CHAPTER THE TWENTY NINTH.
OF JUDGMENT, AND IT'S CONSEQUENCES.

WE are now to confider the next ftage of criminal profecution, after trial and conviction are paft, in fuch crimes and mifdemefnors, 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 prefence of the prifoner; he is either immediately, or at a convenient time foon after, afked by the court, if he has any thing to offer why judgment fhould not be awarded againft him. And in cafe the defendant be found guilty of a mifdemefnor, (the trial of which may, and does ufually, happen in his abfence, after he has once appeared) a capias is awarded and iffued, to bring him in to receive his judgment; and, if he abfconds, he may be profecuted even to outlawry. But whenever he appears in perfon, 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 arreft or ftay of judgment: as for want of fufficient certainty in fetting forth either the perfon, the time, the place, or the offence. And, if the objections be valid, the whole proceedings fhall be fet afide; but the party
may
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may be indicted again ^a. And we may take notice, 1. That none of the ftatutes of jeofails ^b, for amendment of errors, extend to indictments or proceedings in criminal cafes; and therefore a defective indictment is not aided by a verdict, as defective pleadings in civil cafes are. 2. That, in favour of life, great ftrictnefs has at all times been obferved, in every point of an indictment. Sir Matthew Hale indeed complains, “that this ftrictnefs is grown to be a blemifh and inconvenience in the law, and the adminiftration thereof: for that more offenders efcape by the over-eafy ear given to exceptions in indictments, than by their own innocence; and many times grofs murders, burglaries, robberies, and other heinous and crying offences, remain unpunifhed by thefe unfeemly niceties; to the reproach of the law, to the fhame of the government, to the encouragement of villany, and to the difhonour of God ^c.” And yet, notwithftanding this laudable zeal, no man was more tender of life, than this truly excellent judge.

A PARDON alfo, as has been before faid, may be pleaded in arreft of judgment: and it has the fame advantage when pleaded here, as when pleaded upon arraignment; viz. the faving the attainder, and of courfe the corruption of blood: which nothing can reftore but parliament, when a pardon is not pleaded till after fentence. And certainly, upon all accounts, when a man hath obtained a pardon, he is in the right to plead it is foon as poffible.

PRAYING the benefit of clergy may alfo be ranked among the motions in arreft of judgment; of which we fpoke largely in the preceding chapter.

IF all thefe refources fail, the court muft pronounce that judgment, which the law hath annexed to the crime, and which hath been conftantly mentioned, together with the crime itfelf,

.{FS}
^a 4 Rep. 45.
^b See Vol. III. pag. 406.
^c 2 Hal. P. C. 193.
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in fome or other of the former chapters. Of these fome are capital, which extend to the life of the offender, and confift generally in being hanged by the neck till dead; though in very atrocious crimes other circumftances of terror, pain, or difgrace are fuperadded: as, in treafons of all kings, being drawn or dragged to the place of execution; in high treafon affecting the king's perfon or government, emboweling alive, beheading, and quartering; and in murder, a public diffection. And, in cafe of any treafon committed by a female, the judgment is to be burned alive. But the humanity of the Englifh nation has authorized, by a tacit confent, an almoft general mitigation of fuch part of thefe judgments as favour of torture or cruelty: a fledge or hurdle being ufually allowed to fuch traitors as are condemned to be drawn; and there being very few inftances (and thofe accidental or by negligence) of any perfon's being emboweled or burned, till previoufly deprived of fenfation by ftrangling. Some punifhments confift in exile or banifhment, by abiuration of the realm, or tranfportation to the American colonies: others in lofs of liberty, by perpetual or temporary imprifonment. Some extend to confifcation, by forfeiture of lands, or moveables, or both, or of the profits of lands, for life: others induce a difability, of holding offices or employments, being heirs, executors, and the like. Some, though rarely, occafion a mutilation or difmembring, by cutting off the hand or ears: others fix a lafting ftigma on the offender, by flitting the noftrils, or branding in the hand or face. Some are merely pecuniary, by ftated or difcretionary fines : and laftly there are others, that confift principally in their ignominy, though moft of them are mixed with fome degree of corporal pain; and thefe are inflicted chiefly for crimes, which arife from indigence, or which render even opulence difgraceful. Such as whipping, hard labour in the houfe of correction, the pillory, the ftocks, and the ducking-ftool.

