[*383] no forfeiture of his lands: for he never was attainted of treason (q). But if the chief justice of the King's Bench, the supreme coroner of all England, in person, upon the view of the body of one killed in open rebellion, records it and returns the record into his own court, both lands and goods shall be forfeited (r). The natural justice of forfeiture or confiscation of property, for treason (s), is founded in this consideration: that he who hath thus violated the fundamental principles of government, and broken his part of the original contract between king and people, hath abandoned his connexions with society; and hath no longer any right to those advantages, which before belonged to him purely as a member of the community, among which social advantages the right of transferring or transmitting property to others is one of the chief. Such forfeitures, moreover, whereby his posterity must suffer as well as himself, will help to restrain a man, not only by the sense of his duty, and dread of personal punishment, but also by his passions and natural affections; and will interest every dependent and relation he has, to keep him from offending; according to that beautiful sentiment of Cicero (t), "nec vero me fugit quam sit acerbum, parentum scelera filiorum pœnis lui: sed hoc præclare legibus comparatum est, ut caritas liberorum amiciores parentes reipublicæ redderet (13)." And therefore Aulus Cascellius, a Roman lawyer in the time of the triumvirate, used to boast that he had two reasons for *despising the power of the tyrants; his old age, and his want of children: for children are pledges to the prince of the father's obedience (t). Yet many nations have thought, that this posthumous punishment savours of hardship to the innocent; especially for crimes that do not strike at the very root and foundation of society, as treason against the government expressly does. And therefore, though confiscations were very frequent in the times of the earlier emperors, yet (q) Co. Litt. 13. (r) 4 Rep. 57. (s) See vol. I. page 259. (13) Nor does it escape me how severe is the law, that the sins of the parents shall be expiated by the punishment of the children: but the law was (t) Ad Brutum, ep. 12. enacted for this admirable purpose, that affection for their children might render parents more careful of the interests of the commonwealth. Arcadius and Honorius in every other instance but that of treason thought it more just, ibi esse poenam, ubi et noxa est ;" and ordered that "peccata suos teneant auctores, nec ulterius progrediatur metus, quam reperiatur delictum (v) (14):" and Justinian also made a law to restrain the punishment of relations (u); which directs the forfeiture to go, except in the case of crimen majestatis, to the next of kin to the delinquent. On the other hand the Macedonian laws extended even the capital punishment of treason, not only to the children but to all the relations of the delinquent (w): and of course their estates must be also forfeited, as no man was left to inherit them. And in Germany, by the famous golden bulle (x), copied almost verbatim from Justinian's code (y), the lives of the sons of such as conspire to kill an elector are spared, as it is expressed, by the emperor's particular bounty. But they are deprived of all their effects and rights of succession, and are rendered incapable of any honour, ecclesiastical or civil: "to the end that, being always poor and necessitous, they may for ever be accompanied by the infamy of their father: may languish in continual indigence; and may find, says this merciless edict, their punishment in living, and their relief in dying." With us in England, forfeiture of lands and tenements to the crown for treason is by no means derived from the feodal policy, as has been already observed (2), but was antecedent to the establishment of that system in this island; *being [*384] transmitted from our Saxon ancestors (a), and forming a part of the ancient Scandinavian constitution (b). But in certain treasons relating to the coin, which, as we formerly observed, seem rather a species of the crimen falsi, than the crimen læsæ majestatis, it is provided by some of the modern statutes (c) which constitute the offence, that it shall work no forfeiture of lands, save only for the life of the offender; and by all, that it shall not deprive the wife of her dower (d). And, in order to abolish such hereditary punishment entirely, it was enacted by statute 7 Ann. c. 21, that after the decease of the late pretender, no attainder for treason should extend to the disinheriting of any heir, nor to the prejudice of any person, other than the traitor himself. By which, the law of forfeitures for high treason would by this time have been at an end, had not a subsequent statute intervened to give them a longer duration. The history of this matter is somewhat singular and worthy observation. At the time of the union, the crime of treason in Scotland was, by the Scots law, in many respects different from that of treason in England; and particularly in its consequence of forfeitures of entailed estates, which was more peculiarly English; yet it seemed necessary that a crime so nearly affecting government should, both in its essence and consequences, be put upon the same footing in both parts of the united kingdoms. In new-modelling these laws, the Scotch nation and the English House of Commons struggled hard, partly to maintain, and partly to acquire, a total immunity from forfeiture and corruption of blood; which the House of Lords as firmly resisted. At length a compromise was agreed to, which is established by this statute, viz. that the same crimes, and no other, should be treason in Scotland that are so in England; and that the English forfeitures and corruption of blood should take place in Scotland, till the death of the then pretender; and then cease throughout the whole of Great Britain (e): the lords artfully proposing this temporary [*385] clause, in hopes, it is said (ƒ), that the prudence of succeeding parliaments would make it perpetual (g). This has partly been done by the statute 17 Geo. II. c. 39, made in the year preceding the late rebellion, the operation of these indemnifying clauses being thereby still further suspended, till the death of the sons of the pretender () (15). (d) Ibid. 8 & 9 W. III. c. 26; 15 (e) Burnet's Hist. A. D. 1709. (g) See Fost. 250. (15) The particular clauses in the (h) The justice and expediency of this provision were defended at the time, with much learning and strength of argument, in the Considerations on the Law of Forfeiture, first published A. D. 1744. (See vol. I. page 244.) 