Jurisdictions, Part 35
Forfeiture.
And for that, that you ought to inquire, what Lands and Goods thoſe attaint of Felony have, it is now to ſee what the King ſhall have and what the Lord, by attainder of one in Felony and what not.
WEE ſhall not keep the Lands of thoſe which are convicted of Felony, but for a yeare and a day, and then the Lands ſhall be delivered to the Lord of the Fee, Magna Charta, chap. 22. ſee Stamford 190.
If the Lord entet after the yeare and day, where he ought to have a Writ to put him in, the King ſhall reſeiſe, 8. Ed. 2. tit: Treſpaſſe 48.
The King ſhall have all Chartells of Felons condemned and fugitives, and if they have a free-hold, then that forthwith ſhall be taken into the Kings hands, and the King ſhall have all the profits by a yeare and a day. And that the Tenement ſhall be waſted and deſtroyed, &c. and after the yeare and day it ſhall be given to the cheif Lords, Prerogative, chap. 16. Raſtall 5.
Note that a man ſhall not forfeit his Lands in no caſe but where Judgment is given, and that is in three manners, that is to ſay, Where one is Outlawed of Felony, or abjures, or is hanged, for they make but three manner of Writs of Eſcheate, that is, for which he is Outlawed for which abjured, and for which he is hanged, and for that it is ſaid if one riſe againſt the King and is ſlain, that he ſhall not forfeit his Lands untill he be afterwards attaint by Parliament, as in uſe, 7 H. 4. fol. 33. the ſame, 7 H. 4. fol. 48.
See Stamford, fol. 49. The King ſhall have yeare day and Waſte, and Chattells forfeited.
Fitzh: 144. It ſeemeth that the King ſhall have yeare day and waſte, where one is convict of Felony, and that is the next yeares profits, for if one taketh the profits that yeare and day, the Lord ſhall have a Writt to the Sheriff to deliver him poſſeſſion, and he which hath taken the profits ſhall anſwer to the King for that.
Fitzh: 144. N. The King ſhall have the eſcheat of Tenements in Cities and Borroughs, which are held of him in fee farme.
Fitzh. 6. b. The King as it appeares by the Regiſter ſhall have a Writ of eſcheate returned into the Kings Bench, for the King may ſue in what Court he will.
31. Ed. 1. tit. diſcent 17. f. If the Son and Heire of A. be Outlawed in the time of his Father of Felony, and after he purchaſe his Charter of pardon in the life time of his Father, and after the Father dies, he ſhall not have the Lands deſcended from his Father, but the Lord of whom they are held by eſcheate.
9 H. 5. fol. 9. the ſame, 1. Ed. 1. tit. diſcent 15. the blood is corrupt which cannot take by diſcent.
26. Of the booke of Aſſiſes 2. If the Son be attainted of Felony in the Life time of his Father and hanged, his Siſter ſhall have the Land by deſcent from the Father, and it ſhall not eſcheate.
46. Ed. 3. tit. diſcent 6. If the Father have a Son and a Daughter, and the Son be attaint of Felony in the life time of his Father and dieth, there the Daughter ſhall have the Land, and if he ſurvive the father, then the Lord by eſcheate, 8 Ed. 1. tit. Aſſiſe 421.49. book of Aſſ. 4.
3. booke Aſſiſe, Where the Tenant grants a rent-charge out of his Land, and after that eſcheates, the Lord ſhall hold this charged, but otherwiſe it is where a Tenant which holds of the King, chargeth and dieth without Heire, 4 Ed. 4. fol. 2. If that be found by Office, yet it cannot be.
Natura brevium, 103. In a Writ of Eſcheat it is no Plea that he died not ſeiſed, but it is a good Plea that he did not dy his Tenant.
Fithz. 144. C, If the Tenant be diſſeiſed, and after dieth without Heire, it ſeemeth the Lord ſhall have a Writ of Eſch eate, for that, that his Tenant died in his Homage, 2 H. 4. fol. ninth, the ſame.
Fitzh. 144. If a man be beheaded for Felony or dy after Judgment, before he be put in execution by the Officer, yet the Writ ſhall ſay, for which he was hanged, Na: Bre: fol. 104. the ſame.
11 H. 4. fol. 16. One may have eſcheate and ward before he be ſeiſed of the ſervices, Littleton 106. if a Signiory be granted by fine.
See 2 and 3 Ed. 6. chap. 8. Where one hath a Rent, &c. The King is intitled to the Land by attainder, and that is not found in the Office, yet he himſelf ſhall have his Rent by the Statute.
And it is to ſee now, where a forfeiture ſhall be of Goods onelyonly and not of Lands, and where not.
ONe indicted that he killeth one (in defending himſelf) by Fairefax he ſhall be arraigned and ſhall looſe his Goods, 21 Ed. 3. fol. 18. and ſhall not forfeit his Lands, 4. H. 7. fol. 2. fol. 18.
Where one killeth one (in defending himſelfe) or by miſchance, he ſhall forfeit his Goods and not his Lands, Stamford fol. 45.
