Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Judgment, and its Consequences
WE are now to consider the next stage of criminal prosecution, after trial and conviction are past, in such crimes and misdemeanors, 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 presence of the prisoner; he is either immediately, or at a convenient time soon after, asked by the court, if he has anything to offer why judgment should not be awarded against him. And in case the defendant be found guilty of a misdemeanor, (the trial of which may, and does usually, happen in his absence, after he has once appeared) a capias is awarded and issued, to bring him in to receive his judgment; and, if he absconds, he may be prosecuted even to outlawry. But whenever he appears in person, 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 arrest or stay of judgment: as for want of sufficient certainty in setting forth either the person, the time, the place, or the offense. And, if the objections be valid, the whole proceedings shall be set aside; but the party may be indicted again.1 And we may take notice, 1. That none of the statutes of jeofails,2 for amendment of errors, extend to indictments or proceedings in criminal cases; and therefore a defective indictment is not aided by a verdict, as defective pleadings in civil cases are. 2. That, in favor of life, great strictness has at all times been observed, in every point of an indictment. Sir Matthew Hale indeed complains, “that this strictness is grown to be a blemish and inconvenience in the law, and the administration thereof: for that more offenders escape by the over-easy ear given to exceptions in indictments, than by their own innocence; and many times gross murders, burglaries, robberies, and other heinous and crying offenses, remain unpunished by these unseemly niceties; to the reproach of the law, to the shame of the government, to the encouragement of villainy, and to the dishonor of God.”3 And yet,
notwithstanding this laudable zeal, no man was more tender of life, than this truly excellent judge.
A PARDON also, as has been before said, may be pleaded in arrest of judgment: and it has the same advantage when pleaded here, as when pleaded upon arraignment; viz. the saving the attainder, and of course the corruption of blood: which nothing can restore but parliament, when a pardon is not pleaded till after sentence. And certainly, upon all accounts, when a man has obtained a pardon, he is in the right to plead it is soon as possible.
PRAYING the benefit of clergy may also be ranked among the motions in arrest of judgment; of which we spoke largely in the preceding chapter.
IF all these resources fail, the court must pronounce that judgment, which the law has annexed to the crime, and which has been constantly mentioned, together with the crime itself, in some or other of the former chapters. Of these some are capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead; though in very atrocious crimes other circumstances of terror, pain, or disgrace are superadded: as, in treasons of all kings, being drawn or dragged to the place of execution; in high treason affecting the king’s person or government, emboweling alive, beheading, and quartering; and in murder, a public dissection. And, in case of any treason committed by a female, the judgment is to be burned alive. But the humanity of the English nation has authorized, by a tacit consent, an almost general mitigation of such part of these judgments as favor of torture or cruelty: a fledge or hurdle being usually allowed to such traitors as are condemned to be drawn; and there being very few instances (and those accidental or by negligence) of any person’s being emboweled or burned, till previously deprived of sensation by strangling. Some punishments consist in exile or banishment, by abjuration of the realm, or transportation to the American colonies: others in loss of liberty, by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands, or moveables, or both, or of the profits of lands, for life: others induce a disability, of holding offices or employments, being heirs, executors, and the like. Some, though rarely, occasion a mutilation or dismembering, by cutting off the hand or ears: others fix a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or face. Some are merely pecuniary, by stated or discretionary fines: and lastly there are others, that consist principally in their ignominy, though most of them are mixed with some degree of corporal pain; and these are inflicted chiefly for crimes, which arise from indigence, or which render even opulence disgraceful. Such as whipping, hard labor in the house of correction, the pillory, the stocks, and the ducking-stool.
DISGUSTING as this catalogue may seem, it will afford pleasure to an English reader, and do honor to the English law, to compare it with that shocking apparatus of death and torment, to be met with in the criminal codes of almost every other nation in Europe. And it is moreover one of the glories of our English law, that the nature, though not always the quantity or degree, of punishment is ascertained for every offense; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, without respect of persons. For, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society, without knowing exactly the conditions and obligations which it lays them under. And besides, as this prevents oppression on the one hand, so on the other it stifles all hopes of impunity or mitigation; with which an offender might flatter himself, if his punishment depended on the humor or discretion of the court. Whereas, where an established penalty is annexed to crimes, the criminal may read their certain consequence in that law, which ought to be the unvaried rule, as it is the inflexible judge, of his actions.
