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actual adjudications as-in reason, though they seem - not to have occurred to the judges generally. The case of Rex v. Bleasdale, 4 T. R. 809, little considered by the court pronouncing judgment, seems perhaps adverse to this view. In Barada v. The State, 13 Misso. 94, this point was not decided ; but the case went off on the point, see ante, $ 620, that the defendants could not object to a joint fine, it not being to their injury. And possibly there may be such a thing as the matter being sufficiently civil in nature, while criminal in form, to justify a joint sentence; yet the suggestion should be received cautiously, if at all. The true doctrine was pretty plainly stated by Powell, J., in Reg. v. King, 1 Salk. 182, a case criminal in form.

" This penalty,” says the report, “is not in the nature of a satisfaction to the party grieved, but a punishment on the offender; and crimes are several, though debts be joint, which, per Powell, distinguishes this from the case of Partridge v. Naylor, Cro. Eliz. 480, and Noy, 62.” Partridge v. Naylor was an action against three persons, upon Stat. 1 & 2 Phil. & M. c. 12, to recover a penalty for wrongly impounding a distress; and the court held, that the judgment should be joint for one penalty against all. The last-mentioned case was pressed upon the court in the criminal one of Rex v. Clarke, Cowp. 610, where the defendants sought to avoid an information which alleged, that they “ had severally forfeited the sum of 401.," for assaulting and resisting custom-house officers, contrary to Stat. 8 Geo. 1, c. 18, $ 25. The court sustained the information; but Lord Mansfield, who was on the bench, not adverting to the distinction taken in our text, drew another, which may possibly be just in a degree when applied to cases civil in form, though probably not in its full extent; while clearly it can have no proper application, as he seemed to suppose it had, to cases in which the proceeding is criminal, like the one before the court. This will appear when we look at his observations in connection with a few words interspersed in brackets by me. He said: “Where the offence is, in its nature, single, and cannot be severed, there the penalty shall be only single; because, though several persons may join in committing it, it still continues but one offence. But where the offence is in its nature several, and where every person concerned may be separately guilty of it, there, each offender is separately liable to the penalty; because the crime of each is distinct from the offence of the others, and each is punishable for his own crime. For instance; the offence enacted by Stat. 1 & 2 Phil. & M. c. 12, is the impounding a distress in a wrong place. [We have already seen, that the proceeding to recover the penalty under this statute is in form eivil.] One, two, three, or four may impound it wrongfully; it still is but one act of impounding, it cannot be severed. It is but one offence; and therefore shall be satisfied by one forfeiture. [Suppose the object impounded was a man, and several persons were jointly indicted for the assault and imprisonment; there would be then but one act, one offence; yet the doctrine is clear, that each should receive his several sentence for the full penalty of the law.] So, under the statute 3 Anne, c. 14, for the preservation of game [as to which see Hardyman v. Whitaker, 2


East, 573, note, and Rex v. Bleasdale, supra]; killing a hare is but one offence in its nature; whether one or twenty kill it, it cannot be killed more than once. [So of killing a man; but, if twenty kill him once, the twenty must be severally hung.) If partridges are to be netted by night; two, ]

; three, or more may draw the net; but still it constitutes only one offence. [So when the partridge net is stolen, two, three, or more may jointly draw it away; yet, if they are indicted for the larceny, each must receive the full penalty.] But this statute relates to an offence in its nature several, a several offence at common law; and the statute adds a further sanction against that, which each man must commit severally. One may resist, another molest, another run away with the goods: one may break the officer's arm, another put out his eye. All these are distinct acts; and every one's offence entire and complete in its nature. [The reader will remember, that, according to the doctrine applicable to indictments, ante, § 264, 456, 457, 473, 483, each is guilty for what the other does, the same as if his own hand performed the act.] Therefore each person is liable to a penalty for his own separate offence." These views of Lord Mansfield have been since commended. Marsh v. Shute, 1 Denio, 230; Ingersoll v. Skinner, 1 Denio, 540; and see The State v. Smith, 1 Nott & McCord, 13. Contra, Curtis v. Hurlburt, 2 Conn. 309. But their palpable incorrectness, as appears on a close inspection, shows with what caution we should take the off-hand words of even great judges.

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$ 640. The consequences mentioned in the last chapter follow only when expressly set down in the sentence. But there are other consequences, which need not be made a part of the sentence, though they proceed from it. These will be stated in the present chapter.


$ 641. When, in treason or felony, sentence is rendered against the defendant after conviction, or after outlawry,2 the latter proceeding, little known in the United States, not being necessary to be explained in this place,- he is said to be attaint, or attainted. The effects of the attainder are, by the ancient common law, wide and sweeping. Without be ing minutely exact, we may state in general terms, that all his estate, real and personal, is forfeited; that his blood is corrupted, and so nothing passes by inheritance to, from, or through him;5 that he cannot sue in a court of justice, but

? Ante, S 223.
* Rex v. Earberry, Fort. 37.

