Of penalties by statute. tion by what means, or for what offences, goods and chattels become liable to forfeiture. In the variety of penal laws with which the subject is at present encumbered, it were a tedious and impracticable task to reckon up the various forfeitures inflicted by special statutes, for particular crimes and misdemesnors: some of which are mala in se, or offences against the divine law, either natural or revealed; but by far the greatest part are mala prohibita, or such as derive their guilt merely from their prohibition by the laws of the land: such as is the forfeiture of 40s. per month by the statute 5 Eliz. c. 4, for exercising a trade without having served seven years as an apprentice thereto; and the forfeiture of 101. by 9 Ann. c. 23, for printing an almanack without a stamp. I shall, therefore, confine myself to those offences only, by which all the goods and chattels of the offender are forfeited: referring the student for such, where pecuniary mulcts of different quantities are inflicted, to their several proper heads, under which very many of them have been or will be mentioned; or else to the collections of Hawkins, and Burn, and other laborious compilers. Indeed, as most of these forfeitures belong to the crown, they may seem as if they ought to have been referred to the preceding method of acquiring personal property, namely, by prerogative. But, as, in the instance. of partial forfeitures, a moiety often goes to the informer, the poor, or sometimes to other persons; and as one total forfeiture, namely, that by a bankrupt who is guilty of felo[ *421] ny by *concealing his effects, accrues entirely to his creditors, I have therefore made it a distinct head of transferring property. Of the crimes total forfeiture Goods and chattels then are totally forfeited by convicwhich induce a tion of high treason or misprision of treason; of petit treason; of felony in general, and particularly of felony de se, and of manslaughter; nay even by conviction of excusable homicide (i); by outlawry for treason or felony; by convic of goods and chattels. (i) Co. Litt. 391. 2 Inst. 316. 3 Inst. 320. tion of petit larceny; by flight in treason or felony, even though the party be acquitted of the fact; by standing mute, when arraigned of felony; by drawing a weapon on a judge, or striking any one in the presence of the king's courts; by præmunire; by pretended prophecies, upon a second conviction; by owling; by the residing abroad of artificers; and by challenging to fight on account of money won at gaming. All these offences, as will more fully appear in the fourth book of these Commentaries, induce a total forfeiture of goods and chattels. from the time of And this forfeiture commences from the time of convic- The forfeiture tion, not the time of committing the fact, as in forfeitures to commence of real property. For chattels are of so vague and fluctuat- conviction. ing a nature, that to affect them by any relation back, would be attended with more inconvenience than in the case of landed estates: and part, if not the whole of them, must be expended in maintaining the delinquent, between the time of committing the fact and his conviction. Yet a fraudulent conveyance of them, to defeat the interest of the crown, is made void by statute 13 Eliz. c. 5. 422 CHAPTER XXVIII. OF TITLE BY CUSTOM. IV. By custom. A FOURTH method of acquiring property in things personal, or chattels, is by custom: whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of the kingdom. It were endless, should I attempt to enumerate all the several kinds of special customs which may entitle a man to a chattel interest in different parts of the kingdom: I shall therefore content myself with making some observations on three sorts of customary interests, which obtain pretty generally throughout most parts of the nation, and are therefore of more universal concern; viz. heriots, mortuaries, and heir-looms. 1. Heriots, which are of two sorts and heriotcustom. 1. Heriots, which were slightly touched upon in a former chapter (a), are usually divided into two sorts: heriot-serheriot-service, vice, and heriot-custom. The former are such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent (b): the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom (c). Of these therefore we are here principally to speak: and they are defined to be a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land. (a) Pag, 97. (b) 2 Saund. 