By
Cecil Greek, Ph.D.
University of South Florida

Originally Published In Mieczkowski,Thomas (ed.). Drugs, crime and social policy. Boston: Allyn and Bacon. pp. 109-137.

In 1970 the U. S. Congress reintroduced criminal forfeiture penalties following an 180 year period in which they were virtually never used. In personam criminal forfeitures and in rem civil forfeitures were added as stiff new penalties to deal with the problems of organized crime and drug dealing as part of the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Continuing Criminal Enterprises Act (CCE). This essay is a preliminary investigation of the history of forfeiture penalties in England and their transfer to the American colonies. In America the penalty of forfeiture of estate fell into disuse and was eventually eliminated by the Constitution (for treason) and the first Congress (for all felonies) [Hafetz, 1986:228; Roadman, 1986:713]. Possible explanations for the founding fathers' decision to eliminate criminal forfeiture in the United States well before its demise in England are discussed. The origins of civil forfeiture in the British navigation acts as a way to stop smuggling of contraband will also be discussed.

This investigation opens up a number of issues for discussion in light of contemporary forfeiture statutes designed to aid in the wars on drugs and organized crime. A major finding is the oppressive nature which many Americans attached to seizures and forfeitures. Of particular and immediate concern is the potential loss of Constitutional protections and the effects of stepped up customs enforcement on U. S. foreign policy. Most of the states have also enacted forfeiture laws quite similar to the federal ones, further complicating the American criminal codes. Without a more adequate understanding of the way forfeiture laws were used and sometimes abused in the past, we may be doomed to repeat many of the same mistakes.

 The farther back one goes into the history of English common law the more difficult it becomes to distinguish criminal statutes, procedures, and penalties for what are today considered specific areas of law, such as treason, felony, and misdemeanor [Holdsworth, 1956; Vol. 2:3]. However, what appears to modern observers as confusion in the law can be largely explained as a result of the English feudal system and its land tenure policies [Simpson, 1986].

Following the Norman Conquest of England William the Conqueror (1066-1087) instituted a land tenure system based on the principle of absolute ownership by the Crown. William simply gave himself title to all of the land. Large tracts of land were then given to William's supporters who became lords of these estates. The lords, as vassals of the king, were, in effect, caretakers of the land for the king. Their primary obligation to retain land tenure was faithfully to perform military service for the king [Simpson, 1986:2]. Sub-vassals could be allowed to live on given parcels of land by the lord for which they must perform certain obligations such as military service while free peasants worked the land and paid rent [Pollock and Maitland, 1968, Vol. 1:351]. The latter two did not hold land by feudal tenure. Feudalism was not abolished in England until 1660.

The king expected order to be the norm in his realm and, as such, violations of the norm were considered breaches of the king's peace. In effect, the tacit contract between the king and his subjects had been broken if an individual committed an untoward act outlawed by the king. But were these breaches felonies or treasons? Bellamy [1970:vii] states that the further back in post-conquest English legal history one goes, the less distinct becomes the line between treason and felony. Originally, the idea of felony must have contained the concept of treason, because a felony was a breach of the contract owed to the lord to keep the peace [Lyon, 1960:190; Simpson, 1986:15]. Blackstone, writing in the late eighteenth century, argued that treason must have always been a felony, but not all felonies were treason [Bellamy, 1970:viii]. In reality, felony was the genus term, while treason represents one species of felony. The term felonia first appears in 1108 during the reign of Henry I (1100-1135) and is used to discuss a vassal's breach of contract to his lord [Goebel, 1976:250].

Holdsworth [1956, Vol. 2:357] states that the law of Edward I (1272-1307) still did not distinctly define the offense of treason. It was not until 1352 during the reign of Edward III (1327-1377) that a clear distinction between felony and treason was established [Holdsworth, 1956, Vol. 2:449-450]. Specific felonies that were considered direct affronts to the king were labeled treasons, with penalties meted out by the king as well. Treasonable offenses included plotting to kill or overthrow the king, making war against the king, or giving aid to the king's enemies. During certain eras, words were often deemed sufficiently overt acts to prove intent to compass the king's death [Chapin, 1964:4]. In addition, classification of high and petit treasons was introduced in the Statute of Treasons [Lyon, 1960:632]. Only high treason was considered an offense against the king, while petit treasons were violations against the lord. These distinctions are crucial to understanding the English punishment of forfeiture, because whether the crime was considered high or petit treason (and, before Edward III, felony or treason) determined who was responsible for punishing the offender and receiving the proceeds from the forfeiture.

Many legal historians have argued that forfeiture of all lands and property directly to the king became the established penalty for treason, while a convicted felon escheated his land to his lord and his chattels to the king [Yorke, 1745:32-33; Kent, 1971, Vol. 4:422; Weiner, 1981:229; Pollock and Maitland, 1968, Vol. 1:351; Baker, 1973:206]. This was, of course, in addition to receiving the death penalty. Death was, throughout most of the common law era, the punishment for all felonies except petty larceny and mayhem [Stephen, 1883, Vol. 1:487]. However, such statements are too simplistic. The clear separation of forfeiture to the king from escheat to the lord emerged only gradually in English legal history. In addition, the growing use of benefit of clergy served to limit the use of the death penalty and, in some cases, to restore forfeited real property [Fried, 1988:335]. By the early seventeenth century probably fewer than one-fourth of convicted felons were being executed [Chapin, 1983:56; Herrup, 1987]. In the eighteenth century many convicted felons were transported or branded.

Blackstone states that forfeiture in England predates the Norman feudal system and has Saxon and ancient Scandinavian roots [Tucker, 1969, Vol. 5:385-386]. The king was entitled to "year, day, and waste" for any violation of the king's peace. For one year the king had the right to destroy an offender's land and property. For example, the king could pull down any buildings on the land, destroy the fields, or cut down their woods. After Henry I the policy was altered, and instead of destroying the land, the king was entitled to the profits of the land for a year and a day. However, after that year the land could not be returned to its original grantee, since they were now legally (and physically) dead. At that point it was expected that the king would return the land to the original grantor lord as an escheat.

Escheat had French origins rather than Saxon. Simpson [1986:19] argues that there were two specific types of escheats under common law. The first, borrowed from the French, propter defectum sanguinis, a kind of civil escheat, resulted when there was no heir to inherit the estate. The land reverted to the lord. The other use of the concept of an escheat was as a response to the failure of a vassal to perform his bargain with the lord, such as the commission of a felony [Goebel, 1976:272]. Escheat propter delictum tenentis was based on the feudal principle that all land would revert to the lord for breach of trust [Stephen, 1883, Vol. 1:488]. However, given that land was the principle form of wealth under the feudal system, it was almost inevitable that a dispute would emerge between the Crown and the lords over who should benefit from the convict's removal from their land. In the thirteenth century, the Crown established the rule that a traitor's land must not escheat to his immediate lord, but to the king [Bellamy, 1970:21]. As part of the agreement in signing the Magna Carta, John (1199-1216) promised to return forfeited lands after a year and a day. In addition, the Magna Carta includes a clause in which the Crown renounced any claim to forfeiture on the ground of felony [Holdsworth, 1956, Vol. 3:69]. Edward I upheld the policy [Holdsworth, 1956, Vol. 2:358]. For a felony conviction, goods were kept by the Crown, while land was escheated to the lord after one year [Lyon, 1960:465]. If the felon or traitor held land directly given by the king, escheats returned to the Crown without necessity of being regiven to a lord.

Even inferior felonies, those that did not require the death penalty, subjected the offender to fines that might include the forfeiture of goods and chattels [Eden, 1771:41]. Such statutory forfeitures were a major source of revenue for the Crown [Maxeiner, 1977:773]. For example, fines were frequently used as a penalty for assault [Beattie, 1986:456-457]. Increasing the number of offenses considered felonies gave the lords greater opportunity for gain. By the seventeenth century crimes that were considered felonies included murder, manslaughter, witchcraft, larceny, abduction of an heiress with intent to marry her, forgery of a deed or testimonial, transportation of a sheep, and malicious cutting of another man's tongue or his eyes [Veall, 1970:2].

However, it remained in the king's interest to extend the list of offenses considered treasonous, since his coffers benefited [Pollock and Maitland, 1968, Vol. 2:500]. The dispute over forfeiture versus escheat continued on into the fourteenth century. Lords were alarmed that the king was calling so many offenses treasons, thus causing them to lose their escheats [Simpson, 1986:20]. In some cases the king did not return the land to the lord after a year and a day, producing additional consternation. The distinction between high and petit treasons established in 1352 solved the problem satisfactorily to the lords' favor [Bellamy, 1970:80-87, Bellamy, 1979].