7 Ann. c. 21, and 17 Geo. II. c. 39, In petit treason and felony, the offender also forfeits all his chattel interests absolutely, and the profits of all estates of freehold during life: and, after his death, all his lands and tenements in fee simple, but not those in tail, to the crown, for a very short period of time: for the king shall have them for a year and a day, and may commit therein what waste he pleases; which is called the king's year, day, and waste (i). Formerly the king had only a liberty of committing waste on the lands of felons, by pulling down their houses, extirpating their gardens, ploughing their meadows, and cutting down their woods. And a punishment of a similar spirit appears to have obtained in the oriental countries, from the decrees of Nebuchadnezzar and Cyrus in the books of Daniel (k) and Ezra (7); which, besides the pain of death inflicted on the delinquents there specified, ordain, "that their houses shall be made a dunghill." But this tending greatly to the prejudice of the public, it was agreed in the reign of Henry the first, in this kingdom, that the king should have the profits of the land for one year and a day, in lieu of the destruction he was otherwise at liberty to commit (m): and therefore Magna Charta (n) provides, that the king shall only hold such lands for a year and a day, and then restore them to the lord of the fee; without any mention made of waste. But the statute 17 Edw. II. de prerogativa regis seems to suppose, that the king shall have his year, day, and waste: and not the year (i) 2 Inst. 37. (m) Mirr. c. 4, § 16; Flet. 1. 1, c. 28. (n) 9 Hen. III. c. 22. [*386] limiting the time when forfeiture for treason should be removed, were repealed by 39 Geo. III. c. 93, which left the law of forfeiture nearly on the same footing on which it stood at common law; and by the 54 Geo. III. c. 145, intituled, An Act to take away corruption of blood in certain cases, it is enacted, "that no attainder for felony, which shall take place after the passing of that Act, except in cases of high treason, petit treason (now abolished), or murder, or of abetting, procuring, or counselling the same, shall extend to the disinheriting of any heir, nor to the prejudice of the right or title and day instead of waste. Which Sir Edward Coke, and the author of the Mirror before him, very justly look upon as an encroachment, though a very ancient one, of the royal prerogative (o). This year, day, and waste are now usually compounded for; but otherwise they regularly belong to the crown; and, after their expiration, the land would naturally have descended to the heir, as in gavel-kind tenure it still does, did not its feodal quality intercept such descent, and give it by way of escheat to the lord. These forfeitures for felony do also arise only upon attainder; and therefore a felo de se forfeits no lands of inheritance or freehold, for he never is attainted as a felon (p) (16). They likewise relate back to the time of the offence committed, as well as forfeitures for treason; so as to avoid all intermediate charges and conveyances. This may be hard upon such as have unwarily engaged with the offender; but the cruelty and reproach must lie on the part, not of the law, but of the criminal; who has thus knowingly and dishonestly involved others in his own calamities (17). (16) But he forfeits all his chattels, and that from the time of the act done; vide ante 190, note (22). (17) The forfeiture of copyhold lands is to the lord, not to the king; 1 Watkins, 341; Kean v. Kerby, 1 Mod. 200; Margaret Podger's case, 9 Co. Rep. 107 and relates back to the time when the offence was committed; Co. Litt. 390, b.; Com. Dig. Forfeiture (B. 6). But, after the forfeiture, it is necessary that some act shall be done by the lord, by office found, or presentment made, or entry and seizure, or by some step or other, before the estate will vest in him. Therefore, where a copyholder, joint tenant, was capitally convicted of felony, and pardoned upon condition of suffering two years' imprisonment, and the lord took no steps towards seizing the land, and after the two years' imprisonment had expired, the copyholder brought ejectment against his joint tenant, who had ousted him, it was held that the lord having taken no step towards seizing the land, it did not vest in him, and that the copyholder, being restored to his civil rights by the pardon, might maintain the action; Doe v. Evans, 8 D. & R. 309; 5 B. & C. 584. There cannot be a forfeiture of copyhold by a conviction of felony before attainder, unless there be a special custom in the manor to the contrary; Rex v. Wiltes, 3 B. & A. 510. Where there is a remainder to the use of one who is convicted of felony, and hanged before admittance, the lands are not forfeited to the lord, but descend to the heir of the surrenderor; Rex v. Hicks, 2 Wils. 13. Upon a felony committed by surrenderor before admittance of surrenderee, the copyhold escheats to the lord; Re v. Lady of Manor of Marwell, 2 Nev. & Man. 778. Although the surrender be by way of mortgage; Id. Ibid, But a freehold interest is not divested out of an attainted felon until office found; Doe v. Pritchard, Id. 489. |