DISGUSTING as this catalogue may feem, it will afford pleafure to an Englifh reader, and do honour to the Englifh
law,
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law, to compare it with that fhocking apparatus of death and torment, to be met with in the criminal codes of almoft every other nation in Europe. And it is moreover one of the glories of our Englifh law, that the nature, though not always the quantity or degree, of punifhment is afcertained for every offence; and that it is not left in the breaft of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every fubject alike, without refpect of perfons. For, if judgments were to be the private opinions of the judge, men would then be flaves to their magiftrates; and would live in fociety, without knowing exactly the conditions and obligations which it lays them under. And befides, as this prevents oppreffion on the one hand, fo on the other it ftifles all hopes of impunity or mitigation; with which an offender might flatter himfelf, if his punifhment depended on the humour or difcretion of the court. Whereas, where an eftablifhed penalty is annexed to crimes, the criminal may read their certain confequence in that law, which ought to be the unvaried rule, as it is the inflexible judge, of his actions.

THE difcretionary fines and difcretionary length of imprifonment, which our courts are enabled to impofe, may feem an exception to this fule. But the general nature of the punifhment, viz. by fine or imprifonment, is in thefe cafes fixed and determinate: though the duration and quantity of each muft frequently vary, from the aggravations or otherwife of the offence, the quality and condition of the parties, and from innumerable other circumftances. The quantum, in particular, of pecuniary fines neither can, nor ought to be, afcertained by any invariable law. The value of money itfelf changes from a thoufand caufes; 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 perfon, that ftruck another, five and twenty denarii: this, in n the more opulent days of the empire, grew to be a punifhment of fo little confideration, that Aulus Gellius tells a ftory of one Lucius Neratius, who made it his

Y y 2

diver-

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diverfion to give a blow to whomever he pleafed, and then tender them the legal forfeiture. Our ftatute law has not therefore often afcertained the quantity of fines, nor the common law ever; it directing fuch an offence to be punifhed by fine, in general, without fpecifying the certain fum: which is fully fufficient, when we confider, that however unlimited the power of the court may feem, it is far from being wholly arbitrary; but it's difcretion is regulated by law. For the bill of rights ^d has particularly declared, that exceffive fines ought not to be impofed, nor cruel and unufual punifhments inflicted: (which had a retrofpect to fome unprecedented proceedings is the court of king's bench, in the reign of king James the fecond) and the fame ftatute farther declares, that all grants and promifes of fines and forfeitures of particular perfons, before conviction, are illegal and void. Now the bill of rights was only declaratory, throughout, of the old conftitutional law of the land: and accordingly we find it expreffly holden, long before ^e, that all fuch previous grants are void; fince thereby many times undue means, and more violent profecution, would be ufed for private lucre, than the quiet and juft proceeding of law would permit.

THE reafonablenefs of fines in criminal cafes has alfo been ufually regulated by the determination of magna carta ^f, concerning amercements for mifbehaviour in matters of civil right. “Liber homo non amercietur pro parvo delicto, nife fecundum modum ipfius delicti; et pro magno delicto, fecundum magnitudinem delicti; falvo contenemento fuo: et mercator eodem modo, “falva mercandifa fua; et villanus eodem modo amercietur, falvo “wainagio fuo.” A rule, that obtained even in Henry the fecond's time ^g, and means only, that no man fhall have a larger amercement impofed upon him, than his circumftances or perfonal eftate will bear: faving to the landholder his contenement, or land; to the trader his merchandize; and to the countryman his wainage, or team and inftruments of hufbandry. In order

.{FS}
^d Stat. 1 W. & M. ft. 2. c. 2.
^e 2 Inft. 48.
^f cap 14.
^g Glanv. l. 9. c. 8 & 11.
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to
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to afcertain which, the great charter alfo directs, that the amercement, which is always inflicted in general terms (“fit in mifcricordia”) fhall be fet, ponacur, or reduced to a certainty, the oath of a jury. This method, of liquidating the amercement to a precife fum, is ufually done in the court-leet and court-baron by affeerors, or jurors fworn to affeere, that is, tax and moderate, the general amercement according to the particular circumftances of the offence and the offender. In imitation of which, in courts fuperior to thefe, the antient practice was to enquire by a jury, when a fine was impofed upon any man, “quantum inde “regi dare valeat per annum, falva fuftentatione fua, et uxoris, “et liberorum fuorum ^h.” And, fince the difufe of fuch inqueft, it is never ufual to affefs a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punifhment, or a ftated imprifonment, which is better than an exceffive fine, for that amounts to imprifonment for life. And this is the reafon why fines in the king's court are frequently denominated ranfoms, becaufe the penalty muft otherwife fall upon a man's perfon, unlefs it be redeemed or ranfomed by a pecuniary fine ^j: according to an antient maxim, qui non habet in crumena luat in corpore. Yet, where any ftatute fpeaks both of fine and ranfom, it is holden, that the ranfom fhall be treble to the fine at leaft ⁱ.

