husband hath interrupted it, as in the case of elopement, and this attainder is an universal estoppel, and doth not run in privity only betwixt the wife and him to whom the escheat belongs, but every stranger may bar her of her dower by reason thereof, for by the attainder of her husband the wife is disabled to demand dower as well as to demand his inheritance; and he cited the resolution of all the justices of England in the case of the Lady Gates, 4 Ma., Dyer, 140.”

49. When, however, after the attainder of treason, the husband procures a charter of pardon, his wife will, it seems, be dowable of all lands of inheritance of which he becomes seised after the charter of pardon; "for," as Perkins observes, “although she was his wife at the time of the attainder, yet the issue which the husband might have had by her, after the purchase of his charter of pardon, is inheritable." But notwithstanding the charter of pardon, the wife has been held not dowable of the lands which the husband had before its date; and even, as it seems, though such lands descended to, or were purchased by him in the interval between the attainder and the pardon. In Maynye's case, before cited, Chief Baron Manwood, observed: "The pardon doth not help the matter, for the same extends but to the life of the offender, but doth not take away the attainder, by which she is barred to demand dower during the said attainder in force." This observation, however, if the cases above cited are to be received as law, appears to be too general in its language.

50. But if the heir succeeded in reversing the attainder by writ of error, the wife was thereby rendered dowable; and though before the treason committed, the baron had levied a fine with proclamations, and five years had passed before the reversal, she might, nevertheless, maintain her right; for during the attainder she could not assert any claim, and she had no means of reversal, and the action and right of dower accrued to her after reversal of the attainder."

51. The English law upon this subject was never adopted in this country to any considerable extent. The Vermont statute

1 Perk. sec. 387. And see Bro. Escheat, pl. 27, s. P., as to felony before the Stat. 1 Ed. VI. ch. 12.

2 Bro. Escheat, pl. 27, as to felony before the statute.

3 Maynye's case, 1 Leon. 3.

4 See Menvil's case, 13 Co. 19, 416; Moor, 639, s. c.; stated, also, in Bartholomew v. Belfield, 2 Bulstr. 244, 245; Park, Dow. 217-22; 2 Bl. Com. 131.

5 See Stearns' Real Act. 287, 2d ed.

of 1779 contained a proviso "that this law doth not extend to the widows of those that have, or may be, guilty of treason." And in Kentucky, prior to the act of 1796, the conviction of a person charged with treason or felony, worked a forfeiture to the commonwealth of all the estate of the offender. But the proviso in the Vermont statute above quoted was omitted in subsequent revisions of the laws of that State; and in Kentucky by the statute of December 17, 1796, it was enacted that conviction of treason or felony should be no cause of forfeiture of dower. During the war of the American Revolution the legislatures of several of the States passed laws confiscating the property within their respective jurisdictions, of such individuals as adhered to the public enemies. But it appears in every instance in which the question was made that the courts held the dower right of the wife to be not impaired by the confiscation or sale of the husband's estate under those acts. This point was decided in South Carolina as early as in 1789, and again in 1796; and in Massachusetts in 1812. It has also been determined in New York,' in Pennsylvania," and a ruling made in Connecticut is in harmony with this current of authority. The spirit of these cases is decidedly condemnatory of the stern and inhuman policy of the English laws, which inflicted upon the wife, punishment for the husband's crime. "By the

1 Passed Feb. Sessions, 1779; Verm. State Papers, 360; ante, ch. 2, 22.

2 Rankins v. Rankins, 6 Mon. 535; Stat. Law Ky. (1834,) vol. i. p. 532, note. 1 Litt. 466; Statute Law Ky. (1834,) vol. i. p. 531, 43. Mongin v. Baker, 1 Bay, 73.

5 Wells v. Martin, 2 Bay, 20. See, also, Collins v. Kincaid, Ibid. 536. Sewall v. Lee, 9 Mass. 363.

7 Palmer v. Horton, 1 John. Cas. 27; accord. Hogle v. Stewart, 8 John. 81. In New York, after the decision in Palmer v. Horton, an act was passed to the following effect: "No widow whose husband was convicted and attainted of adhering to the enemies of this State, in and by the act entitled An act for the forfeiture and sale of the estates of persons who have adhered to the enemios of this State, and for declaring the sovereignty of the people of this State, in respect to all property within the same ;' and no widow whose husband was convicted in pursuance of the act aforesaid, in the supreme court of judicature, or at any court of oyer and terminer, or general or quarter sessions of the peace, of all or either of the offences in the said act specified, shall be endowed of any lands whereof the husband was seised at the time of such conviction, or at any time before: Provided always, That nothing in this act contained shall be construed to affect the claims of any such widow, whose husband died before the passing of this act." Act of Feb. 20, 1806, 1 Laws of N. Y. (1813,) p. 60, ch. 17. 8 Cozens v. Long, 2 Penn. 764.