The use of escheats and forfeitures had even greater draconian consequences in that it resulted in corruption of blood. This practice was also the legacy of the feudal land system and was introduced after the Conquest. Corruption of blood meant that as a result of conviction the criminal's bloodline had been legally severed [Baker, 1979:412-413; Hughes and O'Connell, 1984:619]. Not only were his wife and heirs unable to inherit his land or goods, the family was unable to inherit from his parents as well [Tucker, 1969, Vol. 5:387]. The widow's "dower," which usually consisted of one-third of her husband's lands, was almost always lost [Simpson, 1986:68]. Only when a crime exempted by Parliamentary statute was committed could an attained felon avoid corruption of blood or losing his wife's dower rights to his estate [Hale, 1971, Vol. 1:241-253, 354]. Originally, only children born after a criminal conviction were incapable of inheriting, but later all heirs were disinherited [Pollock and Maitland, Vol. 1:477; Goebel, 1976:269]. Criminal forfeiture combined with corruption of blood was referred to as forfeiture of estate because of its complete divestiture of property and all property rights [Roadman, 1986:713].
 

The use of corruption of blood is related to the origins of escheat. While the modern legal definition of an escheat has to do with property falling into state receivership resulting from its abandonment, the failure to have a proper heir, or death intestate, in the latter twelfth century there were two forms of escheat. If a vassal died without an heir, his property escheated to the lord who could then grant tenure to another vassal [Goebel, 1976:267; Holdsworth, 1956, Vol. 3:67]. Likewise, an heir tainted due to the criminal attainder of the father was considered to be no heir. Corruption of blood, in effect, combined escheat propter delictum tenentis and escheat propter defectum sanguinis. While in the early Norman era it was unclear whether land grants could be passed on to one's descendants in perpetuity, once the practice of tenure was established the penalty of forfeiture or escheat took on draconian dimensions [Goebel, 1976:253]. The man who committed a crime was, in effect, made to return his land grant and thus disinherit his family, because he could not live peaceably within civil society [Reed and Gill, 1987:611].

Corruption of blood also had a religious justification, stemming from the biblical concept that the sins of the fathers would be visited upon their sons. Even grandchildren were affected. A grandson could not inherit from his grandfather's estate if his father was convicted of treason, because the bloodline was considered severed [Story, 1970, Vol. 3:170].

Forfeiture and corruption of blood could only be enacted following both conviction by a jury and attainder. Attainder was a declaration of a person's civil death (extinction of all civil rights and capacities) and corruption of blood which occurred as a consequence of a sentence to death for high treason or felony [Bishop, 1882, Vol. 1:581; Weiner, 1981:230]. In addition, if an indicted defendant ran from justice rather than face a trial, he was branded an outlaw and could also be attained and his property forfeited. Even though he was still alive, he was civilly dead [Bishop, 1882, Vol. 1:582; Tucker, 1969, Vol. 5:387]. A person had to be "attained." Mere conviction by a jury or defendant's confession was insufficient because if for some reason, such as pardon or an error in the indictment, a man was not attained by the judge following conviction there could be no forfeiture of his lands [Weiner, 1981:230]. While lands could only be forfeited upon attainder, goods and chattels were considered forfeit at the time of conviction [Tucker, 1969, Vol. 5:387].
 

One way that those who faced the court attempted to lessen their penalties was to sell or transfer their property to others. The courts blocked the practice by creating a "relation back" doctrine. Forfeiture of estate for treason was considered to relate backwards to the exact time of the treason committed and served to void all subsequent sales and encumbrances [Tucker, 1969, Vol. 5:382; Eden, 1771:40-41].
 

Third parties, even if they were bona fide purchasers, had no way to recover damages [Tucker, 1969, Vol. 4:420]. Neither did the real victims of crime in most cases. For example, convicted thieves forfeited their stolen goods to the king, not to the victim [Pollock and Maitland, 1968, Vol. 2:165]. Sir Matthew Hale [1971, Vol. 1:540-542] presents conflicting evidence, claiming that property crime victims were offered the opportunity to collect restitution once the felon was convicted. However, victims of violent crimes received no compensation.
 

While the relation back doctrine insured that the king would receive all forfeitable lands, only goods and chattels at the disposal of the defendant upon conviction were subject to forfeiture [Tucker, 1969, Vol. 5:388]. However, the convict was not to cheat the courts by making fraudulent sales. These were recoverable by the Crown. While goods could not be seized prior to conviction for a felony, for a treason charge goods and chattels were seized and inventoried on indictment [Goebel and Naughton, 1970:711]. The Crown felt no need to return the goods if the individual was acquitted [Bellamy, 1979:210]. Such a practice was similar to deodand forfeiture (to be discussed later) and to contemporary in rem civil actions that offer no relief from forfeiture upon acquittal.
 
 

Convicts were spared the penalty of forfeiture if they died or were killed prior to attainder [Tucker, 1969, Vol. 5:382]. However, they could not commit suicide as a means of preserving their estates or property for their families, since all suicides carried their own automatic forfeiture penalties. Suicide was considered a "felony of a man's self" (felo de se) and prohibited by common law [Finkelstein, 1973:184]. While suicide for forfeiture was also considered a way to provide an adequate atonement to the Crown for such a grievous offense, the penalty's effect on wives and heirs was not considered [Evans, 1987:190].
 
 

However, there was a way an individual could avoid forfeiture by allowing himself to suffer peine forte et dure rather than stand trial [Baker, 1979:416]. This practice, which usually consisted of slowly pressing a person to death with giant stones, was first enacted in 1275, last used in 1741, and finally abolished in 1772 [Lyon, 1960:451]. Saving a person's family from forfeiture and corruption of blood was not the original purpose of peine forte et dure, but such usage emerged as a latent function.
 

The history of peine forte et dure is quite fascinating. It was not a form of torture designed to bring about a confession as Barnes [1972:14-15] has wrongly concluded, but an unusual anthropological survival of the transformation from trial by ordeal to trial by jury [Hale, 1971, Vol. 2:315-322]. Unlike a number of European countries, England did not use torture as a regular means of coaxing confessions from criminal defendants [Foucault, 1977:35]. Langbein's [1977:73] exhaustive investigation of English criminal trials through the Restoration found only 81 cases of tortured confessions.
 
 

In 1215 the Fourth Lateran Council eliminated the use of the ordeal as a means of proving guilt or innocence in a criminal matter [Langbein, 1977:75]. Jury trial already existed in England as an alternative criminal procedure in some exceptional cases for those who wished to avoid the ordeals and willing to pay money to the King [Stephen, 1883, Vol. 1:299]. Its usage expanded after 1215, although it retained its consensual element. Peine forte et dure emerged as a result of the fact that, although a jury trial had to be freely chosen, there was now no alternative for those who refused to be tried by jury [Heath, 1982:248]. Peine forte et dure made sure that few ever refused (except those willing to sacrifice their own lives to preserve their family's property from the Crown).
 

Much of the criminal procedure in England for the period we have been discussing has survived to the present day in both England and America. A criminal defendant had to be first indicted prior to arraignment. At the arraignment the defendant was told the charges against him and then asked for a plea: guilty or not guilty. Peine forte et dure was used only in those cases where an individual refused to make a plea at all and, in effect, "stood mute" before the court or if the defendant refused to go to trial.
 
 

When the defendant pled not guilty the next question asked was, "Culprit, how will you be tried?" to which the prisoner had to reply, "By God and my country" [Stephen, 1883, Vol. 1:298-299]. The "by God" segment of the response is believed to be the legacy of the use of trial by ordeal, while the "my country" portion signified willingness to be tried by a jury of one's peers. If the defendant refused to plead or to repeat the entire phrase, "by God and my country" he was judged to have stood mute before the court. Then it had to be determined whether he stood "mute of malice" or "mute by the visitation of God" [Stephen, 1883, Vol. 1:298]. If found mute by visitation of God the trial proceeded anyway, the defendant thought to have pled not guilty. It seems that mental illness was not a valid reason for delaying the criminal process. If found mute of malice the next step depended on the nature of the charge. For either treason or misdemeanor, standing mute of malice was considered equal to a guilty plea [Tucker, 1969, Vol. 5:387]. Sentence was then given. If the person had been indicted for a felony he was condemned to peine forte et dure.
 

When first mentioned in 1275, peine forte et dure consisted of being imprisoned and fed only bread and stagnant water on alternate days, until the defendant either pleaded or died [Pollock and Maitland, 1968, Vol. 2:651-652; Stephen, 1883, Vol. 1:298]. The goal was not to kill the individual, because then neither the king nor the lords could gain his lands through forfeiture [Bellamy, 1979:139]. It is likely that a prison stay on bread and water until starvation was the norm. The practice of pressing to death was introduced as an innovation during the reign of Henry IV (1399-1413) and is specifically mentioned in a 1406 case [Stephen, 1883, Vol. 1:300; Holdsworth, 1956, Vol. 1:327]. Defendants had proved quite obstinate, and often kept the court sitting for long periods awaiting their change of heart. Stones or metal weights were now laid atop the defendant, often pressing the individual to death in a few minutes, although some survived for much longer [Langbein, 1977:76]. However, quick or slow peine forte et dure often depended upon how important the case was to the Crown. Another innovation was to tie the thumbs with whipcord, a milder form of torture that might make pressing unnecessary [Stephen, 1883, Vol. 1:300]. Those who died as a result of peine forte et dure avoided both conviction and attainder, resulting only in the forfeiture of goods to the king while escaping escheat of lands and corruption of blood [Hale, 1971, Vol. 2:319].
 

