The Online Library of Liberty

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• Commentaries On the Laws of England.
• Book the Third.: of Private Wrongs.
• Chapter I.: Of the Redress of Private Wrongs By the Mere Act of the Parties.
• Chapter II.: Of Redress By the Mere Operation of Law.
• Chapter III.: Of Courts In General.
• Chapter IV.: Of the Public Courts of Common Law and Fquity.
• * [*61 Chapter V.: Of Courts Ecclesiastical, Military, and Maritime.
• Chapter VI.: Of Courts of a Special Jurisdiction.
• Chapter VII.: Of the Cognizance of Private Wrongs.
• Chapter VIII.: Of Wrongs, and Their Remedies, Respecting the Rights of Persons.
• Chapter IX.: Of Injuries to Personal Property.
• Chapter X.: Of Injuries to Real Property; and First of Dispossession, Or Ouster of the Freehold.
• Chapter XI.: Of Dispossession, Or Ouster, of Chattels Real.
• Chapter XII.: Of Trespass.
• Chapter XIII.: Of Nuisance.
• Chapter XIV.: Of Waste.
• Chapter XV.: Of Subtraction.
• Chapter XVI.: Of Disturbance.
• Chapter XVII.: Of Injuries Proceeding From, Or Affecting, the Crown.
• Chapter XVIII.: Of the Pursuit of Remedies By Action; and First of the Original Writ.
• Chapter XIX.: Of Process.
• Chapter XX.: Of Pleading
• Chapter XXI.: Of Issue and Demurrer.
• Chapter XXII.: Of the Several Species of Trial.
• Chapter XXIII.: Of the Trial By Jury.
• Chapter XXIV.: Of Judgment and Its Incidents.
• Chapter XXV.: Of Proceedings In the Nature of Appeals.
• Chapter XXVI.: Of Execution.
• Chapter XXVII.: Of Proceedings In the Courts of Equity.
• Appendix.
• No. I.: Proceedings On a Writ of Right Patent.
• * *vii.] No. II.: Proceedings On an Action of Trespass In Ejectment, By Original, In the King’s Bench.
• * [*xiii. No. III.: Proceedings On an Action of Debt In the Court of Common Pleas; Removed Into the King’s Bench By Writ of Error.
• Book the Fourth.: of Public Wrongs.
• Chapter I.: Of the Nature of Crimes, and Their Punishment.
• Chapter II.: Of the Persons Capable of Committing Crimes.
• Chapter III.: Of Principals and Accessories.
• Chapter IV.: Of Offences Against God and Religion.
• * [*66 Chapter V.: Of Offences Against the Law of Nations.
• Chapter VI.: Of High Treason.
• Chapter VII.: Of Felonies Injurious to the King’s Prerogative.
• Chapter VIII.: Of PrÆmunire.
• Chapter IX.: Of Misprisions and Contempts Affecting the King and Government.
• Chapter X.: Of Offences Against Public Justice.
• Chapter XI.: Of Offences Against the Public Peace.
• Chapter XII.: Of Offences Against Public Trade.
• Chapter XIII.: Of Offences Against the Public Health, and the Public Police Or Economy.
• Chapter XIV.: Of Homicide.
• Chapter XV.: Of Offences Against the Persons of Individuals.
• Chapter XVI.: Of Offences Against the Habitations of Individuals.
• Chapter XVII.: Of Offences Against Private Property.
• Chapter XVIII.: Of the Means of Preventing Offences.
• Chapter XIX.: Of Courts of a Criminal Jurisdiction.
• Chapter XX.: Of Summary Convictions.
• Chapter XXI.: Of Arrests.
• Chapter XXII.: Of Commitment and Bail.
• Chapter XXIII.: Of the Several Modes of Prosecution.
• Chapter XXIV.: Of Process Upon an Indictment.
• Chapter XXV.: Of Arraignment and Its Incidents.
• Chapter XXVI.: Of Plea, and Issue.
• Chapter XXVII.: Of Trial and Conviction.
• Chapter XXVIII.: Of the Benefit of Clergy.
• Chapter XXIX.: Of Judgment and Its Consequences.
• Chapter XXX.: Of Reversal of Judgment.
• Chapter XXXI.: Of Reprieve and Pardon.
• Chapter XXXII.: Of Execution.
• Chapter XXXIII.: Of the Rise, Progress, and Gradual Improvements of the Laws of England.
• Appendix.
• Sect. 1.: Record of an Indictment and Conviction of Murder, At the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial Instanter In the Court of King’s Bench, Upon a Collateral Issue; and Rule of Court For Execution Thereon.
• Sect. 4.: Warrant of Execution On Judgment of Death, At the General Gaol-delivery In London and Middlesex.
• Sect. 5.: Writ of Execution Upon a Judgment of Murder, Before the King In Parliament.
• Barron Field, an Analysis of Blackstone’s Commentaries On the Laws of England.

