originally signifies a transgression, or offence against some penal law. The word is formed of the base Latin forisfactura; whence forisfactura and forisfactura, and the French forfait. Forisfactura comes of forisfacere; which, according to Indore, signifies to "hurt or offend," facere contra rationem; and which is not improbably derived of foris "out," and facere, "to do," q. d. an action out of rule, or contrary to the rules. Borel will have forfait derived from the using of force, or violence: Loinveau in his glossary will have forisfactura properly forfeit, to signify a mulct or amend, not a forfeit; which latter he derives from the base British forfed, "a penalty."

But, with us, it is now more frequently used for the effect of such transgression; or the losing some right, privilege, estate, honour, office, or effects, in consequence thereof; than for the transgression itself.

Forfeiture differs from confiscation, in that the former is more general; while confiscation is particularly applied to such things as become forfeited to the king's exchequer; and goods confiscated are said to be such as nobody claims.

Forfeitures may be either in civil or criminal cases.

I. With respect to the first, a man that hath an estate for life or years, may forfeit it many ways, as well as by treason or felony; such as alienation, claiming a greater estate than he hath, or affirming the reversion to be in a stranger, &c. When a tenant in tail makes leaves, not warranted by the statute; a copyholder commits waste, refuses to pay his rent, or do suit of court; and where an estate is granted upon condition, on non-performance thereof, &c. they will make a forfeiture.

Entry for a forfeiture ought to be by him who is next in reversion, or remainder, after the estate forfeited. As if tenant for life or years commits a forfeiture, he who has the immediate reversion or remainder ought to enter; though he has the fee, or only an estate-tail.

II. Forfeiture in criminal cases is twofold; of real, and personal estates.

1. As to real estates, by Attainder in high-treason, a man forfeits to the king all his lands and tenements of inheritance, whether fee-simple or fee-tail; and all his rights of entry on lands and tenements, which he had at the time of the offence committed, or at any time afterwards, to be for ever veiled in the crown; and also the profits of all lands and tenements, which he had in his own right for life or years, so long as such interest shall subsist. This forfeiture relates backwards to the time of the treason committed; so as to avoid all intermediate sales and incumbrances, but not those before the fact; and therefore a wife's jointure is not forfeitable for the treason of her husband; because settled upon her previous to the treason committed. But her dower is forfeited, by the express provision of statute 5 & 6 Edw. VI. c. 11. And yet the husband shall be tenant by the curtesy of the wife's lands, if the wife be attainted of treason; for that is not prohibited by the statute. But, though after attainder the forfeiture relates back to the time of the treason committed, yet it does not take effect unless an attainder be had, of which it is one of the fruits; and therefore, if a traitor dies before judgment pronounced, or is killed in open rebellion, or is hanged by martial law, it works no forfeiture of his lands; for he never was attainted of treason. But if the chief justice of the king's bench (the supreme coroner of all England) in person, upon the view of the body of him killed in open rebellion, records it and returns the record into his own court, both lands and goods shall be forfeited.

The natural justice of forfeiture or confiscation of property, for treason, is founded on this consideration: That That he who hath thus violated the fundamental principles of government, and broken his part of the original contract between king and people, hath abandoned his connexions with society; and hath no longer any right to those advantages, which before belonged to him purely as a member of the community; among which social advantages the right of transferring or transmitting property to others is one of the chief. Such forfeitures, moreover, whereby his posterity must suffer as well as himself, will help to restrain a man, not only by the sense of his duty, and dread of personal punishment, but also by his passions and natural affections; and will interest every dependent and relation he has, to keep him from offending: according to that beautiful sentiment of Cicero, "nec vero me fugit quam sit acerbum, parentum sceleris filiorum penitus: sed hoc praetere legis comparationem est ut caritas liberorum amiciores parentes respublicae redderet." And therefore Aulus Caecilius, a Roman lawyer in the time of the triumvirate, used to boast that he had two reasons for despising the power of the tyrants; his old age, and his want of children: for children are pledges to the prince of the father's obedience. Yet many nations have thought, that this posthumous punishment favours of hardship to the innocent; especially for crimes that do not strike at the very root and foundation of society, as treason against the government expressly does. And therefore, although confiscations were very frequent in the times of the earlier emperors, yet Arcadius and Honorius in every other instance but that of treason thought it more just, "ibi esse panem, ubi et noxa est;" and ordered that "pecata suos teneant aufores; nec ulterius progrediatur metus, quam reperirentur delictum:" and Justinian also made a law to restrain the punishment of relations; which directs the forfeiture to go, except in the case of crimen majestatis, to the next of kin to the delinquent. On the other hand, the Macedonian laws extended even the capital punishment of treason, not only to the children, but to all the relations of the delinquent: and of course their estates must be also forfeited, as no man was left to inherit them. And in Germany, by the famous golden bull, (copied almost verbatim from Justinian's code) the lives of the sons of such as conspire to kill an elector are spared, as it is expressed, by the emperor's particular bounty. But they are deprived of all their effects and rights of succession, and are rendered incapable of any honour ecclesiastical and civil: "to the end that, being always poor and necessitous, they may for ever be accompanied by the infamy of their father; may languish in continual indigence; and may find (says this merciless edict) their punishment in living, and their relief in dying."

