Tracing the roots of forfeiture and the loss of property in English and American law

Abstract

Restriction of the freedom and rights of an owner to do with his property as he pleases is not a new phenomenon in legal jurisprudence, but restrictions are limited by legislative provisions and regulations. Interference with private property rights by state authorities may have dire consequences for an owner, and could give rise to forfeiture procedures when the property was used in violation of a law or for illegal purposes. The controversy is further exacerbated by the distinction between forfeitures in rem without prior conviction, which is a civil action directed against the so-called guilty property, and an action in personam or a criminal forfeiture, which forms part of the sentencing process after conviction and is directed against the owner personally.Asset forfeiture has an ancient history and tradition and the roots may be traced back to biblical justifications as a form of punishment. In rem forfeiture originated from the English common law concept of deodands. An inanimate object or animal that caused the death of a person was accused as the offender, and its value was forfeited to the king. Unlike deodands, forfeiture for felonies or treason is an ancient Saxon and early English common-law doctrine where in personam forfeiture was recognised. Upon conviction, all of a person's land and property -real or personal -were forfeited to the Crown. This resulted in the corruption of blood, with the * LLD student,