CHAPTER XXIX.

OF JUDGMENT AND ITS CONSEQUENCES.

*[*375We are now to consider the next stage of criminal prosecution, after trial and conviction are past, in such crimes and misdemeanours as are either too high or too low to be included within the benefit of clergy, which is that of judgment. For when, upon a capital charge, the jury have brought in their verdict guilty, in the presence of the prisoner, he is, either immediately, or at a convenient time soon after, asked by the court if he has any thing to offer why judgment should not be awarded against him. And in case the defendant be found guilty of a misdemeanour, (the trial of which may, and does usually, happen in his absence, after he has once appeared,) a capias is awarded and issued to bring him in to receive his judgment; and, if he absconds, he may be prosecuted even to outlawry. But whenever he appears in person, upon either a capital or inferior conviction, he may at this period, as well as at his arraignment, offer any exceptions to the indictment in arrest or stay of judgment; as for want of sufficient certainty in setting forth either the person, the time, the place, or the offence. And if the objections be valid, the whole proceedings shall be set aside; but the party may be indicted again.(a) And we may take notice, 1. That none of the statutes of jeofails,(b) for amendment of errors, extend to indictments or proceedings in criminal cases; and therefore a defective indictment is not aided by a verdict, as defective pleadings in civil cases are. 2. That in favour of life great strictness has at all times been observed in **376]every point of an indictment. Sir Matthew Hale indeed complains “that this strictness is grown to be a blemish and inconvenience in the law and the administration thereof; for that more offenders escape by the over-easy ear given to exceptions in indictments than by their own innocence.”(c) And yet no man was more tender of life than this truly excellent judge.1

A pardon also, as has been before said, may be pleaded in arrest of judgment, and it has the same advantage when pleaded here as when pleaded upon arraignment, viz: the saving the attainder, and of course the corruption of blood; which nothing can restore but parliament, when a pardon is not pleaded till after sentence. And certainly, upon all accounts, when a man hath obtained a pardon he is in the right to plead it as soon as possible.

Praying the benefit of clergy may also be ranked among the motions in arrest of judgment; of which we spoke largely in the preceding chapter.

If all these resources fail, the court must pronounce that judgment which the law hath annexed to the crime, and which hath been constantly mentioned, together with the crime itself, in some or other of the former chapters. Of these some are capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead; though in very atrocious crimes, other circumstances of terror, pain, or disgrace are superadded; as, in treasons of all kinds, being drawn or dragged to the place of execution; in high treason affecting the king’s person or government, embowelling alive, beheading, and quartering; and in murder, a public dissection. And, in case of any treason committed by a female, the judgment is to be burned alive. But the humanity of the English nation has authorized, by a tacit consent, an almost general mitigation of such parts of these judgments as savour of torture or cruelty; a sledge or hurdle being **377]usually allowed to such traitors as are condemned to be drawn; and there being very few instances (and those accidental or by negligence) of any person’s being embowelled or burned till previously deprived of sensation by strangling. Some punishments consist in exile or banishment, by abjuration of the realm, or transportation; others in loss of liberty, by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands, or movables, or both, or of the profits of lands for life: others induce a disability of holding offices or employments, being heirs, executors, and the like. Some, though rarely, occasion a mutilation or dismembering, by cutting off the hand or ears; others fix a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or cheek. Some are merely pecuniary, by stated or discretionary fines: and lastly, there are others that consist principally in their ignominy, though most of them are mixed with some degree of corporal pain; and these are inflicted chiefly for such crimes as either arise from indigence or render even opulence disgraceful; such as whipping, hard labour in the house of correction or otherwise, the pillory, the stocks, and the ducking-stool.

