formerly attended with mutilations, as flitting the nose, nailing down the ears, and burning with hot irons, but in the more mild administration of juftice in modern days, fuch difgufting aggravations of pain are unheard of. The pillory is confidered as merely an exhibition of an offender, for the purpose of rendering him notorious, and all means of giving him unneceffary pain, or exciting popular indignation, are cautiously avoided. This lenity in the execution of fentence has contributed to humanize the people. They were ufed formerly to confider the pillory as intended to inflict every corporeal pain, fhort of death; and fhewed their readinefs to co-operate in the fpirit of the law, by pelting the criminal with miffiles of every kind, fo that fome have actually loft their lives by this lawlefs and misjudging violence. In later times, there are few inftances of perfons in the pillory being affaulted by the mob, and then only in cafes of the most odious crimes; fuch indeed as reduce the confiderate and humane to the neceffity of deploring the violence of the people, without being able to commiferate the fufferers.

STOCKS. Another place of exposure, which is resorted to without conviction before a court, for the punishment of riotous, drunken, and diforderly perfons, common beggars and vagrants, is the ftocks, of which there is generally a pair in every parish. In thefe the beadle or conftable, by order of a magiftrate, places fmall offenders, their ancles being received into holes made in boards placed for the purpofe, and the offender fitting there for the time prefcribed. Near to, or united with the flocks, there is alfo a whipping poft, for the caftigation of thofe whom, on a fummary conviction for certain minor offences, a justice is empowered fo to punish.

DUCKING STOOL. Formerly, but not now-a-days, there was in every parish, near a pond, an engine of correction called the trebucket, caftigatory, or cucking ftool, which in the Saxon language is faid to fignify the scolding stool, for the punishment of common fcolds, who after conviction on indictment, might be fentenced to it. The name is frequently corrupted into ducking ftool, because the refidue of the judgment is, that the who is fo placed therein is plunged in the water for her punish

ment.

TRANSPORTATION AND THE HULKS. From these inferior punishments, those of a more folemn and affecting nature come next to be confidered. Transportation or exile is a fentence unknown to the common law of England; and where it is now inflicted, it is either by the choice of the criminal himself, in order to efcape capital punishment, or it is impofed by the exprefs direction of fome act of parliament; for no power on earth, except the authority of parliament, can fend

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fend a fubject of England, not even a criminal, out of the land against his will. The first introduction of it into our laws. was in the reign of Elizabeth; but it feems to have taken place more nearly as now practifed, about the time of the reftoration; and after the establishment of English colonies in An rica, it became in this country, as in all others which have had colonies, the moft common fentence of criminals. Several acts of parliament vefted in the king the power of tranfporting to America perfons convicted of divers offences, and of difpenfing with their tranfportation and allowing them to return, at his pleafure, which amounted to a pardon. But when America became independent, acts of the 19 Geo. III. c. 74. and 24 Geo. III. feff. 2. c. 56. empowered the courts, when any perfon fhould be convicted of grand or petit larceny, of any other crine for which he should be liable by law to be transported to America, to order him to be tranfported to any parts beyond the feas, or elsewhere, in like manner and for the fe torm of years for which fuch person was liable to be traniported to America.

Pythefe acts too, penitentiary houfes, as already mentionid, were established; and it was enacted, that where any male P fall be lawfully convicted of grand larceny, or any other cime, except petty larceny, for which he fhall be liable to be transported to any parts beyond the feas for seven years, the court may infiead, order that fuch perfon, appearing to be of competent age, and free from any bodily infirmity, fhall be punished by being kept on board fhips, or veffels properly accommodated for fecurity, employment, and health; and by being employed in hard labour, in the railing fand, foil, and gravel from, and cleansing the river Thames, or any other navigable river, or any port, harbour, or haven, in England, fuch river, port, harbour, or haven, being previously approved and appointed for that purpose by an order of privy council; or in any other fervice for the benefit of the navigation of the faid rivers, ports, harbours, or havens, or in any other public works, upon the banks or fhores of the fame, under the management and direction of fuch fuperintendant as fhall be appointed for the Thames by the juftices of Middlefex, and for other rivers, &c. by the juftices of the county where they are fituated, or of fuch counties adjoining the fame as the court shall direct at their quarter feflion, for fuch term not lefs than one year, nor exceeding five years; or in cafe fuch offender fhall be liable to be tranfported for fourteen years, not exceeding foven years, as the court fhall think fit.

Still these regulations were infufficient to answer the required purposes, until the 27 Geo. III. c. 2. which recited, that

his majesty, by two feveral orders in council, had judged fit to declare and appoint the place to which certain offenders fhould be tranfported for the time or terms of their feveral fentences to be the eastern coaft of New South Wales, or fome one or other of the islands adjacent, and provided means for carrying thofe orders into effect.

In all cafes of transportation, or fentence to the hulks, the party returning before his term is expired, or escaping from the hulks, and being at large, is guilty of felony, and fuffers death without benefit of clergy.

ATTAINDER. When fentence of death is pronounced, the immediate infeparable confequence by the common law is attainder. He is no longer of any credit or reputation; he cannot be a witnefs 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 a 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; but when judgment is once pronounced, both law and fact confpire to prove him completely guilty.

The confequences of attainder are forfeiture and corruption of blood.