WHEN fentence of death, the moft terrible and higheft judgment in the laws of England, is pronounced, the immediate infeparable confequence by the common law is attainder. For when it is now clear beyond all difpute, that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monfter and a bane to human fociety, the law fets a note of infamy upon him, puts him out of it's protection, and takes no farther care of him than barely to fee him executed. He is then called attaint, attinctus, ftained, or blackened. He is no longer of any credit or reputation; he cannot be a witnefs in

.{FS}
^h Gilb. Exch. c. 5.
^j Mirr. c. 5. §. 3. Lamb. Eirenareh. 575.
^I Dyer. 232.
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any
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any court; neither is he capable of performing the functions of another man: for, by an anticipation of his punifhment, he is already dead in law^k. 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 only, a man is liable to none of thefe difabilities: for there is ftill in contemplation of law a poffibility of his innocence. Something may be offered in arreft of judgment: the indictment may be erroneous, which will render his guilt uncertain, and thereupon the prefent conviction may be quafhed: he may obtain a pardon, or be allowed the benefit of clergy; both which fuppofe fome latent fparks of merit, which plead in extenuation of his fault. But when judgment is once pronounced, both law and fact confpire to prove him completely guilty; and there is not the remoteft poffibility left of any thing to be faid in his favour. Upon judgment therefore of death, and not before, the attainder of a criminal commences: or upon fuch circumftances as are equivalent to judgment of death; as judgment of outlawry on a capital crime, pronounced for abfconding or fleeing from juftice, which tacitly confeffes the guilt. And therefore either upon judgment of outlawry, or of death, for treafon or felony, a man fhall be faid to be attainted.

THE confequences of attainder are forfeiture, and corruption of blood.

I. FORFEITURE is twofold; of real, and perfonal, eftates. Firft, as to real eftates: by attainder in high treafon ^l a man forfeits to the king all his lands and tenements of inheritance, whether fee-fimple or fee-tail, and all his rights of entry on lands and tenements, which he held at the time of the offence committed, or at any time afterwards, to be for ever vefted in the crown: and alfo the profits of all lands and tenements, which he had in his own right for life or years, fo long as fuch intereft

.{FS}
^k 3 Inft. 213.
^l Co. Litt. 392. 3 Inft. 19. 1 Hal. P. C. 240. 2 Hawk. P. C. 448.
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fhall
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fhall fubfift. This forfeiture relates backwards to the time of the treafon committed; fo as to avoid all intermediate fales and incumbrances ^m, but not thofe before the fact: and therefore a wife's jointure is not forfeitable for the treafon of the hufband; becaufe fettled upon her previous to the treafon committed. But her dower is forfeited, by the exprefs provifion of ftatute 5 & 6 Edw. VI. c. 11. And yet the hufband fhall be tenant by the curtefy of the wife's lands, if the wife be attainted of treafon ⁿ: for that is not prohibited by the ftatute. But, though after attainder the forfeiture relates back to the time of the treafon committed, yet it does not take effect unlefs 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 treafon ^o.

THE natural juftice of forfeiture or confifcation of property, for treafon ^p, is founded in this confideration: 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 connexions with fociety; and hath no longer any right to thofe advantages, which before belonged to him purely as a member of the community: among which focial advantages the right of transferring or tranfmitting property to others is one of the chief. Such forfeitures moreover, whereby his pofterity muft fuffer as well as himfelf, will help to reftrain a man, not only by the fenfe of his duty, and dread of perfonal punifhment, but alfo by his paffions and natural affections; and will intereft every dependent and relation he has, to keep him from offending: according to that beautiful fentiment of Cicero ^q, “nec vero me fugit quam fit acerbum, parentun fcelera filiorum “poenis lui: fed hoc praeclare legibus comparatum eft, ut caritas “liberorum amiciores parentes reipublicae redderet.” And there-

