the king's year, day and waste. 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 have naturally descended to the heir (as in gavelkind tenure it still does), did not its feodal 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 land of inheritance or freehold, for he never is attainted as a felon. They likewise relate back to the time of offence committed, as well as forfeiture 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.

The forfeiture of goods and chattels accrues in every one of the higher kinds of offence: in high treason or misprision thereof, petit treason, felonies of all sorts, whether clergyable or not, selfmurder, or felony de se, petit larceny, standing mute, and the above-mentioned offences of striking, etc., 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.

There is a remarkable difference or two between the forfeiture of lands and of goods and chattels. I. 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 is never 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 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. 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.

Corruption of Blood.

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.

This is one of those notions which our laws have adopted from the feodal constitutions at the time of the Norman conquest.

Chapter XXX.

OF REVERSAL OF JUDGMENT.
390-394.

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.

Reversing Without Writ.

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 it 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; it being a high misdemeanour 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 or 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 liberty to prove a mistake in time, or that the offence was committed after the alienation, and not before.

Reversing by Writ.

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 part 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 an 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 king to be done against the peace of the present; and for 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 misdemeanours 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. But writs of error to reverse attainders in capital cases are only allowed ex gratia; and not without express warrant under the king's sign-manual, or at least by the consent of the attorneygeneral. These, therefore, can rarely be brought by the party himself, especially where he is attainted for an offence 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 hath been frequently done upon motives of compassion, or perhaps from 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 resti

tution in blood, honours, and estate, or some or one of them, 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: 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 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.

OF REPRIEVE AND PARDON.

394-403.

The only other remaining ways of avoiding the execution of the judgment are by a reprieve or a pardon; whereof the former is temporary only, the latter permanent.

Reprieve.

I. A reprieve (from reprendre, to take back) is the withdrawing 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 is insufficient, or he is doubtful whether the offence be within clergy; or sometimes, if it be a small felony, or any favorable circumstances appear in the criminal's character, in order to give room to apply to the crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their session be finished and their commission expired; but this rather by common usage than of strict right.

Reprieves may also be ex necessitate legis: as where a woman is capitally convicted and pleads her pregnancy; though this is no cause to stay the judgment, yet is to respite the execution till she be delivered.

Another cause of regular reprieve is, if the offender becomes non compos between the judgment and the award of execution; for regularly, as was formerly observed, though a man be compos when he commits a capital crime, yet if he becomes non compos after, he shall not be indicted; if after indictment, he shall not be convicted; if after conviction, he shall not receive judgment; if after judgment, he shall not be ordered for execution: for “furiosus solo furore punitur," and the law knows not but he might have offered some reason, if in his senses, to have stayed these respective proceedings. It is therefore an invariable rule, when any time intervenes between the attainder and the award of execution, to demand of the prisoner what he hath 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. Or the party may plead in bar of execution: which plea may be either pregnancy, the king's pardon, an act of grace, or diversity of person, viz., that he is not the same as was attainted, and the like. In this last case a jury shall be impanelled to try this collateral issue, namely, the identity of his person; and not whether guilty or innocent; for that has been decided before. And in these collateral issues the 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; though formerly such challenges were held to be allowable whenever a man's life was in question.

The King's Pardon.

II. If neither pregnancy, insanity, non-identity, nor other plea will avail to avoid the judgment and stay the execution consequent thereupon, the last and surest resort is in the king's most gracious pardon; the granting of which is the most amiable prerogative of the crown.

Under this head of pardons, let us briefly consider: 1. The object of pardon; 2. The manner of pardoning; 3. The method of allowing a pardon; 4. The effect of such pardon when allowed.

Object of Pardon,

1. And, first, the king may pardon all offences merely against the crown or the public: excepting, 1. That, to preserve the liberty of the subject, the committing any man to prison out of the realm is, by the habeas corpus act, 31 Car. II. c. 2, made a praemunire, unpardonable even by the king. Nor, 2, can the king pardon where private justice is principally concerned in the prosecution of offenders: "non potest rex gratiam facere cum injuria et damno aliorum." Therefore, in appeals of all kinds (which are