[body of one killed in open rebellion, records it, and returns the record into his own court, both lands and goods shall be forfeited (f). 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 antecedent to the establishment of that system in this island, being transmitted from our Saxon ancestors, and forming a part of the antient Scandinavian constitution.] It is based indeed on natural justice. [The natural justice of forfeiture or confiscation of property for treason is founded in this consideration,—that he who hath thus violated the fundamental principles of government, and broken his part of the original contract ing this temporary clause in hopes, "it is said, that the prudence of succeeding parliaments would make it "perpetual." (See Burnet's Hist. A.D. 1709; and "Considerations on the Law of Forfeiture," vol. 1. p. 244.) This was partly done by the statute 17 Geo. 2, c. 39, made in the year preceding the rebellion of 1745. And by 39 & 40 Geo. 3, c. 93, the above mentioned provision of the stat. 7 Ann. c. 21, was repealed. [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 may 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 dependent and relation he has, to keep him from offending: according to that beautiful sentiment of Cicero, "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" (g). 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 (). 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 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 pœnam, ubi et noxa est ;" and ordered that "peccata suos teneant auctores, nec ulterius progrediatur metus, quam reperiatur delictum" (i). And Justinian, also, made a law to restrain the punishment of relations (k); 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 (g) Ad Brutum, ep. 12. (h) Gravin. 1, s. 68. (i) Cod. 9, 47, 22. [traitor (1); 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 (m), copied almost verbatim from Justinian's code (n), 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 for ever 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."] 66 Secondly, as to other felonies. By attainder on felony, other than treason, the offender forfeits to the Crown the profits of all his freehold lands and tenements during his life; and in the case of murder, he forfeits, besides, all lands and tenements which he had in fee simple, for a year and a day, with power to the Crown of committing upon them what waste it pleases: subject to which temporary forfeiture they escheat to the lord of the fee, by reason of the tenant's corruption of blood, as will be presently explained (o). This doctrine of year, day and waste applied, until recently, to attainder for any felony whatever, with the exception of treason (p), which, as we have seen, is differently provided for; and the history of it is as follows. [Formerly the sovereign had only a liberty of committing waste on the lands of felons, by pulling down their houses, extirpating their gardens, ploughing (1) Qu. Curt. 1. 6. (m) Cap. 24. (n) L. 9, t. 8, 1. 5. (0) Vide post, p. 543. It will be recollected that the ultimate lord of the fee in all cases, and usually the immediate lord also, is (since the statute of Quia Emptores) the sovereign (vide sup. vol. 1. p. 239). In such cases, therefore, the Crown, on attainder for murder (as well as for treason), takes the whole of the offender's estate (vide sup. vol. 1. p. 446). (p) 2 Inst. 37. De [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 (q), and Ezra (r); 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 (s). And, therefore, Magna Charta 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 (t). But the statute 17 Edw. II., 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 Mirrour before him, very justly look upon as an encroachment, though a very antient one, of the royal prerogative (u).] And such continued to be the state of the law on this subject until the passing of the 54 Geo. III. c. 145, though it was the practice to compound for the year, day and waste, to prevent the Crown from exercising its right of entry. But now by the statute just mentioned, no attainder for felony which shall thereafter take place, (except in cases of treason or murder, or of abetting, procuring or counselling the same,) shall extend to the disinheritance of any heir, nor 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 it shall be lawful to every person to whom the right or interest of any lands, tenement or hereditaments after the death of (q) Ch. iii. 29. (r) Ch. vi. 11. (s) Mirr. c. 4, s. 16; Flet. 1. 1, c. 28. (t) 9 Hen. 3, c. 22. (u) Mirr. c. 5, s. 2; 2 Inst. 37. such offender should or might have appertained, if no such attainder had been, to enter into the same. The forfeitures above mentioned all arise, it will be observed, only as consequences of attainder (x); [and therefore a felo de se forfeits no lands of inheritance or freehold, for he never is attainted as a felon (y).] But these forfeitures, on the other hand, [relate back to the time of the offence committed, 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.] It is to be observed too, that the forfeitures above mentioned [are all the forfeitures of real estates created by the common law, as consequential upon attainders, by judgment of death or outlawry. The particular forfeitures created by the statutes of præmunire and others are here omitted, because they are to be looked upon rather as a part of the judgment and penalty inflicted by the respective statutes, than as consequences of such judgment, as in treason and murder they are. But as a part of the forfeiture of real estates, it may be proper just to mention the forfeiture of the profits of lands during life, which extends to two other instances besides those already spoken of,— misprision of treason (z); and striking in the superior courts of justice (a), or drawing a weapon upon a judge there presiding (b).] II. Another immediate consequence of attainder in treason and murder [is the corruption of blood, both upwards and downwards; so that an attainted person can neither inherit lands or other hereditaments from his (x) R. v. Bridges, 1 Mee. & W. 145. (y) 3 Inst. 55. See Norris v. Chambers, 30 L. J., Ch. 290. (a) 3 Inst. 218; vide sup. p. 250. (a) The words of Blackstone are "striking in Westminster Hall.”— (4 Bl. Com. 386.) As to this offence, vide sup. p. 304. (b) 3 Inst. 141. |