estate. 8. Escheat was the last fruit or incident resulting from the feudal system. It was a species of confiscation (a) by which the feud reverted to the sovereign, either from the delinquency of the vassal (who held it under the implied condition that he should not prove guilty of any act of felony or treason), or in consequence of his dying without an heir, either fit to perform the stipulated services, or entitled, by the original grant, to succeed to the feud (b). It was imagined that the King would often find it necessary, with a view of examining into the real state and circumstances of the country, to make a personal progress throughout his dominions; and as the removal of the Court would occasion an unusual demand at the places to which it went, for every species of provisions, it was thought requisite to give the Crown a right of purchasing necessaries for the maintenance of the royal household, at an appraised valuation, in preference to all other persons, and even to force the sale or the hire of any thing peculiarly wanted, without the owner's consent (c). This prerogative, which obtained the names of purveyance and pre-emption, was afterwards extended to every spot where the royal family resided. But the powers vested in the purveyors, or officers appointed for that purpose, being greatly abused, and indeed becoming every day less requisite, in consequence of the great increase of cultivation and improvement, and of the abundance which necessarily followed, the whole right was abolished, at the same time with the harsh and obnoxious system of military tenures; and by 12 Car. 2. c. 24. the hereditary excise, and a duty on wine licences, were settled on the Crown in its stead (d). The duty on wine licences was abolished by statute 30 Geo. 2. c. 19. and an annual sum of upwards of 7000l. per annum, issuing out of the new stamp duties imposed on wine licences, was settled on the Crown in its stead. 3. Of forfeitures for offences, which afford another ordinary resource for the exigencies of the state. "The true reason and only substantial ground of any forfeiture for crimes consist," says Sir Wm. Blackstone (e), “in (a) See Wright on Tenures, p. 117, note 10. (b) See 1 Bla. Com. 63, &c. 1 Sinelair, 29, &c. (c) 5 Hume's Hist. 365, 490, 547. Bla. Com. 287, S. (e) Ibid. 299. this, that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural liberty which every man must sacrifice when he enters into social communities. If, therefore, a member of any national community violate the fundamental contract of this association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract, and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. Hence, in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the moveables or personal estate, and in many cases a perpetual, in others only a temporary, loss of the offender's immoveables or landed property, and have vested them both in the King, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides (a).” In some instances, the punishment by forfeiture of inheritances, is politically necessary to the preservation of the state. It is in the case of high treason, a safeguard with which every well regulated state, whether built on maxims of monarchy or freedom, has ever been provided; and without which it were liable to perpetual disorder from the desperate sallies of resentment, or the daring projects of ambition. Here too, our own constitution preserves its usual excellence; and, being framed with much wisdom and equity as to the crime of treason, it seems difficult to account for the conduct of those, who, in the Parliament of the 7th of Queen Anne, were for abolishing that punishment of the crime, which has subsisted for ages past, is interwoven with the first principles, and intimately connected with the foundations of, our policy (b). To visit the consequences of a crime on the innocent posterity of the offender, by depriving them of his property, may seem unjust; but investigation will establish the wisdom of making the natural and social affections a controul upon irregular and selfish passions. And it is observable, that the right of inheritance being, it seems, rather a matter of civil regulation and policy, than exclusively conferred by the law of nature (c), it is not injustice to inter (a) Forfeitures in counties palatine, 1 Bla. Com. 118. (b) See Considerations on the Law of Forfeiture, said to be written by the (c) See Ibid. 2 Bla. Com. 11. weave with those regulations such as manifestly tend to confirm the bonds of society, however unhappy and lamentable the effect may be on the criminal's posterity. Nor is any thing a punishment which does not affect a right strictly so called (a). However, life and liberty are the gifts of nature, and should never be taken away because of the parent's offence; nor should a subject be made incapable of employments without some crime committed by himself. Such severities are unwise, as well as unequitable. A difference, therefore, must be observed between the natural rights and common liberties which are annexed to the person of every subject, and the peculiar distinctions of society, such as riches and honours. These last are merely contingent, and, if hoped for in the course of succession, depend on the conduct of those ancestors from whom we would derive them. And it is not to be said, men are punished when those contingent advantages, which themselves neither acquired nor merited, having, by reason of the "civil qualifi-, cation of their blood," (as a great lawyer of our own has expressed it,) been brought into view by the desert of one ancestor, are intercepted by