Article 1, Section 9, Clause 3

Document 2

William Blackstone, Commentaries 4:373--79

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 it's 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. 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 [Volume 3, Page 344] 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 any thing to be said in his favour. 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 treason 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 offence committed, or at any time afterwards, to be for ever 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 incumbrances, 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: 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.

The natural justice of forfeiture or confiscation of property, for treason, is founded in this consideration: 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 society; and hath 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, "nec vero me fugit quam sit acerbum, parentum 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. Yet many nations have thought, that this posthumous punishment favours 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 that 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:" and Justinian also made a law to restrain the punishment of relations; 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: 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, (copied almost verbatim from Justinian's code) 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 honour ecclesiastical or civil: "to the end that, being always poor and necessitous, they may for ever 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 feodal policy, (as has been already observed) but was antecedent to the establishment of that system in this island; being transmitted from our Saxon ancestors, and forming a part of the antient Scandinavian constitution. 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 offence, that it shall work no forfeiture of lands. And, in order to abolish such hereditary punishment intirely, 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 it's consequence of forfeitures of intailed estates, which was more peculiarly English: yet it seemed necessary, that a crime so nearly affecting government [Volume 3, Page 345] should, both in it's essence and consequences, be put upon the same footing in both parts of the united kingdoms. In new-modelling 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 agreed 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 that the English forfeitures and corruption of blood, should take place in Scotland, till the death of the then pretender; and then cease throughout the whole of Great Britain: the lords artfully proposing this temporary clause, in hopes (it is said) that the prudence of succeeding parliaments would make it perpetual. 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.

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. Formerly the king had only a liberty of commiting waste on the lands of felons, by pulling down their houses, extirpating their gardens, ploughing 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 Daniel and Ezra; 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: and therefore magna carta 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 regis, 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 antient one, of the royal prerogative. 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 it's 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 lands of inheritance or freehold, for he never is attainted as a felon. They likewise relate back to the time of the offence 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.

The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 3, Document 2
http://press-pubs.uchicago.edu/founders/documents/a1_9_3s2.html
The University of Chicago Press

Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765--1769. Chicago: University of Chicago Press, 1979.