
    Lessee of Pemberton and others against Hicks.
    Monday, December 23.
    The curtesy estate of the husband in the lands of the wife is not forteited to the commonwealth for the life of the husband by his attainder for reason committed in her lifetime and after issue born; but the wife's estate is discharged from the curtesy.
    CASE stated, to be considered in the nature of a special verdict.
    "7oseph Galloway intermarried with Grace Growdon, by "whom he had issue born alive (and still remaining alive) be- " fore the death of Lawrence Growdon father ~f the said Grace; "which said Lawrence being seised in fee simple of the premi"ses in the declaration mentioned, by his testament and last " will duly executed devised the same with other real estate "to the said Grace Galloway and a certain Elizabeth Nichol"son his two daughters, in fee. Thomas Nicholson the husband "of the said Elizabeth, and Joseph Galloway and Grace his "wife, in due form of law made partition by writ of the premi- " ses to them devised as aforesaid, in which said partition the "premises in the declaration mentioned were allotted with other "real estate to the said Grace Galloway, and the said Joseph Gal"loway in right of the said Grace took the exclusive possessioii "thereof under the said allotment on the 24th of Dccember~ "A. D. 17~3. The said Joseph Galloway afterwards by aet of "Assembly passed on the 6th of March it 778 was required to "surrender himself under pain of being attainted of high trea"son. The said Joseph Gallor.r!ay did ~not surrender himself 44 accordingly, and thereupon, became and stood attainted of ' 44 high treason to all intents and purposes and his estate for-44 feited to the commonwealth, the said Grace Galloway being in 44 full life. The said premises were afterwards seized and sold “ by the agents for forfeited estates, and the same conveyed to 44 those under whom the defendants hold, by the cornmon44 wealth. The said Joseph Galloway so being attainted depart-44 ed out of the United States into parts beyond sea and there 44 continues in full life. The said Grace Gallozvay continued in 44 the United States, and afterwards, to wit on the 6th February 44 1782, died seised in fee simple of the premises in the declara44 tion mentioned, having first, to wit on the 20th of December 44 1781, duly made and published her last will in writing where-44 by she devised the same to Owen Jones and others, the sur- “ vivors of whom are the lessors of the plaintiff. The plaintiff 44 entered and was ousted by the defendant. Upon these facts the 44 question submitted to the court is whether the law be with the 44 plaintiff. If it is, judgment to be entered for him with six 44 pence damages and six pence costs; if it is not, judgment to 44 be entered for the defendant.”
    The point to which the arguments were directed, was whether Joseph Galloway, who was tenant by the curtesy initiate of the premises, had such an estate therein as was forfeited to the commonwealth upon his attainder by act of Assembly passed the 6th March 1778; the 5th section of which is as follows: 44 All and every the lands, tenements, hereditaments, debts or 44 sums of money, or goods or chattels whatsoever, and gene-44 rally the estates real and personal of what nature or kind 44 soever they be, within this state, whereof the aforesaid Joseph 44 Galloway be. shall have been possessed bj interested in, or en~ 44 titled unto, oñ the 4th day of July 1776, or at any time after-44 wards in 'their own right oi to their use, Or Which any other 44 person or persons shall have been possessed of interested in 44 or entitled unto to the use of or in trust for them or any of 44 them, shall according to the respective estates and interests 44 which the persons aforesaid or any in trust for them or any 44 of them shall have had therein, stand and be forfeited to this 44 state.” 1 St. Laws 752. The case therefore embraced not only the proposition whether upon general principles an estate of tenant by the curtesy initiate is forfeited to the commonwealth by an attainder for treason, but also whether it was not made forfeitable even against general principles, by this act of assembly.
    At March term 1798 it was argued before all the judges by E. Tilghman for the plaintiff, and by Dallas for the defendant; and again at December term 1798 by Lexvis for the plaintiff, and by Zngersoil for the defendant.
    For the plaintiff. A consideration of the case under three points of view will present the main question in such a manner as to shew clearly that the law is with the plaintiff. 1. What was Galloway’s estate before issue ? 2. What was it after issue ? S. How does the forfeiture operate after issue ?
    1. By the marriage the husband becomes seised in right of his wife of her inheritance, and is entitled to the rents and profits during coverture, to his own use. This is an unconditional consummate right vested in him eo instanti of the marriage, and upon his attainder the king shall take the rents and profits as forfeited during the coverture. 1 H. H. P. C. 251. 253. But the marriage itself does not give the husband a freehold, nor can he declare in covenant that he is seised in his demesne as of freehold in right of his wife; he must declare on a seisin in fee in himself and his wife in right of his wife, otherwise it is bad. Polyblank v. Hawkins, 
      
       The fee and the frank tenement therefore remain in the wife undivested by the marriage, and neither of them is forfeited by the attainder of the husband. Co. Litt. 351.
    2. Upon the birth of issue a new consideration in law takes place; and in as much as by the law of nature he is bound to support this issue, the law of England gives him a title to have an estate for his life in the inheritance of his wife if he shall survive her. The estate however is not actually imparted to him; it is both eventual and conditional; and the freehold is not taken from the wife and vested in the husband unless and until he shall happen to survive her. He has a title, but no estate. A title is the means or cause by which a man has the just possession of his property. 2 Bl. Com. 195. A man is entitled to the estate by feoffment, but he has no estate before livery. He has also a title to take an estate upon a condition precedent, but he has neither the estate nor the right to the land until the condition is performed. So the husband has a title or the means con^erre(^ by law of taking the estate by the curtesy upon the conditions that his wife be seised in deed as well as in law, that the seisin he of an estate to which the issue between them Í9-ánheritable, that he have issue by her, and that he survive her, otherwise not. Co. Litt. 30. a. and sec. 52.
    