the crimes of another. There is a very important distinction between the prerogative right to forfeitures and the right of the Crown, as lord of the fee by escheat, which will be more particularly mentioned in the next section. The law of forfeiture was the doctrine of the old Saxon law (6), and formed a part of the antient Scandinavian constitution (c), as a punishment for the offence, and does not at all relate to the feudal system, nor is the consequence of any seigniory or lordship paramount (d). But, being a prerogative vested in the Crown, was neither superseded nor diminished by the introduction of the Norman tenures, a fruit and consequence of which escheats must undoubtedly be (4) "Every thing," says Puffendorf, " which causes a sorrow or loss, is not properly punishment. It is a misfortune to be reduced to poverty by a crime, which caused the magistrate to set a large fine upon the father of a family; but not a punishment. How many are there who come into the world without the expectation of a patrimony? How many who lose all they have by war, fire, or shipwreck? L. VIII. c. 3. s. 30. (b) L. L. Alfred 4, L. L. Canute, c. 54. (c) Stiernh. de jure Goth. 1. 2. c. 6. and 1. 3. e. 3. (d) 2 Inst. 64. Salk. 85. reckoned. reckoned. Escheat, therefore, operates in subordination to this more antient and superior law of forfeiture (a). Forfeitures for offences may be considered 1st, with respect to the realty; 2dly, with regard to the personalty of the offender. With respect to the real property he may possess, a person attainted of high treason forfeits for ever (b), to the Crown, though the lands are holden of another original proprietor or lord (c): 1st. His lands and tenements of inheritance, whether fee simple or fee tail (d), and the King shall be entitled and adjudged in possession of them without any inquisition or office found (e). 2dly. All hereditaments whether they lie in tenure or not, as fairs, markets, warrens, rents, advowsons, commons or corrodies certain (f), or whether they are of the tenure of gavelkind (g): but copyhold escheats revert to the lord of the manor, not to the King (h), and such inheritances as be purely in privity appropriate to the person, as a foundership or corrody uncertain, are neither forfeitable at common law, or by any statute (i). 3dly. Rights of entry into lands, whether the possessor be in merely by usurpation or abatement, or by title; but in such case there must be an inquisition and seizure on an office not to entitle the King to the right of entry, but to bring him into actual possession of the land (k). But if the traitor only possessed when he committed the treason a right of action touch (a) 2 Bla. Com. 251, 2. and 4 Ibid. 383. (b) 7 Ann. ch. 21. 17 Geo. 2. c. 39. 37 Geo. 8. c. 39. (c) 1 Hal. P. C. 360. See post. tit. Escheats. As to forfeitures in counties palatine, see 1 Bla. Com. 118. (d) 26 Hen. 8. c. 13. s. 5. 33 Hen.' 8. c. 20. See the cause of making this Act of 33 Hen. 8. 3 Co. 10. b. 5 and 6 Edw. 6. c. 11. s. 9. These statutes are not repealed by the statute 1 Mary, sess. 1. c. 1. See Staundf. P. C. 307. 3 Inst. 19. 1 Hal. P. C. 240, 1. Bac. ing any lands, or a right to reserve a judgment given against him by writ of error, or a right to bring a formedon or writ of entry, but had no right of entry without a recovery by action, the King is not entitled to the exercise of such respective rights. This was determined in Dowby's case (a), though Sir M. Hale cites two cases which, he says, tread hard upon the heels of the judgment in that case (b). 4thly. The benefit of all conditions of re-entry and powers of revocation, by virtue of which the offender could have reduced any land into possession (c). But it seems, that the King is not entitled to the benefit of conditions, the performance whereof is strictly and substantially restrained to the person attainted (d), and cannot execute a power, the execution of which is to be attended with circumstances inseparably annexed to the person of him to whom the power is given (e). 5thly. All lands holden by another in trust for the of fender (f). 6thly. It seems any property which the traitor may hold as trustee for another; and in this case it appears the party for whose use the lands were holden loses them entirely (g), for the legal estate is forfeited by the attainder to the King, and his Majesty cannot be compelled to, though as will be fully mentioned hereafter (h), he may execute the trusts (i). It is held that in case of the attainder of a mortgagor the mortgagee shall hold till the Crown think fit to redeem, for the Court will not decree a foreclosure against his Majesty (k). 7thly. If a husband be seised of lands of inheritance in right of his wife, and be attainted of treason, the King hath (a) 3 Co. 3, a. 10, b. (b) 1 Hal. P. C. 242. (c) 33 Hen. S. c. 20. 1 Hal. P. C. 243, 4. 3 Co. 10, b. Gilb. Uses, 146. (d) 1 Hal. P. C. 244, 5, 6. 7 Co. 13, a. 4 Leond. 135. 2 Keb. 564, 608, 763, 772. 1 Mod. 16, 38. See Latch. 25, 69, 102. Sir Wm. Jon. 134. Bac. Ab. Forfeiture, A. (e) Ibid. (f) 21 Rich. 2. c. 3. 33 Hen. 8. c. 20. 1 Hal. P. C. 247, 8. Cro. Jac. 512. Hob. 214. (g) Lanc, 54. Jenkins, 190, case 92. Hard. 466. Bro. Feoffment al. Uses. pl. 31. Vin. Ab. tit. Uses, pl. 4, note. 1 Fonbl. Tr. Eq. 3rd ed. 168, 9. note, book 2. c. 7. s. 1. 1 Hal. 249. 1 Cruise, 500. 1 Chitty, Crim. Law, 728. Post. tit. Escheats; but see Com. Dig. Forfeiture, B. 1 Carter, 67. Prec. Ch. 202. (h) Post. Fil Escheats. (i) 1 Cruise Dig. 550. See 39 and 40 Geo. 3. c. 88. s. 12. (k) Bridg. Index, Treason,'' Prerogative.' 2 Atk. 223. Hardr. 465. 2 Ves. 286. 1 Chitty, Crim. L. 728. the |