How many people were killed as a result of peine forte et dure? A complete count will probably never be possible because of the loss of court records. However, descriptions of a number of individual cases have survived. For example, Langbein [1974:52] cites a 1604 case in Chester County of a man who conspired with his lover to kill her husband by serving him poisoned cakes the wife had baked. He was willing to suffer being pressed to death rather than risk forfeiture. Radzinowicz [1948, Vol. 1:141] reports figures for one county, Middlesex, between 1607 and 1616. Thirty-two persons died as a result of peine forte et dure, while 704 offenders were executed following conviction. Veall [1970:28] offers additional statistics for Middlesex that show the use of peine forte et dure varied considerably. Between 1625 and 1648, only two persons suffered peine forte et dure, while twelve died between 1650 and 1658. Beattie [1986:338] reports that the use of peine forte et dure persisted into the late seventeenth and early eighteenth centuries, even as the use of forfeiture was decreasing. The use of the death penalty in Middlesex also fluctuated significantly during the same time periods, going from 70 per year between 1608 and 1617 to 35 annually for the period 1625-1648, and rising again to 43 per year between 1650 and 1658.

From the statistics given above it can be concluded that a number of people died as a result of the use of peine forte et dure while a much larger number suffered the death penalty and loss of their property through forfeiture. One of the few options available to preserve both one's life and one's property was to appeal to "benefit of clergy." If successful, this meant that the case would be transferred from the secular Crown court into a church court. Because ecclesiastical trials were conducted by compurgation (neighbors of the defendant were permitted to testify and swear to his veracity), with no factual evidence except that presented by the defense, benefit of clergy facilitated acquittals [Dalzell, 1955:11]. Even if conviction resulted, there could be no capital sentence, a practice dating back to Tertullian's fourth century belief that the church did not have the authority to impose the death penalty on believers. The worst penalties the church court in England could impose were defrocking, imprisonment in a monastery, or forfeiture of goods [Dalzell, 1955:11]. Lands, the principal form of wealth, were exempt from seizure. As a result of the low conviction rate the Crown insisted, after 1576, that benefit of clergy could be granted only following a secular trial which had pronounced a guilty verdict [Green, 1985:121]. The Crown wanted the church courts to know that the defendant was indeed a felon. In addition, the successful use of benefit of clergy was no longer permitted to exonerate the accused of all crimes committed prior to the one for which the individual had been charged [Dalzell, 1955:11].

The history of benefit of clergy in England is not easy to trace because the direction of its development was neither one simply of gradual expansion nor gradual limitation of its usage. In fact, its history runs along two lines: the progressive enlargement of the classes of people who might claim it, paralleled (with some fluctuations) by the reduction of the number of offenses for which it might be claimed [Dalzell, 1955:15]. While William the Conqueror separated secular and church courts, the period from the conquest up until the reign of Henry III (1216-1272) was one in which the church only gradually gained the ability to try clerics in their own courts [Gabel, 1969:8-10]. From Henry III through the Reformation period, the secular courts gradually regained ascendancy. The list of crimes that could be covered by benefit of clergy was severely restricted as well. During Edward III's reign (1327-1377) benefit of clergy covered all offenses save high treason, highway robbery, and willful arson, which were never "clergyable" [Green, 1985:128; Herrup, 1987:48; Dalzell, 1955:29]. Later many felonies were excluded, becoming known as "felonies without benefit of clergy" [Holdsworth, 1956, Vol. 3:299]. For example, Henry VII (1485-1509) excluded murder, rape, robbery, and theft from benefit of clergy in 1489 [Gabel, 1969:123; Beattie, 1986:143]. Petty treason was made untransferable in 1496 [Green, 1985:117]. By 1590, benefit of clergy could be claimed only for first convictions, but provided a convenient way of punishing minor first offenders without executing them [Herrup, 1987:48].

In the fourteenth century the right to benefit of clergy had been expanded to include not only true clerics, but anyone who could read. Such persons were referred to as "clerks." It was assumed that only clerics and other specially trained individuals could read. However, a number of individuals qualified for benefit of clergy by memorizing the required scripture reading of Psalm 51, known as the "neck verse" because its usage frequently saved the defendant from hanging [Gabel, 1969:73]. The procedure for requesting benefit of clergy was invoked after a guilty verdict was rendered. The defendant would be asked if he had anything to say as to why judgment should not pass against him. If the prisoner then prayed for his clergy, usually performed on bended knee, he would be brought a Bible and asked to read a psalm. Successful reading of the passage transferred the case to a church court [Words and Phrases, 1964, Vol. 5:489].
 

By the fifteenth century, prior to Henry VII's reforms, secular court jurisdiction had been substantially reduced over felony suspects as a result of the expanded use of benefit of clergy [Green, 1985:116]. Henry VII introduced the practice of branding the thumb of first time literate laymen who demanded benefit of clergy, who were then not permitted a second appearance in a clerical court. Only true clerics could enter the church courts a second time [Dalzell, 1955:17]. In the seventeenth century benefit of clergy was extended to women who committed petty larceny (1624) or any other covered offenses (1692) [Dalzell, 1955:20]. The neck verse was eliminated in 1707, making nonreaders eligible for benefit of clergy [Holdsworth, 1956, Vol. 3:300]. But by that time there were so few offenses (mostly petty misdemeanors) that could be heard before a church court that the privilege had little real meaning. The new penalty of transportation, formally enacted in 1718, made the use of benefit of clergy much less necessary, because it was available for both clergyable and non-clergyable offenses [Green, 1985:276]. Benefit of clergy was abolished in 1827.
 

 There were several reasons why women were not granted benefit of clergy until so late. Because it was so difficult for women to inherit property, they did not face the same jeopardy as men did when charged with a felony. The common law preference for men over women in order of inheritance for real property hearkened back to the feudal concept of knight service, an exclusively male endeavor [Hull, 1987:10]. Women, including their property, were to be protected by fathers, husbands, and sons. Corruption of blood did not apply to attained females. Women could suffer peine forte et dure [Hale, 1971, Vol. 2:319]. While by the fourteenth century one out of ten accused felons was a female, there were several means whereby they might avoid the death penalty. Women could not be charged with crimes that their husbands had forced them to commit. The doctrine of Femes convert protected women because they were presumed to be legally obligated to obey their husbands' wishes. In such cases, the male could be convicted and suffer forfeiture for his wife's offense [Hull, 1987:24]. Women could also postpone capital punishment if pregnant (after quickening) up to three months following the baby's birth. During that time a pardon might be obtained [Hull, 1987:23].
 

The actual use of benefit of clergy by both sexes varied considerably. While statistics are not available on how many cases were actually transferred, some data on the number of those who requested benefit of clergy have been collected. Green [1985:121] reports twenty percent of all felony suspects in Essex County requested benefit of clergy between 1558 and 1714. Petitions were most frequent in the sixteenth century: forty-six percent during the period 1559-1664, and twenty-eight percent between 1558 and 1602.
 

One way that the secular court avoided sending its cases to the church courts was to underestimate the value of stolen goods. As a result, defendants would be charged with petty larceny rather than with a more serious offense that required the death penalty and estate forfeiture. The use of this early form of plea bargaining actually increased in the eighteenth century as the creation of new death penalty offenses continued and benefit of clergy fell into disuse [Green, 1985:275].

 One final type of forfeiture must be discussed. Deodand forfeiture resulted when an animate or inanimate object owned by one individual caused, directly or indirectly, the death of another [Kurisky, 1988:249]. The object was forfeit to the King or local lord, based on the legal fiction that any object that had killed one of the King's subjects was capable of future harm and should be destroyed. Later, the deodand objects were not themselves confiscated; instead, their value was assessed and the proceeds then were due the Crown as forfeiture. Sometimes these funds were distributed among the poor.
 

The only possible Judeo-Christian religious basis for deodand is the Old Testament story of the goring ox (Exodus 21:28-30), which was destroyed after having killed the neighbor of its owner [Finkelstein, 1973:180-185]. A number of European countries actually prosecuted and executed animals that killed human beings [Evans, 1987]. The Anglo-Saxon origin of deodand may have been a belief that any object that had caused a death was tainted and would continue to exert a magical or malicious influence on those it came into contact with in the future [Evans, 1987:187]. For example, Scottish fishermen would beach boats from which persons had drowned, letting the boats dry and rot to pieces [Evans, 1987:188]. Deodand was considered by Blackstone to have been a deterrent to negligence [Reed and Gill, 1987:64]. Because a remedy for wrongful death never existed at common law, the threat of forfeiture may have established a higher degree of care by enacting a penalty for carelessness.
 