      Littleton in Ids definition of a tenancy by the curtesy, sec. 35. expressly refers the estate and seisin of the husband to the happening of the last conditional event. “ If the xvife dieth, “ the husband shall have the land during his life.” And in sec. 90. he calls it a title only in the husband to have the tenements “ if he survive the wife.” 44 Tenant by the curtesy is he who “ after his wife’s death (having had issue by her inheritable) is i'i introduced into her inheritance and has an estate for life 44 therein.” 2 Bac. Abr. 218. Dac. and Stud. lib. 1. c. 27.
    But the estate is said to have a beginning after issue, which is respected in law for divers purposes; these purposes however as enumerated by Lord Coke fully prove that the husband has no seisin of the land either in law or in deed in his own right until the death of his wife.
    
      First. After issue had the husband shall do homage alone. The reason for this appears in Co. Litt. sec. 90. “ None shall •“ do homage-but such as have an estate in fee simple or fee tail 44 in his own right or in right of another. For it is a maxim in 44 law that he that hath an estate for his own life shall neither 44 do homage or take homage. For if a woman hath lands in fee 44 simple or fee tail which she holdeth of her lord by homage, 44 and taketh husband and hath issue, the husband shall do “ homage, because he hath title to have the tenements by the “ curtesy of England if he survive his xvife. But if the wife dies 44 before homage done in the life of the wife, and he holdeth 44 himself in as. tenant by the curtesy, then he shall not do 44 homage, because he then hath an estate but for term of his 44 own life.” The reason of his doing homage alone for the fee, is that he has a title to the curtesy if he’survive his xvife, for if he had an estate for his own life at that time, homage would not be due for it.
    
      Second. If after issue the husband makes a feoffment in fee,, and tlie wife dies, the feoffee shall hold it during the life of the husband, and the heir of the wife shall not during that time recover it in a 44 sur oui in vita.” Now the reason of the case demonstratés that the husband had no estate by the curtesy vested in him at the time of the feoffment; for if he had, the feoffment' would have worked a forfeiture, and the land might have been recovered against the feoffee. Co. Litt. 251. a. b. 252. a. 333. b.
    
    
      Third. Tenant by the curtesy cannot claim by a devise and waive his curtesy, because by 29 E. 3. fo. 27. the freehold commenced in him before the devise for term of his life. The reason of this is, not because he had the freehold in him, but because the title to it commenced before the devise. For the law, where a man has two titles to take an estate, will adjudge him in by force of the elder, and will not permit him to claim by the latter title. Litt. sec. 659.
    After issue therefore the husband has no greater estate than before, unless he survive his wife. He has a title to have an estate upon certain conditions; and although this estate has thus a beginning respected for certain purposes, yet Lord Coke confines them to the three above mentioned, which is a strong argument to shew that it is respected' for no other purpose whatever. It is admitted by lord keeper Coventry, when attorney general, arguing for a forfeiture to the crown in Sheffield and Radcliff, 
      
       “ That a tenant by the curtesy cannot grant “ in the life time of the wife his estate by the curtesy to another,” because nothing shall pass by grant but what lawfully may pass, and a man cannot lawfully pass an estate before he has it. It seems to follow therefore that not having the estate he cannot forfeit it for treason, which is the third point.
    3. It cannot be questioned that if the husband dies before the wife, the estate by the curtesy is never completed. The last condition is not performed; and however the beginning of the estate, be respected, it has at last by the death of the husband, living the wife, turned out to be an ineffectual beginning. By the attainder of Galloway he became civiliter mortuus, and as to all benefits to be derived from the law, he is as perfectly unknown to the law as if he were naturally dead. He may indeed by his ozvn contract take for the benefit of the king; but the law, which does nothing in vain, will not give him an inheritance or freehold by act of law, for he cannot keep it. 2 Vin. 260. pl. 20. Collingwood v. Pace 
      
