in the Law of England, imports that extinction of civil rights and capacities which takes place whenever a person who has committed treason or felony receives sentence of death for his crime, and is the immediate inseparable consequence from the common law upon the sentence of death. When it is clear beyond all dispute that the criminal is no longer fit to live, he is called attaint, attinctus, stained or blackened, and could not, before the 6th and 7th Vict. c. 85, § 1, be a witness in any court. This Attainder, attainder takes place after judgment of death, or upon such circumstances as are equivalent to judgment of death, such as judgment of outlawry on a capital crime, pronounced for absconding from justice.

A man is attainted by appearance, that is, by confession when he answers guilty upon his indictment, or by verdict, when he pleads not guilty, but is found guilty by the jury; by process, otherwise called judgment by default or outlawry, when the party fleeth, and is not to be found in the country, and is outlawed on the fifth proclamation upon his default; and by act of parliament.

The consequences of attainder are—1st, Forfeiture; 2d, Corruption of blood.

1st, Of forfeiture:

The offender becomes incapable of maintaining a suit in any court of justice, whether civil or criminal, except for the purpose of procuring the reversal of his attainder. In cases of treason or murder, or of abetting, procuring, or counselling the same (to which, by the 54th Geo. III. cap. 145, it is limited), all lands and tenements of inheritance, whether fee-simple or fee-tail, and all rights of entry in lands or tenements at the time of the commission of the offence, or at any time afterwards, and all the profits of all lands and tenements which the offender had in his own right, for life or years, so long as such interest shall subsist, are forfeited to the crown. He also forfeits all his chattel interests absolutely, and the profits of all estates of freehold during life; and this forfeiture of goods and chattels accrues in every treason or misprision thereof, felonies of all sorts, self-murder, or felony-de-se.

There is, however, this distinction between the forfeiture of lands, and of goods and chattels: lands are not forfeited before attainder, and the forfeiture has relation back to the time of the commission of the offence, so as to avoid all intermediate sales and incumbrances; goods and chattels are forfeited by conviction, and the forfeiture has no relation backwards.

2d, Of corruption of blood:

The ancient law has been much narrowed in its application by recent enactments. Formerly the person attainted was incapable himself of inheriting, or of transmitting his own property by heirship; and this corruption could not be absolutely removed but by authority of parliament.

But now, under the 54th Geo. III. cap. 145, no attainder for felony, except for treason or murder, extends to the disinheritance of any person, nor to the prejudice of the right or title of any person beyond the natural life of the offender; and by the 3d and 4th Will. IV. cap. 106, § 10, 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; and by the 13th and 14th Vict. cap. 60, § 46, no lands, stock, or chose in action, vested in any person on any trust, or by way of mortgage, or any profits thereof, shall be forfeited by reason of attainder or conviction for any offence of such trustee or mortgagee, but the Court of Chancery has power, under the 14th and 16th Vict. cap. 55, § 8, to appoint new trustees in lieu of persons convicted of felony.

It is, however, in the power of the Sovereign to restore the forfeited land by grant to the families of the former owner, and the consequences of this forfeiture are, therefore, at the present time frequently remitted.

Attainder and conviction must be taken advantage of by plea.

Attainders may be reversed or falsified (i.e., proved to be false) by writ of error, or by plea. If by writ of error, it must be by the Queen's leave, &c.; and when by plea, it must be by denying the treason, pleading a pardon by act of parliament, &c.

By a reversal of attainder, all the former proceedings are absolutely set aside, and the party stands as if he had never been accused, and is restored to his credit, his capacity and blood, and his estates,—by a free pardon the person cannot sue on any right accrued before his pardon, although he may for a subsequent right.