LAWS OF ENGLAND
BOOK THE FOURTH.
OF PUBLIC WRONGS.
CHAPTER THE THIRTIETH.
OF REVERSAL OF JUDGMENT.
Of Public Wrongs.
WE are next to confider how judgments, with their feveral connected confequences, of attainder, forfeiture, and corruption of blood, may be fet afide. There are two ways of doing this ; either by falfifying or reverfing the judgment, or elfe by reprieve or pardon.
A JUDGMENT may be falfified, reverfed, or avoided, in the firft place, without a writ of error, for matters foreign to or dehors the record, that is, not apparent upon the face of it : fo that they cannot be affigned for error in the fuperior court, which can only judge from what appears in the record itfelf : and, therefore, if the whole record be not certified, or not truly certified, by the inferior court, the party injured thereby (in both civil and criminal cafes) may allege a diminution of the record, and caufe it to be rectified. Thus, if any judgment whatever, be given by perfons, who had no good commiffion to proceed againft the perfon condemned, it is void ; and may be falfified by fhewing the fpecial matter, without writ of error. As, where a commiffion iffues to A and B, and twelve others, or any two of them, of which A or B fhall be one, to take and try indictments : and any of the other twelve proceed without the interpo-
Of Public Wrongs.
fition or prefence of either A or B : in this cafe all proceedings, trials, convictions, and judgments are void, for want of a proper authority in the commiffioners, and may be falfified upon bare infpection, without the trouble of a writ of error a ; it being a high mifdemefnor in the judges fo proceeding, and little (if any thing) fhort of murder in them all, in cafe the perfon fo attainted be executed and fuffer death. So, likewife, if a man purchafes land of another ; and afterwards the vendor is, either by outlawry, or his own confeffion, convicted and attainted of treafon or felony, previous to the fale or alienation ; whereby fuch land becomes liable to forfeiture or efcheat : now, upon any trial, the purchafer is at liberty, without bringing any writ of error, to falfify, not only the time of the felony or treafon fuppofed, but the very point of the felony or treafon itfelf ; and is not concluded by the confeffion or the outlawry of the vendor ; though the vendor himfelf is concluded, and not fuffered now to deny the fact, which he has, by confeffion or flight, acknowleged. But if fuch attainder of the vendor was by verdict, on the oath of his peers, the alienee cannot be received to falfify, or contradict the fact of the crime committed ; though he is at liberty to prove a miftake in time, or that the offence was committed after the alienation, and not before b.
SECONDLY, a judgment may be reverfed, by writ of error : which lies from all inferior criminal jurifdictions to the court of king's bench, and from the king's bench to the houfe of peers ; and may be brought for notorious miftakes in the judgment or other parts of the record : as, where a man is found guilty of perjury, and receives the judgment of felony, or for other lefs palpable errors ; fuch as any irregularity, omiffion, or want of form in the procefs of outlawry, or proclamations ; the want of a proper addition to the defendant's name, according to the ftatute of additions ; for not properly naming the fheriff or other officer of the court, or not duly defcribing where his county court was held ; for laying an offence, committed in the time of
Of Public Wrongs.
the late king, to be done againft the peace of the prefent ; and for many other fimilar caufes, which (though allowed out of tendernefs to life and liberty) are not much to the credit or advancement of the national juftice. Thefe writs of error, to reverfe judgments in cafe of mifdemefnors, are not to be allowed of courfe, but on fufficient probable caufe fhewn to the attorney-general ; and then they are underftood to be grantable of common right, and ex debito juftitiæ. But writs of error to reverfe attainders in capital cafes, are only allowed ex gratia ; and not without exprefs warrant under the king's fign manual, or at leaft by the confent of the attorney-general c. Thefe, therefore, can rarely be brought by the party himfelf, efpecially where he is attainted for an offence againft the ftate : but they may be brought by his heir, or executor, after his death, in more favourable times ; which may be fome confolation to his family. But the eafier, and more effectual way, is
LASTLY, to reverfe the attainder by act of parliament. This may be, and hath been frequently done, upon motives of compaffion, or perhaps from the zeal of the times, after a fudden revolution in the government, without examining too clofely into the truth or validity of the errors affigned. And fometimes, though the crime be univerfally acknowleged and confeffed, yet the merits of the criminal's family fhall, after his death, obtain a reftitution in blood, honours, and eftate, or fome, or one of them, by act of parliament ; which (fo far as it extends) has all the effect of reverfing the attainder, without cafting any reflections upon the juftice of the preceding fentence.
THE effect of falfifying, or reverfing, an outlawry, is that the party fhall be in the fame plight as if he had appeared upon the capias : and, if it be before plea pleaded, he fhall be put to plead to the indictment ; if after conviction, he fhall receive the fentence of the law : for all the other proceedings, except only the procefs of outlawry for his non-appearance, remain good and
c 1 Vern. 170. 175. [pp. 170, 175]
VOL. IV. A a a effectual
Of Public Wrongs.
effectual as before. But when judgment, pronounced upon conviction, is falfified or reverfed, all former proceedings are abfolutely fet afide, and the party ftands as if he had never been at all accufed ; reftored in his credit, his capacity, his blood, and his eftates : with regard to which laft, though they be granted away by the crown, yet the owner may enter upon the grantee, with as little ceremony as he might enter upon a diffeifor d. But he ftill remains liable to another profecution for the fame offence : for, the firft being erroneous, he never was in jeopardy thereby.
d 2 Hawk. P. C. 462.
Chapter 29 Index Chapter 31