There were several variations on deodand forfeiture, all of which enriched the coffers of the king while providing victims with no form of compensation. Either accidental homicide or self defense required a penalty of automatic forfeiture of the slayer's goods to the King. While the penalty for self defense vanished in the fourteenth century, it was not until the nineteenth century that accidental homicide forfeitures were officially abolished [Green, 1985:86, 123]. Prior to 1343 forfeiture of goods for excusable homicide was only required from those who had fled prosecution; after that date chattel forfeiture became an automatic penalty [Green, 1985:30]. A pardon for the incident by the court was also required; otherwise, the accused could be attained for murder. Chattel forfeiture was, therefore, considered a light penalty, or a virtual reprieve. Through the use of forfeiture for accidental death, the Crown once again asserted its role as the embodiment and protector of the community's transcendent personality and interests [Finkelstein, 1973:187].
 

In murders in which the killer was unknown and remained unapprehended a forfeiture, referred to as murdrum, was required from the local township, the "hundred," or the county. The biblical precedent here (Deuteronomy 21:1-9) appears to be the jeopardy in which the community finds itself as a result of unrequited bloodshed in its territory. The Hebrews required a ritual sacrifice to cleanse the community [Finkelstein, 1973:193]. The English King required a money penalty. Murdrum fines were abolished altogether in 1340 [Green, 1985:100].
 
 

The practice of deodand forfeiture continued until the mid-nineteenth century as well. It was abolished in 1846, as was forfeiture for suicide and unknown murder victims [Finkelstein, 1973:170]. Deodand was replaced by a wrongful death damages statute based on the principle of criminal negligence [Finkelstein, 1973:198-199]. Fines and/or imprisonment were demanded from the person responsible for the untoward act, depending on the seriousness of negligence in the particular case. In addition, the Act for Compensating Families of Persons Killed by Accidents was passed simultaneously [Reed and Gill, 1987:64]. Despite the elimination of deodands, the Crown continued to confiscate guilty property as a source of Crown revenue, usually under admiralty law. (Such statutory forfeiture, which is the true progenitor of modern in rem seizures, will be discussed at the end of this essay.)

All of the criminal procedures and penalties discussed (forfeiture, corruption of blood, peine forte et dure, deodand) were eventually eliminated in England but only decades and, in some cases, centuries after they had been rejected by the American colonists. Efforts were made to reform many of these practices as early as the seventeenth century, but none were successful during that era [Veall, 1970].
 

Opponents of peine forte et dure were split over whether standing mute should be considered a plea of guilty or not guilty [Veall, 1970:159]. The last recorded pressing occurred in 1741 [Baker, 1979:416]. When peine forte et dure was finally abolished in 1772, it was replaced by an automatic guilty plea for standing mute. Only in 1827 was standing mute made equivalent to a plea of not guilty [Langbein, 1977:75].
 

Corruption of blood received the greatest amount of criticism among those who wanted to reform the practice of forfeiture. Charles Yorke's [1745:6] treatise Some Considerations on the Law of Forfeiture for High Treason, echoed other eighteenth century critics who spoke out against corruption of blood as a system that required the innocent to suffer along with the guilty. Why should descendants be punished for the actions of the parents? [Eden, 1771:39]. Creditors complained bitterly that they also lost everything if a debtor was convicted for felony or treason [Veall, 1970:131]. In the late eighteenth century the English jurist Blackstone hoped that corruption of blood would soon be abolished [Radzinowicz, 1948, Vol. 1:347]. William Eden, in his 1771 [49] Principles of Law, advocated elimination of corruption of blood. However, in the early nineteenth century, Parliament was still struggling over the issue. The debate centered on whether to do away with corruption of blood entirely or limit it to the offender's lifetime only, thereby allowing grandchildren to inherit from their grandparents [Radzinowicz, 1948:518-519]. In 1814, England eliminated corruption of blood for all felonies except murder [Kent, 1971, Vol. 2:319].
 

Some historians have argued these changes took place only because forfeiture as a penalty was becoming insignificant due to most felons having nothing to forfeit [Goebel and Naughton, 1970:712]. In addition, the British had invented another means of eliminating notorious criminals, thereby lessening the number of capital offenders actually executed. Exile or banishment (transportation) was first used in 1597 and was formalized by James I (1603-1625) in 1615 as a practice of conditionally pardoning felons by shipping them to the New World as indentured servants, with the proviso that they were never to return to England [Ekirch, 1987:1]. Following the passage of the Transportation Act in 1718, 50,000 convicts were sent to the American colonies through 1776, and 150,000 were sent to Australia through 1866 [Ekirch, 1987:1, 237]. England reduced the number of offenses that required the death penalty from 222 in 1820, to only three (murder, treason, and piracy) by 1863. Following the lead of the United States, England shifted more and more to the use of imprisonment as the primary means of punishment [Barnes, 1972:102-103; Finkelstein, 1973:198]. Previously, prisons had been used primarily to detain but rarely to punish [Langbein, 1977:28]. Forfeiture as a penalty for felony or treason was abolished in 1870 [Veall, 1970:235]; however, a person could still forfeit their military post or civil office if convicted of a felony [Stephen, 1883, Vol. 1:488].

PART 2: FORFEITURE IN THE AMERICAN COLONIES 

A number of legal historians have commented on the fact that the English legal system was not simply transplanted as a whole to the American colonies [Rutland, 1955:12; Story, 1970, Vol. 1:133; Chapin, 1983:4-5; Smith, 1975:3; Surrency, 1967:253]. There were a number of reasons why.
 
 

One reason was that in seventeenth century England, different legal problems came within the jurisdiction of various courts. It was impossible to establish all of these courts in America; therefore, their jurisdiction had to be reassigned [Surrency, 1967:253]. The names of the courts in England and in the colonies may have been identical, but the jurisdiction and operation of the courts varied greatly. As a result, the American courts often bore little resemblance to the English courts.
 

Another major reason for the differences between the English and American legal systems was a consequence of the way in which the American courts were created. While the sole authority to establish courts in England was the King, in the American colonies the power to create courts rested in several sources: first, through powers granted by the King in charters; second, through the exercise of the royal prerogative; third, through the creation of certain subordinate governmental organizations; and fourth, through creation by legislation [Surrency, 1967:262]. In a large part, this resulted from the differing origins of the various colonies. Some were royal colonies (such as Virginia) thought to be under direct control of the Crown; others were chartered colonies (e.g., Massachusetts) in which extensive governing rights were given to a charter company; still others were proprietary colonies (e.g., Maryland and Pennsylvania) in which a single owner had been granted vast authority [Hall, 1989:14].
 

No colonial charter provided explicitly that all of the laws of England were to be in effect in any colony, plantation, or province [Smith, 1975:6]. In fact, considerable debate ensued about whether the colonies were uninhabited territories or conquered colonies. New York, New Jersey, and Delaware were treated as conquered provinces whose inhabitants were not guaranteed the full benefits of English law [Dalzell, 1955:43]. However, the Crown often treated the chartered and royal colonies similarly, claiming that the American Indians were the conquered inhabitants. The distinction was to prove quite important, because previously uninhabited territories were considered to be under the common law of England and conquered lands were not [Smith, 1975: 8-11]. Blackstone considered all of the American colonies to be conquered or ceded countries [Smith, 1975:16].
 

While a majority of the colonists did not appreciate the appellation of "conquered nations," there was a considerable split as to whether all of the English common law should be considered to be in force in the colonies. While some welcomed the perceived benefits of adopting an extant system of jurisprudence, others longed for the opportunity to create their own system of law, free from the English tradition. Chapin [1983:5] breaks down the sources of colonial law as follows: about one-half of the laws were borrowed directly from British sources, about one-quarter were indigenous, and the final quarter were drawn from biblical sources of inspiration. Rutland [1955:12] states that the colonists' desire for religious freedom was an important factor in the decision to move away from those English practices of which the colonists disapproved. Rothman [1971:20] argues that, while American statutes were certainly based on English precedent, the colonists did not mechanically repeat every stipulation of English law or simply duplicate the English system. Colonial assemblies selected from the English corpus those sections most consistent with their own attitudes and most relevant to their own needs.

A thorough analysis of the use of criminal forfeiture in America prior to the Revolutionary War would require a separate analysis of each colony, because the history of each is unique in this regard. However, there are patterns that emerge in a number of colonies. The direction of these patterns is toward the elimination of criminal forfeiture, corruption of blood, peine forte et dure, and deodands. This trend was so firmly established that the Constitutional Convention of 1787 voted to prohibit the use of corruption of blood and forfeiture of estate as penalty for treason with virtually no disagreement.

There are several reasons given by legal historians for the fact that criminal forfeiture and corruption of blood were rarely used as penalties in the American colonies, even in the seventeenth century. A number have cited attainder's harsh consequences on innocent descendants [Maxeiner, 1977:774; Kent, 1971, Vol. 2:317; Story, 1970, Vol. 3:172]. The history of England had shown the American colonists that one of the strong incentives for the Crown to prosecute offenses such as treason had been the chance of sharing in the plunder of the accused [Story, 1970, Vol. 3:173].

