the manor (a). But gavel-kind lands (6), and estates tail (c), do not escheat, though they are forfeitable for treason. And no species of real property, which does not lie in tenure, as a rentcharge, right of common, or free warren, is subject to escheat (d). So, if lands be given to a corporation, on the dissolution thereof, the donor, or his heirs, shall have them again in reversion, and not the lord by escheat, which is a very peculiar case (e).

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Even the King, when he is lord, cannot claim by escheat contrary to the terms and conditions under which the tenant held (f). His Majesty's right, by escheat, stands on the same ground as every other legal right; it arises out of the seizin (ƒ), and is, in general, governed by the same rules as govern escheats to the subject (g). Wherever, therefore, there be a tenant to perform the services (h), the Crown, though the lord of the fee, cannot claim by escheat, more than any other lord; as if cestui que trust, or a mortgagor, die without heirs, or be attainted of petit treason or murder, which seems to make no difference. The trustee in the one case, and the mortgagee in the other, and not the King, shall have the inheritance (¿).

(a) Co. Cop. s. 28. 2 Ves. jun. 170. 1 Chitty, Crim. L. 728, 9. But the homage ought to present the death of the party without heirs, and proclamation ought to be made requiring claimants, if any, to appear, &c. Ibid. It has been holden, that if a surrender of a copyhold be made to a party who is executed before admittance, the land will not escheat to the lord, but return to the surrenderor and descend to his successors, 1 Wils. 13.

(b) Rob. Gav. 226. 2 Bla. Com. 252. (c) 3 Co. R. 10, b. Cro. El. 28. 3 Cruise Dig. 473, 4.

(d) 3 Inst. 21. As to forfeiture thereof, ante, s. 1.

(e) 2 Bla. Com. 256. (f) 1 Bla. Rep. 165.

(g) To what incumbrances the lord taking by escheat is liable in general, 3 Cruise, 496. 1 Bla. R. 134; may distrain for rent, 1 Inst. 215, 6; and entitled to all charters, &c. Bro. tit. Chart. pl. 59. 3 Cruise, 499.

(h) As to this, see 1 Bla. Rep. 175. 3 Cruise Dig. 493, 515; what alienation prevents an escheat, 3 Cruise Dig. 495.1

(i) 1 Bla. Rep. 123. Ld. Mansfield, Diss. And this was somewhat doubted by Lord Thurlow; see 1 Bro. Ch. Cas. 204. But the law seems clearly to be so on the ground above stated. And I have MSS. opinions of Mr. Serjeant Hill, Mr. Serjeant Heywood, and Mr. Hughes, to the same effect; on the ground that there can be no want of a tenant to perform the services, in which case only an escheat takes place where there is a person seised of a legal estate in fee, capable of performing such services. On which ground also they thought there was no escheat in the case of a mortgagor's death, &c.; but that the mortgagee was the tenant according to the opinions expressed by the Lord Keeper and the Master of the Rolls, in the case in Bla. Rep. see Ibid. 149, 170, 184.. See Jenk, 190. Hardr. 495. Sid. 405.

But

But where a mortgagor of freehold property was attainted of high treason, the Court would not decree a foreclosure against the Crown, but directed that the mortgagee should hold and enjoy the mortgaged premises, till the Crown thought fit to redeem the estate (a). It has been held, that where the character of land is not imperatively and definitively fixed upon money, by the terms of a will, or other instrument, a Court of Equity will not order it to be laid out in land, in order to let in the Crown, claiming by escheat (b). It seems, however, to be a general rule, that the Crown, when it takes by escheat, is free from equitable claims (c), as if a trustee die without heirs, the King is not subject to the trusts (d). And where the inheritance escheats, and there is an outstanding term which is attendant thereon, the lord, by escheat, will be entitled to such term (e). But it is said, that mortgaged lands escheat on the death of the mortgagee in fee, without heirs, subject to the mortgage (f).

The King's pardon does not prevent the escheat to the lord when vested (g); and though a pardon will enable the party to transmit after acquired property to his children, yet an Act of Parliament reversing the attainder is necessary, to remove the stain or corruption of blood entirely (h).

may

The mode by which the Crown obtains property to which it is entitled by escheat, will be considered hereafter. But it be observed in this place that an office or inquisition is in general unnecessary (i); though an entry should, it seems, be made on the part of the Crown, for the failure and neglect to claim or the doing any act which amounts to an implied waiver of the right of the claimant by escheat, (as accepting homage, or in some instances, rent of a stranger, who usurps the possession, &c.) may at all events, in the case of a subject, effectually bar the title by escheat (k).

(a) 2 Atk. 223.

(b) 2 Ves. jun. 170.

(c) 1 Bla. Rep. 143.

(d) 3 Cruise Dig. 497, 8.

(e) 1 Vern. 340.

(f) 1 Bla. Rep. 170.

(g) 1 Chitty, Crim. L. 742. Owen, 87. 2 Bla. Com. 254.

(h) Ibid. ante, c. 7. s. 2. div. 4. 1 Hale, 358. 3 Inst. 240, 1.

(i) 5 Bac. Ab. 566, ante 222. When necessary in the case of an alien purchasing land, ibid.

(k) See Co. Lit. 268. 2 Bla. Com. 244, 5. 5 Bac. Ab. 497, tit. Prerogative. 3 Cruise Dig. 494. However no laches is imputable to the King: but a recognition of another's title by express acts is another considera

tion.