THE discretionary fines and discretionary length of imprisonment, which our courts are enabled to impose, may seem an exception to this rule. But the general nature of the punishment, viz. by fine or imprisonment, is in these cases fixed and determinate: though the duration and quantity of each must frequently vary, from the aggravations or otherwise of the offense, the quality and condition of the parties, and from innumerable other circumstances. The quantum, in particular, of pecuniary fines neither can, nor ought to be, ascertained by any invariable law. The value of money itself changes from a thousand causes; 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 person, that struck another, five and twenty denarii : this, in n the more opulent days of the empire, grew to be a punishment of so little consideration, that Aulus Gellius tells a story of one Lucius Neratius, who made it his diversion to give a blow to whomever he pleased, and then tender them the legal forfeiture. Our statute law has not therefore often ascertained the quantity of fines, nor the common law ever; it directing such an offense to be punished by fine, in general, without specifying the certain sum: which is fully sufficient, when we consider, that however unlimited the power of the court may seem, it is far from being wholly arbitrary; but its discretion is regulated by law. For the bill of rights4 has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted: (which had a retrospect to some unprecedented proceedings is the court of king’s bench, in the reign of king James the second) and the same statute farther declares, that all grants and promises of fines and forfeitures of particular persons, before conviction, are illegal and void. Now the bill of rights was only declaratory, throughout, of the old constitutional law of the land: and accordingly we find it expressly held, long before5that all such previous grants are void; since thereby many times undue means, and more violent prosecution, would
be used for private lucre, than the quiet and just proceeding of law would permit.
THE reasonableness of fines in criminal cases has also been usually regulated by the determination of Magna Carta,6 concerning amercements for misbehavior in matters of civil right. “Liber homo non amercietur pro parvo delicto, nisi secundum modum ipsius delicti; et pro magno delicto, secundum magnitudinem delicti; salvo contenemento suo: et mercator eodem modo, salva mercandisa sua; et villanus eodem modo amercietur, salvo wainagio suo.” A rule, that obtained even in Henry the second’s time,7 and means only, that no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear: saving to the landholder his contenement, or land; to the trader his merchandise; and to the countryman his wainage, or team and instruments of husbandry. In order to ascertain which, the great charter also directs, that the amercement, which is always inflicted in general terms (“sit in misericordia” ) shall be set, ponatur, or reduced to a certainty, the oath of a jury. This method, of liquidating the amercement to a precise sum, is usually done in the court-leet and court-baron by affeerors, or jurors sworn to affeere, that is, tax and moderate, the general amercement according to the particular circumstances of the offense and the offender. In imitation of which, in courts superior to these, the ancient practice was to inquire by a jury, when a fine was imposed upon any man, “quantum inde regi dare valeat per annum, salva sustentatione sua, et uxoris, et liberorum suorum.”8 And, since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punishment, or a stated imprisonment, which is better than an excessive fine, for that amounts to imprisonment for life. And this is the reason why fines in the king’s court are frequently denominated ransoms, because the penalty must otherwise fall upon a man’s person, unless it be redeemed or ransomed by a pecuniary fine:9 according to an ancient maxim, qui non habet in crumena luat in corpore. Yet, where any statute speaks both of fine
and ransom, it is held, that the ransom shall be treble to the fine at least.10
WHEN sentence of death, the most terrible and highest judgment in the laws of England, is pronounced, the immediate inseparable consequence by the common law is attainder. For when it is now clear beyond all dispute, that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no farther care of him than barely to see him executed. He is then called attaint, attinctus, stained, or blackened. He is no longer of any credit or reputation; he cannot be a witness in any court; neither is he capable of performing the functions of another man: for, by an anticipation of his punishment, he is already dead in law.11 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 these disabilities: for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment: the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed: he may obtain a pardon, or be allowed the benefit of clergy; both which suppose some latent sparks of merit, which plead in extenuation of his fault. But when judgment is once pronounced, both law and fact conspire to prove him completely guilty; and there is not the remotest possibility left of anything to be said in his favor. Upon judgment therefore of death, and not before, the attainder of a criminal commences: or upon such circumstances as are equivalent to judgment of death; as judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice, which tacitly confesses the guilt. And therefore either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted.