      . Upon the death of the wife the estate by the curtesy vests in the husband by act of law, and it must therefore follow that in case of his attainder the law will not ¿evo^ve the estate upon him, for it will do a thing perfectly idle and vain, as the husband cannot keep it.
    The cases in the books, though to this point they are not numerous, support the position.
    “ A feme seised in fee takes baron and has issue, and after 44 the husband is attainted in the life of his wife, and after the king pardons him; he shall not be tenant by the curtesy on ac~ a count of the issue had before attainder. Otherwise, if the hys- “ band had issue after the pardon.” 13 H. 7■ If.
    This case, the authority of which cannot be questioned, is conclusive upon the present controversy. Even if the husband be restored by pardon, yet he cannot be tenant by the curtesy in virtue of the issue born before his attainder. After the corruption of the inheritable blood between him and his issue, the law will not devolve upon him the curtesy in consequence of that issue, although issue born afterwards will produce a new title upon which the estate may ultimately accrue. The inheritance of the wife is discharged of the first title to the curtesy; a fortiori if he is never restored the estate by curtesy can never be completed, and as he cannot by possibility take it in any way but by act of law, the king cannot have it, and the wife’s estate must be discharged of it for ever." We have accordingly the warrant of subsequent authorities for this conclusion from the case in the year book. “ Persons attainted of treason or felony 44 shall not be tenants by the curtesy, for the law intended to 44 give the inheritance only to those who were capable of hold- “ ing it tota vita sua: and in these cases their title shall never 41 arise even for the benefit of the king, but the wife’s estate 44 shall be discharged of it for ever.” Bro. tit. Curtesy, 15. Staundf. 196. 2 Bac. Abr. 219.
    In the case of Sheffield and Radclijf the attorney general Coventry agrees that a tenant by the curtesy in the life of the wife cannot grant the estate by the curtesy to another, 44 yet,” he adds,44 he may forfeit it for treason or felony by way of disr 44 chargeThere is nothing in this case but the wife’s estate that can be discharged; for if the forfeiture accrue to the crown, the incumbrance of the curtesy upon the inheritance of the wife is in no manner affected, and of course no discharge is produced.
    The same doctrine is to be gathered from certain general positions by Lord Coke and Lord Hale which would certainly have been qualified so as to exclude this doctrine had there been a question of its truth. “ Baron entitled in right of feme is at-' “ tainted, the king shall hold during the coverture.” 1 H. H. P. C. 251.11 Forfeiture does not extend to lands in right of the “ wife, but only during the coverture.” 3 Inst. 19. And as in neither instance is it mentioned whether issue was before or after attainder it may be concluded that it is not material, and that the king can hold in either case during coverture only.
    Finally. The act of assembly does not enlarge the objects of forfeiture to such a degree as to embrace this kind of interest. It is a mere condition upon the performance of which the estate will arise, but which is not forfeited on attainder by the general words of the law. 3 Co. 2, 3. 13 Vin. 441. pl. 14. 3 Inst. 19. The forfeiture is however confined to those rights and estates which Galloway had on the 4th day of July 1776, or at anytime afterwards, according to the respective estates or interests; at the time of attainder his estate was not complete, and by the attainder the possibility of its completion was gone, and nothing could afterwards arise.
    For the defendant. Upon general principles a person attainted of treason forfeits all his lands and tenements of inheritance whether fee simple or fee tail; all his rights of entry on lands or tenements which he had at the time of the offence committed or at any time afterwards, 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. 4 Bl. Com. 374.2 Woodeson, 504.
    Before issue born, the interest of Galloway was it is true a mere possibility; but instantly upon the birth of issue he began to have a “permanent interest in the land;” and both the rights and duties which attend upon that interest shew him to possess an estate for life, not to arise upon the. death of the wife before him, but subject to be defeated by the happening of his death before hers. He is entitled to do homage alone for the wife’s lands, which he cknnot do while merely seised of the fee in hex-right ; and the reason assigned by Lord Coke is “ because he by •“ having of issue is entitled to an estate for term of his own “ life in his own x-ight, and yet is seised in fee in right of his “ wife, so as he is not bare tenant for life.” Co. Litt. 67. a. It is impossible for words more explicitly to convey the idea that by the birth of issue the husband becomes tenant for life, and that his interest is not limited to a mere title to have such an estate upon a future contingency. Moreover he becomes one of the pares curia:, and tenant to the lord; and in the language of Blackstonc, the estate is so vested in him, that although it is conferred for the maintenance of the heir, it is not suffered to determine by the subsequent death of the infant, or his coming of age. 2 Bl. Com. 126. He may do many acts to charge the lands. Ibid. Avowry shall be made only upon him in the life of the wife. Co. Litt. 30. a. If he makes a feoffment in fee the feoffee shall hold during the husband’s life. Ibid. And having an estate vested in him by birth of issue, which from its union with the seisin in fee entitles him to do homage alone, whereby he becomes tenant to the lord and bound to do him suit in his court, with a right moreover to charge the lands in various ways, and by feoffment to convey a good estate for his own life, it seems necessarily to follow that he may forfeit it to the king for treason. For these powers and obligations shew conclusively that the husband has an estate for life in his own right, and it is a maxim in law that what a man has in his own right he may forfeit. Harris's case, 
      
    
    That Galloway is- civilly dead as to all actions there is no doubt: but as to all his rights he is completely represented by the commonwealth. If it were not so, whence comes the right of the commonwealth to take the profits of the wife’s lands during coverture ? His existence is still contemplated in law for ■the beneficial purpose of preserving his rights in the commonwealth; and although they may continue subject to every defeasance that would have operated before attainder, yet here the estate by the curtesy has escaped the only one to which it was subject, and it remains an indefeasible estate for life. The contrary position, against the obvious policy of the law, which however distressing it may be is nevertheless to be judicially recognised, would accelerate the descent to the heir, and confer a bounty on the child for the treason of his father.
    The only authorities which oppose this clear result from all that has been written upon the nature of the husband’s estate, are the 13 H. 7. 17. and the admission of Coventry while attorney general.
    
