(Stat. 5 Eliz. c. 11 ; 18 Eliz. c. 1 ; 8 & 9 Will. III. c. 26 ; 15 & 16 Geo. H. 28.) In cases of attainder for murder or other felony, the forfeiture of lands to the crown does not extend for a longer term than a year and a day, with an unlimited power of committing waste upon the lands during that period. This is called in our old law-books " The King's year, day, and waste." After the expiration of this term, the lands would descend to the heir of the person attainted, if the feudal law of escheat for corruption of blood did not intervene, and vest them in the lord of whom they are holden. In order to un derstand the doctrine of escheat for cor ruption of blood, we must remember that, by the feudal law, from which our modern law of real property is chiefly derived, all lands were, or were supposed to be, held by gift from a superior lord, subject to certain services and conditions, upon neg lect or breach of which (as well as upon failure of issue of the grantee) the lands reverted, or in feudal language escheated, that is, fell to the original giver. Now, by the attainder of a tenant in fee-simple for felony, the compact between him and his lord was totally dissolved ; his blood was supposed to be corrupted, and he was disabled not only from inheriting lands himself, but from transmitting them to his descendants. Even though he had no lands in possession at the time of the at tainder, and acquired none afterwards upon which the law of forfeiture could operate, the law of escheat might operate after his death to the prejudice of his de scendants. For, owing to the corruption of his blood, which was considered to stop the course of descent, it was impossible to derive a title to any lands, either from him directly or from a more remote ancestor thrctigh him. The legal consequence of this doctrine was an escheat to the lord. As most lands in England at present are held of the king as the feudal superior, he is generally the sole party interested in the estates of attaiuted persons. We may be apt to confound forfeiture with escheat, unless we illustrate the difference between them by some familiar instance of their respective operations according to the law as it formerly stood. Thus (to take the instance cited by Blackstone from Coke (Comm. ii. p. 253), if a father were seised in fee-simple, and his son committed treason and were attainted, upon the death of the father the lands escheated to the lord, because the son by the corruption of his blood was incapable of being heir, and there could be no other heir during his life : but nothing was forfeited to the king, for the son never had any interest in the lands to forfeit.
The hardship caused by the doctrine of the corruption of blood in punishing the offences of the guilty by a heavy pu nishment upon the innocent, has frequently attracted the attention of the legislature ; though, until lately, little has been done towards permanently remedying the evil. The 1 Edw. VI. c. 12, § 17, enacted that attainder of treason, petit-treason, misprision of treason, and murder, or any felony, should not deprive the wife of her dower; but 5 & 6 Edw. VI. c. 11, § 13, restored the old law in the case of all treasons, and therefore a wife loses her dower in case her husband is attainted of any treason. But it has been usual, where a new felony has been created by act of parliament, to make an express provision that it shall not extend to cor ruption of blood. By the stet 7 Anne, C. 21 (the operation of which was de ferred by 17 Geo. II. c. 39), it was enacted that, after the death of the Pre tender and his sons, no attainder for treason should extend to the disinheriting any heir, nor the prejudice of any person other than the offender. But, both these statutes being repealed by 39 Geo. III. c. 93, the ancient law of forfeiture for treason was restored. By 54 Geo. III. C. 145, corruption of blood was taken away for attainder, except in cases of treason, petit-treason (that is, where a wife has murdered her husband, a ser vant his master, or an ecclesiastic his superior), and other murders. By the act of 3 & 4 Wm. IV. c. 106, which re lates to descent, it is enacted, § 10, " That when the person from whom the descent of any land is to be traced shall have had any relation, who, having been attainted, shall have died before such descent shall have taken place, then such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same, by tracing his descent through such relation, if he had not been attainted, unless such land shall have escheated before the 1st day of January, 1834." By another clause of this act, descent is always to be traced from the purchaser, that is, from the person who has acquired the land in some other way than by descent, and the last owner shall be considered to be the pur chaser, unless it can be proved that he in herited the same, in which case the de scent must be traced till we arrive at a person as to whom it cannot be proved that he inherited. In this act the word descent means the title to inherit land by reason of consanguinity, as well when the heir shall be an ancestor or collateral relation, as when he shall be a child or other issue. By this act, if a man's son
should be attainted, and should die before lands descend to him, the son of such son would be enabled to inherit the lands, which was not the case formerly.
