American forfeiture law descended not from
deodand, but from admiralty
(16) See Pervukhin, supra note 14, at 249 (describing how railroads, under intense pressure from a series of sky-high
deodand judgments, eventually lobbied to have the practice abolished in 1849); Hauert, supra note 15, at 164-66 (tracking the evolution of
deodand as a revenue producer for the Crown to its eventual end in the early nineteenth century).
In "The
Deodand" Hecht's outrage is greater than his art.
Before 1846 the law of
deodands had acted as an insurer of traffic safety for many centuries in England.
Maitland writes, in elaborating later mitigations of the
deodand, when "the state has begun to punish the slave, it begins to excuse the master." Delivering the slave up to justice in the antebellum south, for example, freed the master from his chattel's sin; and often the master would receive restitution from the state for his loss.
(1) "Three kinds of forfeiture were established in England at the time the Eighth Amendment was ratified in the United States:
deodand, forfeiture, and statutory forfeiture....
The obvious precursor of civil forfeiture is the medieval notion of
deodand ("gift to God").
Civil forfeiture in the United States developed from English common law.(7) Under English law, there were three types of forfeiture: (1)
deodand;(8) (2) escheat upon attainder;(9) and (3) statutory forfeitures of "offending objects used in violation of the customs and revenue laws."(10) Of the three types of forfeiture, only statutory forfeiture was incorporated into American law.(11) However, the courts initially used the rationales underlying
deodands and escheat upon attainder, namely that the property itself is guilty and that a wrongdoer could legitimately be deprived of his property, respectively, as justification for statutory forfeitures in the United States.(12)
Throughout his treatment of the forfeiture issue, Levy ambitiously discusses both civil and criminal forfeiture.(3) Levy devotes much of the book to an in depth examination of the history of forfeiture, starting with the Middle Ages.(4) He explains that the legal fiction surrounding civil forfeiture originated with the law of the
deodand, which held that an inanimate object that caused a death was tainted and therefore must be forfeited to the king (pp.
where it evolved into an action called
deodand. Deodand--a
In English secular law, a deliberate self-inflicted death was ruled afelonia de se, a felony of the self, and any goods and chattels were confiscated by the crown, as was the value of the
deodand, the object which caused the death.
Corporations: Of Frankpledge and
Deodand, 71 B.U.L.