      The first is a mere dictum by Keble; and whether at that time a judge is not known. It does not appear in the year book what was the question under consideration, nor whether there were any parties before the court. It could not have been a question similar to this, for by a reference to Noy 159. we find it to have turned upon the corruption of blood, and whether upon the father’s attainder, the sister might be heir to the brother of the mother’s estate. If the pardon contained words of restitution the point might have been settled in conformity with Keble’s opinion without bearing in the least upon the question now before the court. This case therefore is worthy of little consideration.
    The admission by Coventry has still less weight. It was not the point adjudged; and he cites as his authority the above case of 13 H. 7. 17. which contains nothing to his purpose. There is not a syllable in it of a forfeiture by way of discharge; and indeed it is in itself an expression so absurd that it is not probable he could have found an authority for it any where.
    The quotation from Bacon’s Abridgment, and the sentiments of elementary writers are all referable to this dictum, and admission; and the present case stands therefore upon its own peculiar footing; the clear estate of the husband, and the sweeping forfeiture to the commonwealth of every esta'te which Galloway had on the 4th July 1776, or at anytime afterwards.
    If however a doubt can arise upon the authorities which apply to forfeitures in England, the comprehensive terms of the act of Assembly must put them to rest; for if Galloway had ati estate of any nature or kind soever in the premises; if he was .in any way interested in or entitled unto the lands, his estate, his interest and his title are forfeited to the commonwealth and the plaintiff cannot recover.
    
      Cur. adv. vult.
    
    On the 23d December 1799 the Judges delivered their opinions. But McKean, who presided at the argument as chief justice, was not at this time on the bench, having been chosen governor of the commonwealth in October 1799.
    
      
      
         Doug. 315.
    
    
      
      
        Godb. 323.
    
    
      
       1 rtmtr. 417-
    
    
      
       4 Leon. 112.
    
   Shippen C. J.

The question to be decided in this case is whether the curtesy estate of the husband in the lands of the wife is forfeited to the commonwealth for the life of the husband by an attainder for treason committed by hipa in her life ■time and after issue born.

In every definition of an estate by curtesy, the death of the wife is an essential ingredient to complete the estate in the husband; before that event, and even after issue born, there is but a possibility that such an estate may vest, but it does not actually vest till the contingency happens.

The husband’s estate during her life is of a different and superior kind; it is an estate of inheritance inker right. Upon her death that estate ceases, and the estate by curtesy vests. A feoffment in fee made by him in her life time will be no forfeiture of his future estate for life; but the feoffee shall 'hold the estate during the life of the husband against the heir, which he could not do if the estate for life had vested, because in that case it would have been forfeited, and have fallen into the inheritance. Co. Litt. 30. a.

If then the curtesy estate does not vest in the husband before the death of the wife, does not his previous attainder for treason effectually prevent its ever vesting at all ? There is no doubt but an attainted person or an alien may contract for and purchase an estate so as to enable him to take it although not for his own benefit, yet for the benefit of the commonwealth; but there is an established distinction between an estate’s coming to such person by contract and its devolving to him by act or gift in law: in the latter case no title can be derived to the alien or attainted person even for the benefit of the crown.

Lord líale in his argument in the case of Gollingwood and Pace in Ventr. 41Y. states the law to be that an alien or attainted person cannot on that principle take by descent, curtesy, or dower, for the benefit of the crown; and in 2 Bac. Abr. 219. it is said the title of the husband to the curtesy shall never arise, but the wife’s estate shall be discharged of it forever.

In 3 Inst. 19. Lord Coke, treating of forfeiture for treason, says it extends not to lands in right of a wife, but only during coverture. Lord Hale's doctrine is to the same effect in 1 H. H. P. C. 251. In the case of Lord Sheffield and Radcliff, Godb. 323. it is acknowledged by lord keeper Coventry that the husband, in the life of his wife, cannot grant his curtesy, and that his forfeiture is a discharge of it. This word discharged evidently means that the estate shall go to the heir, discharged of the curtesy estate, 2 Bac. Abr. 219.; the reason of which is, as I take it, that by his attainder the inheritable blood between him and the issue is destroyed, and he stands in the same condition, as if he had no issue by his wife; for if after attainder he had been pardoned and had subsequent issue, he would be tenant by the curtesy.

It has been said at the bar that the cases referring to the year book, 13 H. 7. 17. are not warranted by the year book, and that the particulars of that case are not enumerated, and that it does not appear whether Keble was a judge or not. To this I think it may be fairly answered, that whatever may have been the original of this ancient doctrine, or the objections to it, the doctrine itself has been so repeatedly recognised in our law books, and so uniformly brought down in all the abridgments of the law, that it seems to have become a rule of property, and not at this time of day to be impugned by any objections to the original authority.