Disgusting as this catalogue may seem, it will afford pleasure to an English reader, and do honour to the English law, to compare it with that shocking apparatus of death and torment to be met with in the criminal codes of almost every other nation in Europe. And it is moreover one of the glories of our English law that the species, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained for every subject alike, without respect of persons. For, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates, and would live in society without knowing exactly the conditions and obligations which it lays them under. And besides, as this prevents oppression on the one hand, so on *[*378the other it stifles all hopes of impunity or mitigation; with which an offender might flatter himself, if his punishment depended on the humour or discretion of the court. Whereas, where an established penalty is annexed to crimes, the criminal may read their certain consequence in that law; which ought to be the unvaried rule, as it is the inflexible judge, of his actions.

The discretionary fines and discretionary length of imprisonment which our courts are enabled to impose may seem an exception to this rule. But the general nature of the punishment, viz., by fine or imprisonment, is in these cases fixed and determinate; though the duration and quantity of each must frequently vary, from the aggravations, or otherwise, of the offence, the quality and condition of the parties, and from innumerable other circumstances. The quantum, in particular, of pecuniary fines neither can nor ought to be ascertained by an invariable law. The value of money itself changes from a thousand causes; and, at all events, what is ruin to one man’s fortune may be matter of indifference to another’s. Thus, the law of the twelve tables at Rome fined every person that struck another five-and-twenty denarii: this, in the more opulent days of the Empire, grew to be a punishment of so little consideration that Aulus Gellius tells a story of one Lucius Neratius, who made it his diversion to give a blow to whomsoever he pleased and then tender them the legal forfeiture. Our statute law has not therefore often ascertained the quantity of fines, nor the common law ever; it directing such an offence to be punished by fine in general, without specifying the certain sum; which is fully sufficient when we consider that, however unlimited the power of the court may seem, it is far from being wholly arbitrary; but its discretion is regulated by law. For the bill of rights(d) has particularly declared that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted, (which had a retrospect to some unprecedented proceedings in the court of king’s bench in the reign of king James the Second;) *[*379and the same statute further declares that all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void. Now, the bill of rights was only declaratory of the old constitutional law; and accordingly we find it expressly holden long before,(e) that all such previous grants are void; since thereby many times undue means and more violent prosecution would be used for private lucre than the quiet and just proceeding of law would permit.

The reasonableness of fines in criminal cases has also been usually regulated by the determination of magna carta, c. 14, concerning amercements for misbehaviour by the suitors in matters of civil right. “Liber homo non amercietur pro varvo delicto, nisi secundum modum ipsius delicti; et pro magno delicto, secundum magnitudinem delicti; salvo contenemento suo; et mercator eodem modo, salva mercandisa sua; et villanus eodem modo amercietur, salvo wainagio suo.” A rule that obtained even in Henry the Second’s time,(f) and means only that no man shall have a larger amercement imposed upon him than his circumstances or personal estate will bear; saving to the landholder his contenement2 or land; to the trader his merchandise; and to the countryman his wainage, or team and instruments of husbandry. In order to ascertain which, the great charter also directs that the amercement, which is always inflicted in general terms, (“sit in misericordia,”) shall be set, ponatur, or reduced to a certainty, by the oath of good and lawful men of the neighbourhood. Which method of liquidating the amercement to a precise sum was usually performed in the superior courts by the assessment or affeerment of the coroner, a sworn officer chosen by the neighbourhood, under the equity of the statute Wesm. 1, c. 18; and then the judges estreated them into the exchequer.(g) But in the court-leet and court-baron it is still performed by affeerors, or suitors sworn to affeere, that is, tax and moderate the general amercement according to the particular circumstances of the offence **380]and the offender.(h) Amercements imposed by the superior courts on their own officers and ministers were affeered by the judges themselves; but when a peculiar mulet was inflicted by them on a stranger (not being party to any suit) it was then denominated a fine;(i) and the antient practice was, when any such fine was imposed, to inquire by a jury “quantum inde regi dare valeat per annum, salva sustentatione sua, et uxoris, et liberorum suorum.”(j) And since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such fine as might amount to imprisonment for life. And this is the reason why fines in the king’s court are frequently denominated ransoms, because the penalty must otherwise fall upon a man’s person unless it be redeemed or ransomed by a pecuniary fine;(k) according to an antient maxim, qui non habet in crumena luat in corpore. Yet, where any statute speaks both of fine and ransom, it is holden that the ransom shall be treble to the fine at least.(l)