The nature of landholding in the colonies was another major factor. In America there were no feudal tenures [Kent, 1971, Vol. 4:420]. Rhode Island, for example, considered title to land to originate not with the Crown, but in the towns [Chapin, 1983:59]. Although the British Crown would have liked to continue the use of forfeiture and escheat, the towns argued they could waive forfeiture. The majority of American colonists considered themselves absolute owners of their soil, and considered forfeiture to be anathema [Story, 1970, Vol. 1:160]. Colonial governments had little desire to see American property forfeited to the Crown in Great Britain [Weiner, 1971:231]. Most provincial colonial governors had the power to pardon offenses and remit fines or forfeitures and frequently did [Story, 1970, Vol. 1:144]. If required to forfeit land, a family could have simply left for another colony and obtained land there [Goebel and Naughton, 1970:716]. Sparsely populated colonies needed all the labor power they could muster and had little desire to throw settlers off their land. Finally, many felons were so poor they had little if anything of value to forfeit [Weiner, 1981:231].

Despite the overall trend toward the elimination of forfeiture and corruption of blood in all the colonies, the history of each colony is unique in this regard. Massachusetts abolished escheats and forfeiture consequent to attainder in its "The Body of Liberties of 1641" [Kent, 1971, Vol. 4:423; Powers, 1966:533-534]. The colony substituted fines, restitution, and in some cases whipping and/or branding for property offenses that brought capital punishment in England [Hull, 1987:30; Dalzell, 1955:171]. Connecticut and Rhode Island shortly copied Massachusetts by abolishing most forfeitures [Chapin, 1983:59]. Only statutory forfeitures remained in effect. For example, in 1719 Connecticut passed a manslaughter statute that outlawed the death penalty, but imposed penalties of forfeiture of all goods and chattels, whipping, burning with an "M" on the hand, and disability to serve as a juror or witness [Smith, 1975:27].

Forfeiture of estate for treason remained the norm, although it was rarely evoked. In addition, the hideous executions for treason practiced in England that included drawing and quartering were replaced by simple hanging. Chapin [1964:44-45] argues that all of the colonies took forfeiture of the estate of the attained traitor, but many limited or eliminated the requirement of corruption of blood. Massachusetts, Connecticut, and New Haven all abolished corruption of blood prior to 1660 [Chapin, 1983:23]. Pennsylvania and North Carolina required judges to make provision for dependents out of the forfeited estate. Virginia saved a dower for the convict's widow by allowing her to retain some land, a practice used much more frequently in the colonies than in England [Hull, 1987:10]. New Jersey and New York later barred corruption of blood entirely [Kent, 1971, Vol. 4:422-423].

Pennsylvania has often been considered the most enlightened of the colonies in developing new criminal punishments [Barnes, 1968]. This was as a result of the more humane criminal codes instituted by William Penn and the state's historical significance in the introduction of prisons as the primary means of correcting offenders. But the use of forfeiture was modified rather than eliminated by Penn in his law code of 1682. Penalties for felonies included fines or forfeitures, satisfaction to the victim, whipping, or imprisonment [Smith, 1975:31-32]. Penn reduced the use of the death penalty to premeditated murder (while at the same time England was dramatically expanding its list of capital offenses). The murderer also had to forfeit one-half of their estate. Penn also instituted a program of victim compensation or restitution. For example, one-third of the estate of capital offenders was to go to their victims. Manslaughter did not carry the death penalty, but could result in a forfeiture up to one-half of the offender's estate. Acts of rebellion or insurrection were punishable by life imprisonment or the one-half estate forfeiture. The penalty for arson was double restitution to the victim and one year in prison. Breaking, entering, and theft of goods was punishable by fourfold restitution and three months imprisonment [Barnes, 1968:33]. Lands and goods of convicted felons were liable to confiscation in order to repay injured parties. Penn's reforms were not well received by the Crown, which in 1718 reinstituted the common law of England in the colony and brought back the death penalty for a number of offenses [Smith, 1975:33].

In the neighboring colony of New York, the British Crown, following the defeat of the Dutch in the 1660's, attempted to institute certain aspects of the common law, including forfeiture. In fact, despite its status as a conquered colony, the English common law was virtually duplicated in New York [Greenberg, 1976:11]. However, judges in the colony made sure the practice of forfeiture consequent to attainder fell into disuse [Maxeiner, 1977:776]. In 1665, New York adopted branding rather than execution as the penalty for burglars or highway robbers who were first offenders [Dalzell, 1955:149]. Goebel and Naughton [1970:715] could only discover three instances of chattel forfeiture recorded for the entire colonial period. By 1766, forfeiture had disappeared in New York. Forfeiture of property for crimes was confined to conviction and attainder for treason. Corruption of blood was abolished and all third party claims on the offender's property were honored, a practice never instituted in England [Kent, 1971, Vol. 4:422].

 A colony that potentially could have made the greatest use of forfeiture was Virginia. As a royal colony, the English rules of forfeiture could have applied there. Maryland, on the other hand, was a proprietary colony, but claimed the right to full use of English common law [Dalzell, 1955:113-114]. However, neither Maryland nor Virginia ever enforced the use of forfeiture to any great extent, even though such penalties were part of their criminal codes. The 1638-39 session of the Maryland Assembly passed laws making death by hanging or burning and forfeiture of all goods and chattels the penalty for any of a list of fifteen felonies that included homicide, rape, idolatry, blasphemy, and selling weapons or giving instructions on their usage to Indians [Smith, 1975:35; Semmes, 1970:119; Story, 1970, Vol. 1:96]. In 1642, the Assembly because somewhat more humanitarian. Ten of the capital offenses now provided for forfeiture as an optional punishment rather than as an inevitable consequence of judgment [Chapin, 1983:59]. Maryland courts also often undervalued the costs of stolen articles to reduce felony charges to misdemeanors [Dalzell, 1955:114].

Prior to 1660, forfeiture of property as a result of a felony conviction was not practiced in Virginia [Scott, 1930:109]. The executed criminal's property remained with his family [Chapin, 1983:59]. After 1660, attained felons forfeited their property as did traitors, but widows were permitted to save a dower of their husband's land [Chapin, 1964:8, 44]. Keve [1986] found that the use of forfeiture in Virginia had been abandoned by the mid-eighteenth century.

Chapin [1983:37] incorrectly states that there is no evidence that peine forte et dure was ever practiced in the colonies. In 1692, Giles Corey suffered this fate when he refused to enter a plea in the famous Salem witch trials [Hall, 1989:31]. Other than in this incident, pressing was almost never used. Scott [1930:81] disputes a 1774 report by Stark that claims Virginia used peine forte et dure. In the New York court records there is evidence from one case that a modified version of peine forte et dure may have been used [Goebel and Naughton, 1970:582].

The colonists made substantial changes in the matter of standing mute or failing to plead to an indictment that eliminated the necessity of  peine forte et dure long before the English did. Three colonies (Virginia, Maryland, North Carolina) considered those who were accused of treason to have pled guilty if they stood mute [Chapin, 1964:42; Scott, 1930:81]. New Hampshire and Massachusetts modified English law to the accused's advantage. If a defendant were determined to have stood mute by an "act of God" he was confined until he recovered his wits. If by "malice," a plea of not guilty was entered on the defendant's behalf [Chapin, 1964:42]. New York also considered standing mute to be the equivalent of a not guilty plea [Goebel and Naughton, 1970:582]. In 1790 the first U. S. Congress declared that standing mute (for treason) was to be considered a plea of not guilty [Chapin, 1964:84-85]. In 1827, England enacted a similar statute.

Benefit of clergy was also brought to the colonies by the English settlers and provided another means whereby forfeiture could be avoided. In Maryland, the privilege of benefit of clergy was modeled after the English system, and expanded or contracted accordingly. Non-laity in Maryland who requested benefit of clergy could be granted it only once and were to be burnt on the hand so they could not reapply [Semmes, 1970:28]. Virginia made use of benefit of clergy for manslaughter, mayhem, and bigamy, and later added larceny [Dalzell, 1955:98]. New York required the reading of the neck verse even after it was abolished in England. While there are records of benefit of clergy being granted in New York only five times between 1665 and 1750, it was made use of 73 times between 1750 and 1776 [Dalzell, 1955:151]. Under William Penn's tenure Pennsylvania made little use of benefit of clergy, because capital offenses had been virtually abolished. Both were restored after 1718 [Dalzell, 1955:130]. In 1778, twelve colonies made use of benefit of clergy.

The American colonies followed the British lead in extending benefit of clergy to women [Smith, 1975:38]. For example, of the thirty-eight females convicted of capital crimes in colonial Massachusetts, ten received benefit of clergy [Hull, 1987:35-36, 115]. A woman there could also plead femes convert if her husband had forced her to commit a crime [Hull, 1987:24].