The most plausible reason urged in favour of the forfeiture is, that in Co. Litt. 30. a. it is said that where a man after having inheritable issue conveys his wife’s estate in fee, the feoffee shall hold after the wife’s death, against the heir, during the husband’s life; and it is inferred that whatever a man may grant he may forfeit. But the estate conveyed in that case was not the curtesy estate, for that had not vested; if it had it would have been forfeited to the heir by the feoffment in fee; but a fee simple estate in right of the wife; and the husband was estopped from claiming against the feoffee his life estate accruing afterwards; and as to the heir the curtesy having afterwards vested by the death of the wife it was immaterial to him whether the right was in the husband or in his grantee; he must wait till the death of the husband. And when it is considered that in the case cited there was nothing to prevent the vesting of the curtesy, after the death of the wife, whereas in the present case there arose an absolute bar to its vesting by the attainder of the husband, there can be no proper application of that case to the present. Besides, it is by no means a general rule that by attainder a man will forfeit as much as he may grant; for in a case not very dissimilar to this in principle, if issue in tail, in the life of his father, is attaint of treason and dies, it is no forfeiture of the estate tail; yet if he had levied a fine in his father’s life it would have been a bar to his issue. Godb. 316. cites 3 Rep. 50. Sir George Brown’s case, and abridged in 13 Vin. 447,

It is however urged on the part of the defendant that the words of our act of Assembly are of larger extent and comprehend more subjects of forfeiture than either the common law or the statutes of England do embrace; to this a proper answer was given at thebar,namely, that the act of Assembly confmestheforfeiture to those rights and estates which they had on the 4th of July 1776 or at any time afterwards, in their own rights or to their use, according to their respective estates or interests; but if bylaw and by the attainder, the curtesy estate was extinguished, no estate or interest remained to be forfeited.

Forfeitures in general, so far as they relátete the depriving the innocent of their property, can only be justified by reasons of public policy; and I should be averse to visiting the sins of the father upon the children, unless warranted by express authorities, which appear to me to be wanting in the present case.

I am therefore, upon the whole, of opinion that both on principle and authority, the curtesy estate of Joseph Galloway was not forfeited to the commonwealth by his attainder for -treason; but that by such attainder that estate could never take place, and the inheritance was discharged of it forever; and that consequently the heir of the wife should recover.

Yeates J.

Whether the premises in question were forfeited during the life of Joseph Galloway by his having issue previous to his attainder, which happened before the decease of his wife, depends on the words of the law of 6th March 1778.

What then was the estate of Joseph Galloway in these lands, in the life of his wife, after the birth of their daughter?

It has been contended by the defendant, that though the estate of the husband be not consummate until the death of the wife, yet that it hath such a beginning after issue had in the life of the wife as is respected in law for divers purposes: First, after issue had he should do homage alone and become tenant to the lord by the old feudal law. Secondly, if after issue the husband maketh a feoffment in fee and the wife dieth, the feoffee shall hold it during the life of the husband, and the heir of the-wife shall not during his life recover it in a “ sur cm in vita;” for it would not be a forfeiture, since the estate at the time of the feoffment was an estate of tenancy by the curtesy initiate though not consummate.. Co. Litt. 30. a. Ley. 9, 10. It is therefore insisted that Galloway in this case had more, than an estate for life in these lands; and that as he could grant them for the term of his own life, he could forfeit his interest therein for the same term. The husband by having issue is seised in his own right for life, and yet is seised in fee in right of his wife, and so as he is not a bare tenant for life; he therefore shall after issue receive and do homage alone during the life of the wife. Co. Litt. 67. a. As soon as a child was born the father began to have a permanent interest in the lands, which was not liable to- be determined by the subsequent death or coming of age of the infant. 2 Bl. Com. 127. He might do many acts to charge the lands. Ib. 128. So in Plowden 264. it is said by Weston J. that if a woman takes husband and has issue and lands descend to her and the husband enters he is entitled to be tenant by the curtesy.

I frankly confess my sentiments on this subject have undergone a material change since the last argument. The definition of curtesy by Littleton sec. 35. is that it takes place on the death of the wife, the husband surviving her. So in 2 Bl. Com. 126. it is said the husband shall, on the death of the wife, hold the lands for his life as tenant by the curtesy of England; and many other books pursue the same expressions. According to Lord Coke the estate is not consummate until her decease. Co. Litt. 29. a. Such then is the legal as well as vulgar acceptation of the terms estate by the curtesy, that it does not completely vest until the wife’s death. 2 Bac. Abr. 219. Doc. and Stud. dial. 2. c.4.fal. 115.

The reason why under the feudal system the husband shall receive and do homage alone, during his wife’s life, after issue had, is his having a seisin in fee in right of his wife; for as a mere tenant for life he shall not do homage. Litt. sec. 90. And this seems the true ground why the feoffment of the husband,. after a child born, shall not be a forfeiture: his future interest and title to be tenant by the curtesy is involved and passes by it to the feoffee; though not to such purpose as to make him tenant by the curtesy which none but the husband himself can be. 2 Bac. Abr. 219. If he was merely tenant for life, his feoffment in fee would clearly be a forfeiture.

