tenements, or goods, nor whether he fled for such treason or felony.' tween forfeiture goods. There is a remarkable difference or two between the forfei- Difference beture of lands and of goods and chattels. 1. Lands are for- of lands and of feited 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. 3. The forfeiture of lands has relation to the time of the fact committed, so as to avoid all subsequent sales and incumbrances; 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; for personal property is of so fluctuating a nature, that it passes [ 388] 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 boná 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 Crown.d • Roberts v. Walker, 1 Russ. & My. 752. 3 Inst. 233. b 2 Hawk. P. C. 454. e Whittaker v. Wishey, 12 C. B. 44. d'Chattels, stock, or choses en action, vested in a trustee or mortgagee (except so far as he is beneficially interested II. Corruption of blood. II. Another consequence, which formerly resulted from' attainder, was the corruption of blood, both upwards and downwards; so that an attainted person could neither inherit lands or other hereditaments from his ancestors, nor retain those he was already in possession of, nor transmit them by descent to any heir; but the same escheated to the lord of the fee, subject to the sovereign's superior right of forfeiture: and the person attainted also obstructed all descents to his posterity, wherever they were obliged to derive a title through him to a remoter ancestor. This was one of those notions which our laws 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 in 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 descent, ever ensued; and, on judgment of mere felony, no escheat accrues to the lord. When almost every other oppressive mark of feudal tenure had been happily worn away in these kingdoms, it was high time 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, should likewise be abolished; as it stood upon a very different footing from the forfeiture of lands for [ 389 ] high treason: and indeed the legislature has from time to time appeared very inclinable to give way to so equitable a provision, by enacting, that, in certain treasons respecting the papal supremacy' and the public coin, and in many of the felonies created since the reign of Henry the Eighth by Act of Parliament, corruption of blood should 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, corruption of blood, as well as present escheat, continued to be the usual consequences of attainder, until by the statute 54 Geo. III. c. 145, the latter penalty was in effect confined to treason and murder. It was left to the present generation to do away with these incapacities of inheritance, which were the consequences of the general feudal doctrine of See vol. ii. p. 247. g 5 Eliz. c. 11; 18 Eliz. c. 1; 8 & 9 Will. III. c. 26; 15 & 16 Geo. II. c. 28. corruption of blood. This object has been accomplished by the statute 3 & 4 Will. IV. c. 106; and the attainder of any relation, who dies before the descent takes place, no longer prevents any person from inheriting, who would otherwise have been capable of inheriting by tracing his descent through such relation.' CHAPTER XXX. 1. Without writ of error. OF REVERSAL OF JUDGMENT. [390] WE are next to consider how judgments, with their several connected consequences, of attainder and forfeiture, 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 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; 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 [391] 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; 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 • 2 Hawk. P. C. 459. 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 liberty to prove a mistake in time, or that the offence was committed after the alienation, and not before." f error. Secondly, a judgment may be reversed by writ of error: 2. By writ of which lies from all inferior criminal jurisdictions to the Court of Queen's Bench, and from the Queen's Bench 'to the Court of Exchequer Chamber; and from the Court of Exchequer Chamber' 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 when the offence is improperly or insufficiently described in the indictment. Error might formerly have been brought' 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 officer of the court, or not duly describing where his county court was held; for laying an offence committed in the time of the late sovereign, to be done against the peace of the present; and for many other similar causes, which (though allowed out of [392] tenderness to life and liberty) were not much to the credit or advancement of the national justice, and have been accordingly, as has been more than once observed, taken away by b3 Inst. 231; 1 Hal. P. C. 361. For a review of the history and nature of writs of error in criminal cases, see Rex v. John Wilkes, Burr. 2527.' aThat is, from courts of record, proceeding according to the course of the common law (Com. Dig. Pleader, 3 B. 7). No writ of error lies upon a sum mary conviction (per Holt, C. J., Lord 11 Geo. IV. and 1 Will. IV. c. 70; Whitehead v. Reginam, 7 Q. B. 582. 8 R. v. Mason, 2 T. R. 581; Holloway v. Reginam, 2 Den. C. C. 296; Reg. v. Overton, 4 Q. B. 90; Sills v. Reginam, 1 El. & Bl. 553. |