A greater debate emerged about whether African slaves were entitled to benefit of clergy when they committed felony crimes. This created a difficult situation, because slaves, in many of the colonies, were considered chattel and could, theoretically, be included as part of a forfeiture if their owner were convicted and attained for a capital felony. After 1705 Virginia legally considered slaves (black, mulatto, or Indian) as real estate rather than chattels, thereby making it more difficult for the governor to claim them upon forfeiture [Higginbotham, 1978:50-52]. Because slaves were quite valuable, property owners did not want the state executing convicted slaves when lesser penalties would suffice. In 1732, Virginia was forced to decide whether Christianized slaves were eligible for benefit of clergy. Following a court decision that affirmed the slave's right to benefit of clergy, the Virginia Assembly eliminated the biblical reading test for all who requested a church trial and permitted slaves, Indians, and women full use of benefit of clergy [Dalzell, 1955:100-104]. Maryland also allowed African slaves access to benefit of clergy [Dalzell, 1955:127].

The innovation of transportation had greatly reduced the need for benefit of clergy in England. The 50,000 British felons transported to America were not universally welcomed by the colonists, who frequently scapegoated them as the principal cause of local crime. However, their labor power was very much needed in the rapidly expanding colonies. Most of the transportees were not depraved or habitual criminals, but minor offenders seeking to escape the death penalty and debtors seeking a way out of prison. During certain periods up to one-third of the exported convicts were women [Blumenthal, 1962:13]. On the whole, transportees did not create a major crime problem, and most fit in without becoming recidivists. This allowed the colonists to see firsthand what felons given a second chance to make good might accomplish [Ekirch, 1987:4, 168]. Some British reformers had recognized the rehabilitative potential of transportation, arguing that sending convicts to a place where they would have to become disciplined and work hard in order to survive might reform criminal habits [Beattie, 1986:473].

In 1790, the first Congress abolished benefit of clergy for all federal capital crimes [Dalzell, 1955:234]. Benefit of clergy had been eliminated entirely in Massachusetts in 1772, was abolished by most states in the 1790's, but persisted in North Carolina until 1854 and in South Carolina until 1869 [Hull, 1987:34; Dalzell, 1955:256-261].

Deodand forfeiture appears to have been quickly abandoned in the colonies [Bishop, 1882, Vol. 1:583]. However, Maryland, Virginia, and Rhode Island all had statutes early in their histories that permitted deodands in the case of wrongful deaths [Semmes, 1970:136; Scott, 1930:52; Story, 1970, Vol. 1:89].

Both Maryland and Virginia practiced forfeiture as a penalty for suicide [Semmes, 1970:138]. In a 1707 Virginia case, a suicide victim's widow filed suit to be allowed to keep a dower [Scott, 1930:108]. Her request was to be permitted to keep her husband's Negro slaves. However, if her request was denied, the slaves for forfeited to the Crown as chattels, the slaves then sold, and the proceeds kept by the Crown. This case is unusual in that normally widows were permitted to keep slaves as part of a dower [Hall, 1989:36]. New York eliminated suicide forfeiture, arguing that while it was a "grave public wrong" it was impossible to reach the successful perpetrator for punishment [Finkelstein, 1973:185].

George Mason, later architect of the Bill of Rights, raised the issue of forfeiture on September 15. Mason was concerned that wives be exempt from their husbands' guilt and not be impoverished by the application of forfeiture or corruption of blood [Farrand, 1966, Vol. 2:637]. Mason's home state of Virginia had long made provision to save a wife's dower from forfeiture. Mason's comments do not appear to have changed the wording of the proposal. Article 3, Section 3, Clause 2 of the Constitution as finally drafted read: "The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attained" [U.S. Constitutional Convention, 1819:364]. The Constitution (Article 1, Section 9, Clause 3) also forbade bills of attainder for felonies, which had been used following capital convictions by legislative action to demand estate forfeitures [Maxeiner, 1977:779]. The Federalist Papers also praised the elimination of bills of attainder [Hamilton, 1971:512].

In 1790, the very first Congress [18 U.S.C., Section 3563 (1982)] took an additional step in eliminating in personam forfeitures for all federal convictions and judgments by abolishing forfeiture of estate and corruption of blood for felony [Hughes and O'Connell, 1984:619; Maxeiner, 1977:779]. Many states immediately copied the federal laws in their constitutions. Kent [1971, Vol. 4:318], writing in 1826, listed Pennsylvania, Delaware, and Kentucky as states that prohibited forfeiture of estate except during the life of the offender. Ohio, Indiana, Tennessee, Illinois, and Missouri prohibited criminal forfeitures entirely. Joseph Story [1970, Vol. 3:750-751], an early nineteenth century Supreme Court Justice, argued that the colonists' experience with the English system of forfeiture also led to the Eighth Amendment's prohibition of excessive fines. The terms fine and forfeiture were often used synonymously in common law.

While criminal or in personam forfeitures were virtually abolished in America during the late eighteenth century, seizure of property or assets remained possible through the civil courts. Such procedures are today referred to as in rem forfeitures. Their true origin is not in English felony or treason law, but in the Admiralty laws passed in order to enforce the Navigation Acts. It is to these acts and their penalties that we will now turn.

The ultimate purpose of the Navigation Acts was to insure that England and its mercantile empire would always have a favorable balance of trade and, specifically, to win trade dominance over the Dutch. The first navigation law was passed during the reign of Richard II (1377-1399) to prohibit foreign ships from carrying goods from one English port to another [Dickerson, 1978:7]. This law was later modified to allow some foreign ships access to British cargoes, depending on the nonavailability of English ships [Harper, 1964:19]. In most cases of violations prior to the seventeenth century, only goods on which duty had not been paid were subject to forfeiture [Maxeiner, 1977:774].

The Navigation Act of 1651 was to become the most important in that it provided the basic formula followed for two centuries and led to the abandonment of earlier practices. After 1651, all merchandise had to be brought to England directly from the country of production either in English ships or in ships from the producer nation [Harper, 1964:34-38]. In addition, no goods from British colonies in Asia, Africa, or America could be imported to England in foreign ships. Exports from England were not an issue in this act.

Until the Revolution, the American colonists were considered to be residents of England under the Navigation Acts. However, after 1660 it was illegal to import goods to or export them from the colonies unless British ships with three-fourths English crews were used [Dickerson, 1978:7]. The same act also prohibited staple colonial products (e.g., sugar, tobacco, rice, cotton) from being shipped to anywhere but England [Harper, 1964:57]. Later, sending goods by water transport from one American colony to another was prohibited [Dickerson, 1978:19].

In order to insure that the Navigation Acts were followed, the English used forfeiture penalties and set up an elaborate customs system to enforce them. A captain was to report directly to the customs house upon docking his ship in England. At the customs house, he had to produce a complete detailed inventory of his cargo. Customs officers ("landwaiters") were to search, unpack, and weigh all goods looking for unreported or contraband items. All unaccounted for or contraband goods were subject to seizure and were to be taken immediately from the ship to the King's storehouse [Harper, 1964:89-90]. Customs agents were considered by the Crown to be informants and were offered rewards of up to one-half of the forfeitable assets as moiety [Harper, 1964: 51].

Forfeiture proceedings were held either in vice-admiralty courts or in the Court of the Exchequer [Harper, 1964:109]. The latter was a common law court that used juries, the former a civil law court administered by a judge [Ubbelohde, 1960:6, 19]. Admiralty courts were first established between 1340 and 1360 as a means of dealing with piracy. The first vice-admiral courts were established in 1536 and were responsible for handling all felonies committed at sea, disputes that involved fishermen or sea merchants, and international disputes about shipping, as well as collecting all monies owed to the Crown [Crump, 1931:4-14]. The differences between common law and admiralty courts were substantial. For example, felonies tried under admiralty law could not result in corruption of blood [Hale, 1971, Vol. 1:355]. Customs regulation was added to the vice-admiralty's duties in the late seventeenth century [Ubbelohde, 1960:12]. Proceedings against customs violators could be directed either against the smuggler (in personam) and/or against the offending ship (in personam as a result of a smuggler's conviction or in rem because the ship had been used as a conveyance of contraband or unreported goods), or against the offending cargo (in rem) [Harper, 1964:111]. Contraband cargo was automatically guilty. The ship's master did have the opportunity to dispute unreported or wrongly reported goods, but not contraband. However, the captain was put in the unenviable position of having to disprove the allegations made by customs officials concerning the property.

While the use of in rem proceedings appears to be most similar to deodand in that the offending items are inherently guilty and thus subject to automatic forfeiture [Gilmore and Black, 1975:590], in rem has another origin [Maxeiner, 1977:771]. Since ancient times the King had used an in rem claim to give him title to "treasure-trove, wrecks, waifs, and strays," since there were no obvious owners against whom suit could be brought [Harper, 1964:111]. While it is not exactly clear when the Exchequer began to assert in rem jurisdiction over forfeitures, in regard to smuggling it often proved easier to catch the cargo than the smuggler, who frequently ran to escape judgment [Maxeiner, 1977:775]. The cargo left ownerless could then be forfeited in rem. Under the Navigation Acts, a convenient fiction was created, making all seizable imports virtually ownerless, legally.

