241.356. 26 Hen. 8. would have mentioned so important a point. Lord Hale, in his Pleas of the Crown, professes to give a full account of the doctrine of forfeiture for high treason, to which he has Ch. 28. Vol. I. dedicated a long chapter. He has twice stated Lord Lumley's case: but is totally silent as to the consequence of an attainted issue in tail surviving his ancestor. Is it probable that if he thought the circumstance of survivorship would create a forfeiture, he would have omitted to state it? Ante, p. 159. Serjeant Hawkins is equally silent on this head; nor is this doctrine mentioned by Mr. Yorke in his Considerations on the Law of Forfeiture, though Lord Lumley's case is there stated. These negative authorities must appear quite conclusive, when it is considered that they are fully supported by principle. With respect to dignities, the principles of law that have been stated apply as directly to them, as to estates in land; for it would be extremely dangerous to admit of any distinction. It may therefore be laid down (1) That though an estate tail in a dignity is forfeited by the attainder for treason of the person actually having it, according to Nevil's case, yet that the attainder for treason of the eldest son of a tenant in tail of a dignity, in the litetime of his father, does not create a forfeiture of a dignity; because such eldest son had it not to forfeit. (2) That if such eldest son survives his father, the dignity does not, as to any purpose, descend on him; because his attainder disables him from taking a dignity by descent, as effectually as it disables him from taking lands intailed, by descent. (3) That, as no corruption of blood takes place in this case, a title, or rather a pedigree, may be deduced through such attainted son, after his decease. In support of this proposition the case of the dukedom of Athol is stated; and it is said that the House of Lords in that case acted upon the principle that a dignity in tail may be claimed, per formam doni, under a limitation in letters patent, by a son surviving an attainted father, who never was tenant in tail in possession of such dignity; there being no corruption of blood in the succession to an estate tail, in lands or dignities. (4) That during the life of such eldest son the dignity becomes vested in the Crown, or is suspended, or in abeyance, but is not destroyed; and, therefore, that after the death of the eldest son, the next heir in tail becomes entitled to such dignity. The case of Lord Bolingbroke is then stated; and it is said Ante, 157. to be perfectly clear that the dignity created by the special limitation was a vested estate in Sir Henry St. John, descendible to the heirs male of his body; and would have descended, on his death in 1742, to his eldest son Henry, if he had not been attainted. The position of the Attorney-General that under the remainder to Sir Henry St. John and the heirs male of his body his eldest son and his issue male were excluded, is perfectly untenable; for it is impossible to contend, upon any principle of construction, that under a limitation to A. and the heirs male of his body, the eldest son of A. can be excluded from taking, by any estate already limited to such eldest son. If an authority were wanting in such a plain case, the following passage from Lord Coke is decisive,-" If a gift be made to the 1 Inst. 272 a. eldest son, and to the heirs of his body, the remainder to the father and the heirs of his body, the father dieth, the eldest son levieth a fine with proclamations, and dieth without issue, this shall bar the second son, for the remainder descended to the eldest." It follows that in consequence of the attainder of Lord Bolingbroke, the dignity which had been limited to Sir Henry St. John became upon his death suspended, or vested in the Crown during the life of Lord Bolingbroke; but upon his death it descended to his nephew; so that in this case, which it is presumed was fully considered, Lord Hardwicke being then Chancellor, and Sir Dudley Ryder Attorney-General, the House of Lords must have admitted that the circumstance of an attainted person's surviving his ancestor, from whom a dignity would have descended to him, as issue in tail, if not attainted, did not destroy the dignity, but only suspended it; and that on the death of the attainted person, it descended to the next issue inheritable to such dignity. The following question was put to the Judges:-Whether, if lands were granted by the Crown to A. B. and the heirs male of his body lawfully begotten; and A. B. had issue a son named C. D., and C. D. had also a son named E. F.; and C. D. in the lifetime of his father committed high treason; and it was by act of parliament enacted that he should stand and be adjudged attainted of the said high treason to all intents and purposes whatsoever, and should suffer and forfeit as a person attainted of high treason by the laws of the land ought to suffer and forfeit, and A. B. afterwards died in the lifetime of C. D., and C. D. the attainted person then died, E. F. the son surviving, E. F. would be considered in the courts below, after the death of C. D., as entitled, under such grant, to the lands so granted? Lord Chief Justice Gibbs delivered the opinion of the Judges as follows:-"We are of opinion that E. F. would not be considered in the courts of law, after the death of C. D. as entitled, under such grant, to the lands so granted. "It has been contended on the part of those who have argued for the interests of E. F. that his interest in this case is protected by the statute De Donis, and is not within the peril of the 26 Hen. 8., and consequently is not forfeited to the Crown. But we are of opinion that it is not, under the circumstances stated to us, protected by the statute De Donis: and we are of opinion likewise, that if those who have argued for the claim of E. F. could persuade you Lordships to adopt the principle upon which they have endeavoured to bring it within the statute De Donis, they would by establishing that principle, bring it also within the operation of the 26 Hen. 8. and subject