FORFEITURE. Forfeiture is twofold; of real, and perfonal eftates. First, as to real estates: by attainder in high treafon, a man forfeits to the king all his lands and tenements of inheritance, whether fee-fimple, or fee-tail, and all his rights of entry on lands and tenements, which he had at the time of the offence committed, or at any time afterwards, to be for ever vested in the crown: and alfo the profits of all lands and. tenements, which he had in his own right for life or years, so long as fuch intereft fhall fubfift. This forfeiture relates back to the time of the treafon committed: fo as to avoid all intermediate fales and incumbrances, but not thofe before the fact: and therefore a wife's jointure is not forfeitable for the treason of her husband; because fettled upon her before the treason committed; but her dower is forfeited by the exprefs provifion of the 5 and 6 Edw. VI. c. 11: and yet the husband fhall be tenant by the courtesy of the wife's lands, if the wife be attainted of treason: for that is not prohibited by the statute. But although, after attainder, the forfeiture relates back to the time of the treafon committed, yet it does not take effect unless the 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

works no forfeiture of his lands: for he never was attainted of treafon. But if the chief juftice of the king's bench (the fupreme coroner of all England) in perfon, upon view of the body of one killed in open rebellion, records it, and returns the record into his own court, both lands and goods fhall be forfeited. At the time of the union, the crime of treafon in Scotland was, by the Scots law, in many refpects different from that of treafon in England; and particularly in its confequences of forfeiture of intailed eftates, which was more peculiarly English; yet it feemed neceflary that a crime fo nearly affecting government fhould, both in its effence and cenfequences, be put upon the fame footing in both parts of the united kingdom. In new modelling these laws, the Scotch nation and the English houfe of commons ftruggled hard, partly to maintain, and partly to acquire a total immunity from forfeiture and corruption of blood: which the house of lords as firmly refifted. At length a compromife was agreed to, which is established by this ftatute, viz. that the fame crimes, and no other, fhould be treafon in Scotland that are fo in England; and that the English forfeitures and corruption of blood fhould take place in Scotland till the death of the then Pretender, and then ceafe throughout the whole of Great Britain: the lords artfully propofing this temporary claufe, in hopes (it is faid) that the prudence of fucceeding parliaments would make it perpetual. This has partly been done by the statute 17 Geo. II. c. 39. the operation of thefe indemnifying claufes being thereby ftill farther fufpended, till the death of the fons

of the Pretender.

In petit treafon and felony, the offender alfo forfeits all his chattel interefts abfolutely, and the profits of all eftates of freehold during life; and after his death, all his lands and tenements in fee fimple (but not thofe in tail) to the crown, for a very fhort period of time: for the king fhall have them for a year and a day, and may commit therein what waste he pleafes; which is called the king's year, day, and wafte. Formerly the king had only a liberty of committing wafte on the lands of felons, by pulling down their houfes, extirpating their gardens, ploughing their meadows, and cutting down their woods; but this tending greatly to the prejudice of the public, it was agreed in the reign of Henry I. in this kingdom, that the king fhould have the profits of the land for one year and a day, in lieu of the deftruction he was otherwife at liberty to commit; and therefore magna charta provides that the king fhall only hold fuch lands for a year and a day, and then reftore them to the lord of the fee; without any mention made of wafte. But the ftat. 17 Edw. II. de prærogativo regis, seems

to

to fuppofe, that the king fhall have his year, day, and wafte and not the year and day inftead of wafte. Which Sir Edward Coke (and the author of a mirror before him) very justly look upon as an incroachment, though a very ancient one, of the royal prerogative. This year, day, and waste, are now ufually compounded for; but otherwife they regularly belong to the crown; and, after their expiration, the land would naturally defcend to the heir, (as in gavel kind tenure it ftill does) did not its feodal quality intercept fuch defcent, and give it, by way of efcheat, to the lord. Thefe forfeitures for felony do alfo arife only upon attainder; and therefore a felo de fe forfeits no lands of inheritance or freehold, for he never is attainted as a felon. They likewife relate back to the time of the offence committed, as well as forfeitures for treafon; fo as to avoid all intermediate charges and conveyances.

The forfeiture of goods and chattels accrues in every one of the higher kinds of offence: in high treafon or misprifion thereof, petit treafon, felonies of all forts whether clergyable or not, felf-murder or felony de fe, petit larceny or ftanding mute, and the offences of ftriking, &c. in Weftminster-Hall,

For flight alfo, on an accufation of treafon, felony, or even petit larceny, whether the party be found guilty or acquitted, if the jury find the flight, the party fhall forfeit his goods and chattels; for the very flight is an offence, carrying with it a ftrong prefumption of guilt, and is at leaft an endeavour to elude juftice: but the jury very feldom find the flight; forfeiture being looked upon, fince the vaft increase of perfonal property, as too large a penalty for an offence, to which a man is prompted by the defire of felf-prefervation.

There are fome remarkable differences between the forfeiture of lands, and of goods and chattels.

1. Lands are forfeited upon attainder, and not before: goods and chattels are forfeited by conviction.

2. In outlawries for treafon or felony, lands are forfeited only by the judgment: but the goods and chattels are forfeited by a man's being firft put in the exigent, without ftaying till he is quinto exactus, or finally outlawed; for the fecreting himself fo long from juftice is conftrued a flight in law.

3. The forfeiture of lands has relation to the time of the fact committed, fo as to avoid all fubfequent fales and incumbranes but the forfeiture of goods and chattels has no relation backwards; fo that thofe only which a man has at the time of conviction fhall be forfeited. Therefore a traitor or felon may bona fide fell any of his chattels real or perfonal, for the fuftenance of himself and family, between the fact and conviction: for perfonal property is of fo fluctuating a nature, that it paffes through many hands in a fhort time; and no buyer

could