166. (c) Co. Cop. s. 24. The first establishment, if not introduction, of compulsory heriots into England, was by the Danes: and we find in the laws of king Canute (d) the several heregeates or heriots specified, which were then exacted by the king on the death of divers of his subjects, according to their respective dignities; from the highest eorle down to the most inferior thegne or landholder. These, for the most part, consisted in arms, horses, and habiliments of war; which the word itself, according to Sir Henry Spelman (e), signifies. These were delivered up to the sovereign on the death of the vasal, who could no longer use them, to be put into other hands for the service and defence of the country. And upon the plan of this Danish establishment did William the conqueror fashion his law of reliefs, as was formerly observed (f); when he ascertained the precise relief to be taken of every tenant in chivalry, and, contrary to the feodal custom and the usage of his own duchy of Normandy, required arms and implements of war to be paid instead of money (g). Heriots were by the Danes. first established The Danish compulsive heriots being thus transmuted Reliefs. into reliefs, underwent the same several vicissitudes as the feodal tenures, and in socage estates do frequently remain to this day in the shape of a double rent, payable at the death of the tenant: the heriots which now continue among us, and preserve that name, seeming rather to be of Saxon parentage, and at first to have been merely discretionary (h). These are now, for the most part, confined to copyhold tenures, and are due by custom only, which is the life of all estates by copy (1); and perhaps are the only instance where custom has favoured the lord. For this payment was originally a voluntary donation, or gratuitous legacy of the tenant (2); perhaps, in acknowledgment of his (d) C. 69. (e) Of feuds, c. 18. (f) Pag. 65. (1) Sce ante, pp. 95-98, with the notes thereto; and also p. 150. (g) LL. Guil. Conq. c. 22, 23, 24. (2) The accuracy of the passage in the text was distrusted in Garland v. having been raised a degree above villenage, when all his goods and chattels were quite at the mercy of the lord; and Jekyll, (2 Bingh. 292): the Chief Justice of the court of Common Pleas said, copyhold tenures appear to have grown out of a state of pure villenage,-(this is also Blackstone's conclusion; see the pages referred to in the last note),—and there is no doubt, that, in the early periods of our history, the whole personal property of the villein belonged to the lord: it is said, indeed, in Bracton and in Fleta, that heriots are ex gratiá: but it is difficult to conceive how the doctrine of ex gratiá could be applied to times of villenage; the villein could give nothing which the lord might not at any time take. It is probable though this is mere conjecture, for the history of heriots is so obscure, that it is impossible to ascertain how they originated, it is probable that heriots were originally nothing more than the gift which, in a rude state of society, a person in an inferior situation, on approaching one of a superior station, always offered. It has occurred to us, that heriots were a species of tribute, which the tenant offered to the lord at the time he approached him, in order to secure his protection, and to pray of the lord to confer on him the interest which had been determined by the decease of his former tenant. But, whatever the situation of copyholders might have been in the early part of our history, custom has now confirmed their interests as tenants, and this same custom has confirmed and established the rights of the lord. This alteration has been brought about by no statute. It is to lawyers in Westminster-Hall, that slaves, for such was the state of men in pure villenage, are indebted for the permanency of their property; it is by the establishment of the customs referable to copyholds in courts of justice, that this permanent interest has placed copyholders in the happy situation in which they are now found;-the copyholder, now, has a permanent interest in his estate as long as he performs his services, and the lord has certain rights and dues. The heriot was a species of tribute which the heir paid on the death of his ancestor; it was the heir alone who rendered it; he gave but one tribute, one beast, which would probably be his best beast. It may be asked, if the property was separated into different tenements, was the lord to wait till the death of all the tenants for one heriot? No. Of necessity, the instant the estate became separate, there were separate heirs, and each heir paid his tribute: this service being incapable of severance, was necessarily multiplied while the estate was held in severalty, or the lord would have lost his right; but the moment a re-union of the whole estate took place, the necessity ceased, and the lord was placed in the same situation as when the grant of the estate was first made, that is, he was only entitled to one heriot. A rule as to copyholds (confirmed by Mr. Justice Blackstone, and every one who has written upon the subject), is this, that the claims of the lord are not to be carried to such an extent as would work the disherison of the copyholder; but if a multiplication of heriot-services and fees was to take place, it would, in many cases, work a disherison of the estate; it would make the estate what the civilians call damnosa hæreditas. |