The husband may have a permanent interest in the land on the birth of a child, for certain purposes, but not for others. It may not be affected by any event happening to the child; but his inception of estate derived from such child may be extinguished by a subsequent civil disability, to take the land on the “termination of the life of his wife.

In the English edition of Plozvden (254) so much applauded by Hargrave in his note on Co. Litt. 23. a. it is said in the marginal note of the case above cited, that though the title of the husband is initiate by the seisin of the wife, it is not consummate nor begins to have any effect until her death.

Nor is it universally true that because an interest may be granted, it may therefore be forfeited. This consequence is denied by Lord Coke arguendo in Venable’s and Harris’s case, 2 Leon. 12G. He says “ a man seised in right of his wife may “ grant but not forfeit. The husband may grant a term for years, “ which he hath in right of his wife, but he cannot forfeit it. “ A woman inheritrix taketh a husband, who afterwards is “ attainted of felony; the king pardons him; they have issue;— “ the husband shall be tenant by the curtesy; which proveth that “ the king hath not the freehold by that attainder.” Popham, who argued for the crown in the same case, concurs in denying the same consequence. 4 Leon. 112. So also Croke in Lord Sheffield and Radcliff’s case. Godb. 316.

The plaintiff’s counsel have insisted that the case before the court has already received a determination, and is not now open to be argued on general principles. They rely on the year book 13 H. 7. 17. which runs thus : “ A man marries a feme inheri- “ trix and has issue; he commits felony of which he is attainted; “ the king pardons him; Keble said that he should not be te- “ nant by the curtesy by reason of the issue had before the “ attainder; but if he had other issue afterwards, he shall.” It must I conceive be admitted, if these positions are received as settled law, and of course a rule of property, that they establish the plaintiff’s claim.

I find from Dugdale’s Chronica Series 75. contained in his Origines Juridicales, that Keble was called as a sergeant in the first year of Hen. 7. and in the same year book 14 H. 7. 7. in the 2d line, he is styled one of the king’s sergeants. The dictums of Keble in 16 H. 7. 8. are cited with approbation in many books; as F. N. B. 84 A. 98 B. 456 F. The assertions of eminent counsel, uncontradicted at the time, or by subsequent cases, have always been received as evidence of the law; such dictums are often repeated in the year books, and in the reports of Plozvden and Coke particularly. Glyn C. J. in Foster and Ramsay, 2 Sid. 150. expresses.himself thus, “ Our “ very case was put by Stephens, the defendants’ counsel, “ Rex against Boriston and Adams, Noy 159. and not denied “ by the court; though Fleming, who argued on the other “ side, denied it.” Both the counsel who argued in Noy 159. 168. admit the authority of the case in question; and Coventry attorney general, in 2 Roll. Rep. 340. Lord Sheffield and Radcliff and Goclb. 323. S. C. also admits it. It is moreover cited in Co. Lift. 391. b. in margine; by Allen in Foster v. Ramsay, 1 Keb. 217.; and by Lord C. J. Bridgman id. 701. S. C. It is so much relied on by sergeant Hatokins in his 2d part of Pleas of the Croton, c. 49. sec. 49. p. 457. that he reasons from it as a settled case, against even Lord Coke’s opinion. The case is likewise recognised in his P. C. 196. and is there said to accord with the opinion of Justice Fitzherbert; by Broke, Tit. Tenant by the Curtesy pi. 15.; by Viner 7 vol. 162. pl. 4. and 4 vol. 273. pl. 20.; and by Lord Chief Baron Comyns in the 3d volume of his Digest 244. In Terms de la Ley, first published in 1563, sub voces Curtesie of England., the doctrine is set forth at large, but no authority is cited, though the words in the year book are used.

The assertions.of sergeant Keble are also warranted by analogy drawn from other books. Thus in Perkins sec. 387. if the husband commits treason, felony, or murder, and is attainted, this shall oust the wife of dower; but if after the attainder the husband purchases his charter of pardon, then of all such estates of inheritance of which the husband is seised after his pardon, which the issue, that he may by possibility have by his wife, may inherit by the common law, she shall have dower &c.; for notwithstanding she was his wife at the time of attainder, yet the issue which the husband may have by her after his pardon, is inheritable. If a son and heir be outlawed in the time of his father, and afterwards in the life of his father procures his pardon, and then his father dies, he shall not have his lands by descent, but the lord of whom they are held shall have them byescheat. Fitz. Discent. 17. Trin. 13 E. 1. So if the eldest son be attainted of felony and obtains a pardon in the life of his father, who afterwards dies, the land shall escheat, because the pardon cannot avoid the corruption of blood. Bro. Discent, pl. 44. 8 E. 1. Pardon restores not to blood (without an act of parliament) except as to issue begotten afterwards. Co. Litt. 8. a. 391. b. 392. a. S. P. C. 195. B. 3 Inst. 233. W. Jo. 34. 1 H. H. P. C. 358. A person attainted, though he hath a pardon, cannot claim by descent. Cro. Car. 477. Bacon's use of the Law 140, 1. Thus, it appears to me, that the authority of the case in 13 H. 7. 17. is fully vindicated, as well from the uncontradicted arguments of counsel and of judges, and its adoption by elementary writers of the first reputation, as from the general principles and analogy of the law. To adopt the language of Judge Moreton in 1 Mod. 40. as to another resolution (Harding v. Warner, Latch 24.) “ The case has walked through “ all the courts of Westtninster Hall undisturbed.”

