the freehold during the coverture, and if the attainted husband be possessed of a term in right of his wife, the King shall have it. So if tenant for life be attainted of treason the King hath the freehold during the life of the party attainted, or his interest if he have a term for years only (a). It may be added, that the wife of a traitor forfeits her dower by the attainder of her husband for high or petit treason (b), but not her jointured lands (c); and he shall be tenant by the curtesy, though she be attainted (d); if there were issue before the treason committed (e). 8thly. With respect to corporations, it may be observed, that in the case of a corporation aggregate, as dean and chapter, mayor and commonalty, where the possessions are in common in the aggregate corporation, nothing is forfeited by the attainder of the head of the corporation, as the dean, mayor, &c. (f). By the common law a sole corporation, as an abbot, bishop, dean, prebendary, parson, or vicar, by attainder of treason forfeited to the King the profits of his abbey, bishoprick or prebend during his incumbency; but their successors were not bound by that forfeiture, for though the profits as they arose belonged to their persons, yet the inheritance was in right of their church (g). The statute 26 Hen. 8. c. 13. s. 5. altered the common law in this respect, for by that statute the rights of others are saved and preserved to them, excepting only the traitor, his heirs "and successors" (h). Sir M. Hale however asserts, that the statute 5 and 6 Edw. 6. c. 11. s. 5. restores and preserves the common law right of the successors of the sole corporation, because it saves the rights of all others on a forfeiture for high treason, except the of fender," and his heirs" (omitting the word "successors") (i). It is laid down by Sir M. Hale (k), that where lands come to the Crown by attainder of treason, he does not take by way of escheat, and all mesne tenures of common persons are extinct, and the King takes jure coronæ or prerogativæ regalis. But the King is not entitled in general to a larger interest or more extensive degree of property in the lands or tenements forfeited, than the person attainted himself enjoyed; so that his Majesty cannot lawfully eject from the forfeited premises a person legally in possession as tenant; or do any other act which the law would not have permitted the traitor to commit with impunity, the statute expressly saving to others, (except the offender and his heirs and assigns, and every of them, and all and every other person and persons claiming by them or any of them, or to their uses, or to the uses of any of them, after the said treasons committed) all such right, title, use, possession, entry, reversions, remainders, interests, conditions, fees, offices, rents, annuities, commons, leases, and all other commodities, profits and hereditaments whatsoever they or any of them should, might, or ought to have had, if this act had never been had or made (a). The Crown or its grantee on forfeiture will take the estate, subject to all charges binding on the party though voluntary, if no fraud, but not subject to debts at large; and they have the same equity to be relieved against a conveyance as the party had for fraud on him (b). We shall hereafter see when an inquisition is necessary to entitle the King. By an attainder of petit treason or felony the offender forfeits (c) to the Crown all his chattel interests absolutely, and the profits of all estates of freehold, whether held by him in his own or his wife's right (d), during his 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 only for a year and day, and may commit therein during that period what waste he pleases; which is called the King's "year day and waste" (e). The person entitled to the lands on the death of the offender, whether the (a) 3 Bac. Ab. 269. See 26 Hen. 8. c. 13. s. 5. 33 Hen. 8. c. 20. s. 2. 1 and 2 Ph. and M. c. 10, s. 7. (b) 2 Ves. 116; 228. 3 Price's R. 122. (6) See 4 Bla. Com. 385. 2 Inst. 37. Bac. Ab. Forfeiture, A. 3 Inst. 19. wife of the offender, issue in tail, or a reversioner, cannot enter on them, until it appear by due process, that the King has enjoyed this prerogative (a): but an office is it seems necessary to entitle the King to it (b): and if he do not seize within a year and day after office found, he ought it is said to have a scire facias before seizure (c). It is most probable that antiently the sovereign was only entitled to commit waste on the freehold property of the attainted felon, and that it being discovered that this destruction tended to the detriment of agriculture (d) and otherwise to the prejudice of the public, possession of the lands was given to his Majesty for a year and day in lieu of his right to destroy them. This appears to have first prevailed in the reign of Henry 1 (e). Magna Charta 9 Hen. 3. c. 22. does not mention waste, and merely provides that the King shall not hold the lands of those who may be convicted of felony, but for one year and one day; and Sir Edw. Coke (ƒ) was of opinion that the commission of waste where the King also held the lands, was an encroachment, though a very antient one, of the royal prerogative. However the statute de prerogativa Regis, 17 Edw. 2. st. 2. c. 16. appears to recognize the right of the King to hold the lands, and