In reality, a number of captains were able to have their seizures released if they could prove they were a "fair trader" who had made an honest mistake [Harper, 1964:103]. Some discretion was allowed; otherwise, most owners constantly would have been loosing their ships. Vicarious liability, however, also attached; it was legally possible for an owner to lose an entire ship because of actions, undertaken without the captain's knowledge, of a seaman [Reed and Gill, 1987:65]. As forfeiture was often the lesser punishment, it was common for the owner not to contest it for fear of further proceedings in personam. When suing in rem, the customs "informer" had the authority to proceed alone without Crown interference and negotiate a monetary settlement with the claimant-owner in order to avoid the expense of a trial [Maxeiner, 1977:774-776].

Once goods were seized and a proclamation issued, interested parties had eight days to claim them and disprove the Crown's right to the goods. After the eight days, remaining confiscated goods were sold at auction to the highest bidder. After money paid to informants and court costs were deducted, proceeds went directly into the Exchequer [Harper, 1964:51, 111].

Beginning with George Bancroft, a number of historians have argued that the Navigation Acts and their consequent forfeitures were a chief cause of the American Revolution. Dickerson [1978], based on an extensive analysis of colonial documents, found that such was not the case. Prior to 1760, the colonies, for the most part, benefited from the Navigation Acts. Only when new revenue laws, such as the Sugar Act of 1764 and the Revenue Act of 1767, led to questionable seizures of colonial cargoes, did Americans complain bitterly [Dickerson, 1978:211-212].

Prior to 1763, there were eleven provincial vice-admiralty courts in the colonies. Judges were appointed by the colonial governors to supervise the Crown's interest in all maritime matters. Judges were not paid a salary but a percentage on the goods they condemned and by fixed fees allowed by colonial statutes [Ubbelohde, 1960:6]. Despite the temptation to abuse the office for personal benefit, few of the judges ever got rich. After the forfeiture and sale of goods at auction, monies were first used to pay court costs and five percent commission to court officers. The remaining amount was split three ways: one-third to the customs informant, one-third for the King, and one-third for the governor [Ubbelohde, 1960:16].

After 1763, civil forfeiture trials were now to be held exclusively in vice-admiralty courts; the colonies had no exchequer courts. However, the colonists had traditionally handled statutory forfeitures in common law courts and treated them more like in personam actions rather than in rem [Maxeiner, 1977:777-778]. This was especially true in the seventeenth century, when virtually all colonial maritime matters were handled in common law courts [Crump, 1931:38-63]. When the Crown failed to show fraud, the colonial courts often denied a forfeiture, even when there was proof of technical violations. The Crown preferred to sue in the vice-admiralty courts once they had been established, since it could thereby avoid colonial juries. In addition, only civil courts could impose in rem penalties [Ubbelohde, 1960:20]. The transfer was bitterly criticized by John Adams and other Americans because it denied trial by jury and shifted the burden of proof to defendants. Ironically, at the same time in England, a growing percentage of defendants were permitted to transfer their cases from vice-admiralty to exchequer courts with their additional protections [[Ubbelohde, 1960:19].
 
 

Following the French and Indian War, the English established the first of four new American vice-admiralty judgeships whose goal was to overhaul the customs tax base from the colonies to pay off the war debt [Ubbelohde, 1960:4, 131]. The new revenue acts included new bonding provisions that had to be met separately for iron, wood, enumerated, and non-enumerated goods. Failure to acquire the proper bondings could result in seizure and forfeiture of ship, tackle, stores, and cargo. In addition, ships could be stopped at sea and any items not found on the ship's cargo list ("docket") were subject to seizure.

The burden of in rem proof was on the ship's owner, not on customs officials, who received one-third value of all dock seizures and one-half value if interception was made at sea. A 1763 English statute authorized all British naval vessels to act as customs officers on the high seas off the American coast. Forty-four ships were placed up and down the colonial coastline to stop and search any arriving or departing ships. The result of turning law enforcement over to the military who had little knowledge of civil law resulted in its frequent violation by the Navy's own actions [Ubbelohde, 1960:195]. Even if seizures were made unjustly and returned by the judge to their owners, the plaintiff paid all court costs and was not permitted to file a damage suit against the customs officer [Dickerson, 1978:212]. Thus, no matter how unfair a seizure might be, the American claimant suffered serious financial loss. Every time a shipowner challenged a seizure the admiralty court made additional revenue. A commonly used ploy to gain seizures was to overlook a detail of the law for a period of time and then, when ship captains had grown complacent, suddenly begin to enforce it [Dickerson, 1978:219]. While most of the seizures had stopped by 1770, the experience soured the colonists on the admiralty courts [Dickerson, 1978:254]. Given that England had no governmental machinery that could control all of the colonies other than through ocean-borne commerce, abuse of the Navigation Acts in the 1760's caused many Americans to lose faith in British administration.

While the colonists made a conscious decision to eliminate criminal forfeitures both before and after the Revolutionary War, they did not do away with in rem civil forfeitures, particularly as a way to stop the importation of contraband goods [Kurisky, 1988:251]. During the Revolutionary War, colonial governments recognized that they needed to continue the use of vice-admiralty type courts in order to bring to trial captured British ships. They did make a serious attempt to avoid the mistakes of the old vice-admiralty courts and insisted on the use of juries in all cases. After only a short period of time, however, it became evident that ordinary citizens did not understand the complexities of maritime law; and by 1780 most colonies had eliminated vice-admiralty juries [Ubbelohde, 1960:195-199]. Under the Articles of Confederation admiralty law was placed in the hands of the states, except for decisions concerning captured ships [Gilmore and Black, 1975:11].

The U. S. Constitution (Article 3, Section 2) established admiralty courts as federal courts largely based on civil law [Gilmore and Black, 1975:18]. The First Congress continued the practice of juryless trials for maritime violations by statutorily subjecting to in rem forfeiture vessels and cargoes that disobeyed customs laws [Reed and Gill, 1987:66]. Contraband, as well as goods imported in violation of the Embargo Acts or by piracy, continued to be automatically guilty and subject to seizure [Weiner, 1981:232]. Once the African slave trade was outlawed foreign ships that carried slaves into American waters were also subject to automatic forfeiture. In some cases the slaves were sold as property; in other cases slaves were set free and allowed to return to Africa [Noonan, 1977]. Slaves could be seized in rem as cargo, but might later be transformed into persons and freed [Jones, 1987:73]. In 1827, in the Palmyra case, Justice Story first legally defined in rem forfeitures:

It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem; but it was a part, or at least a consequence, of the judgment of conviction.... The crown's right to the goods and chattels attached only by the conviction of the offender.... But this doctrine never was applied to seizures and forfeitures, created by the statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here considered as the offender, or rather, the offense is attached primarily to the thing; and this, whether the offense be malum prohibitum or malum in se.... The practice has been... that the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam [quoted in Reed and Gill, 1987:62].

As with a number of other social concerns, such as pornography, missing children, or sexual abuse of children, once a problem is perceived to be so serious that traditional criminal penalties are inadequate a cry emerges for additional legislation and enforcement [see Best, 1989, for examples]. Drugs and organized crime were targeted first in the 1960's and then again in the 1980's as problems that could not be solved by conventional law enforcement tactics, including prison and fines [see Albini chapter, this book]. New strategies, including removing the profit from organized crime activities, spawned new laws, such as RICO and CCE. The issue to be questioned here is not whether forfeiture penalties are necessary or effective, but to raise concerns over their social and political consequences. What are their costs to the Constitutional protections and freedoms we have come to take for granted? What will be the effects on international relations that follow from the government's decision to use military forces for customs enforcement? Are we, as a nation, repeating the very same policies that so angered early American colonists?

The governments of Colombia, Mexico, Peru, and Bolivia have all been warned to step up their campaigns against drug cultivation, processing, and export from their countries or face cutbacks in U. S. foreign aid. Recent actions by the United States in Colombia, Panama, and Mexico have Central and South American leaders concerned about how far the U. S. military will go in its international battle against drugs.

 With the hope of dramatically slowing the importation of cocaine, President Bush, in late 1989, approved a plan to station off the Caribbean coast of Colombia a naval task force with the capacity to monitor and intercept all ships and planes departing Colombia bound for America [TIME, 1990:53]. The Colombian government objected to the "blockade" by American military forces and asserted its sovereign rights to access in international waters without interference. Following the Colombian objection, the Bush administration denied that such a policy was being enacted, and claimed that U. S. warships were simply on routine maneuvers [Magnuson, 1990:22]. The use of the U. S. military as self-appointed international customs agents might repeat the same kinds of abuses American colonists experienced when the British navy was given free reign to stop and search all American ships. Given the relaxation of the Cold War and the resulting threat of decreasing military expenditures, the Pentagon no longer balks at the idea of using its powers to do police work in the drug war.