When sentence of death, the most terrible and highest judgment in the laws of England, is pronounced, the immediate inseparable consequence from the common law is attainder. For when it is now clear beyond all dispute that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no further care of him than barely to see him executed.3 He is then called attaint, attinctus, stained or blackened. He is no longer of any credit or reputation; he cannot be a witness in any court; neither is he capable of performing the functions of another man; for, by an anticipation of his punishment, he is already dead in law.(m) This is after judgment; for there is great difference between a man convicted and attainted: though they are frequently through inaccuracy confounded together. After conviction **381]only a man is liable to none of these disabilities; for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment; the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed; he may obtain a pardon, or be allowed the benefit of clergy; both which suppose some latent sparks of merit which plead in extenuation of his fault. But when judgment is 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.

1. Forfeiture is twofold,—of real and personal estates. First, as to real estates. 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 forever 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 forfeiture relates backwards to the time of the treason committed, so as to avoid all intermediate sales and encumbrances,(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 *[*382is forfeited, by the express provision of statute 5 & 6 Edw. VI. c. 11. And yet the husband shall be tenant by the curtesy of the wife’s lands if the wife 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.(q) 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 fundamental principles of government, and broken his part of the original contract between king and people, hath abandoned his connections 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,(t) “nec vero me fugit quam sit acerbum, parentum scelera filiorum pœnis lui; sed hoc præclare legibus comparatum est, ut caritas liberorum amiciores parentes reipublicæ redderet.” And therefore Aulus Cascellius, a Roman lawyer in the time of the triumvirate, used to boast that he had two reasons for *[*383despising the power of the tyrants,—his old 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 government expressly does. And therefore, though confiscations were very frequent in the times of the earlier emperors, yet Arcadius and Honorius, in every other instance but that of treason, thought it more just “ibi esse pœnam, ubi no[Editor: illegible character]ca 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,(v) 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 Germany, by the famous golden bulle,(x) (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, ecclesiastical or civil: “to the end that, being always poor and necessitous, they may forever 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,)(z) but was antecedent to the establishment of that system in this island, **384]being transmitted from our Saxon ancestors,(a) and forming a part of the antient Scandinavian constitution.(b) But in certain treasons relating to the coin (which, as we formerly observed, seem rather a species of the crimen falsi than the crimen læsæ 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.(d) And, in order to abolish such hereditary punishment entirely, it was enacted, by statute 7 Anne, 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 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 **385]hopes, it is said,(f) that the prudence of 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 further suspended till the death of the sons of the pretender.(h)4

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,(l) 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 destraction 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 prærogativa regis seems to suppose that the king shall have his year, day, and waste, and not the *[*386year 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 antient 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, (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 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 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.

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 præmunire 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,(q) and striking in Westminster hall, 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 higher kinds of offence: in high treason or misprision **387]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 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,(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.5

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 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 time of the fact committed, so as to avoid all subsequent sales and encumbrances; 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 **388]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, 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 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 *[*389treason, 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(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 Anne, 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.6

[(a) ] 4 Rep. 45.

[(b) ] See book iii. page 407.

[(c) ] 2 Hal. P. C. 193.

[1 ] The law upon this subject has been materially altered by the statute 7 Geo. IV. c. 64, s. 20, and by sect. 21 of the same statute, which enacts that no judgment after verdict upon any indictment or information of any felony or misdemeanour shall be stayed or reversed for want of a similiter; nor by reason that the jury-process has been awarded to a wrong officer upon an insufficient suggestion; nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors; nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer; and that where the offence charged has been created by any statute, or subjected to a greater degree of punishment, or excluded from the benefit of clergy by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute.—Chitty.

Many of the grounds of objections enumerated in this statute have been, moreover, by subsequent provisions, either wholly removed, by rendering the averments either wholly unnecessary, (14 & 15 Vict. c. 100,) by allowing amendments at the trial, (11 & 12 Vict. c. 46, 12 & 13 Vict. c. 45, 14 & 15 Vict. c. 100,) or by requiring all objections for formal defects apparent on the face of an indictment to be taken before the jury are sworn. 14 & 15 Vict. c. 100.—Stewart.