it to forfeiture, by the attainder of C. D. "It is quite clear that if the case put to us had occurred upon an estate in fee simple conditional, before the statute De Donis, the land granted would have reverted to his Majesty, as upon a failure of issue described in the grant; for the tenant in tail dying while the next issue in tail stood attainted of high treason, such issue could not have taken, because his blood was corrupted the attainder; and the reversion would fall to the Crown, for want of issue capable of inheriting under the grant. The King would then be in by way of reverter; and, being in by way of reverter, his title would be paramount to all charges upon the estate tail. This would have been the case before the statute De Donis; and we think that the statute has not altered it. "The statute De Donis recites that donees in tail, after issue born, had been used to make alienations to the prejudice of the issue in tail, and also to the prejudice of the donor; and it enacts that such alienations shall not prejudice the issue, or the donor, or his heirs. This is all the statute does. I know that it has received a very large construction for the protection of the issue in tail: I know that a criminal act done by a tenant in tail by which, upon attainder, he forfeits his estate, has been held to fall within the description of alienation, in the statute; and therefore it is that if a tenant in tail be attainted of high treason, and so the estate passes from him by forfeiture, the issue in tail is protected by the statute, as from an alienation by the tenant in tail; but that is not the present case. Here is nothing done by the tenant in tail either to alien, forfeit, or otherwise put away his estate; nothing which can possibly be brought within the term alien in the statute and therefore the case remains as at common law. The estate tail is extinguished, for want of issue capable of inheriting, on the death of the tenant in tail, and the land reverts to the King, who has the reversion in fee, the grant having originally proceeded from the Crown. the "It has been argued very strongly by the counsel for the claimant that corruption of blood, as far as it regards the succession to estates tail, is wholly taken away by the statute De Donis; and that this disability being removed, E. F. must of course be entitled to take, under the protection of the statute. Whether corruption of blood be or be not taken away must depend upon the language of the statute, and in some degree, upon decided cases. Now, upon looking into the statute itself, I find not a word to support such a proposition. It protects the interest of the issue in tail in certain cases, and likewise the interests of the donor; and as far as such issue would have been prevented from taking before the statute, by corruption of blood, so far in those cases the effect of corruption of blood is taken away in their favour. Where protection is given to the issue by the terms of the statute, corruption of blood does not prevent its taking full effect; it is incidentally removed in those cases, but in no others, and the statute has no further operation in taking away corruption of blood. The question always is, whether the interest of the issue in tail be or be not protected by the terms of the statute; where it is not, corruption of blood remains, as it did before at the common law. "This is a material view of the case, as it goes to the foundation of their argument. The tenure from the Crown would also furnish a decisive objection, if it were wanted, to the claim of E. F. There are many authorities to shew, (and this I believe Cro. Eliz. 519. is the doctrine of all the Judges, in all cases in which the question has occurred,) that when land passes, as in the case put to us, by a grant of the Crown, in tail, with the reversion in the Crown, and the tenant in tail himself is attainted of high treason, the Crown is in of his reverter. That the estate tail is extinguished and at an end, and consequently the issue is not within the protection of the statute De Donis. So it has been held in all cases that have occurred where the tenant in tail is himself attainted. "I am not aware that any case has occurred upon the attainder of the issue, on whom the inheritance would otherwise descend, which is the case before your Lordships. But the same reasoning applies with equal force, and I should say a fortiori to it. "Now I will state shortly the cases to which I have alluded. First, there is a case in Dyer 115, in which this question presented itself in the most unfavourable view it could assume for the Crown. The tenant in tail made a lease, which was voidable, as against the issue in tail, but void as against the donor. The tenant in tail died; and the next issue in tail accepted rent from the lessee, and thereby confirmed the lease, which therefore stood good against him and his issue. The issue in tail afterwards committed high treason, and was attainted thereof, and the Attorney General filed an information of intrusion in the exchequer against the person who held under the lease; and the question to be decided was, whether the Crown took the estate, subject to the lease, or free from it. And the court, after long argument and much consideration, was of opinion that the Crown took the estate free from the lease; for they said, (I use nearly the words of Dyer,)" The intail is utterly extinct and determined, and then the King is seised of his ancient fee simple executed; of course he takes independent of the lease, which springs out of the estate tail, and must come to an end with it." "There is another case of the Queen v. Hussey, and which I cite, not as containing a decision on the point, but a recognition of the same doctrine. That was the case of a tenant in tail holding from the Crown, and a re-grant by him to the Crown ; and there a question arose upon the effect of the re-grant. And in the judgment upon that case, it is likened to the case of a tenant in tail, with a reversion in the Crown, committing high treason, and being attainted thereof, in which case the judges |
