Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
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 voided, 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 showing the special matter, without writ of error. As, where a commission issues to A and B, and twelve others, or any two of them, of which A or B shall be one, to take and try indictments; and any of the other twelve proceed without the interposition or presence of either A, or B: in this case all proceedings, trials, convictions, and judgments are void for want of a proper authority in the commissioners, and may be falsified upon bare inspection without the trouble of a writ of error;1 it being a high misdemeanor in the judges so proceeding, and little (if anything) short of murder in them all, in case the person so attainted be executed and suffer death. So likewise if a man purchases land of another; and afterwards the vendor is, either by outlawry, or his own confession, convicted and attainted of treason or felony previous to the sale or alienation; whereby such land becomes liable to forfeiture or escheat: now, upon any trial, the purchaser is at liberty, without bringing any writ of error, to falsify not only the time of the felony or treason supposed, but the very point of the felony or treason itself; and is not concluded by the confession or the outlawry of the vendor; though the vendor himself is concluded, and not suffered now to deny the fact, which he has by confession or flight acknowledged. But if such attainder of the vendor was by verdict, on the oath of his peers, the alienee cannot be received to falsify or contradict the fact of the crime committed; though he is at limited after the alienation, and not before.2
SECONDLY, a judgment may be reversed, by writ of error: which lies from all inferior criminal jurisdictions to the court of king’s bench, and from the king’s bench to the house of peers; and may be brought for notorious 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 any irregularity, omission, or want of form in the process of outlawry, or proclamations; the want of a proper addition to the defendant’s name, according to the statute of additions; for not properly naming the sheriff or other office of the court, or not duly describing where his county court was held; for laying an offense, committed in the time of the late king, to be done against the peace of the present; and for may other similar causes, which (though allowed out of tenderness to life and liberty) are not much to the credit or advancement of the national justice. These writs of error, to reverse judgments in case 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 grantable of common right, and ex debito justitiae [as due to justice]. But writs of error to reverse attainders in capital cases are only allowed ex gratia [as a favor]; and not without express warrant under the king’s sign manual, or at least by the consent of the attorney-general.3 These therefore can rarely be brought by the party himself, especially where he is attainted for an offense against the state: but they may be brought by his heir, or executor, after his death, in more favorable times; which may be some consolation to his family. But the easier, and more effectual way, is
LASTLY, to reverse the attainder by act of parliament. This may be and has been frequently done, upon motives of compassion, or perhaps the zeal of the times, after a sudden revolution in the government, without examining too closely into the truth or validity of the errors assigned. And sometimes, though the crime be universally acknowledged and confessed, yet the merits of the criminal’s family shall after his death obtain a restitution in blood, honors, and estate, or some, or one of the, by act of parliament; which (so far as it extends) has all the effect of reversing the attainder, without casting any reflections upon the justice of the preceding sentence.
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 [taking]: and, if it be before plea pleaded, he shall be put to plead to 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 good and 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 at all accused; restored in his credit, his capacity, his blood, and his estates: with regard to which last, though they be granted away by the crown, yet the owner may enter upon the grantee, with as little ceremony as he might enter upon a disseizor.4 But he still remains liable to another prosecution for the same offense: for, the first being erroneous, he never was in jeopardy thereby.