[(d) ] Stat. 1 W. and M. st. 2, c. 2.

[(e) ] 2 Inst. 48.

[(f) ] Glanv. l. 9, c. 8 and 11.

[2 ] Lord Coke says that “contenement signifieth his countenance, as the armour of a soldier is his countenance, the books of a scholar his countenance, and the like.” 2 Inst. 28. He also adds that “the wainagium is the countenance of the villein; and it was great reason to save his wainage, for otherwise the miserable creature was to carry the burden on his back.” Ibid.—Christian.

[(g) ] F. N. B. 76.

[(h) ] The affeeror’s oath is conceived in the very terms of magna charta. Fitzh. Survey, c. 11.

[(i) ] 8 Rep. 40.

[(j) ] Gilb. Exch. c. 5.

[(k) ] Mirr. c. 5, 3. Lamb. Eirenarch. 575.

[(l) ] Dyer, 232.

[3 ] This must be taken with some qualification; for the person of an attainted felon is still under the protection of the law, and to kill him without warrant would be murder Fost. 73.—Chitty.

[(m) ] 3 Inst. 213.

[(n) ] Co. Litt. 392. 3 Inst. 319. 1 Hal. P. C. 240. 2 Hawk. P. C. 448.

[(o) ] 3 Inst. 211.

[(p) ] 1 Hal. P. C. 359.

[(q) ] Co. Litt. 13.

[(r) ] 4 Rep. 57.

[(s) ] See book i. page 259.

[(t) ]Ad Brutum, ep. 12.

[(t) ] Gravin. 1, 68.

[(u) ]Cod. 9. 47, 22.

[(v) ]Nov. 134, c. 13.

[(w) ] Qu. Curt. l. 6.

[(x) ]Cap. 24.

[(y) ]L. 9, t. 8, l. 5.

[(z) ] See book ii. page 251.

[(a) ]LL. Ælfr. c. 4. Canut. c. 54.

[(b) ] Stiernh. de jure Goth. l. 2, c. 6, and l. 3, c. 3.

[(c) ] Stat. 5 Eliz. c. 11. 18 Eliz. c. 1.

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

[(e) ] Burnet’s Hist. ad 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 ad 1744. See book i. page 244.

[4 ] By the 39 Geo. III. c. 93, the clause in the 7 Anne, c. 21, and that in the 17 Geo. II. c. 39, limiting the periods when forfeiture for treason should be abolished, are repealed. So that the law of forfeiture in cases 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.—Christian.

Also, by 54 Geo. III. c. 145, no attainder for felony, except in high treason, petit treason, murder, or abetting, &c. the same, shall extend to the disinheriting any heir, nor to the prejudice of the right or title of any person, except the offender during his life only; and every person to whom the right or interest of any lands or tenements should or might after the death of such offender have appertained, if no such attainder had been, may enter thereon.—Chitty.

[(i) ] 2 Inst. 37.

[(k) ] Ch. iii. v. 29.

[(l) ] Ch. vi. v. 11.

[(m) ] Mirr. c. 4, 16. Flet. l. 1, c. 28.

[(n) ] 9 Hen. II. c. 22.

[(o) ] Mirr. c. 5, 2. 2 Inst. 37.

[(p) ] 3 Inst. 55.

[(q) ] Ibid. 218.

[(r) ] Ibid. 141.

[(s) ] Staundf. P. C. 183, b.

[5 ] By 7 & 8 Geo. IV. c. 28, s. 5, it is enacted “that where any person shall be indicted for treason or felony, the jury impanelled to try such person shall not be charged to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason or felony.” The practice had been wholly discontinued for some years.—Chitty.

[(t) ] 3 Inst. 232.

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

[(v) ] See book ii. p. 251.

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

[(x) ] Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. 8 & 9 W. III. c. 26, 15 & 16 Geo. II. c. 28.

[6 ] These statutes were, however, repealed, by stat. 39 Geo. III. c. 93; but, by stat. 54 Geo. III. c. 145, corruption of blood was abolished in all cases except the crimes of high treason and murder; and, by statute 3 & 4 W. IV. c. 106, s. 10, it is enacted that corruption of blood on attainder shall not obstruct descents to the posterity of the offender where they are obliged to derive a title through him or her to a remoter ancestor.—Stewart.