THE consequences of attainder are forfeiture, and corruption of blood.
I. FORFEITURE is twofold; of real, and personal, estates. First, as to real estates: by attainder in high treason12 a man forfeits to the king all his lands and tenements of inheritance, whether fee-simple or fee-tail, and all his rights of entry on lands and tenements, which he held at the time of the offense committed, or at any time afterwards, to be forever vested in the crown: and also the profits of all lands and tenements, which he had in his own right for life or years, so long as such interest shall subsist. This forfeiture relates backwards to the time of the treason committed; so as to avoid all intermediate sales and encumbrances,13 but not those before the fact: and therefore a wife’s jointure is not forfeitable for the treason of the husband; because settled upon her previous to the treason committed. But her dower is forfeited, by the express provision of statute 5 & 6 Edw. VI. c. 11. And yet the husband shall be tenant by the curtesy of the wife’s lands, if the wife be attainted of treason:14 for that is not prohibited by the statute. But, though after attainder the forfeiture relates back to the time of the treason committed, yet it does not take effect unless 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 treason.15
THE natural justice of forfeiture or confiscation of property, for treason,16 is founded in this consideration: that he who has thus violated the fundamental principles of government, and broken his part of the original contract between king and people, has abandoned his connections with society; and has 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 must 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,17 “nec vero me fugit quam sit acerbum, parentun scelera filiorum poenis lui: sed hoc praeclare legibus comparatum est, ut caritas liberorum amiciores parentes reipublicae redderet.” 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.18 Yet many nations have thought, that this posthumous punishment favors of hardship to the innocent; especially for crimes that do not strike at the very root and foundation 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 than of treason thought it more just, “ibi esse poenam, ubi et noxa est” and ordered that “peccata suos teneant auctores, nec ulterius progrediatur metus, quam reperiatur delictum:”19 and Justinian also made a law to restrain the punishment of relations;20 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 delinquent:21 and of course their estates must be also forfeited, as no man was left to inherit them. And in Germany, by the famous golden bulle,22 (copied almost verbatim from Justinian’s code23) 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 honor ecclesiastical or civil: “to the end that, being always poor and necessitous, they may forever 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.”
WITH us in England, forfeiture of lands and tenements to the crown for treason is by no means derived from the feudal policy, (as has been already observed24) but was antecedent to the establishment of that system in this island; being transmitted from our Saxon ancestors,25 and forming a part of the ancient Scandinavian constitution.26 But in some treasons relating to the coin, (which, as we formerly observed, seem rather a species of the crimen falsi, than the crimen laesae majestatis) it is provided by the several modern statutes which constitute the offense, that it shall work no forfeiture of lands. And, in order to abolish such hereditary punishment entirely, it was enacted by statute 7 Ann. c. 21. that, after the decease of the late pretender, no attainder for treason should extend to the disinheriting of any heir, nor to the prejudice of any person, other than the traitor himself. By which, the law of forfeitures for high treason would by this time have been at an end, had not a subsequent statute intervened to give them a longer duration. The history of this matter is somewhat singular and worthy observation. At the time of the union, the crime of treason in Scotland was, by the Scots law, in many, respects different from that of treason in England; and particularly in its consequence of forfeitures of intailed estates, which was more peculiarly English: yet it seemed necessary, that a crime so nearly affecting government should, both in its essence and consequences, be put upon the same footing in both parts of the united kingdoms. In new-modeling these laws, the Scotch nation and the English house of commons struggled hard, partly to maintain, and partly to acquire, a total immunity from forfeiture and corruption of blood: which the house of lords as firmly resisted. At length a compromise was agree to, which is established by this statute, viz. that the same crimes, and no other, should be treason in Scotland that are so in England; and then cease throughout the whole of Great Britain:27 the
lords artfully proposing this temporary clause, in hopes (it is said28) that the prudence of succeeding parliaments would make it perpetual.29 This has partly been done by the statute 17 Geo. II. c. 39. (made in the year preceding the late rebellion) the operation of these indemnifying clauses being thereby still farther suspended, till the death of the sons of the pretender.30
