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ing down their houses, extirpating their gardens, ploughing their ineadows, and felling their woods. But in the reign of Henry I, it was agreed that the king should in lieu thereof have the profits for a year and a day, and then restore them to the lord of the fee. By statute of Edward II, the king shall have his waste also. This
year, day and waste are now usually compounded for, otherwise they belong to the crown.
Forfeitures Relate Back. Forfeitures for felony also arise upon attainder, and therefore a felo de se forfeits no lands of inheritance or freehold, for he never is attainted as a felon. They relate back to the time of the offence committed, as well as do forfeitures for treason, so as to avoid all intermediate charges and conveyances.
Additional Causes of Forfeiture. As a part of the forfeiture of real estate and of the profits of land during life, there are to be added misprision of treason, and striking any one in Westminster Hall, or drawing a weapon upon a judge there sitting in court.
Forfeiture of Goods. The forfeiture of goods and chattels accrues in all the higher grade of offences; in high treason or misprision thereof, petit treason, felonies of all sorts, whether clergyable or not, suicide, petit larceny, standing mute and striking any one in Westminster Hall. For flight also, on accusation of treason, felony or even petit larceny, whether the party be found guilty or acquitted ; if the jury find the flight, which it seldom does, the party shall forfeit his goods and chattels; for the very flight is an offence, carrying with it a presumption of guilt.
Difference between Forfeiture of Lands and of Goods. There is a great difference between the forfeiture of lands and the forfeiture of goods :
(1) Lands are forfeited upon attainder, and not before, goods and chattels are forfeited by conviction. 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 only.
(2) In outlawries for treason or felony, lands are forfeited only by the judgment.
Relates back to Date of Act as to Lands only. The forfeiture of lands has relation to the date of the act committed, so as to avoid all subsequent sales and encumbrances; but the forfeiture of goods and chattels has no relation backwards, so that only those which a man has at the time of conviction shall be forfeited. Hence a traitor or felon may bona fide sell any of his goods for the sustenance of himself and family, between the fact and the conviction; yet where collusively parted with, they may
be reached by the crown.
Result as to Property. This is another immediate consequence of attainder, and works both upward and downward, so that an attainted person can neither inherit lands 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.
Its Antiquity and Origin. This idea was adopted from the feudal constitutions, at the time of the Norman conquest, and was unknown in Saxon tenures, where treason resulted in forfeiture of estate, but not in corruption of blood or impediment of descent; and on judgment of mere felony, no escheat accrued to the lord. And now, as every other oppressive mark of feudal
. times is happily removed in England, it is to be hoped that this corruption of blood, with all its connected consequences, may in time be abolished, as it stands on a different footing from the forfeiture of lands for high treason.?
CHAPTER XXX.-REVERSAL OF JUDGMENT.
Modes. A judgment may be set aside in two ways:
1. By falsifying or reversing the judgment.
2. By reprieve or pardon.
Without a Writ of Error, 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. Therefore, if the whole record be not certified, or truly certified by the inferior court, the party injured thereby in both civil and criminal cases, may allege a diminution of the record. Thus, if a judgment be given by persons, who had no good commission to proceed against the person condemned, it is void ; and may be falsified, by showing the special matter, without writ of
i By statute of William IV, descents are not thus obstructed. — Cooley.
2 By statute of George III, corruption of blood was abolished in all cases, except the crimes of high treason and murder.
By Writ of Error. This lies from all inferior criminal jurisdictions to the court of king's bench, and from there to the house of peers; and may be brought for mistakes in the judgment, or other parts of the record. As where a man is found guilty of perjury, and receives the judgment of felony; or for other less palpable errors, such as irregularity, omission or want of form in the process of outlawry, the want of a proper addition to the defendant's name; for not properly naming the sheriff, or the location of the county court, &c.
Not Allowed, as of Course. These writs of error, to reverse judgments in cases of misdemeanors, are not to be allowed, of course, but on sufficient probable cause shown to the attorney general; and then they are understood to be granted of common right, and ex debito justitiae. But writs of error, to reverse attainders in capital cases, are only allowod ex gratia, and not without express warrant, under the king's sign manual, or by consent of the attorney general. This, therefore, can rarely be brought by the attainted party, but may be brought by his heir or executor after his death.
