As to the third particular, viz. To what time the forfeiture shall relate. 30 H. 6. 5. Sect. SO. It seems (~) agreed, that the forfeiture upon an at- () F. Forf. 3. tainder either of treason or felony, shall have relation to the time 30. of the offence, for the avoiding of all subsequent alienations of S. P. C. 192. the lands; but to the time of the (a) conviction, or fugam fecit F. Counterp. de found, &c. only, as to chattels; unless the party were (b) killed Voucher, 30. in flying from or resisting those who had arrested him; in which 8 Coke, 170. case it is said, that the forfeiture shall relate to the time of the 38 Edw. 3. 32. offence. (a) F. Forf. 30. Staundforde's Prerog. 48. ture, 119. F. Corone, 296. 1 Hale, 362. 1 Hale, 362. Co. Litt. 2. Plowden, 488. 1Hale, 360, 631. S. P. C. 192. B. Relation, 31. Exposition, 26. Forfei(b) Vide sup. s. 16. S. P. C. 192. Sect. 31. But it seems (c) unsettled, whether in præmunire it shall relate to the time of the offence, or only to that of the judgment. F. Corone, 290, (c) C. Car. 172. Jones, 217. Sect. 32. It seems the better (d) opinion, that no attainder (d) 8 Coke, 170. whatsoever shall have any relation as to the mesne profits of the Plowden, 488. lands of the person attainted, but only from the time of the at- 38 Edw. 3. 32. tainder. 191. and the contrary seems holden. F. Corone, 290. 344. See also F. Forfeiture, 16. Finch, 326, 327. As to the fourth particular, viz. What shall be done with the goods of an offender both before and after they are actually forfeited. one any Sect. 33. It seems to have been always (e) agreed, that indicted or appealed of treason or felony may bonâ fide sell of his chattels real or personal for the sustenance of himself and family until they be actually forfeited. But this is made a quare S. P. C. F. Cor. 374. Fleta, b. 1. c. 26. s. 1, 2. 8 Coke, 171. 7 H. 4. in the last date. S. P. C. 193. 1 St. Tr. 994, 995. 4 St. Tr. 65, 66, 454. 1 Hale, 362, 367. But if they are conveyed over for the purpose of avoiding the forfeiture, it is fraudulent and void, Skinner, 357, 358. Sect. 34. Also it seems (f) agreed, that the goods of such (f) See the ciperson can in no case be lawfully removed out of his house until tations to the they be forfeited. foregoing and following section. Sect. 35. Yet according to the general tenor of the old (g) books, the goods of one (h) arrested for treason or felony, may by the purview of an ancient statute, which (i) seems to continue (g) Fleta, b. 1. still c. 26. s. 2. Bracton. b. 3. c. 18. s. 2. Britton, f. 4. S. P. C. 52, 192. Staundf. Prerog. 47, 48. 1 Hale. 263, 364. It is said, 26 Assize, 32. Ab. B. Corone, 102. that justices of oyer, &c. shall put the chattels of felons in estreat presently, &c. and deliver them to the towns, &c. to answer to the king in eyre. But this seems intended of the chattels of one convict of felony. And in 44 Assize, 13. and 43 E. 3. 21. Ab. B. Corone, 9. Forfeiture, 7. Reseiser, 3. Office and Officer, 3. F. Trespass, 7. Bar. 196. the 2d. it is said, that no minister of the king ought to take the chattels of an appellee of felony away with him, but to seize them, and cause the party to find surety that they shall not be eloigned, &c. And if the party cannot find surety, he ought to deliver them to the neighbours, &c. And in the last case of 7 H. 4. Ab. F. Cor. 83. and B. Forfeit, 10. it is said, that where one is indicted of felony, until he be attainted, his goods shall not be removed out of his house, but shall be kept by his neighbour, until, &c. and in the mean time the felon ought to live upon his goods. Vide 41 Assize, 13. Ab. F. Process, 183. B. Forfeit, 40. 13 H. 3. 13. in which books it is said, that goods shall not be seized till they be forfeited. (h) The old writ recited Bracton, b. 3. c. 18. sect. 2. and Fleta, b. 1. ch. 26. sect. 2. is express to this purpose: yet in 3 Inst. 228. it is said, that the goods of any delinquent cannot be inventoried and the town charged therewith before the owner is indicted of record; and a note in Summ. 269. seems to be to the same effect, and 1 Hale, 367. (i) 1 St. Tr. 994, 995. 