also to commit any destruction therein. That statute provides that if a felon attainted have a freehold, it shall be forthwith taken into the King's hands, and the King shall have all the issues thereof, for one year and one day; and the land shall be wasted and destroyed in the houses and gardens, woods, and in all manner of things belonging to the same land. At the present day therefore this year day and waste regularly belong to the Crown, but are usually compounded for (g); and this is the more expedient as this prerogative cannot be granted to a subject by the King (h). We have seen that after the expiration of the year day and waste on an attainder of felony, the lands of the party escheated, in consequence of the corruption of his blood, to the lord of the fee; but the 54 Geo. 3. c. 45. has abolished both the corruption of blood and the forfeiture of lands after death, in every case except treason, petit treason, and murder, which still remain as at common law. So that at the present day on attainder of ordinary felony, except for murder, the criminal. forfeits only his goods and chattels, and choses in action, and the profits of land during life, while his real estate comes in the ordinary channel of descent to his heir, who is thus also restored to a full capacity to inherit (a). The forfeitures with which the crime of high treason, petit treason and felony are punishable, are not in legal contemplation incurred until the attaint takes place: that is, till judgment of death be passed upon him, and therefore if the offender die before judgment be pronounced, or is killed in open rebellion, or is hanged by martial law, it works no forfeiture of his lands, for he never was attainted (b). A judgment of outlawry for treason or other capital crime, is however equivalent to an attainder (c), and if the Chief Justice of England in person, upon view of the body of one killed in open rebellion, record it, and return the record into his own Court, both lands and goods shall be forfeited (d). Where on outlawry the offender's lands are seized, the King has no estate in the lands, but only a pernancy of the profits. He cannot manure or sow the ground, and his Majesty's interest continues no longer than the offender had an estate in the lands, and determines with the death of the latter," or by the reversing or superseding of the outlawry (e). Although the forfeitures of lands above-mentioned do not take place until the attaint of the offender is effected (f), yet when that has been done, the forfeiture relates back to the time when the treason or felony was committed (g), so as to avoid all sales, incumbrances, or other acts relative to the property, which may have transpired since that period (h). But no attainder whatsoever has any relation as to the mesne profits of the lands of the person attainted, but from the time of the attainder (i). (e) Bac. Ab. Outlawry, D. 2. If the proof as to the time when the offence was committed, vary from the time mentioned in the indictment, and the jury find the offender guilty generally, the forfeiture relates to the time laid, until the verdict be falsified by the party interested, as it may be in this respect, though not as to the point of the offence (a). But if the jury specially find the offender guilty on the day on which the fact is proved to have been committed, whether before or after the day laid in the indictment; in such case the forfeiture relates to the day so found (b). If an alien purchase land in this country for his own use, the King is entitled to them by way of forfeiture, but the vendor is not affected thereby (c). This will be considered in the next section on escheats. Forfeiture of Personalty.—The forfeiture of goods and chattels to the Crown accrues in every one of the higher kinds of offences, in high treason or misprision thereof, petit treason, felonies of all sorts, whether clergyable or not, self-murder, petit larceny, standing mute, and, among other offences, that of striking in Westminster-hall, or drawing a weapon upon a Judge sitting in one of the King's courts of justice there (d). And where a man, being accused of the commission of treason, felony, or even petit larceny, flies from the inquiries of justice, and the jury find the flight (which they seldom or never do), he forfeits all his goods and chattels to the King, although he be acquitted on the trial of the offence imputed to him (e). If, however, in this case the indictment be insufficient (f), or the flight be disproved on a traverse of the finding of the jury (g), the forfeiture is saved. It seems to have been formerly considered, that a coroner's inquest finding the flight, could not be traversed, so as to save the forfeiture (h); but the injustice and hardship of subjecting a man to so severe a punishment as the confiscation of all his personalty, by a finding which took place in his absence, and most probably without giving him an op (a) 1 Hal. P. C. 361. 3 Inst. 230. (b) Kely. 16. Hal. P. C. 361. 2 Inst. 318. 3 Ibid. 230. (c) Co. Lit. 2. 1 Bla. Com. 372. (d) 4 Ibid. 386. Bac. Ab. Forfeiture, B. 5 Co. 109. (e) 4 Bla. Com. 387. Bac. Ab. For feiture, B. (ƒ) Bac. Ab. Ibid. (g) Bac. Ab. Ibid. Keilw. 68. 5 Co. 110. Staundf. 184. (h) 13 Hen. 4. 13. pl. 6. 5 Co. 109. Dyer, 238. 2 Inst. 147. 3 Keb. 366, 564. 2 Lev. 141. 3 portunity |