But the present case rests not solely on this authority: it is fully settled that tenants by the curtesy and in dower come in by descent, merely by act of law. Co. Litt. 18. b. Now in all cases (except intails) attainder of treason or felony corrupts the blood, upwards and downwards, so that no person that must make his derivation by descent to or through the party at-tainted, can inherit. Co. Litt. 8. a. 84. b. 392. a. 1 H. H. P. C. 356. 358. Dy. 274. And though an alien may take by purchase by his own contract, that which he cannot retain against the king, yet he is not enabled to take by act in law; for the law which does nothing in vain, will not give an inheritance or freehold by act in law where it cannot be kept; and therefore the law will not give descent, curtesy, dower, guardianship. And in respect of this incapacity he does resemble a person attainted, with this difference, that the latter is a person whom the law takes notice of, and therefore the eldest son attainted surviving the father shall impede the descent to the younger son. Collingwood v. Pace, 1 Ventr. 417. per Lord Chief Baron Hale. S. C. and S. P. 1 Keb. 672. S. P. Stra. 332. by counsel arguendo.

Here then as to Joseph Galloway the vinculum of descent was destroyed by his political offence. To use the expressions of Mr. York in his considerations on the law of forfeiture (p. 88.): “ Bound as he was to the community by nature, moral “ duty, and experience, he disclaimed the law and was dis- “ claimed by it; by his own voluntary act, he has shewn himself “ an alien in affection.” He therefore shall not be admitted to the legal right of descent; his title shall never arise even for the benefit of the commonwealth; and the estate of his late wife shall be discharged forever of his claim,

This was the reasoning of Coventry, attorney general, who would not readily have given up the rights of the crown, in Lord Sheffield and Radcliff. The husband by attainder of treason or felony, forfeits his right as tenant by the curtesy by way of discharge; or as the same case is reported in 2 Rol. Rep. 340. if the husband commits felony or treason, he forfeits the dower of his wife, and yet this is a thing in action, and goes in discharge or surrender. 13 H. 7. 17. A man takes a woman inheritrix to wife, and has issue and commits felony, he shall forfeit his tenancy by the curtesy.

It appears therefore that Joseph Galloway was legally incapable of taking the premises in question after the decease of his wife, by right of descent as contradistinguished from purchase. His claim was intercepted by his attainder, and could not take effect by his civil death any more than if he had paid the common debt of nature. But the case is otherwise as to his daughter; for where a person attainted hath issue by a woman seised of lands of inheritance, such issue may inherit to the mother, though he or she never had any inheritable blood from the father. 2 Hawk. 457. and the cases there cited. So children born after the father’s attainder may be heirs to each other on the principle of Collingwood v. Pace, that the children of an alien may be heirs as between themselves though not as to the father. Harg. Co. Lift. 8. a. note 5. 12. a. note 7. Consequently if the father had no capacity to take the lands the daughter would become entitled thereto as heir of the mother, though in the life of the father.

A few cases yet remain to be cited which I soon shall pass over. Where the husband commits treason the common law gives a forfeiture of the inheritance of the wife only during thecoverture. It was otherwise by stat. 26 H 8. c. 13. as to treason; but it is now remedied by 5 and6. Ed. 6. c. 11. Jenk. 287. Staundf 187. Vide Co. Litt. 351. a. Pollexf. 51. Parsons v* Pearse et al. As to lands of inheritance if the husband be seised in right of his wife, and is attainted of treason, the king hath the freehold during the coverture. 1 H. H. P. C. 251. And Lord Coke asserts the same doctrine in his 3d Inst. 19.

On the whole I am of opinion that judgment be entered for the plaintiff.

Smith J.

Whether the law inflicting the punishment of forfeiture of property on the commission of high treason be founded in mercy or in rigorous and austere justice, can have no weight in determining the question before us. From one point of view the law of forfeiture for high treason may seem hard and cruel; the innocent and helpless part of a family suffer for the crime of the head of it over whom they have no control. Were it possible for human legislators to enact perfect laws, it would be the wish of every benevolent mind to have this law altered in its effects upon such persons; but inexperience must unite with benevolence in the minds of those who will propose further alterations than have been made in the constitution of the United States in this respect, article 3. sec. 3. and the laws of this state. 1 State Laws 846.

If the law of forfeiture for treason were altered, so as that such parts of a family might suffer no punishment, such alteration would indeed be merciful to such individuals; but the general effect would be extensive cruelty to society at large, and would frequently end in its dissolution: as self-preservation is the first law of nature, so it is likewise the first law of society.

In every nation, under every government, there are many men of gloomy discontented minds, of vehement spirits, of disappointed or perverted ambition, of desperate fortunes. The minds of such men are restless, ever on the rack to gratify their malignity or their ambition, or to repair their shattered fortunes. So far as they consider themselves, they are desperate ; the peace, welfare, or happiness, even the' existence of the government which protects them can have no influence in restraining such men from the most desperate measures to accomplish their purposes. The only human consideration which can withhold them from endangering the nation, is their attachment to their wives and children, which is frequently implanted, for wise purposes, unusually strong in the minds of such men by the all wise Author of our being.