4 St. Tr. 65, 66. S. P. C. 139. still in force, be immediately inventoried and appraised; after which, and on surety found that they shall be forthcoming, they shall be kept by the bailiffs of the party arrested, and, for want of such surety, by his neighbours, till he be convicted, or found to have fled, &c. whereby they are actually forfeited. Sect. 36. Also it was enacted by the statute De Officio Coronatoris (set forth more at large ch. 9. sect. 19, 20.), that where one is found guilty of murder by a coroner's inquest upon the view of a dead body, the coroner shall inquire what goods he hath, and cause them to be valued and delivered to the township, &c. But so much of this statute as enables the coroner to seize the (k) S. P. C. 52. goods, (k) seems to be repealed by 1 Rich. 3. (set forth more at large, sect. 38.), unless the party indicted be found also to have fled. Sect. 37. Also by 25 Edw. 3. c. 14. set forth more at large ch. 27. sect. 116. it is enacted, "That in the second capias given by that statute on the return of a non inventus, it shall be comprised, that the sheriff shall cause the party's chattels to be "seized, and safely kept till the day of the writ or precept (1) S. P. C. 193. "returned, &c." and this is still in (/) force, notwithstanding the statute of 1 Rich. 3. c. 3. for this prohibits only the seizing of the goods of those who are arrested. 1 Hale, 366. Staund forde, Vide 1 Hale, 366, 367, for a variety of obser vations upon this act. (m) For prece dents of such (n) Vide Sup. s. 33, 34, 35. S. P. C. 193. Sect. 38. And so far as it relates to this purpose, it is enacted by the said statute 1 Rich. 3. c. 3. as followeth : "And that no sheriff, under-sheriff, nor escheator, bailiff of franchise, or any "other person, take or seize the goods of any person arrested or imprisoned for suspicion of felony, before that the same person "so arrested and imprisoned be convicted or attainted of such "felony according to the law, or else the same goods otherwise "lawfully forfeited, upon pain to forfeit the double value of the goods so taken, to him that is so hurt in that behalf, by (m) ac❝tion of debt, &c." 66 Sect. 39. This statute is said to be in (n) affirmance of the common law, and hath been (o) adjudged to extend as well to (0) 1 Ray. 414. the seizure of money as of any other chattel. (p) Co. Litt. 391. (9) F. Corone, 300, 347, 306. 13 H. 4. 13. 6. Ab. F. Forf. 32. 193, 194. Sect. 40. It seems plain from this statute, that goods may be seized as (p) soon as they are forfeited; and it seems, the whole township is answerable (q) for them to the king (1), and may seize them (r) wherever they can be found. 22 Assize, 81. Ab. F. Corone, 181. B. Charge, 45. Staundforde's Prerogative, 47. 47 E. 3. 26. (r) 23 Assize, 81, Forfeiture, 32. Staundforde's Prerogative, 47. B. Charge, 45. (s) F. Corone, 300, 347. S. P. C. 194. Forfeiture, 32. S. P. C. Sect. 41. And at the common law it was no (s) plea for such township, that the goods were delivered to the custody of J. S. who embezzled them, &c. But it is enacted by 31 Edw. 3. c. 3. "That if any man or town be charged in the exchequer by es"treats of the justices of the chattels of fugitives and felons, and "will allege in discharge of him another which is chargeable, he "be heard, and right done to the other." As (1) Whether the king takes the forfeited goods, subject to the debts of the party, vide Douglas, 542. As to the SECOND POINT, vis. Where the wife loses her dower. 37.41. 392. 3 Inst. 47. 211. Hale, 359. 1 (u) Co. Lit. 37. 41. Sect. 42. It is agreed, that before the statute of 1 Edw. 6. (t) S. P. C. 194. ch. 12. the wife not only lost her dower at common law (t) Co. Litt. 31. but also her dower (u) ad ostium ecclesiæ, or ex assensu patris, or Litt. s. 747. by special (r) custom (except that of (y) gavel-kind), by an attainder of any treason or (2) capital felony, whether (a) committed before or after the marriage, and whether the lands were in the hands of a (b) feoffee, or forfeited to the king, or escheated to the lord of the fee, and though the (c) attainder were pardoned, &c. Bracton, 311. Winch, 27. (y) Bracton, 311. () Co. Litt. 41. 1 Hale, 359. (b) 3 Inst. 216. Sav. 54, 55. Co. Litt. 41. Benlowe, 55, 56, 57. Dyer, 140. by Vavasor. Litt. s. 55. (e) 1 Leonard, 3. Sect. 43. But it (d) seems, that the wife never forfeited lands given jointly to her husband and her, whether by way of frankmarriage or otherwise, but only for the year and day and waste (e). S. P. C. 195. Bracton, 311. (r) Co. Litt. 41. (a) Co. Litt. 31. Moor, 639. Con.. (d) Co. Litt. S7. Inst. 216. 3 Bracton, 129, 130. (e) Bracton, 129. Supra, s. 8. Con. Bract. 130. 