One could question whether the U. S. invasion of Panama was motivated by our government's desire to put in place a democratically elected president from whom General Noriega had stolen an election, or to extradite a known drug smuggler who had long eluded prosecution. Noriega had also caused a number of problems for U. S. agencies trying to track down and seize drug profits as forfeitable assets. He allowed such monies to be safely harbored in Panamanian banks or wired them undetected to other countries where they could later be returned to the U. S. as clean money. In 1989, the U. S. Justice Department claimed it had the right to seize foreign citizens involved in drug trafficking and forcibly bring them to the United States for trial. Indictments for Noriega existed in Miami and Tampa, thus justifying his capture by U. S. military forces.

Such a policy was already in de facto use when Drug Enforcement Agency (DEA) officials captured Rene Verdugo-Urquidez, one of the alleged killers of U. S. drug agent Kiki Camarena in Mexico and transported him across the border to stand trial in Los Angeles. Recently, Verdugo-Urquidez lost his appeal in the U. S. Supreme Court that damaging documents were taken from his home in Mexico by D.E.A. agents acting without search warrants [St. Petersburg Times, 1990:3A]. Even the British did not extradite to England suspected colonial smugglers but allowed them to be tried in American courts. However, that was a fear in the colonies and a reason for the inclusion of the Sixth Amendment in the Bill of Rights.

A number of Constitutional questions have been raised since 1970 concerning the reintroduction of criminal forfeitures and the vastly expanded use of in rem seizures. Many are quite similar to the concerns English reformers and American colonists had regarding the potential abuse of state power in situations in which the government directly benefits from the prosecution of criminals. A large number of states have passed so-called "little RICO" statutes, making resolution of the legal issues surrounding forfeiture an immediate concern. For example, Florida passed the Contraband Forfeiture Act in 1980 to combat drug dealing and, in 1983, amended the Act to allow forfeiture to apply to any and all felonies [Martin, 1988].

Some of the constitutional questions have been answered by the courts; others still await adjudication [see Greek, 1990, for a more complete discussion]. Among the most controversial questions which have been decided by the U. S. Supreme Court are: if lawyers' fees can be exempt from forfeitures (they cannot); if third parties who receive or purchase items subject to forfeiture have any way of recovering damages (in some cases yes, but not always), at what point does a forfeiture take effect (a "relation back" doctrine has been created), and how much is subject to forfeiture? While the latter is sometimes up to a jury, forfeiture may include any monies made by operation of the criminal enterprise, anything purchased with the tainted monies, profits, and all instrumentalities associated with the crimes. The latter caused considerable consternation in the 1980's when the U. S. Justice Department announced its "no tolerance" policy regarding vehicles used without their owner's knowledge to transport drugs. In comparison, under the colonial British customs laws it was commonly held that an owner should not lose his ship for the carriage of a small amount of contraband without his knowledge [Maxeiner, 1977:775].

There is also considerable debate about forfeiture statutes being used in cases that would traditionally involve First Amendment protections. RICO cases have been brought against both sellers of pornography [Ennis, 1989] and groups that protest its distribution [Walden Book Co. et al. v. American Family Association of Florida, 1989] as well as anti-abortion activists [Melley, 1989].

The use of civil forfeitures under CCE has created a number of legal questions as well. According to the Justice Department DEA's guide to the seizures of assets, civil forfeiture is to be preferred over criminal forfeiture because the civil court does not allow the use of standard criminal defenses [Myer's and Brzostowski, 1981:34-46]. For example, the following defenses are invalid for in rem seizures: dismissal of criminal charges, acquittal on criminal charges, double jeopardy, entrapment, illegal seizure of the property subject to forfeiture, and lack of knowledge by the owner that his property was used in connection with a crime. Unlike English common law, which required a conviction prior to forfeiture, the newly emerging American criminal justice system allows forfeiture without criminal conviction in some instances. The lower standard of proof in civil forfeiture cases of "preponderance of the evidence" rather than "beyond a reasonable doubt" has also been criticized as a questionable way of handling what ought to be criminal cases. Since criminal forfeitures have been virtually nonexistent for 180 years, the courts have sometimes mistakenly relied upon civil law forfeiture procedures that have less due process protections. "A proceeding in which the claimant must prove his property 'not guilty,' and in which innocence is not a defense...is constitutionally sufficient only if the action is in fact against property. If forfeiture depends upon a showing of the property owner's criminal intent, familiar principles of criminal procedure apply" [Reed and Gill, 1987:69]. The jurisdictional dispute is similar to the colonial complaints about the use of admiralty versus common law courts.

Another important issue which must be decided is who should benefit from the monies gained as a result of forfeiture. Until now, law enforcement agencies have generally been allowed to keep seized assets for themselves and have often used these assets to purchase new equipment for use in other cases that will produce additional forfeitures. If the police are the primary beneficiaries of forfeiture, how might that impact on the use of discretion within law enforcement? Why are such monies so rarely used to compensate victims of organized or drug-related crime? Legislation may be the best remedy to insure that forfeited funds do the most good for communities seriously impacted by drug crime.

Some have proposed splitting the proceeds from forfeitures with those citizens who turn in drug dealers, an idea quite similar to the British practice of rewarding customs informants and agents. In 1989, U. S. Congressman Dick Schultze proposed H.R. 3346, the Bounty Hunter Act. Those who supplied the names of drug pushers would be rewarded by receiving fifty percent of the value, as moiety, of all assets seized by the government. One police department in Florida paid to have printed in the local newspaper a coupon encouraging citizens to clip the coupon and send in the names of persons involved in the drug trade. While informants are certainly necessary in any attempt to deal with crime problems, these proposals come quite close to encouraging vigilantism. This has already become a problem in some communities, with alleged crack houses being burned to the ground by irate neighbors and "Guardian Angel" type groups acting as judge and jury when they locate suspected drug sellers.

Lacking knowledge of the history of forfeiture, our society is being required to deal with a number of legal and ethical issues that surround the seizure of a defendant's property as if these topics had never been previously discussed. Debate about the extended use of forfeiture, both civil and criminal, is apt to continue.

 
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Glossary 

Admiralty 
a court which has very extensive jurisdiction of maritime cases, civil and criminal, and questions of prize

Attainder 
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

Bill of Attainder 
a legislative act, directed against an individual person, pronouncing him guilty of an alleged crime (usually treason) without trial or conviction, and passing sentence of death and attainder upon him

Benefit of Clergy (in Latin, "Privilegium Clericale")
originally, an exemption to clergymen from jurisdiction of the secular courts; later, a privilege of exemption from punishment of death accorded to "clerks," those who could read

Compurgator 
one of several neighbors of a person accused of a crime, who appeared in a church court and swore they believed the defendant on his oath

Corruption of Blood 
in English law the consequence of attainder, being that the attained person could neither inherit lands or other hereditaments from his ancestor, nor retain those he already had, nor transmit them by descent to any heir, because his blood was considered in law to be corrupted

Deodand (Latin, "a thing to be given to God")
Any personal chattel which was the immediate occasion of the death of any reasonable creature was forfeited to the Crown.

Escheat in feudal law:
 an obstruction in the cause of descent, and consequent determination of the tenure, by some unforeseen contingency, in which case the land naturally results back by way of reversion, to the original grantor, or lord: in American law: a reversion of property to the state in consequence of a want of any individual competent to inherit

Felo de se
a felon of himself; suicide

Felony at common law:
an offense occasioning total forfeiture of either lands or goods to which capital or other punishment might be superadded according to the degree of guilt: under feudal law an act or offense on the part of the vassal, which cost him his fee which became forfeited as a result of perfidy, ingratitude, or disloyalty to a lord

Femes convert (French, literally "married woman")
in common law, a legal defense available to a woman who could prove that her husband has caused her to commit a felony

Forfeiture 
something to which the right is lost by the commission of a crime: the loss of land by a tenant to his lord, as the consequence of some breach of fidelity; the loss of lands and goods to the state, as the consequence of crime

In personam (from Roman law)
an act or proceeding done or directed against a specific person

In rem (from Roman law)
an act or proceeding done or directed against an object

Misdemeanor 
all crimes and offenses lower than felonies

Moiety 
the half of anything; in admiralty law, the portion of the seized cargo paid to the customs informant

Peine forte et dure (French, "strong and lasting punishment")
under feudal law: imprisoning a defendant until the defendant willingly agreed to a jury trial: later heavy objects were laid upon the individual until the individual agreed to a trial or was pressed to death.

Vice-admiralty courts in English law 
Courts established in the king's possessions beyond the seas, with jurisdiction over maritime causes, including those relating to prize.

 
These definitions have been drawn primarily from two sources: Black's Law Dictionary [1968] and Words and Phrases [1964].