Great care must be taken to distinguish between forfeiture of lands to the king and this species of escheat to the lord; which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee, and therefore entitled to both, have been often confounded together. Forfeiture of lands, and of whatever else the offender possessed, was the doctrine of the old Saxon law,e as a part of punishment for the offense; and does not at all [252] relate to the feodal system, nor is the consequence of any seigniory or lordship paramount;f but, being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which, escheat must undoubtedly be reckoned. Escheat, therefore, operates in subordination to this more ancient and superior law of forfeiture. The doctrine of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony (under which denomination all treasons were formerly compriseds), is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out forever. In this situation the law of feodal escheat was brought into England at the Conquest; and, in general, superadded to the ancient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in its passage: in case of treason, forever; in case of other felony, for only a year and a day;" after which time it goes to the lord in a regular course of escheat, as it would have done to the heir of the felon in case the feodal tenures had never been introduced. And that this is the true operation LL. Aelfred., c. 4. LL. Canut., c. 3 Inst., 15. Stat. 25 Edw. III., c. 2, § 12. h2 Inst., 36. 54. 2 Inst., 64. Salk., 85. (25) See infra, vol. iv., p. 386. identical. An outlawry upon a conviction for treason produces to the state a forfeiture of the freehold estate of which the convict was seized in his own right at the time of the committing of the treason, or at any time thereafter, and of all his goods and chattels. The forfeiture of the real estate is not absolute, but continues only during the lifetime of the convict. A conviction of no other offense works a forfeiture of goods or lands.-(2 R. S., 701, § 22.) Nor does an attaint of treason extend to corrupt the blood of the offender. This was expressly enacted in 1 R. S., 147, 10, and is virtually re-enacted by the abolition of feudal tenures and their incidents, corruption of blood being one of those incidents.-(1 R. S., 718, 34. See, also, 4 Kent's Comm., 426, and references there.) [253] Dower. Corruption of blood. and genuine history of escheats will most evidently appear from this incident to gavelkind lands (which seems to be the old Saxon tenure), that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason.i As a consequence of this doctrine of escheat, all lands of inheritance immediately revesting in the lord, the wife of the felon was liable to lose her dower, till the statute 1 Edw. VI., c. 12, enacted, that albeit any person be attainted of misprision of treason, murder, or felony, yet his wife shall enjoy her dower. But she has not this indulgence where the ancient law of forfeiture operates; for it is expressly provided by the statute 5 & 6 Edw. VI., c. 11, that the wife of one attainted of high treason shall not be endowed at all." Hitherto we have only spoken of estates vested in the offender at the time of his offense or attainder. And here the law of forfeiture stops; but the law of escheat pursues the matter still further; for, the blood of the tenant being utterly corrupted and extinguished, it follows, not only that all that he now has shall escheat from him, but also that he shall be incapable of inheriting any thing for the future. This may further illustrate the distinction between forfeiture and escheat. If, therefore, a father be seized in fee, and the son commits treason and is attainted, and then the father dies; here the land shall escheat to the lord; because the son, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life; but nothing shall be forfeited to the king, for the son never had any interest in the lands to forfeit. In this case the escheat operates, and not the forfeiture; but in the following instance the forfeiture works, and not the escheat. As where a new felony is created by act of Parliament, and it is provided (as is frequently the case) that it shall not extend to corruption of blood; here the lands of the felon shall not escheat to the lord, but yet the profits of them shall be forfeited to the king for a year and a day, and so long after as the offender lives.1 There is yet a further consequence of the corruption and extinction of hereditary blood, which is this: that the person [254] attainted shall not only be incapable himself of inheriting, or transmitting his own property by heirship, but shall also obstruct the descent of lands or tenements to his posterity, in all cases where they are obliged to derive their title through him from any remoter ancestor. The channel which conveyed the hereditary blood from his ancestors to him is not only exi Somner, 53. Wright, Ten., 118. (26) "Or of any other treasons whatsoever they be" (s. 13); the wife, therefore, was barred by the attainder of her husband for petit as well as high treason, but not for any murder or other felony. Co. Litt., 13. 1 3 Inst., 47. (See Co. Litt., 37, a; Staundf., 195, b.) But the crime of petit treason has since been abolished. (Stat. 9 Geo. IV., c. 31, s. 2.) hausted for the present, but totally dammed up and rendered impervious for the future. This is a refinement upon the ancient law of feuds, which allowed that the grandson might be heir to his grandfather, though the son in the intermediate generation was guilty of felony. But, by the law of England, a man's blood is so universally corrupted by attainder, that his sons can neither inherit to him nor to any other ancestor," at least on the part of their attainted father.