879. Sect. 44. Also it hath been (ƒ) adjudged, that if a husband (f) 3 Inst. 216. having levied a fine with proclamations, is afterwards erroneously Moor, 639. attainted of high treason, and the five years pass after his death, and then the outlawry is reversed, the wife may pursue her title of dower within five years after such reversal; because being barred of her dower by the attainder while it stood in force, which attainder she could no way reverse, she had no remedy to pursue her title of dower within the five years, and therefore shall not be barred by her non claim. Sect. 45. By 1 Edw. 6. c. 12. s. 17. " Albeit any person shall "be attainted of any treason or felony whatsoever, yet that not"withstanding every woman who shall fortune to be the wife of "the person so attainted, shall be endowable and enabled to "demand, have, and enjoy her dower in like manner and form as though her husband had not been attainted, &c." See Harg. Co. Sect. 46. But this is repealed as to treason by 5 and 6 Edw. 6. c. 11. par. 9. by which it is enacted, "That the wife whose "husband shall be attainted of any treason whatsoever, shall in "no wise be received to ask, challenge, demand, or have dowry "of any the lands, tenements, or hereditaments of the "attainted during the said attainder in force." And this hath been construed (g) to extend as well to an attainder of petit treason, 392. as of high treason. person so As to the THIRD POINT, viz. How far the blood is corrupted by an attainder of treason or felony, the following particulars seem most remarkable. (g) S.P. C. 195. 1 Hale, 359. Sect. 47. FIRST, It is (h) agreed, that by (i) such an attainder (h) 3 Inst. 211. the blood is so far stained or corrupted, that the party loses all the S. P. C. 195. nobility and gentility he might have had before, and becomes (i) But an atignoble. tainder of piracy. (B. 1. tit. "Piracy," s. 6. 8. Co. Litt. 391.) or petit larceny corrupts not the blood. 3 Inst. 112. Co. Litt. 41. Noy, 170. Sect. 48. SECONDLY, It is also (k) agreed, that he can neither () Co. Litt. 8. inherit as heir to an ancestor, nor have an heir. 391, 392. S. P. C. 195. B. Nonabil. 21. Corone, 60. Sect. (1) C. Car. 543. Noy, 159. 166. Levinz, 60. Sect. 49. THIRDLY, It is also further (1) agreed, that wherever it is necessary for any one who would make a title to another to derive the descent through him, the attainder is a bar to such title, (m) unless the land were intailed. And therefore if there be grandfather, father and son, and the father be attainted, it is clear, that the son (n) cannot claim as heir to the grandfather of the 1 Sid. 200, 201, lands in fee-simple, because he must of necessity derive the de(m) 3 Coke, 10. Litt. sec. 746, scent through the father, which by reason of the attainder he can747. not do. And for the same reason, if there be two brothers, and one of them having issue a son, be attainted, and either the son or uncle purchase land and die without issue, the other (0) cannot be his heir, because the blood of the father, through whom the descent must be conveyed, is corrupted. 1 Hale, 356. 8 Coke, 166. (n) 1 Ventris, 416. 418. Dalison, 14. 1 Hale, 356. Co. Litt. 392. (p) C. Car. 543. 417, &c. &c. 1 Levinz, 60. (0) C. Car. 543. Dyer, 274. 1 Ventris, 413. 416. 425. 1 Hale, 357. But it seems a (p) general rule, that the attainder of a person who needs not be mentioned in the conveyance of the descent, does no hurt, let the ancestor be never so remote; and à fortiori, therefore it seems clearly to follow, that where one may claim as immediate heir to another, without deriving the descent through any other, he shall not be barred by the attainder of any other. 1 Sid. 200, 201. And therefore it seems (q) agreed, that if the son of one attainted purchase land, and have a son and die, such son shall inherit him, because he derives his descent immediately from him. And for the like reason it hath been (r) settled, that if a man hath two sons, and then be attainted, and one of the sons purchase lands and die without issue, the other shall be his heir, because he may make his title without mentioning the father. Vide Bracton, b. 3. c. 14. (9) 1 Ventr.416. 1 R. Ab. 625. C. Car. 543. 1 Ventris, 425. Palmer, 19. 1 Levinz, 59. 2 Roll. 93. 2 Siderfin, 25. 27. This is left doubtful, Moor, 569. Noy, 158, &c. Con. Litt. Rep. 28. (s) Co. Litt. 8. 1 R. Ab. 625. (t) 1 Sid. 193. Noy, 159. 167. 168, 169. 2 Siderfin, 248, This also appears from 13 H. 7. 