisfacta, are such whereof the property is gone away, or departed from the owner. (u) As to forfeiture in larceny, see stats. 10 & 11 Vict. c. 82; 13 & 14 Vict. c. 37; 18 & 19 Vict. c. 126; ante, p. 296. (x) See Bullock v. Dodds, 2 B. & Ald. 258; 1 Russ. & M. 752. (y) Staundf. P. C. 183 b. (z) By conviction of a felon, his goods and chattels are forfeited, but by attainder, that is by judgment given, his lands and tenements are forfeited and his blood corrupted, and not before. Co. Litt. 391 a. (a) See Perkins v. Bradley, 1 Hare, 219; Chowne v. Baylis, 31 Beav. 351. (b) 2 Hawk. P. C. 454; Fleetwood's Case, 8 Rep. 171; see Whitaker v. Wisbey, 12 C. B. 44. 2. Corruption of blood. Punishment. der is corruption of blood, to which we have sufficiently adverted in our second Volume (c). The various punishments annexed to offences having from time to time been specified in the preceding pages, and some remarks having likewise been made. as to the sentence to be passed by the presiding judge upon the convicted person (d), we need here only repeat that where such sentence adjudges capital punishment (e), the sheriff cannot alter the manner of its execution by substituting one kind of death for another, without being guilty of felony himself (f). It is held, indeed, by sir Edward Coke (g) and sir Matthew Hale (h), that even the crown cannot change the punishment of the law, as by altering hanging into beheading; though, when beheading is part of the sentence, the crown may remit the rest (i). And, notwithstanding some examples to the contrary, sir Edward Coke stoutly maintains, that "judicandum est legibus, non exemplis." Others, however, have thought (j), and most justly, that this prerogative, being founded in mercy, and immemorially exercised by the crown, is part of the common law. For, hitherto, in every instance, such exchange has been for a more merciful kind of death; and how far this may also fall within the power of the crown to grant a conditional pardon, (viz. by remitting a severe kind of death, on condition that the criminal submits to a milder), is a matter that may bear consideration. It is observable, that when lord Stafford * was executed for the popish plot [* 496] in the reign of king Charles II., the then sheriffs of London, having received the king's writ for beheading him, petitioned the house of lords for a command or order from their lordships, how the said judgment should be executed; for, he being prosecuted by impeachment, they entertained a notion (which is said to have been countenanced by lord Russell) that the king could not pardon any part of the sentence (k). The lords resolved (1) that the scruples of the sheriffs were unnecessary, and declared that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified (m) to the house of commons by one of its members, that they were not satisfied as to the power of the said writ. That house took two days to consider of it; and then (n) sullenly resolved that the house was content that the sheriff do execute lord Stafford, by severing his head from his body. It is further related, that when afterwards the same lord Russel was condemned for high treason upon indictment, the king, while he remitted the ignominious part of the sentence, observed, "that his lordship would now find he was possessed of that prerogative, which in the case of lord Stafford he had. denied him" (0). One can hardly determine (distant as we are from those turbulent times) which most to disapprove of, the indecent and sanguinary zeal of the subject, or the cool and cruel sarcasm of the sovereign. In concluding this chapter it may be well to take note of a recent most |