forfeit the dower of his wife.a The forfeiture in treason as to real estate, related, at common law, back to the time of the treason committed, and, therefore, all alienations and incumbrances by the traitor, between the time of the of fence and the conviction, were avoided; but the forfeiture of his goods and chattels related only to the time of the conviction, and all sales made in good faith, and without fraud, before conviction, were good. Forfeiture of estate, and corruption of blood, under the laws of the United States, and including cases of treason, are abolished. Forfeiture of property, in cases of treason and felony, was a part of the common law, and must exist at this day in the jurisprudence of those states where it has not been abolished by their constitutions, or by statute. Several of the state constitutions have provided, that no attainder of treason or felony shall work corruption of blood or forfeiture of estate, except during the life of the offender; and some of them have taken away the power of forfeiture absolutely, without any such exception. There are other state constitutions which impliedly admit the existence or propriety of the power of forfeiture, by taking away the right of forfeiture expressly in cases of suicide, and in the case of deodand, and preserving silence as to other cases; and, in one instance, forfeiture of property is limited to the cases of treason and murder. The English law has felt the beneficial influence of the progress of public opinion on this subject. The statute of 7 Anne, c. 22. abolished, after the death of the pretender, forfeiture for treason beyond the life of the offender; and a Laws of N. Y. sess. 24. ch. 29. s. 10. b 2 Hawk. P. C. b. 2. ch. 49. sec. 30. 4 Blacks. Com. 380. c Laws of U. S. April 20, 1790. ch. 9. s. 24. d Constitutions of Pennsylvania, Delaware, and Kentucky. e Constitutions of Ohio, Tennessee, Indiana, Illinois, and Missouri. f The constitution of Maryland. though the statute of 17 Geo. II. c. 29. postponed the operation of that provision, it was only until the death of the pretender, and his sons. And by a bill introduced into Parliament by Sir Samuel Romilly, in 1814, and afterwards, under modifications, passed into a law, corruption of blood, in cases of felony, except murder, was abolished. The ingenious and spirited defence of the law of forfeiture, which was made by Sir Charles Yorke in the middle of the last century, and in which he insisted, that it stood on "just, social, and comprehensive principles, and was a necessary safeguard to the state, whether built on maxims of monarchy or freedom," has failed to convince the judgment, or satisfy the humanity of the present age. a Government succeeds, as of course, to the personal and real estate of the intestate, when he has no heirs, or next of kin, to appear and claim it; but this is for the sake of order and good policy and the succession by escheat, in. such cases, is usually regulated by statute.b II. By Judgment On a recovery by law in an action of trespass or trover, of the value of a specific chattel, of which the possession has been acquired by tort, the title of the goods is altered by the recovery, and is transferred to the defendant, and the damages recovered are the price of the chattel so transferred by operation of law-solutio pretii emptionis loco habetur. The books either do not agree, or do not speak with precision on the point, whether the transfer takes place, in contemplation of law, upon the final judgment merely, or whether the amount of the judgment must first be actually paid or recovered by execution. In Brown v. Wotton, Fenner, J. said, that in case of trespass, after the a Considerations on the Law of Forfeiture for High Treason. judgment given, the property of the goods is changed, so as 'that the former proprietor may not seize them again ; and in Adams v. Broughton,a the K. B. declared, that the property in the goods was entirely altered by the judgment obtained in trover, and the damages recovered were the price thereof. On the other hand, the rule is stated in Jenkins to be, that if one person recovers damages in trespass against another for taking his chattel, "by the recovery and execution done thereon," the property of the chattel is vested in the trespasser; and in the Touchstonec it is said, that if one recovers damages of a trespasser for taking his goods, the law gives him the property of the goods, " because he hath paid for them." The rule in the civil law ule in the civil law was, that when the wrongful possessor of moveable property, who was not in a condition to restore it, had been condemned in damages, and had paid the same to the original proprietor, he became possessed of the