17. Abridged Bro. But Sir Edward Coke (s) says, that the reason of this case is, "because the attainder of the father corrupts only the lineal blood, and not the collateral blood between the brethren, which was vested in them before the attainder;" but he saith, "That some have holden, that if a man after he be attainted have issue two sons, the one cannot be heir to the other, because they could not be heir to their father, for that they never had any inheritable blood in them." But the ground of this opinion seems to be overthrown by the resolution in the case of Collingwood v. Pace, wherein it was adjudged (t) in the exchequer-chamber by seven judges against three, that the sons of an alien might be heirs to one another if born in England, or naturalized; and yet it is certain that they could not be heirs to their father. Also it seems to (u) be the better opinion, that where a person attainted hath issue by a woman seised of lands of inheritance, such issue may inherit the mother, though he never had any inheritable blood from the father. Sect. and wherein it is holden, That if the husband of an inheritrix have issue, and be attainted of felony and pardoned, he shall not be tenant by courtesy by reason of the issue born before the pardon, but by reason of issue born after he shall; from whence it necessarily follows, that such issue must be inheritable to the wife. Also it is admitted, Co. Litt. 84. b. That the issue of an inheritrix by an alien, or a person attainted may be in ward, which could not be unless he could inherit the mother. Vide C. Jac. 539. Litt. Rep. 28. 1 Levinz, 59, 60. But the contrary was anciently holden. 3 Coke. 41. Bracton, b. 3. c. 13. s. 19, 30. (*) Co. Litt. 2. Fleta, b. 1. 28. s. 9. 13. B. M. d'An c. Co. Litt. 8. Sect. 50. FOURTHLY, It seems clear, that notwithstanding a person attainted be to many purposes looked upon as dead in law, yet he hath a capacity to (x) purchase land, which the king shall have upon office found. Also if the father of a person attainted die seised of an estate of inheritance during his life, no cestor, 36. (y) younger brother can be heir, but the land shall rather escheat; S. P. C. 195. B. for the elder brother, though attainted, is still a brother, and no Bracton, b. 5. other can be heir to the father while he is alive; but it seems (z) F. Petition, 20. agreed at this day, that if he die before the father, the younger M. d'Ancestor, brother shall be heir. c. 6. s. 7. 28. Descent, 7. 1 Ventris, 413. 417. 1 Levinz, 60. 29 Assize, 11. Noy, 166. 170. 1 Siderfin, 195. 26 Assize, 2. (3) See the books next above cited, and Bro. Descent, 64. Con. Bracton, b. 3. c. 14. s. 17. 391, 392. Sect. 51. FIFTHLY, It is clear, that the corruption of blood from an attainder is so high, that it cannot be absolutely salved but by the act of parliament; for it seems (a) agreed, that the (a) Co. Litt. 8. king's pardon cannot restore the blood so as to make the person 3. P. C. 195. attainted capable either of inheriting others, or of being inherited 3 Inst. 233. himself by any one born before the pardon. (b) Yet if such per- Dalison, 14. son have a son born after the pardon, and purchase lands and die, 1 Hale, 358. such son may be his heir, unless he have an elder brother alive Con. 9 H. 5. 9. (b) See the born before the pardon; for a pardon doth as it were make a man books next a new creature, and give him a new capacity, in respect whereof above cited. his issue born after the pardon may be his heir, as to lands purchased after the pardon, in the same manner as if he had never been attainted. 66 + Sect. 52. By 7 Ann. c. 21. s. 10. it is enacted, (1)" That after "decease of the Pretender no attainder for treason shall extend "to the disinheriting of any heir, nor to the prejudice of the right or title of any person or persons, other than the right or title of "the offender or offenders during his, her, or their natural lives "only; and that it shall and may be lawful to every person or * persons to whom the right or interest of any lands, tenements, "or hereditaments, after the death of any such offender or offenders, should or might have appertained, if no such attainder "had been, to enter into the same." 66 + Sect. 53. But by 17 Geo. 2. c. 39. s. 3. "The said provision 66 so made by the said last recited clause of the 7 Ann. c. 21. shall "not take place, nor have any operation, force, or effect whatso"ever, until after the deceases, not only of the said Pretender, "but also of his eldest, and all and every his son and sons." (1) For the history of this act, which is rather curious, see 4 Black. Comm. e. 27. And as the Stuart family is now extinct, corruption of blood for treason is virtually abolished. The same is also now abolished in felony by 54 Geo. 3. c. 145. Vide ante, p. 639. CHAP. |