crime and punishment

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This article discusses cheery subjects, such as:

Peers & Debtor's Prison

s omeone on the Beaumonde asked if you could put a peer in debtor's prison. This seemed like a fun question, so I took a crack at it. I started from John Palmer's 1830 treatise entitled "The Practice in the House of Lords, on appeals, writs of error and claims of peerage": "The persons of Peers, and of their Widows (except Widows of Bishops), and the persons of Peeresses in their own right, are protected from Arrest, in all Civil Suits, either in the first instance, or after judgment except on judgments on a Statute Stapel, or Statute Merchant, or on the Statute of Acton Burnel. Nor are they liable to be attached for non-payment of money, though they are not exempt from attachment for not obeying the processes of the Courts."

So that needs to be untangled a little, because it's not a clear cut "you can't arrest a peer." Instead, it says, "you can't arrest a peer except on judgments on a Statute Stapel, or Statute Merchant, or on the Statute of Acton Burnel." The Statute Merchant and the Statute of Acton Burnel are both old, old statutes (stemming from medieval times) that allow seizure of goods, land, and the body of debtors. In other words, it's possible to hold a peer for nonpayment of debt. (Text of those statutes online ; you should read them, because it's a little more complicated than simple nonpayment).

Even that is deceptively simple. Back to John Palmer, who adds this seemingly disconnected gem a little later: "Peers are also exempt from being sued in the Marshalsea or other inferior Courts." So where could you bring suit? You'd have to sue in the King's Bench, or to the King's Justices in Westminster. Some explanation of this process is here.

At this point, I needed to interpolate a bit: The judicial process in the 1800s was generally rough, and in many cases--particularly civil cases, it was enforced by third parties. You wanted to hold someone for nonpayment of debt? Well, you could do it yourself. Rough and ready justice. But you couldn't just go and nab a peer. You had to go to court and get a judgment first. And you couldn't just go to any old court; I'm guessing you had to take your case to Westminster and present it to judges who were quite possibly drinking buddies with the debtor. In other words, good luck with that one.

As a test of my interpolation, I looked for a case where a peer was sued for nonpayment of debt.

I found the case of The Earl of Lonsdale v. Littledale, from 1793. You can read it here but I'll sum up: Lonsdale owed Littledale money. Littledale brought suit in King's Bench. The justices rejected the suit, explaining that you could only bring suit for money owed if you had the defendant in custody--but you couldn't take peers into custody; so sorry, no way to sue. Note the lovely line, indicating that the Court was really, really listening to the pleas of the poor commoner trying to get his money, at the end of the reported decision: "Holroyd, who was going to argue on the other side, was stopped by the Court." Very nice.

This doesn't foreclose all possibility of suit, because you could still get an original writ--basically, a court summons requiring the peer to show up on his own. But I'm guessing that while it was legally possible to detain a peer for nonpayment of debt, it was practically implausible.

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Does it make sense to commit suicide to avoid conviction?

s uppose that Lord Father commits a crime, and knows that detection is imminent. It's a bad crime--a very bad crime. It is punishable by death and will have other effects on his status. And let's suppose that he's deciding what to do on the basis of what will happen to him.

For crimes that are sufficiently bad, the punishment is not only death, it's that your blood was considered corrupt. Which, to put it mildly, sucked. It means you can't pass on anything to anyone beneath you, including titles and land.

So imagine Lord Father offs himself. He's probably better off doing so. First, he may not be declared a suicide; they rarely were. But second, although forfeiture was involved in suicide, the son would not lose the title.

It's not that the son is innocent; that has nothing to do with corruption of the blood, which was a pretty harsh penalty, and which really screwed over the family. The reason why the son isn't stripped of the title is that you can't convict dead people. According to William Eden Auckland, Principles of Penal Law (1771), in the section entitled "Of Forfeiture and Corruption of Blood":

"The death of the ancestor, before conviction and judgment, discharges as to the real estate, all proceedings and forfeitures. So that the law furnishes a temptation to the Criminal to rush uncalled for into the presence of the Almighty, with all his imperfections on his head, and the addition of Suicide to the catalogue of his offense."

This analysis is not quite complete. The answer really is that it depends on what the crime was. In order to explain why, I need to explain the difference between forfeiture, attainder, and corruption of the blood.

Forfeiture: The accused had to give some stuff up. Usually, and especially in the case of a suicide, this included personal property. Forfeiture was a sentence. (In the case of suicide, it's a sentence that can be passed after death.)

Attainder: Legal status that attached upon judgment of particular crimes. It was not a sentence. A person who was attainted could not maintain suits in court (except to appeal his attainted status) and could not own property.

Corruption of the Blood: Also a legal status. The blood was corrupted, and all the accused's belongings--including his lands and his title--escheated to the state. The corruption of the blood attaches at the moment of judgment, and is distinct from the sentence in the case.

Attainder is not the same thing as Corruption of the Blood. Corruption of the Blood is basically thermonuclear attainder.

Why does it matter that execution and forfeiture are sentences and the others are legal statuses? A sentence is subject to executive clemency. If you commit a felony, your sentence can be pardoned. The King can say, "no, we won't execute you; we'll just banish you." But attainder and corruption of the blood are both legal statuses, and while you could get the King to obviate the status, his actions would only allow you to get new property and bring new suits; it wouldn't resurrect your rights to the old stuff you used to own.

Think of it this way: There are some states in the US today where felons can't vote. When the judge pronounces sentence upon a felon, he doesn't have to say, "Oh, and you can't vote." And if the executive restores his right to vote, he can only restore it prospectively; he can't give him the rights to have voted in the last election. That's what attainder and corruption of the blood are like; once you've been judged a felon, you're attainted. Or your blood is corrupted. No additional action needed.

The difference between attainder and corruption of the blood is that while attainder attached for most felonies (including many felonies enacted by Parliament) the corruption of the blood attached only ... well, actually, it changed in the middle of the Regency period. At the beginning of the period, corruption of the blood was originally wrought by judgment of high treason or any common-law felony. That is, it had to be a felony that was not criminalized by statute of parliament. This was changed in 1815; after that point, only treason or petit treason could work corruption of the blood.

And one additional caveat: All of this is only true for England; it's definitely not true for Ireland or Scotland.

So here's the rundown. Before 1815:

Suicide: Forfeiture. Personal property likely lost.
Common-Law Felony or Treason: Death and corruption of the blood. The heir gets nothing--no lands, no title.
Statute enacted by parliament: Attainder, and possible death sentence (or transportation, or forfeiture). The heir inherits, BUT any pending suits--contracts, etc, and rights to money could potentially be lost.

After 1815:

Suicide: Forfeiture. Personal property likely lost.
Treason: Death and corruption of the blood. The heir gets nothing--no lands, no title.
Felony: Attainder, and possible death sentence (or transportation, or forfeiture). The heir inherits, BUT any pending suits--contracts, etc, and rights to money could potentially be lost.

So conviction of an actual crime has an effect on the legal status of the felon that would almost certainly be more detrimental than mere forfeiture, even if there was no corruption of the blood. But the possibility of executive clemency, if you were lucky and/or well-connected, might lead you to favor conviction so long as there was no corruption of the blood.

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