The

The exercise of the right of the Crown by escheat, to the prejudice of the relatives of a party who died without heirs, or attainted, or in the case of purchases by aliens, &c. would in many cases be harsh. It has therefore been the practice for the Crown on a petition disclosing the facts, to grant the lands to parties who might otherwise lose them; and to direct the execution of trusts, to which the property may be liable, &c. In furtherance of this liberal practice, it is enacted by the statute 47 G. 3. sess. 2. c. 24. "that in all cases in which his Majesty, his heirs or successors, hath or shall, in right of his Crown or of his Duchy of Lancaster, become entitled to any freehold or copyhold manors, messuages, lands, tenements, or hereditaments, either by escheat for want of heirs, or by reason of any forfeitures, or by reason that the same had been purchased by or for the use of or in trust for any alien or aliens, it shall be lawful for his Majesty, his heirs and successors, by warrant under his or their sign manual, or under the seal of the duchy or county palatine of Lancaster, according to the nature of the title to such manors, messuages, lands, tenements, or hereditaments respectively, to direct the execution of any trusts or purposes to which the same may have been directed to be applied, and to make grants of such manors, messuages, lands, tenements, or hereditaments, or of any rents or profits then due and in arrear to his Majesty in respect thereof respectively, to any trustee or trustees, or otherwise, for the execution of any such trusts or purposes, or to any person or persons for the purpose of restoring the same to any of the family of the person or persons whose estates the same had been, or of carrying into effect any intended grant, conveyance, or devise of any such person or persons in relation thereto, or of rewarding any person or persons making discovery of such escheat, or of his Majesty's right and title thereto, as to his Majesty, his heirs or successors respectively, shall seem fit."

In a modern case, Lord Eldon said, it is perfectly familiar, that where there is an escheat for want of heirs, and the fact is not communicated, it is usual to petition the King, stating that there is such an interest, and praying some reward upon the ground of the discovery, if it can be made out; and the ordinary rule upon an escheat is, for the Crown to give a lease,

as

as good a lease as it can give, to the person making the discovery (a).

5. The profits arising from the King's ordinary Courts of Justice form another branch of his ordinary and inherent revenue. And these consist, according to Sir Wm. Blackstone (b), not only in fines imposed upon offenders, except in the case of a fine on an indictment for not repairing a highway (c), forfeitures of recognizances, and amercements levied upon defaulters; but also in certain fees due to the Crown in a variety of legal matters, as for setting the great seal to charters, original writs, and other forensic proceedings, and for permitting fines to be levied of lands in order to bar entails, or otherwise to ensure their title. As none of these can be done without the immediate intervention of the King, by himself or his officers, the law allows him certain perquisites and profits, as a recompense for the trouble he undertakes for the public. These in process of time have been almost all granted out to private persons, or else appropriated to certain particular uses; so that though our law proceedings are still loaded

(a) 7 Ves. jun. 71. The following is a sketch of the form of a "Warrant under the Sign Manual," for granting a freehold, &c. (forfeited by alienage) upon trust for sale, for the benefit of the alien and his wife. It recited that the Commissioners of the treasury had represented, that by inquisition before four commissioners, before a jury of twelve men that the alien had purchased by deed, &c. certain premises (deseribing them); that the premises devolved to the Crown by prerogative; and the Commissioners had accordingly seized the same into the King's hands; that the alien by memorial had represented and discovered the circumstances and the King's right, to the Commissioners of the Treasury; and prayed them to intercede for a grant from the Crown, and for relief; that the Treasury had so done; it then granted the premises to trustees, their heirs, &c. upon trust, to carry into effect any contract by the alien for the sale of them,

and to sell, &c.; that the Trustees' receipts should be a discharge to purchasers, &c.; that the surplus of the purchase-money should be paid to alien, after paying costs therein mentioned, for his own use; that the trustees should stand possessed of the rents and profits till sale, upon trust, to be applied in the manner therein directed. It then contained provisions for appointing new trustees, and for their indemnity in the usual way. "Given at the Court, &c. day of

year of the reign, &c."

in the 56th

(b) 1 Bla. Com. 289. (c) 3 Salk. 32. 13 Geo. 3. c. 78. s. 47. 1 Bla. Rep. 602. Where an Act of Parliament directs a fine at the will of the King, it means at the constitutional discretion of the Judges, 3 Salk. 33. 4 Inst. 71. As to mitigating and remitting fines, 1 Chitty, on Crim. L. 809, 811. K. B. may give part to prosecutor, Ibid. 810. Bac. Ab. Indictment, A.

with their payment, very little of them is now returned into the King's exchequer, for a part of whose royal maintenance they were originally intended. All future grants All future grants of many of these fines, &c. are, however, by the statute 1 Ann, st. 1. c. 7. s. 7. to endure for no longer time than the Prince's life who grants them, and if otherwise granted, the grant shall be void without a scire facias or inquisition, &c.

6. The prerogatives as to the custody of idiots and lunatics, which constitute another branch of the King's ordinary revenue, has been already considered (a).

III. With respect to the third and last branch of the ordinary revenue of the Crown, arising from profits from certain royal privileges or franchises, which are sometimes in the hands of subjects, and are frequently annexed to manors, &c. (as forests, mines, fish and fisheries, waifs, wrecks, estrays, treasure-trove, and deodands) it will be remembered that we have already fully treated of them (b), and consequently any further mention of them in this place is unnecessary.

SECT. II.

As to the Extraordinary Revenue of the Crown.

WE have already before pointed out the change which occurred about the period of the Revolution, in 1688, in the mode of supplying the wants of the Government (c). The King's ordinary or inherent revenues having been gradually reduced to a very narrow compass, it became necessary to resort to a fresh system of parliamentary taxation and finance, which was antiently but little known. The present taxation is principally founded on the positive regulations of various statutes, which it is hardly relevant to consider in this work. The revenue, though under the superintendence of Government, being at the present day peculiarly the revenue of the public, and its creditors, and the civil list alone being properly the King's revenue,