In England, forfeiture of lands and tenements to the crown for treason is by no means derived from the feudal policy, but was antecedent to the establishment of that system in this island; being transmitted from our Saxon ancestors, and forming a part of the ancient Scandinavian constitution. But in certain treasons relating to the coin, (which seem rather a species of the crimen falsi than the crimen falsi majestatis) it is provided, by some of the modern statutes which constitute the offence, that it shall work no forfeiture of lands, save only for the life of the offenders; and by all, that it shall not deprive the wife of her dower. And, in order to abolish such hereditary punishment entirely, it was enacted by statute 7 Ann. c. 21. that, after the decease of the late pretender, no attainder for treason should extend to the disheiriting of any heir, nor to the prejudice of any person, other than the traitor himself. By which, the law of forfeitures for high treason would by this time have been at an end, had not a subsequent statute intervened to give them a longer duration. The history of this matter is somewhat singular, and worthy observation. At the time of the union, the crime of treason in Scotland was, by the Scots law, in many respects different from that of treason in England; and particularly in its consequence of forfeitures of entailed estates, which was more peculiarly English: yet it seemed necessary, that a crime so nearly affecting government should, both in its essence and consequences, be put upon the same footing in both parts of the united kingdoms. In new-modelling these laws, the Scotch nation and the English house of commons struggled hard, partly to maintain, and partly to acquire, a total immunity from forfeiture and corruption of blood; which the house of lords as firmly resisted. At length a compromise was agreed to, which is established by this statute, viz. that the same crimes, and no other, should be treason in Scotland that are so in England; and that the English forfeitures and corruption of blood, should take place in Scotland, till the death of the then pretender; and then cease throughout the whole of Great Britain: the lords artfully proposing this temporary clause, in hopes (it is said), that the prudence of succeeding parliaments would make it perpetual. This has partly been done by the statute 17 Geo. II. c. 39. (made in the year preceding the late rebellion), the operation of these indemnifying clauses being thereby still farther suspended till the death of the sons of the pretender.

In petit treason and felony, the offender also forfeits all his chattel interests absolutely, and the profits of all freehold estates during life; and, after his death, all his lands and tenements in fee-simple (but not those in tail) to the crown, for a very short period of time: for the king shall have them for a year and a day, and may commit therein what waste he pleases; which is called the king's year, day, and waste. Formerly the king had only a liberty of committing waste on the lands of felons, by pulling down their houses, extirpating their gardens, ploughing their meadows, and cutting down their woods. And a punishment of a similar spirit appears to have obtained in the oriental countries, from the decrees of Nebuchadnezzar and Cyrus in the books of Daniel and Ezra; which, besides, the pain of death inflicted on the delinquents there specified, ordain, "that their houses shall be made a dunghill." But this tending greatly to the prejudice of the public, it was agreed in the reign of Henry the first, in England, that the king should have the profits of the land for one year and a day, in lieu of the destruction he was otherwise at liberty to commit: and therefore magna charta provides, that the king shall only hold such lands for a year and a day, and then restore them to the lord of the fee; without any mention made of waste. But the statute 17 Edw. II. de prarogatione regis, seems to suppose, that the king shall have his year, day, and waste; and not the year and day instead of waste. Which Sir Ed- Edward Coke (and the author of the Mirror, before him) very justly look upon as an encroachment, tho a very ancient one, of the royal prerogative. This year, day, and waite, are now usually compounded for; but otherwise they regularly belong to the crown: and, after their expiration, the land would naturally have descended to the heir, (as in gavelkind tenure it still does) did not its feudal quality intercept such descent, and give it by way of escheat to the lord. These forfeitures for felony do also arise only upon attainer; and therefore a felo de se forfeits no lands of inheritance or freehold, for he never is attainted as a felon. They likewise relate back to the time the offence was committed, as well as forfeitures for treason; so as to avoid all intermediate charges and conveyances. This may be hard upon such as have unwarily engaged with the offender: but the cruelty and reproach must lie on the part, not of the law, but of the criminal; who has thus knowingly and dishonestly involved others in his own calamities.

2. The forfeiture of goods and chattels accrues in every one of the high kinds of offence; in high treason, or misprision thereof, petit treason, felonies of all sorts whether clergyable or not, self-murder or felony de se, petty larceny, standing mute, &c. For flight also, on an accusation of treason, felony, or even petit larceny, whether the party be found guilty or acquitted, if the jury find the flight, the party shall forfeit his goods and chattels: for the very flight is an offence, carrying with it a strong presumption of guilt, and is at least an endeavour to elude and flie the course of justice prescribed by the law. But the jury very seldom find the flight; forfeiture being looked upon, since the vast increase of personal property of late years, as too large a penalty for an offence to which a man is prompted by the natural love of liberty.

There is a remarkable difference or two between the forfeiture of lands, and of goods and chattels. (1.) Lands are forfeited upon attainer, and not before: goods and chattels are forfeited by conviction. Because in many of the cases where goods are forfeited, there never is any attainer; which happens only where judgment of death or outlawry is given: therefore, in those cases, the forfeiture must be upon conviction, or not at all; and, being necessarily upon conviction in those, it is so ordered in all other cases, for the law loves uniformity. (2.) The forfeiture of lands has relation to the time the fact was committed, so as to avoid all subsequent sales and incumbrances: but the forfeiture of goods and chattels has no relation backwards; so that those only which a man has at the time of conviction shall be forfeited. Therefore a traitor or felon may bona fide sell any of his chattels, real or personal, for the sustenance of himself and family between the fact and conviction: for personal property is of so fluctuating a nature, that it passes through many hands in a short time; and no buyer could be safe, if he were liable to return the goods which he had fairly bought, provided any of the prior vendors had committed a treason or felony. Yet if they be collusively and not bona fide parted with, merely to defraud the crown, the law (and particularly the statute 13 Eliz. c. 5.) will reach them; for they are all the while truly and substantially the goods of the offender: and as he, if acquitted, might recover them himself, as not parted with for a good consideration; so, in case he happens to be convicted, the law will recover them for the king.