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transmitted from our Saxon ancestors, and forming a part of the antient Scandinavian constitution.
In support of the doctrine of forfeiture being based on natural justice, it has been argued that so far as treason is concerned, he who violates the fundamental principles of government, and breaks his part of the original contract between king and people, must be held to have abandoned his connections with society, and no longer to have 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, must be calculated 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 should interest every dependent and relation, to keep him from offending: according to that sentiment of Cicero,“ 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" (f). And therefore Aulus Cascellius, a Roman lawyer in the time of the triumvirate, used to boast that he had two reasons for despising 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 (9). Yet many nations (even in antient times) have thought that this posthumous punishment savours of hardship to the innocent, especially for crimes that do not strike at the very root and foundations 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 pænam, ubi et
(f) Ad Brutum, ep. 12.
(9) Gravin. 1, s. 68.
[noxa est ;” and ordered that “ peccata suos teneant auctores, nec ulterius progrediatur metus, quam reperiatur delictum" (h). And Justinian, also, made a law to restrain the punishment of relations(i); 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 laws extended even the capital punishment of treason, not only to the children, but to all the relations of the traitor (k); and of course their estates must also be forfeited, as no man was left to inherit them. And in Germany, by the famous golden bulle (1), copied almost verbatim from Justinian's code (m), 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 neces“ sitous, they may for ever be accompanied by the infamy “ of their father; may languish in continual indigence ; " and may find,” says this merciless edict, “ their punish“ ment in living, and their relief in dying.”]
The law as to attainder for murder was somewhat different. Here the offender forfeited only to the Crown the profits of his freehold estates during life, and also (in the case of lands held by him in fee simple, though not with regard to those held in tail) the lands themselves, for a year and a day, with power to the Crown of committing upon them what waste it pleased : and subject to this temporary
forfeiture the lands escheated to the lord of the fee, This antient doctrine as to the right of the Crown for a year and a day requires, however, some further explanation (n). [Formerly, then, the sovereign had a liberty of committing waste on the lands of all felons by pulling down their houses, extirpating their gardens, ploughing
(h) Cod. 9, 47, 22.
(1) Cap. 24.
[their meadows, and cutting down their woods (0). But this tending greatly to the prejudice of the public, it was agreed in the reign of Henry the first, 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 (p). And, therefore, Magna Charta provided that the king should only hold such lands for a year and a day, and then restore them to the lord of the fee,
mention made of waste (2). But the statute 17 Edw. II., De prerogativa regis, seemed to suppose that the king should have his year, day and waste, and not the year and day instead of waste; which Sir Edward Coke and the author of the Mirrour before him, very justly looked upon as an encroachment, though a very antient one, of the royal prerogative (r).] Such continued to be the state of the law on this subject until the passing of the 54 Geo. III. c. 145, though it became the practice to compound for the year, day and waste, in order to prevent the Crown from exercising its right of entry. But by the statute just mentioned it was enacted, that no future attainder for felony (except in cases of treason or murder) should extend to the disinheritance of any heir, or to the prejudice of the right or title of any person other than the right or title of the offender during his life only; and that it should be lawful for every person to whom the right or interest of any lands, tenements or hereditaments after the death of such offender should or might have appertained if no such attainder had been, to enter into the same, the attainder notwithstanding.
The forfeitures above mentioned all arose, it will be
specified, ordain “that their houses shall be made a dunghill.” (Dan. c. iii. 29; Ezra, c. vi. 11.)
(P) Mirr. c. 4, s. 16; Flet. l. 1,
(0) A punishment of a similar spirit (adds Blackstone, vol. iv. p. 385) appears to have obtained in the oriental countries, 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
(7) 9 Hen. 3, c. 22.
observed, only as consequences of attainder (8); and therefore a felo de se forfeited no lands of inheritance or freehold, for he could never be attainted though found to be a felon (t). But, on the other hand, they related back to the time of the offence committed, so as to avoid all intermediate charges and conveyances.
Another consequence of attainder in treason and murder was corruption of blood, both upwards and downwards; so that an attainted
person could neither inherit lands or other hereditaments from his ancestors, nor transmit them by descent to any heir; but the same escheated to the lord of the fee, subject to the Crown's superior right of forfeiture. But having had occasion to enlarge on this matter in a former volume, where the subject of escheat was in question, it is not necessary to detain the reader longer upon it in this place (u),—further than to remind him that by the 33 & 34 Vict. c. 23 (The Felony Act, 1870), s. 1, it was provided that after the passing of that Act no judgment for any treason or felony shall cause any corruption of blood (2).
In addition however to the forfeitures peculiar to attainder, it is to be understood that forfeiture of goods and chattels (both real and personal), ensued not only on attainder, but on conviction for a felony of any kind, whether capital or otherwise (y). [For flight also, on an accusation of treason or felony, whether the party were found guilty or acquitted, if the jury found the flight, the
(8) R. v. Bridges, 1 Mee. & W. 145.
(t) 3 Inst. 55. See Norris v. Chambers, 30 L. J., Ch. 290.
(u) Vide sup. vol. 1. p. 458 et seq. (2) Vide sup. vol. 1. p. 446.
(y) Forfeiture of goods and chattels accrued, consequently, on a verdict of self-murder (vide sup. p. 62). On the other hand, an ex
ception to the general rule as to the consequences of a conviction for felony is to be noticed in regard to a conviction for larceny by way of summary conviction, under the 10 & 11 Vict. c. 82, 13 & 14 Vict. c. 37, or 18 & 19 Vict. c. 126; for such & conviction was never attended by any forfeiture. (As to these Acts, vide sup. p. 332.)
[party forfeited his goods and chattels; for the very flight was held an offence carrying with it a strong presumption of guilt, and at least an endeavour to elude and stifle the course of justice prescribed by the law. But in modern times it became unusual for the jury to 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 (z).] And by statute 7 & 8 Geo. IV. c. 28, s. 5, it was expressly enacted, that the jury impanelled to try a person indicted for treason or felony should no longer be charged to inquire whether he fled for such treason or felony.
To revert to the forfeitures which took place on judgment of death or outlawry, and those which accrued on conviction for felonies generally, some remarkable differences will be noticed between the two. [1. Lands were forfeited upon attainder, and not before ; goods and chattels became forfeited by conviction (a): because in many cases of convictions for felony there never was any attainder; therefore, in those cases, the forfeiture must have been upon conviction, or not at all; and, being necessarily upon conviction in those, it was so ordered in all other cases; the law loving uniformity. 2. In outlawries for treason or felony, lands were forfeited only by the judgment; but the goods and chattels were forfeited by a man's being first put into the exigent, without staying till he is quinto exactus, or finally outlawed; for the secreting himself so long from justice was construed a flight in law (6). 3. The forfeiture of lands had relation to the time of the fact committed, so as to avoid all subsequent sales and incumbrances; but the forfeiture of goods and chattels had no relation backwards; so that those only which a
(2) Staundf. P. C. 183 b; 4 BI. Com. 387.
(a) See Roberts v. Walker, 1 Russ. & Myl. 756.
(b) 3 Inst. 232.