IN petit treason and felony, the offender also forfeits all his chattel interests absolutely, and the profits of all estates of freehold during life; and, after his death, all his lands and tenements in fee-simple (but not those in tail) to the crown, for a very short period of time: for the king shall have them for a year and a day, and may commit therein what waste he pleases; which is called the king’s year, day, and waste.31 Formerly the king had only a liberty of committing waste on the lands of felons, by pulling down their houses, extirpating their gardens, plowing 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 Daniel32 and Ezra;33 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:34 and therefore Magna Carta35 provides, that the king shall only hold such lands for a year and day, and then restore them to the lord of the fee; without any mention made of waste. But the statute 17 Edw. II. de praerogativa rigus, 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 mirror, before him) very justly look upon as an encroachment, though a very ancient one, of the royal prerogative.36 This year, day, and waste are now usually compounded for; but otherwise they regularly belong to the crown: and, after their expiration, the land would naturally have descended to the heir, (as in gavelkind tenure it still does) did not its feudal
quality intercept such descent, and give it by way of escheat to the lord. These forfeitures for felony do also arise only upon attainder; and therefore a felo de se forfeits no lands of inheritance or free hold, for he never is attainted as a felon.37 They likewise relate back to the time of the offense committed, as well as forfeitures for treason; 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.
THESE are all the forfeitures of real estates, created by the common law, as consequential upon attainders by judgment of death or outlawry. I here omit the particular forfeitures created by the statutes of praemunire and others: because I look upon them rather as a part of the judgment and penalty, inflicted by the respective statutes, then as consequences of such judgment; as in treason and felony they are. But I shall just mention, under this division of real estates, the forfeiture of the profits of lands during life: which extends to two other instances, besides those already spoken of; misprision of treason,38 and striking in Westminster-hall, or drawing a weapon upon a judge there, sitting the king’s courts of justice.39
THE forfeiture of goods and chattels accrues in every one of the higher kinds of offense: in high treason or misprision thereof, petit treason, felonies of all sorts whether clergyable or not, self-murder or felony de se, petty larceny, standing mute, and the above-mentioned offense of striking in Westminster-hall. For flight also, on an accusation of treason, felony, or even petit larceny, whether the party be found guilty or acquitted, if the jury find the flight, the party shall forfeit his goods and chattels: for the very flight is an offense, carrying with it a strong presumption of guilt, and is at least an endeavor to elude and stifle the course of justice prescribed by the law. But the jury very seldom finds the slight: forfeiture being looked upon, since the vast increase of personal property of late years, as rather too large a penalty for an offense, 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. Because in many of the cases where goods are forfeited, there never is any attainder; which happens only where judgment of death or outlawry is given: therefore in those cases the forfeiture must be upon conviction, or not at all; and, being necessarily upon conviction in those, it is so ordered in all other cases, for the law loves uniformity. 2. In outlawries for treason or felony, lands are forfeited only by the judgment: but the goods and chattels are forfeited by a man’s being first put in the exigent, without staying till he is quinto exactus , or finally outlawed; for the secreting himself so long from justice, is construed a flight in law.40 3. The forfeiture of lands has relation to the time of the fact committed, so as to avoid all subsequent sales and encumbrances: but the forfeiture of goods and chattels has no relation backwards; so that those only which a man has at the time of conviction shall be forfeited. Therefore a traitor or felon may bona fide sell any of his chattels, real or personal, for the sustenance of himself and family between the fact and conviction:41 for personal property is of so fluctuating a nature, that it passes through many hands in a short time; and no buyer could be safe, if he were liable to return the goods which he had fairly bought, provided any of the prior vendors had committed a treason or felony. Yet if they be collusively and not bona fide parted with, merely to defraud the crown, the law (and particularly the statute 13 Eliz. c. 5.) will reach them; for they are all the while truly and substantially the goods of the offender: and as he, if acquitted, might recover them himself, as not parted with for a good consideration; so, in case he happens to be convicted, the law will recover them for the king.