*** This corruption of blood can not be absolutely removed but by authority of Parliament. The king may excuse the public punishment of an offender; but can not abolish the private right, which has accrued or may accrue to individuals as a consequence of the criminal's attainder. He may remit a forfeiture, in which the interest of the crown is alone concerned; but he can not wipe away the corruption of blood; for therein a third person hath an interest, the lord who claims by escheat. If, therefore, a man hath a son, and is attainted, and afterward pardoned by the king; this son can never inherit to his father, or father's ancestors; because his paternal blood, being once thoroughly corrupted by his father's attainder, must continue so; but if the son had been born after the pardon, he might inherit; because by the pardon the father is made a new man, and may convey new inheritable blood to his after-born children.o Herein there is, however, a difference between aliens and persons attainted. Of aliens, who could never by any possibility be heirs, the law takes no notice; and, therefore, we have seen that an alien elder brother shall not impede the descent [255] to a natural-born younger brother. But in attainders it is othierwise; for if a man hath issue a son, and is attainted, and afterward pardoned, and then hath issue a second son, and dies; here the corruption of blood is not removed from the eldest, and therefore he can not be heir; neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a possibility of being heir; and, therefore, the younger brother shall not inherit, but the land shall escheat to the lord: though, had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he hath no corruption of blood. So, if a man hath issue two sons, and the elder in the lifetime of the father have issue, and then is attainted and executed, and afterward the father dies, the lands of the father m Van Leeuwen, in 2 Feud., 31. a Co. Litt., 391. (27) The stat. 3 & 4 Will. IV., c. 106, s. 10, allows the descendants of a person • Ibid., 392. attainted to trace their descent through *See ante, p. 251, n. t. [256] shall not descend to the younger son; for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord. Sir Edward Coke, in this case, allows that if the ancestor be attainted, his sons born before the attainder may be heirs to each other; and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father; but he makes a doubt (upon the principles before mentioned, which are now overruled) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in them. Upon the whole, it appears that a person attainted is neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished forever: the consequence of which is, that estates thus impeded in their descent result back and escheat to the lord. This corruption of blood, thus arising from feodal principles, but perhaps extended further than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive parts of the feodal tenures being now, in general, abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty (which, however severe, is sufficiently justified upon reasons of public policy), but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And, therefore, in most (if not all) of the new felonies created by Parliament since the reign of Henry the Eighth, it is declared that they shall not extend to any corruption of blood; and by statute 7 Ann., c. 21 (the operation of which is postponed by the statute 17 Geo. II., c. 39), it is enacted that, after the death of the late Pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself:" which provisions have, indeed, carried the remedy further than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor." a Dyer, 48. r Co. Litt., 8. (28) These provisions in the 7 Ann., c. 21, and 17 Geo. II., c. 39, are repealed by the 39 Geo. III., c. 93. (29) A more general remedy has been provided by the stat. 54 Geo. III., c. 1 Hal., P. C., 357. 145, which enacts, that no attainder for felony, after the passing of the act, except in cases of high treason, petit treason (since abolished), or murder, or abetting or counseling the same, shall extend to the disinheriting of any heir of escheat in Before I conclude this head of escheat, I must mention one Exception singular instance in which lands held in fee-simple are not liable to the rule to escheat to the lord, even when their owner is no more and the case of a hath left no heirs to inherit them. And this is the case of a corporation. corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat; which is, perhaps, the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law, we are told,t doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant faileth. This is, indeed, founded upon the self- [257] same principle as the law of escheat; the heirs of the donor being only substituted instead of the chief lord of the fee: which was formerly very frequently the case in subinfeudations, or alienations of lands by a vassal to be holden as of himself, till that practice was restrained by the statute of quia emptores, 18 Edw. I., st. 1, to which this very singular instance still, in some degree, remains an exception.' 30 There is one more incapacity of taking by descent, which, Papistry. not being productive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 & 12 Will. III., c. 4," that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent, as well as purchase, any real estates whatsoever; and his next of kin being a Protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal; it affects himself t Co. Litt., 13. nor to the prejudice of the right or title of any person other than that of the offender during his life. As to the effect of attainder for treason on a title or dignity, see The Braye Peerage Case, 8 Scott, 108. Copyholds are not forfeited to the crown even for treason. (1 Sid., 435; 2 Vent., 38.) But in some places, by special custom, the lands escheat to the lord on conviction of felony, without attainder. (3 B. & Al., 511.) (30) The authorities do not agree on this point. (See Harg., Co. Litt., 13, b, n.) And see, as to an advowson in gross, 1 Roll. Abr., 116, pl. 6. (31) By the 18 Geo. III., c. 60; 31 Geo. III., c. 32, and 43 Geo. III., c. 30, so much of the 11 & 12 Will. III., c. 4, as disabled papists to inherit by descent, The Roman Catholic Relief Act (10 |