Reversal of Attainder by Parliament. This may be done from compassion, or after a revolution in the government; or on account of the merits of the family of the criminal, who seek, after his death, to obtain a restitution in blood, honors and estate, by act of parliament; which in reversing the attainder, casts no reflection upon the justice of the preceding sentence.
Reversing an Outlawry. The effect of falsifying or reversing an outlawry is, that the party shall be in the same plight, as if he had appeared upon the capias ; and if it be before plea pleaded, he shall be put to plead upon the indictment ; if after conviction, he shall receive the sentence of the law; for all the
other proceedings, except only the process of outlawry for his non-appearance, remain effectual as before. But when judgment, pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands, as if he had never been accused; restored in his credit, his capacity, his blood and his estates. Even if the estates have been granted away by the crown, he may enter upon them, as he might enter upon a disseisor. But he still remains liable to another prosecution, for the same offence, for the first being erroneous, he never was in jeopardy thereby.
CHAPTER XXXI.-REPRIEVE AND PARDON.
Difference. The former is temporary only, the latter permanent.
Defined. A reprieve, from reprendre, to take back, is the withdrawal of a sentence for an interval of time, whereby the execution is suspended. This may be first, ex arbitrio judicis, either before or after judgment; as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment insufficient, or he is doubtful, whether the offence be within clergy, or any favorable circumstances appear in the criminal's character, which might be efficacious in procuring a pardon. These arbitrary reprieves may, by usage, be granted by the justices of gaol delivery.
Pregnant Woman, As, where a woman is capitally convicted, and pleads her pregnancy; though this is no cause to stay the judgment, yet it is to respite the execution, till she be delivered. This is mercy dictated by the law of nature, in favorem prolis. When a plea for this cause is made in stay of execution, the judge must direct a jury of twelve discreet women to inquire the fact, and if they bring in their verdict, "quick with child,” for “barely with child,” will not suffice, unless it be alive in the womb, execution shall be stayed until the next session, and until she be delivered, or proves not to have been with child. But if she once was reprieved on this ground, and afterwards
again become pregnant, she shall not have the benefit of a further respite for that cause.
Person non Compos Mentis. Another cause of reprieve is, where the offender becomes non compos between the judgment and the award of execution. It is a rule, when any time intervenes between the attainder and the award of execution, to demand of the prisoner, what he has to allege, why execution should not be awarded against him; and if he appears to be insane, the judge, in his discretion, may and ought to reprieve him.
Error as to the Person. Or the party may plead in bar of execution ; which plea may be either pregnancy, the king's
1 pardon, or diversity of person, viz: that he is not the same as was attainted, and the like. In the last case, a jury shall be empanelled to try the collateral issue, viz: the identity of his person, and not whether guilty or innocent, for that has been decided before. This trial shall be instanter, and no time allowed the prisoner to make his defence or produce his witnesses, unless he will make oath, that he is not the person attainted; neither shall any peremptory challenges of the jury be allowed the prisoner,
King's Prerogative. This the prerogative of the crown. The king himself condemns no man; this task belongs to the courts of justice. It is his privilege to display mercy. No other person has power to pardon or remit any treason or felonies whatever. This is one of the great advantages of monarchy, that there is a magistrate who has it in his power to extend mercy, wherever be deems it deserved. In democracies, nothing higher is acknowledged than the magistrate, who administers the laws; and it would be impolitic for the power of judging and pardoning to centre in one and the same person.
1. Object of Pardon. The king may pardon all offences merely against the crown or the public, excepting:
Power Restricted in Certain Cases.
(1.) That to preserve the liberty of the subject, the committing of a man to prison out of the realm, is, by the habeas corpus act, made a praemunire, unpardonable even by the king.
(2.) Nor can the king pardon, where private justice is principally concerned in the prosecution of offenders. Therefore, in