9 Cornwall v. Hoyt, 7 Conn. 420.

rigor of the ancient feudal system," says Parsons, Chief Justice, in Sewall v. Lee,' "the wife of an attainted traitor or felon lost her dower; and this severity was admitted to induce the husband to abstain from those crimes, from a consideration that his wife, as well as his heirs, must suffer for his offence. But to this rigor the genius and temper of our laws are abhorrent." 52. In several of the States the wife is protected by express statute against the consequences of the husband's crime. In New Jersey an act passed in 1796, and still in force, provides that dower shall not be barred by the conviction of the husband of any offence against the State. So in Missouri, Arkansas," and Kansas, it is declared that no crime of the husband shall prejudice the right of dower, nor preclude the wife from the recovery thereof. The New York statute of 1787 contained the following provision: "The wife of every person who shall hereafter be attainted, convicted, or outlawed of any treason, petty treason, misprision of treason, murder or felony whatsoever, shall be endowable and enabled, if she survive her husband, to demand, have, and enjoy her dower, in like manner and form as if her husband had not been convicted or outlawed." Reference has already been made to the Kentucky statute of 1796, to the same effect. By the North Carolina act of 1779, also, dower was saved in confiscated lands.8

53. It is expressly declared in the Constitution of the United States, that "no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." This provision would seem to inhibit any attempt, at least on the part of Congress, to visit upon the wife, any more than upon the heirs of the offending party, the consequences of his crime. Where, therefore, a forfeiture of the estate of the

1 Sewall v. Lee, 9 Mass. 363, 367. See, also, Stearns' Real Act. 287; 1 Washb. Real Prop. 194, 195, 2.

2 Act of 1796, 75; Paterson, p. 221; Laws of New Jersey, (1821,) p. 263; Rev. Stat. 1847, p. 284.

3 Rev. Statutes Misso. (1845,) p. 431, 8.

4 Rev. Stat. 1838, p. 338, 16; Dig. Ark. Stat. (1858,) p. 453, 16.

5 Comp. Laws Kansas, (1862,) p. 478, ? 8.

6 Act of Jan. 26, 1787, 10; 1 Laws of N. Y. (1813,) p. 59.

This is substan

tially a re-enactment of 1 Edw. VI. ch. 12, 17. See, also, 1 N. Y. Rev. Stat. 742, 16.

7 Ante, & 51.

81 Laws N. C. p. 391, ch. 153.

9 Art. 3, sec, 3, sub. 1.

husband occurs during the coverture under an enactment conforming to this constitutional provision, it would seem clear that the right of the wife to be endowed after the husband's death, will not be impaired. The seisin of the husband is not thereby divested; he is simply deprived of the right of enjoyment during the term of his natural life; and the estate descends at his death, to his legal representative, charged with the incident of dower which had attached previously to the forfeiture. But if a forfeiture were duly established before the marriage, a grave question might then arise with respect to the wife's right of dower. For in such case the husband would be virtually stripped of any present freehold estate in the land; and the government, or its grantee, would be invested with an estate therein for the term of the husband's life. And as it is an established principle that in order to confer the right of dower, the husband must have a present freehold interest, as well as an estate of inheritance in the lands, it would seem to follow that in such case, no right of dower would attach upon the forfeited estate.1

54. In none of the American States does treason or felony work corruption of blood. The constitutions of Pennsylvania, Delaware, and Kentucky declare that there shall be no forfeiture for treason except for the life of the offender; that of Maryland that there ought to be no forfeiture except in cases of treason or murder; in South Carolina that there shall be no forfeiture of lands for treason, of persons who die without having been attainted; and forfeiture for felony is expressly abolished. In Ohio it is declared that no conviction shall work corruption of blood, or forfeiture of estate. In other States forfeiture is believed to be abolished, either expressly or by strong implication.2

1 See, ante, ch. 15.

2 Rawle's note, Wms. Real Prop. 103.