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, 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 [387] or not, self-murder or felony de se, petit larciny, 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 larciny, 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 pe

9 3 Inst. 218.

Ibid. 141.

Staundf. P. C. 183. b.

tendency of this, contrary to the learned judge's opinion, seems to be to account for forfeitures on something like a feudal principle; but practically it is much more convenient to consider them wholly distinct; in both treason and felony the natural consequence of corruption of blood would be escheat, but in treason the forfeiture intercepts entirely the right of the lord, as in felony the escheat intercepts that of the heir, to whom, if there had been no corruption of blood, the land would have reverted after the year and day. See Vol. II. p. 251. Nothing can prove more clearly how entirely distinct they are in practice, than the consideration that in the case of treasons, wherein by statutes the corruption of blood is taken away, so that there can be no escheat, forfeiture still remains. See sir S. Lovell's case, Salk. 85.

nalty 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 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 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 [388] fact and conviction"; for personal property is of so fluctuat

ing 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. (8)

t3 Inst. 232.

u 2 Hawk. P. C. c. 49. § 33.

(7) In modern practice it is not usual even to charge the jury to enquire as to the flight.

(s) See Vin. Abr. Forfeiture, P. 6., and Pauncefoot's case, cited 3 Rep. 82.

The

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 ances

tor ".

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 it's 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 [389] 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 parlia

"See Vol. II. pag. 251. w Stat. 5 Eliz. c. 1.

W

* Stat. 5 Eliz. c. 11. 18 Eliz. c. 1, 8 & 9 W. III. c. 26. 15 & 16 Geo. II. c. 28.

The position, that the offender might recover back his goods, if acquitted, as not parted with for a good consideration, seems very questionable; for he has parted with them knowingly, voluntarily, and fraudulently; in such a case I should think the maxim in pari delicto potior est conditio defendentis would apply, and that the plaintiff could not successfully ask for the interference of a court of justice to help him out of the consequences of his own fraudulent act.

But as in some of

ment, corruption of blood shall be saved. 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 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. (9)

(9) See p. 385. n. (5).

WRONGS.

390

CHAPTER THE THIRTIETH.

OF REVERSAL OF JUDGMENT.

WE are next to consider how judgments, with their several connected consequences, 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, and cause it 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 shewing the special matter without writ of error. (1) As, where a commission issues to A and B, and

(1) That is, if such judgment comes collaterally in question, in any other cause, or court, the party against whom it is used, may so avoid it. But I do not see how it can be directly reversed, except by writ of error, either for error in fact, in which case it would lie before the same court, and the fact would be alleged; or for error in law. The case put of persons proceeding to judgment without a good commission, is one of those decided illegalities for which the law seems to afford no preventive remedy: they who do so, subject themselves, indeed, to punishments afterwards; but in the mean time they are acting in defiance of law, and are not, indeed, a court, to or from which any appeal can be formally made.

VOL. IV.

G G