II. ANOTHER immediate consequence of attainder is the corruption of blood, both upwards and downwards; so that an attainted person can neither inherit lands or other hereditaments 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: and the person attainted shall also obstruct all descents to his posterity, wherever they are obliged to derive a title through him to a remoter ancestor.42
THIS is one of those notions which our laws have adopted from the feudal constitutions, at the time of the Norman conquest; as appears from its being unknown in those tenures which are indisputably Saxon, or gavelkind: wherein, though by treason, according to the ancient Saxon laws, the land is forfeited to the king, yet no corruption of blood, no impediment of descents, ensues; and on judgment of mere felony no escheat accrues to the lord. And therefore, as every other oppressive mark of feudal tenure is now happily worn away in these kingdoms, it is to be hoped, that this corruption of blood, with all its connected consequences, not only of present escheat, but of future incapacities of inheritance even to the twentieth generation, may in process of time be abolished by act of parliament: as it stands upon a very different footing from the forfeiture of lands for high treason, affecting the king’s person or government. And indeed the legislature has, from time to time, appeared very inclinable to give way to so equitable a provision; by enacting, that, in treasons respecting the papal supremacy43 and counterfeiting the public coin,44 and in many of the new-made felonies, created since the reign of Henry the eighth by act of parliament, corruption of blood shall be saved. But as in some of the acts for creating felonies (and those not of the most atrocious kind) this saving was neglected, or forgotten, to be made, it seems to be highly reasonable and expedient to antiquate the whole of this doctrine by one undistinguishing law: especially as by the afore-mentioned statute of 7 Ann. c. 21. (the operation of which is postponed by statute 17 Geo. II. c. 39.) after the death of the sons of the late pretender, no attainder for treason will extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself; which virtually abolishes all corruption of blood for treason, though (unless the legislature should interpose) it will still continue for many sorts of felony.
1. 4 Rep. 45.
2. See Vol. III. pag. 406.
3. 2 Hal. P. C. 193.
4. Stat. 1 W. & M. St. 2. c. 2.
5. 2 Inst. 48.
6. cap 14.
7. Glanv. l. 9. c. 8 & 11.
8. Gilb. Exch. c. 5.
9. Mirr. c. 5. § 3. Lamb. Eirenarch. 575.
10. Dyer. 232.
11. 3 Inst. 213.
12. Co. Litt. 392. 3 Inst. 19. 1 Hal. P. C. 240. 2 Hawk. P. C. 448.
13. 3 Inst. 211.
14. 1 Hal. P. C. 359.
15. Co. Litt. 13.
16. See Vol. I. pag. 299.
17. ad Brutum, ep. 12.
18. Gravin. 1. § 68.
19. Cod. 9. 47. 22.
20. Nov. 134. c. 13.
21. Qu. Curt. l. 6.
22. cap. 24.
23. l. 9. t. 8. l. 5.
24. See Vol. II. pag. 251.
25. LL. Aelfr. c. 4. Canut. c. 54.
26. Stiernh. de jure Goth. l. 2. c. 6. & l. 3. c. 3.
27. Burnet’s Hist. A. D. 1709.
28. Consid. on the law of forfeiture. 6.
29. See Fost. 250.
30. The justice and expediency of this provision were defended at the time, with much learning and strength of argument, in the considerations on the law of forfeiture, first published A. D. 1744. (See Vol. I. pag. 244)
31. 2 Inst. 37.
32. ch. iii. v. 29.
33. ch. vi. v. 11.
34. Mirr. c. 4. § 16. Flet. l. 1. c. 28.
35. 9 Hen. III. c. 22.
36. Mirr. c. 5. § 2. 2 Inst. 37.
37. 3 Inst. 55.
38. Ibid. 218.
39. Ibid. 141.
40. 3 Inst. 232.
41. 2 Hawk. P. C. 454.
42. See Vol. II. pag. 251.
43. Stat. 5 Eliz. c. 1.
44. Stat. 5 Eliz. c. 11. 18 Eliz. c. 1. 8 & 9 W. III. c. 26. 15 & 16 Geo. II. c. 28.