.{FS}
^m 3 Inft. 211.
ⁿ 1 Hal. P. C. 359.
^o Co. Litt. 13.
^p See Vol. I. pag. 299.
^q ad Brutum, ep. 12.
.{FE}
fore
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fore Aulus Cafcellius, a Roman lawyer in the time of the triumvirate, ufed to boafat that he had two reafons for defpifing 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 ^r. Yet many nations have thought, that this pofthumous punifhment favours of hardfhip to the innocent; efpecially for crimes that do not ftrike at the very root and foundation of fociety, as treafon againft the government expreffly does. And therefore, though confifcations were very frequent in the times of the earlier emperors, yet Arcadius and Honorius in every other inftance but than of treafon thought it more juft, “ibi effe “poenam, ubi et noxa eft;” and ordered that “peccata fuos teneant auctores, nec ulterius progrediatur metus, quam reperiatur “delictum ^s:” and Juftinian alfo made a law to reftrain the punifhment of relations ^t; which directs the forfeiture to go, except in the cafe of crimen majeftatis, to the next of kin to the delinquent. On the other hand the Macedonian laws extended even the capital punifhment of treafon, not only to the children but to all the relations of the delinquent ^u: and of courfe their eftates muft be alfo forfeited, as no man was left to inherit them. And in Germany, by the famous golden bulle ^v, (copied almoft verbatim from Juftinian's code^w) the lives of the fons of fuch as confpire to kill an elector are fpared, as it is expreffed, by the emperor's particular bounty. But they are deprived of all their effects and rights of fucceffion, and are rendered incapable of any honour ecclefiaftical or civil: “to the end that, “being always poor and neceffitous, they may for ever be accompanied by the infamy of their father; may languifh in continual indigence; and may find (fays this mercilefs edict) their “punifhment in living, and their relief in dying.”

WITH us in England, forfeiture of lands and tenements to the crown for treafon is by no means derived from the feodal

.{FS}
^r Gravin. 1. §. 68.
^s Cod. 9. 47. 22.
^t Nov. 134. c. 13.
^u Qu. Curt. l. 6.
^v cap. 24.
^w l. 9. t. 8. l. 5.
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policy, (as has been already obferved ^x) but was antecedent to the eftablifhment of that fyftem in this ifland; being tranfmitted from our Saxon anceftors ^y, and forming a part of the antient Scandinavian conftitution ^z. But in fome treafons relating to the coin, (which , as we formerly obferved, feem rather a fpecies of the crimen falfi, than the crimen laefae majeftatis) it is provided by the feveral modern ftatutes which conftitute the offence, that it fhall work no forfeiture of lands. And, in order to abolifh fuch hereditary punifhment intirely, it was enacted by ftatute 7 Ann. c. 21. that, after the deceafe of the late pretender, no attainder for treafon fhould extend to the difinheriting of any heir, nor to the prejudice of any perfon, other than the traitor himfelf. By which, the law of forfeitures for high treafon would by this time have been at an end, had not a fubfequent ftatute intervened to give them a longer duration. The hiftory of this matter is fomewhat fingular and worthy obfervation. At the time of the union, the crime of treafon in Scotland was, by the Scots law, in many, refpects different from that of treafon in England; and particularly in it's confequence of forfeitures of intailed eftates, which was more peculiarly Englifh: yet it feemed neceffary, that a crime fo nearly affecting government fhould, both in it's effence and confequences, be put upon the fame footing in both parts of the united kingdoms. In new-modelling thefe laws, the Scotch nation and the Englifh houfe of commons ftruggled hard, partly to maintain, and partly to acquire, a total immunity from forfeiture and corruption of blood: which the houfe of lords as firmly refifted. At length a compromife was agree to, which is eftablifhed by this ftatute, viz. that the fame crimes, and no other, fhould be treafon in Scotland that are fo in England; and then ceafe throughout the whole of Great Britain ^a: the lords artfully propofing this temporary claufe, in

.{FS}
^x See Vol. II. pag. 251.
^y LL. Aetfr. c. 4. Canut. c. 54.
^x Stiernh. de jure Goth. l. 2. c. 6. & l. 3. c. 3.
^a Burnet's Hift. A. D. 1709.
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hopes (it is faid ^b) that the prudence of fucceeding parliaments would make it perpetual ^c. This has partly been done by the ftatute 17 Geo. II. c. 39. (made in the year preceding the late rebellion) the operation of thefe indemnifying claufes being thereby ftill farther fufpended, till the death of the fons of the pretender ^d.