title. The Roman and the French law speak of the change of rights as depending upon the payment of the estimated value.d So, also, in the modern case of Drake v. Mitchell,e Lord Ellenborough observed, that he always understood the principle of transit in rem judicatam to relate only to the particular cause of action in which the judgment was recovered, operating as a change of remedy, from its being of a higher nature than before; and that a judgment recovered in any form of action, was still but a security for the original cause of action, until it was made pro ductive in satisfaction to the party; and until then, i would not operate to change any other collateral concur rent remedy which the party might have. This is the a Andrews' Rep. 18. b Jenk. Cent. case 88. p. 189. c Sheppard's Touch. tit. Gift. d Dig. 6. 1. 35. and 63. Pothier, Trailé Droit de Propriété, No. 364. e 3 East, 251. more reasonable, if not the more authoritative conclusion on the question. (3.) By insolvency. It has been found necessary in governments which au thorize personal arrest and imprisonment for debt, to interposc and provide relief to the debtor in cases of inevitable misfortune; and this has been particularly the case in respect to insolvent merchants, who are obliged by the habits, the pursuits, and the enterprising nature of trade, to give and receive credit, and encounter extraordinary hazards. Bankrupt and insolvent laws are intended to secure the application of the effects of the debtor to the payment of his debts, and then to relieve him from the weight of them. The constitution of the United States gave to Congress the power to establish uniform laws on the subject of bankruptcies throughout the United States. Bankruptcy in the English law has, by long and settled usage, received an appropriate meaning, and has been considered to be applible only to fortunate traders, who do certain acts which afford evidence of an intention to avoid payment of their debts. But the line of partition between bankrupt and insolvent laws, is not so distinctly marked, as to enable, any person to say with positive precision, what belongs exclusively to the one and not to the other class of laws. It is difficult to discriminate with accuracy between bankrapt and insolvent laws; and therefore a bankrupt law may contain those regulations which are generally found in insolvent laws, and an insolvent law may contain those which are common to a bankrupt law. The legislature of the Union possesses the power of enacting bankrupt laws, and those of the states, the power of enacting insolvent laws; and a state has likewise authority to pass a bankrupt law; but no state bankrupt or insolvent law can be a 2 Blacks. Com. 285. 471. Marshall, Ch. J. 4 Wheaton, 195. VOL. II. 41 permitted to impair the obligation of contracts, and there must likewise be no act of Congress in existence on the subject, conflicting with such law. There is this further limitation also on the power of the separate states to pass bankrupt or insolvent laws, that they cannot in the exercise of that power, act upon the rights of the citizens of other states. At present there is not any bankrupt system in existence under the government of the United States, and the several states are left free to institute their own bankrupt systems, subject to the limitations which have been mentioned. The objection to a national bankrupt system consists in the difficulty of defining, to the satisfaction of every part of the country, the precise class of debtors who can consistently with the constitutional jurisdiction of Congress over the subject, be made the subjects of it; and in the great expense, delay and litigation, which have been found to attend proceedings in bankruptcy; and in the still more grievous abuses and fraud which the system leads to, notwithstanding the vigilance and integrity of those to whom the administration of the law may be committed. To show the subtlety of the English [distinctions on this subject, it may be here observed, that a farmer, grazier, or drover, cannot, from their occupations, be bankrupts ; and yet if a farmer buys and sells apples, or potatoes, or other produce of a farm for gain, or manufactures bricks for sale, and becomes a dealer in such articles, he becomes, like any other trader, subject to the English bankrupt laws. So, a farmer who becomes a dealer in horses, for the sake of gain; or an innkeeper, who sells liquor out of his house to all customers who apply for it, will become an object of the bankrupt laws. The question turns upon the person's common or ordinary a Sturges v. Crowninshield, 4 Wheaton, 122. b Ogden v. Saunders, 12 Wheaton, 213. c Mayo v. Archer, Str. 513. Wells v. Parker, 1 Term Rep. 34. |