If one kill another by misfortune he ſhall forfeit his Coods, and it behoveth that he have his pardon of grace, Stamford, fol. 185. the ſame, 26 H. 6. fol. 6. the ſame, and he ſhall not forfeit his Lands, 2. H. 4. fol. 20.
One arraigned pleads not guilty, and it was found thatthe dead ſtruck the other to the ground, and for haſte fell upon the blade of him that lay upon the ground, he lying upon the ground ſhall not forfeit his Goods, but if it were found that he kils him (in defending himſelf) it is otherwiſe, 44 Ed. 3. fol. 44.
49. Ed. 3. fol. 5. Where a man is indebted to a man attainted by ſpecialty, the King ſhall have it, contrarily if it be without ſpecialty, for the Debtor may wage his Law againſt him which is attainted, contrary againſt the King, but in the Exchequer it was held that debt to be forfeit to the King, 16. Ed. 4. fol. 4.
A man cannot wage his Law againſt the King, 50. Ed. 3. fol. 1. Stamford 183. See forfeiture, upon he made his flight, and fol. 184. upon an Exigent awarded, and fol. 185. upon a Clerk convict, and fol. 187. of Lands and of a thing in action and ſo further of Forfeiture.
Clerke convict ſhall forfeit all his Goods, but not his Lands but the Clerke attaint ſhall forfeit his Lands, 40 Ed. 3. fol. 42. Fitzh. fol. 66. yeare, 20 Ed. 4. fol. 5.
Clerke convict ſhall forfeit his Goods, notwithſtanding that after he makes his purgation which now is not made by the Statute of 18. Eliz. chap. 7. And then he ſhall forfeit the Iſſues of his Lands till he hath made his purgation 8. Ed. 2. Forfeiture 34. and Stamford, fol. 185.
A Clerk convict is not out of the Law as an Alien is, for his Heire ſhall inherit his Lands after his death, 3. H. 7. fol. 12 and 21. H. 7. fol. 31.
A Woman out of her wits killeth her Husband, ſhe ſhall forfeit nothing, Stamford, fol. 45. Where a man diſtracted kill one he ſhall forfeit nothing 3. Ed. 3. forfeiture 25.
Executors Outlawed ſhall not forfeit the Goods, which they have as Executors, nor by attainder of Felony, 32: H. 6. fol. 34.
By award of Exigent in Felony, though he be acquitted afterwards, his Goods are forfeited, 44, Ed. 3: fol. 17: and Stamford fol. 184. D: 22 booke of Aſſiſes 81.
By award of Exigent, Goods and Profits of his Lands are forfeited if the Exigent be not erroniouſly awarded, Stamford fol. 47.
If one be indicted upon the view of the body, before the Coroner, of death, all his goods are forfeited, though that he be acquit afterwards, Stamford, fol. 45. See 5. H. 4. 13. H. 4. fol. 15.
If a man be convict of Hereſie, and be delivered to the Lay power, his Goods are forfeited, though that he be not put in execution; but his Lands he ſhall not forfeit, unleſſe he be put to death, Doctor and Student, fol. 14.
One killeth himſelf, he ſhall forfeit his Goods and not his Lands, 3 Ed. 3. Tit. Coron. 201. 8. Ed. 2. Tit. Corone. 420.
The Goods of them which hang themſelves are confiſcate, 8. Ed. 4. fol. 4.
One put to his penance ſhall not forfeit his Lands but Goods, 14. Ed. 4. fol. 7.
For petty The every one shall forfeit his Goods, but not his Lands at this day, 8. Ed. 2. Coron. 406. 22. Book of Aſſiſes, 41. the ſame, 27. H. 8. fol. 27.
If Tenant in Tail be attaint of Felony or Treaſon, he shall forfeit his Goods, but his Iſſue shall have his Lands: but by the Statute of 5 & 6. of Ed. 6. chap. 11. For high Treaſon Tenant in Tail shall forfeit his Lands, 7. H. 4. fol. 33.
By Outlary in Debt or Treſpaſſe, the outlawed shall forfeit his Goods but not his Lands but the King shall have onelyonly the profit of his Lands, 21. H. 7. fol. 7. Yet the party outlawed may make a Feoffment, and it is good, 9. H. 6. fol. 52. verbatim.
One killeth a man and flies, therefore his Goods are preſently confiſcated; and ſee Stamford, fol. 183. Upon a making flight, found, though afterwards he be acquited, he shall forfeit his Goods, 8. Ed. 2. Coron. 390.
If an acceſſary before the Felony fly, he ſhall forfeit his Goods, but otherwiſe of him that is acceſſary after the Felony, Stamford, fol. 47. the ſame, 4. H. 7. fol. 19. VVhere in arreſt for Felony, one is ſlain in flying the arreſt; he which is ſlain shall forfeit his Goods, and yet he was not attaint, Stamford, fol. 46.
Lands which a man attaint hath at the day of the Felony done are forfeited, but no Goods, but thoſe which he hath at the time of the Judgement.
By an Outlary in Felony he shall forfeit his Chattels; but if one give them before the exigent they are not forfeited, 47. Ed. 3. fol. 24.