IN petit treafon and felony, the offender alfo forfeits all his chattel interefts abfolutely, and the profits of all eftates of freehold during life; and, after his death, all his lands and tenements in fee-fimple (but not thofe in tail) to the crown, for a very fhort period of time: for the king fhall have them for a year and a day, and may commit therein what wafte he pleafes; which is called the king's year, day, and wafte ^e. Formerly the king had only a liberty of committing wafte on the lands of felons, by pulling down their houfes, extirpating their gardens, ploughing their meadows, and cutting down their woods. And a punifhment of a fimilar fpirit appears to have obtained in the oriental countries, from the decrees of Nebuchadnezzar and Cyrus in the books of Daniel ^f and Ezra ^g; which, befides the pain of death inflicted on the delinquents there fpecified, ordain, “that their houfes “fhall be made a dunghill.” But this tending greatly to the prejudice of the public, it was agreed in the reign of Henry the firft, in this kingdom, that the king fhould have the profits of the land for one year and a day, in lieu of the deftruction he was otherwife at liberty to commit ^h: and therefore magna carta ^I provides, that the king fhall only hold fuch lands for a year and day, and then reftore them to the lord of the fee; without any mention made of wafte. But the ftatute 17 Edw. II. de praerogativa rigus, feems to fuppofe, that the king fhall have his year,

.{FS}
^b Confid. on the law of forfeture. 6.
^c See Foft. 250.
^d The juftice and expediency of this provifion were defended at the time, with much learning and ftrength of argument, in the confiderations on the law of forfeiture, firft publifhed A. D. 1744. (See Vol. I. pag. 244)
^e 2 Inft. 37.
^f ch. iii. v. 29.
^g ch. vi. v. 11.
^h Mirr. c. 4. §. 16. Flet. l. 1. c. 28.
^I 9 Hen. III. c. 22.
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day, and wafte; and not the year and day inftead of wafte. Which fir Edward Coke (and the author of the mirror, before him) very juftly look upon as an encroachment, though a very antient one, of the royal prerogative ^k. This year, day, and wafte are now ufually compounded for; but otherwife they regularly belong to the crown: and, after their expiration, the land would naturally have defcended to the heir, (as in gavelkind tenure it ftill does) did not it's feodal quality intercept fuch defcent, and give it by way of efcheat to the lord. Thefe forfeitures for felony do alfo arife only upon attainder; and therefore a felo de fe forfeits no lands of inheritance or free hold, for he never is attainted as a felon ^l. They likewife relate back to the time of the offence committed, as well as forfeitures for treafon; fo as to avoid all intermediate charges and conveyances. This may be hard upon fuch as have unwarily engaged with the offender: but the cruelty and reproach muft lie on the part, not of the law, but of the criminal; who has thus knowingly and difhoneftly involved others in his own calamities.

THESE are all the forfeitures of real eftates, created by the common law, as confequential upon attainders by judgment of death or outlawry. I here omit the particular forfeitures created by the ftatutes of praemunire and others: becaufe I look upon them rather as a part of the judgment and penalty, inflicted by the refpective ftatutes, then as confequences of fuch judgment; as in treafon and felony they are. But I fhall juft mention, under this divifion of real eftates, the forfeiture of the profits of lands during life: which extends to two other inftances, befides thofe already fpoken of; mifprifion of treafon ^m, and ftriking in Weftminfter-hall, or drawing a weapon upon a judge there, fitting the king's courts of juftice ⁿ.

THE forfeiture of goods and chattels accrues in every one of the higher kinds of offence: in high treafon or mifprifion

.{FS}
^k Mirr. c. 5. §. 2. 2 Inft. 37.
^l 3 Inft. 55.
^m Ibid. 218.
ⁿ Ibid. 141.
.{FE}
Z z 2
thereof,
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thereof, petit treafon, felonies of all forts whether clergyable or not, felf-murder or felony de fe, petty larceny, ftanding mute, and the above-mentioned offence of ftriking in Weftminfter-hall. For flight alfo, on an accufation of treafon, felony, or even petit larceny, whether the party be found guilty or acquitted, if the jury find the flight, the party fhall forfeit his goods and chattels: for the very flight is an offence, carrying with it a ftrong prefumption of guilt, and is at leaft an endeavour to elude and ftifle the courfe of juftice prefcribed by the law. But he jury very feldom find the flight: forfeiture being looked upon, fince the vaft increafe of perfonal property of late years, as rather too large a penalty for an offence, to which a man is prompted by the natural love of liberty.

