Sparks Commentary: What is “corruption of blood, or forfeiture” from an attainder of treason?

“The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

– Article 3, Section 3, Paragraph 2 of the United States Constitution

The Constitution prevents Congress from “extending the consequences of guilt” beyond those who have actually committed the crimes …

In the Federalist Papers, James Madison once quoted a portion of the Constitution saying that the Congress shall have power “To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained.” (Source: Federalist No. 43) He then commented upon this section, saying that “As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.” (Source: Federalist No. 43) Corruption of blood just meant impeding someone from inheriting, or passing on property to their own descendants as heirs, on account of a crime that they had committed (usually treason). It thus punished others besides the person guilty of the crime.

James Madison

Sir William Blackstone had much to say on this subject …

Elsewhere in the Federalist Papers, Alexander Hamilton would quote from Sir William Blackstone’s “Commentaries on the Laws of England,” better known as Blackstone’s “Commentaries.” (See this other blog post for the details of these quotations by Hamilton.) Blackstone had some important things to say on this subject, which might be worth quoting here. But before I give Blackstone’s comments on this subject, I should first quote another comment that he had made earlier in this same chapter. (Incidentally, all quotations from Blackstone's “Commentaries” in this particular blog post will be from Book 2, Chapter 15. This particular volume was first published in 1766.) In this part of the “Commentaries,” Blackstone had written that “Escheat, we may remember [footnote], was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman [footnote], in which language it signifies chance or accident; and with us denotes an obstruction of the [course] of descent, and a consequent determination of the tenure, by some unforeseen contingency: in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee [footnote].” (Source: Blackstone's “Commentaries”)

Alexander Hamilton, who quoted Blackstone’s “Commentaries” in the Federalist Papers

In Blackstone's time, the blood of one attainted was so corrupted, as to be “rendered no longer inheritable”

Another of Blackstone's earlier comments may be needed to preface this here. Blackstone further wrote there that “Escheats therefore arising merely upon the deficiency of the blood, whereby the descent is impeded, their doctrine will be better illustrated by considering the several cases wherein hereditary blood may be deficient, than by any other method whatsoever.” (Source: Blackstone's “Commentaries”) Later in this chapter, he named one of these cases (the relevant part for our discussion), by commenting that “By attainder also, for treason or other felony, the blood of the person attainted is so corrupted, as to be rendered no longer inheritable.” (Source: Blackstone's “Commentaries”) Later in this same chapter, he gave his most relevant comments on the subject at hand. This chapter said that “The doctrine of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony, (under which denomination all treasons were formerly comprised [footnote]) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vasal on the implied condition of dum bene fe gefferit [during good behaviour]. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out for ever.” (Source: Blackstone's “Commentaries”)

Sir William Blackstone

This policy had origins in the Norman conquest, rather than in England …

This was a harsh penalty, and one that Blackstone would later criticize in this same chapter. But he also noted in this part of the “Commentaries” that “In this situation, the law of feodal escheat was brought into England at the conquest; and in general superadded to the ancient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in its passage; in case of treason, for ever; in case of other felony, for only a year and a day, after which time it goes to the lord in a regular course of escheat [footnote], as it would have done to the heir of the felon in case the feodal tenures had never been introduced. And that this is the true operation and genuine history of escheats will most evidently appear from this incident to gavelkind lands, (which seem to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason [footnote].” (Source: Blackstone's “Commentaries”)

Sir William Blackstone

One attainted cannot inherit property, or even pass on their property to descendants …

Blackstone also wrote that “There is yet a farther consequence of the corruption and extinction of hereditary blood, which is this: that the person attainted shall not only be incapable himself of inheriting, or transmitting his own property by heirship, but shall also obstruct the discent of lands or tenements to his posterity, in all cases where they are obliged to derive their title through him from any remoter ancestor. The channel, which conveyed the hereditary blood from his ancestors to him, is not only exhausted for the present, but totally dammed up and rendered impervious for the future. This is a refinement upon the ancient law of feuds, which allowed that the grandson might be heir to his grandfather, though the son in the intermediate generation was guilty of felony [footnote]. But, by the law of England, a man's blood is so universally corrupted by attainder, that his sons can neither inherit to him nor to any other ancestors, at least on the part of their attainted father.” (Source: Blackstone's “Commentaries”)

Statue of Sir William Blackstone

This corruption of blood cannot be absolutely removed but by “authority of parliament”

Blackstone further wrote in the “Commentaries” that “This corruption of blood cannot be absolutely removed but by authority of parliament. The king may excuse the public punishment of an offender; but cannot abolish the private right, which has accrued or may accrue to individuals as a consequence of the criminal's attainder. 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 hath an interest, the lord who claims by escheat. If therefore a man hath a son, and is attainted, and afterwards pardoned by the king; this son can never inherit to his father, or father's ancestors; because his paternal blood, being once thoroughly corrupted by his father's attainder, must continue so: but if the son had been born after the pardon, he might inherit; because by the pardon the father is made a new man, and may convey new inheritable blood to his after-born children [footnote].” (Source: Blackstone's “Commentaries”)

Parliament of Great Britain

Such a person's blood is “blotted out, corrupted, and extinguished for ever”

“Upon the whole it appears,” Blackstone continued, “that a person attainted is neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished for ever: the consequence of which is, that estates, thus impeded in their descent, result back and escheat to the lord.” (Source: Blackstone's “Commentaries”)

Coat of arms of Great Britain, 1714-1800

Blackstone thought this policy a “peculiar hardship” with “inequitable consequences” …

Blackstone further wrote that “This corruption of blood, thus arising from feodal principles, but perhaps extended farther than even those principles will warrant, has been long looked upon as a peculiar hardship: because, the oppressive parts of the feodal tenures being now in general abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty, (which, however severe, is sufficiently justified upon reasons of public policy) but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors.” (Source: Blackstone's “Commentaries”)

Constitution of the United States, which explicitly prohibits this sort of thing

… and approved of how Parliament had seldom used it in recent times

“And therefore,” Blackstone concluded, “in most (if not all) of the new felonies, created by parliament since the reign of Henry the eighth, it is declared that they shall not extend to any corruption of blood: and by the statute 7 Ann. c. 21. (the operation of which is postponed by the statute 17 Geo. II. c. 39.) it is enacted, that, after the death of the pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself: which provisions have indeed carried the remedy farther, than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.” (Source: Blackstone's “Commentaries”) In England and Wales, corruption of blood was later abolished completely by the “Corruption of Blood Act 1814.”

King Henry the Eighth of England, mentioned in the quote above

Conclusion: The United States Constitution was right to prohibit this sort of thing

Thus, the United States Constitution was right to do away with this sort of thing in 1787. As mentioned earlier in this post, the United States Constitution actually says that “The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.” (Source: Article 3, Section 3, Paragraph 2) I have had a new appreciation of this clause, ever since reading this particular chapter of Blackstone's “Commentaries” (the one that I have been quoting from in this post). As mentioned earlier, James Madison actually wrote in the Federalist Papers that even when Congress declares the punishment of treason, it has no power of “extending the consequences of guilt beyond the person of its author.” (Source: Federalist No. 43). This is exactly as it should be.

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