3 But see Commonwealth v. Anderson, 2 Va. Cas. 245; Respublica v. Steele, 2 Dall. 92.

* 4 Bl. Com. 380, 381; 2 Gab. Crim. Law, 566 ; 3 Inst. 212; Skinner v. Perot, 1 Ashm. 57; Wells v. Martin, 2 Bay, 20.

• Co. Lit. 392 ; 3 Inst. 211 ; Toomes v. Etherington, 1 Saund. Wms. Ed. 361 and note; Finch's case, 6 Co. 63 a, 68 b; Coombes v. Queen's Proctor, 2 Rob. Ec. 547, 16 Jur. 820, 24 Eng. L. & Eq. 598. 6 Co. Litt. 130 a.

only apply to have his attainder reversed, and be sued;1 and that thus, his wife, children, and collateral relations suffering with him, the tree, falling, falls with all its branches.

§ 642. By the old English law also, if an innocent man is indicted for felony, and flees, he forfeits for the flight his goods. And he that committeth homicide by misadventure shall forfeit his goods; and so shall he which doth kill a man in his own defence forfeit his goods; and likewise he that killeth himself, and is felo de se, shall forfeit his goods; and he that being indicted of felony will stand mute, and not answer directly, or challenge peremptorily above twenty per sons, shall forfeit his goods." 2 This matter of forfeiture and corruption of blood has been frequently legislated upon in England; and the law there upon the subject now is considerably different from what it was anciently. The reader who wishes to become familiar with this considerable title in the jurisprudence of our mother country will do best to consult the English books.3

§ 642 a. The doctrine of forfeiture and corruption of blood is not so destitute of foundation in reason as sometimes it is assumed to be. When a man has committed acts which violate his rights as a member of the community, the corruption of blood comes and isolates him, so that he cannot exercise such rights; and the forfeiture puts back what has been given him through the rights violated. And though

12 Gab. Crim. Law, 567; 3 Inst. 211.

Pulton de Pace, ed. of 1615, 214 b-216 a; Hales v. Petet, Plow. 253, 262, 263.

See Pulton de Pace, titles Forfeiture and Corruption of Blood;. 2 Hawk. P. C. Curw. Ed. c. 49; 1 Hale P. C. 354 et seq.; 2 Gab. Crim. Law, 506 et seq.; 4 Bl. Com. 380-390. And see 2 Kent Com. 385 et seq.; 4 Ib. 426; Bullock v. Dodds, 2 B. & Ald. 258; The Palmyra, 12 Wheat. 1; Brown v. Waite, 2 Mod. 130, 134. As to deodands, which are any personal chattels that are the immediate occasion of the death of a human being, and are by the English common law forfeited, see 1 Bl. Com. 300; Reg. v. Polwart, 1 Gale & D. 211, 1 Q. B. 818; post, § 699.

his kindred suffer with him, yet they suffer only the necessary consequence of his severance from the body of persons, standing toward the government as participants of its favor.

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$643. While this view of the doctrine appears to be the true one, it is not the same which is sometimes stated. It has been assumed to rest on ancient policy; adopted to make men cautious against injurious accidents, watchful over the conduct of their relatives, and ready, when accused, to give themselves up for trial. At any rate, the doctrine has been little favored in this country; for with us, it has seemed unjust to disinherit men for having kindred who become felons, and take away people's goods for accidents they cannot avoid. Indeed, as concerns some of the ancient forfeitures, they evidently rest on no satisfactory reason; and the others are unnecessary, since punishment can best be inflicted by direct sentence of the court. And though strictly no injustice is chargeable against a government which takes away rights because of their violation, even when indirectly the consequences fall on the innocent, yet, as justice can be as effectually administered in some other way, humanity demands it be so done. The constitution of the United States provides, that "no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person at tainted."2 And, by an act of congress, all forfeitures and corruptions of blood, whether for treason or felony, are, as to convictions under the United States laws, abolished. In some of the older States, are early traces of the recognition of common law forfeitures, or early statutes creating forfeitures; 4


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1 Story Const. §. 1300.


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U. S. Const. art. 3, § 3.



1 U. S. Stat, at Large, 117, act of April 30, 1790, c. 9, § 24; 2 Kent Com. 386; Story Const. § 1300. ✦ Dietrick v. Mateer, 10 S. & R. 151; Hinchman . Clark, Coxe, 340; Dunham v. Drake, Coxe, 315; Ash v. Ashton, 3 Watts & S. 510; Wells v. Martin, 2 Bay, 20; Boyd v. Banta, Coxe, 266; Commonwealth v. Pennock, 3 S. & R. 199.

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