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. Becaufe in many of the cafes where goods are forfeited, there never is any attainder; which happens only where judgment of death or outlawry is given: therefore in thofe cafes the forfeiture muft be upon conviction, or not at all; and, being neceffarily upon conviction in thofe, it is fo ordered in all other cafes, for the law loves uniformity. 2. In outlawries for treafon or felony, lands are forfeited only by the judgment: but the goods and chattels are forfeited by a man's being firft put in the exigent, without ftaying till he is quinto exactus, or finally outlawed; for the fecreting himfelf fo long from juftice, is conftrued a flight in law ^o. 3. The forfeiture of lands has relation to the time of the fact committed, fo as to avoid all fubfequent fales and incumbrances: but the forfeiture of goods and chattels has no relation backwards; fo that thofe only which a man has at the time of conviction fhall be forfeited. Therefore a traitor or felon may bona fide fell any o his chattels, real or perfonal, for the fuftenance of himfelf and family between the fact and conviction ^p: for perfonal property is of fo fluctua-

.{FS}
^o 3 Inft. 232.
^p 2 Hawk. P. C. 454.
.{FE}
ting
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ting a nature, that it paffes through many hands in a fhort time; and no buyer could be fafe, if he were liable to return the goods which he had fairly bought, provided any of the prior vendors had committed a treafon or felony. Yet if they be collufively and not bona fide parted with, merely to defraud the crown, the law (and particularly the ftatute 13 Eliz. c. 5.) will reach them; for they are all the while truly and fubftantially the goods of the offender: and as he, if acquitted, might recover them himfelf, as not parted with for a good confideration; fo, in cafe he happens to be convicted, the law will recover them for the king.

II. ANOTHER immediate confequence of attainder is the corruption of blood, both upwards and downwards; fo that an attainted perfon can neither inherit lands or other hereditaments from his anceftors, nor retain thofe he is already in poffeffion of, nor tranfmit them by defcent to any heir; but the fame fhall efcheat to the lord of the fee, fubject to the king's fuperior right of forfeiture: and the perfon attainted fhall alfo obftruct all defcents to his pofterity, wherever they are obliged to derive a title through him to a remoter anceftor ^q.

THIS is one of thofe notions which our laws have adopted from the feodal conftitutions, at the time of the Norman conqueft; as appears from it's being unknown in thofe tenures which are indifputably Saxon, or gavelkind: wherein, though by treafon, according to the antient Saxon laws, the land is forfeited to the king, yet no corruption of blood, no impediment of defcents, enfues; and on judgment of mere felony no efcheat accrues to the lord. And therefore, as every other oppreffive mark of feodal tenure is now happily worn away in thefe kingdoms, it is to be hoped, that this corruption of blood, with all it's connected confequences, not only of prefent efcheat, but of future incapacities of inheritance even to the twentieth generation, may in procefs of time be abolifhed by act of parliament: as it ftands upon a very different footing from the forfeiture of lands for

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^q See Vol. II. pag. 251.
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high
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PUBLIC WRONGS.
BOOK IV.
Ch. 29.
high treafon, affecting the king's perfon or government. And indeed the legiflature has, from time to time, appeared very inclinable to give way to fo equitable a provifion; by enacting, that, in treafons refpecting the papal fupremacy ^r and counterfeiting the public coin ^s, and in many of the new-made felonies, created fince the reign of Henry the eighth by act of parliament, corruption of blood fhall be faved. But as in fome of the acts for creating felonies (and thofe not of the moft atrocious kind) this faving was neglected, or forgotten, to be made, it feems to be highly reafonable and expedient to antiquate the whole of this doctrine by one undiftinguifhing law: efpecially as by the afore-mentioned ftatute of 7 Ann. c. 21. (the operation of which is poftponed by ftatute 17 Geo. II. c. 39.) after the death of the fons of the late pretender, no attainder for treafon will extend to the difinheriting any heir, nor the prejudice of any perfon, other than the offender himfelf; which virtually abolifhes all corruption of blood for treafon, though (unlefs the legiflature fhould interpofe) it will ftill continue for many forts of felony.

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^s Stat. 5 Eliz. c. 1.
^t Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. 8 & 9 W. III. c. 26. 15 & 16 Geo. II. c. 28.
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.P 383
PUBLIC WRONGS.
BOOK IV.