A man attainted for Felony shall forfeit his Lands, which he hath at the day of the Felony done, otherways it is of his Goods; for if he ſell them before the attainder, the ſale is good: but note, that they are not given by Covin to defraud the Queen, for then the Gift is not good, as I intend, 33 Ed. 3. Tit. 30.
To the Goods of one attaint, it shall have relation, but to the Judgement and Conveyance of them before is good, by Perkins fol. 6.
If one commit Felony, and is attaint, and in the mean time betwixt the Felony made and the attainder, he departs with his Goods, this Gift is good, Stamford, fol. 48. the ſame, Stamford, fol. 192.
The Town where the Goods of Felons and Fugitives are, shall anſwer for them always, and the Sheriff may ſeiſe the Goods, but not carry them away till he be attainted, for he shall have them to live upon, Stamford, fol. 47.
And that no Sheriff, Raſtal, forfeiture 14.Bailiff of a Franchiſe, nor other perſon, ought to take or ſeiſe Goods of any perſon arreſted, and impriſoned, before the ſame perſon be convict or attaint of Felony, according to the Laws, or that the ſame Goods be otherways forfeited, upon pain of double value to the party greived: and note, who is the party greived, and that is they in Priſon, and not out; but he cannot ſeiſe his Land, 1 R. 3. chap. 3.
By Hull, where a man is indicted of Felony, his Goods ſhall not be removed out of his houſe, before he be attainted, for he ſhall live of his Goods, 7. H. 4. fol. 48. Officer ought not to ſeiſe Chattels of a Felon before attainder, but to ſequeſter them that they ſhall not be ſtolen, and to make the party finde Surety, that they ſhall not be conveyed away, and if he do not, to put them into the hands of neighbours to keep, 43 Ed. 3. fol. 24. See Stamford, 192. for the time of Forfeiture, Relation.
Now for that, that diverſe Lords of Leets have diverſe Liberties and Pr…viledges, and ſome are by the Kings Grant, and ſome by Preſcription; let us ſee what Liberties and things the Lord may have by the Kings Grant, and what not; and what Liberties and things he may have by Preſcription only, but not without ſhewing a Charter, and what he may, and then who ſhall have without ſhewing allowance, and who not.
THe Lord cannot have the Goods of Felons but by Charter and Grant of the King, and not by preſcription; but the Lord may have weif and ſtray by preſcription, 21 H. 7. fol. 32.
One cannot preſcribe to have the Goods of Felons and Fugitives, and to have that by preſcription, without ſhewing a Charter, but to have weif, and ſtray, and wreck of the ſea, he may have by preſcription onelyonly, 9. H. 7. fol. 20. Abridg. Aſſiſes, fol. 78. 2 Ed. 3. Fitzh. Coron. 241.
One may have (in fangtheef) that is to ſay, to have Theives taken within his Lordſhip, to be adjudged in the Lords Court; and alſo (out fangtheef) that is to ſay, Theives of your own Land, to be adjudged in your Court by preſcription, 46. Ed. 3. fol. 16. A man cannot have the Goods of Outlaws, unleſs it be by Charter. Abridgement of the Book of Aſſiſes, fol. 78.
Your Lord may preſcribe to hold plea, and to have that by preſcription onelyonly, but you cannot preſcribe to have Conuſance of plea by preſcription onelyonly, without ſhewing the Charter of the King, 9 H. 7. fol. 10.
One may preſcribe to have a Park and a Leet, and that by preſcription onelyonly, and may have that without ſhewing allowance in Eire, 1. H. 4. fol. 5.
A man cannot have the Chattels of Fugitives without the Charter of the King, for it is a thing of the Kings Prerogative, 46. Ed. 3. fol. 16.
The Abbot of Weſtminſter preſcribes to have Sanctuary for Felony and Treaſon, and to hold pleas, and could not, without ſhewing a Charter dated before memory, to prove the beginning of that; and for that, that this is againſt common right, he ought alſo to ſhew allowance of that after the time of memory: but he may have weif and ſtray, and view of Frank-pledge by preſcription onelyonly, and without ſhewing allowance; but otherwiſe it is to have the Goods of Felons and Fugitives, 2. Ed. 4. fol. 21, & 22.
Note, that the things that you may have onelyonly by preſcription of common right, you ſhall have without ſhewing allowance, and the other things not without ſhewing allowance.
The allowance which you ought to ſhew, ſhall be that which was allowed in the Kings Bench, or in Eire, and not in the Common Bench.
Ancient grant of the King ſhall be taken, as it hath been allowed, as the King hath granted to one his royall Rights, and the King is concluded by the allowance in a Quo Warranto, in the Kings Bench, and not in the Common Bench, 10. H. 7. fol. 13, & 14.
Charter of H. 2. dated before memory, and allowance of that ſhewed after memory in the Common Bench; it is not good at this day, unleſs it be in Eire, 21. H. 7. fol. 29.
The Kings Bench is Eire, and more then Eire; for if the Kings Bench cometh into the County where the Commiſſion in Eire is, that ſhall ceaſe, 27. Aſſiſe, 1.