A dignity descendible to the heirs ge neral is forfeited to the crown both for treason and for felony. An entailed dignity is forfeited for treason, but not for felony. Thus Lawrence, Earl Fer rers, whose peerage was limited to the heirs male of the body of his ancestor, being attainted for murder in the reign of George II, was succeeded by Wash ington, Earl Ferrero, his next brother. (Cruise, Real Property, lib. iv. see. 64, 72, 73.) The corruption of blood produced by attainder cannot be effectually removed except by an act of parliament. " The king," says Blackstone (vol. ii. p. 254), " may excuse the public punishment of an offender. He may remit a forfeiture in which the interest of the crown is alone concerned ; but he cannot wipe away the corruption of blood; for therein a third person bath an interest, the lord, who claims by escheat." But it appears from the same author (vol. iv. p. 402) that the king's pardon is so far effectual after an attainder, that it imparts new inherit able blood to the person attainted, so that his children born after the pardon may inherit from him.
2. Besides the modes of attainder by the common law, as above described, there have been frequent instances in the History of England of attainders by ex press legislative enactment, called Bills of Attainder. This has happened when, either from the extraordinary nature of the offence, or from unforeseen obstacles to the execution of the ordinary laws, it has been thought necessary to have re course to the supreme power of parlia ment, for the purpose of punishing par ticular offences. These enactments, either in the shape of bills of attainder or bills of pains and penalties, have been made at intervals from an early period of our history, down to very recent times. The justice as well as the policy of these ex post facto laws has been often ques tioned; and they have generally occurred in times of turbulence or of arbitrary government; but the number of them is sufficiently large to form a formidable list of precedents. There were some in stances of them under the Plantagenet princes, as the bills of attainder against Roger Mortimer and Edmund, Earl of Arundel, in the reign of Edward III. Both of these, however, were reversed in the same reign. It was not till the reign of Henry VIII., which was fertile in new crimes and extraordinary punishments, that the proceeding by bill of attainder became so common as almost to supersede trials according to the ordinary process of law. Scarcely a year passed without persons of the highest rank being brought to the scaffold by bill of attainder. Among them were the Earl of Surrey, Cromwell, Earl of Essex, who is said to have been the adviser of these measures, and most of those persons who suffered for denying the king's supremacy. All these persons were attainted upon mere hearsay evidence ; and some not only upon no evidence at all, but without being heard in their defence. In the following reign of Edward VI., the Protector Somer set encouraged a bill of attainder for trea son against his brother Lord Seymour of Sudley, the Lord High Admiral of Eng land and husband of the Queen Dowager Catherine Parr, which was hurried through both houses of parliament with out the accused being permitted to say anything in his defence. But as the na tion became better acquainted with the principles of constitutional freedom, par liamentary attainders became less fre quent. Under the Stuarts recourse was seldom had to this extraordinary mode of proceeding. It was thought necessary to adopt it in the time of James I. with re spect to Catesby, Percy, and several other persons, who were killed in the insur rection that ensued upon the discovery of the Gunpowder Plot, or died before they could be brought to trial, as they, not having been tried, could not have been attainted by the ordinary process of law. It was again adopted by the Long Par liament in Lord Strafford's case, on the ground that he was an extraordinary cri minal, who would have escaped with little punishment if no other penalties than those of the existing laws had been inflicted on him. But even Lord Straf ford's attainder was reversed after the re storation of Charles II., and all the re cords of the proceedings cancelled by act of parliament. The Duke of Monmouth, also, on his appearing openly in arms against the government in 1685, was at tainted by statute. A remarkable in stance of a proceeding by bill of attainder occurred in the case of Sir John Fenwick, who, in the year 1696, was attainted for a conspiracy to assassinate William III. There is no question that Sir John Fen wick might have been tried by the ordi nary process of law. The excuse urged for resorting to a bill of attainder was, that there was no moral doubt of Fen wick's guilt ; but that as two witnesses were required by the stet. 7 Will. III. cap. 3, in order to convict him ; and as one of them had been tampered with and removed out of the kingdom, a legal proof of an overt act of treason became impos sible.