From this point of view the law of forfeiture is merciful to mankind; it may sometimes be productive of partial ill, but its general effect will be universal good. Besides, property is created and preserved by government and laws; consequently every government may regulate it in such a manner as the society deems most conducive to the good of the whole nation.

By some it may be said that the case of J. Gallo-way is different from that of a subject under an established government who commits treason. I answer that in every nation the will of the majority must govern, to which every one of the minority must submit as soon as the society becomes a nation. From the time independence was declared, it became the duty of every citizen of the United States not only to submit to it, but to assist in its establishment. In trials for high treason immediately after the revolution in England, it was never alleged that the case of any of the prisoners was different from the case of a subject under an ancient government, who has committed treason. Moreover, could it have any weight, which I am clear it has, not, J. Gallo-way assisted in those measures, which, according to the common course of events led to that independence, which he afterwards laboured to destroy.

The question therefore is not whether the law of forfeiture for high treason be humane or rigorous; but the question is what is the law ? On this question it is our duty and we are competent to decide. The law being penal, it is our duty to construe it not to extend beyond the letter of it.

Any lawyer who has never had occasion to examine the point now before us, indeed any person, though not a lawyer, who is acquainted with the history of England, and reflects how many trials there have been for high treason, would, on the case, being stated, be ready to take it for granted that it had been long ago and often decided; and I confess that I was struck with surprise when on examination after the case was first stated, I could not find one case in the books in which it has even come before the court.

It seems to me that the principal difficulty in the case before us arises from the inaccuracy of the writers on the subject in not distinguishing whether the baron committing treason had or had not had issue at the time the treason was committed; and in not adverting to the alteration made since 13 H. 7.17. by the statutes 26 and 33 H. 8.

“ A man takes wife an inheritrix — has issue — commits felo- “ ny of which he is attainted; the king pardons him. Keble said “ he shall not be tenant by the curtesy by reason of the issue “ before the attainder, but if he have issue afterwards, he shall.” 13 H. 7. 17. This position is the foundation of the plaintiff’s cfaim; and although it does not appear what case or if any case was then before the court, and therefore it may be inferred that ~ this is a mere obiter dictum of ICeble, yet did the principle of it stand unopposed, although it has received no judicial confirmation, that principle would have weight with me in favour of the plaintiff; it being well known to every lawyer that very many cases which have been since from time to time recognised as law, derive their original authority from similar dicta in the year books. But let us consider that before issue 44 If baron and feme be seised in fee in a seignorie in the right 44 of feme, baron shall not receive homage alone; but he and 44 feme together: but if baron in that case hath issue by feme 44 then he shall receive homáge alone during the life of feme. “ And the reason is because he by having issue is entitled to an i( estate for the term of his own life in iiis own right, and yet “ is seised in fee in right of his wife; so as he is not a bare ten-44 ant for life. But if feme die then he hath only but an estate for 44 life, and then he cannot receive homage.” Co. Litt. 67. a, So “ if feme seised of lands in fee simple or fee tail by homage, “ taketh baron and hath issue, then baron in life time of feme 44 shall do homage because he hath title to have the tenements “ by the curtesy of England if he surviveth feme, and also he 44 holdeth in right of feme.” Lilt. sec. 90. 44 After issue he shall 44 do homage alone and is become tenant to the lord, and the 44 avowry shall be made on baron only, during the life of feme.” Co. Litt. 30. a.; and 44 as soon as a child is born the father 44 begins to have a permanent interest in the lands; and this 44 estate being once vested in him is not liable to be defeated by 44 the subsequent death or coming of age of the infant.” 2. Bl. Com. 127. Again; 44 If a man seised of lands in fee hath issue 44 a daughter .who takes baron and hath issue, the father dies, 44 baron enters, he shall be tenant by the curtesy albeit the issue 44 was had before feme was seised. And so it is although the 44 issue had died in the life time of her father before the descent 44 of the land.” Co. Litt. 29. b. So 44 if a woman tenant in tail 44 general takes baron and hath issue, which issue dieth, and 44 feme dieth without any other issue, yet baron shall be tenant 44 by the curtesy, albeit the estate tail be determined.” Co. Litt. 30. a. And 44 if after issue, baron makes a feoffment in fee, and 44 feme dieth, the feoffee shall hold during the life of baron, 44 and the heir of feme shall not during his life recover it in a sur cui in vita.” Ib. F. N. B. 194. Why? Not because he has less than an estate for life, for such feoffment would be a forfeiture of even an estate for life; but because he has more, he is also seised of the fee in right offeme.

From these various authorities it follows: 1. That by having issue the estate is vested in baron for life. 2. That although the issue die before feme is seised, yet the instant she becomes afterwards seised, baron becomes entitled to the estate for the term of his own life in his own right. 3. Nay, so absolutely and indefensibly does the estate become vested in baron for life by having issue, that the determination of an estate tail by the death of feme, the last tenant in tail, does not affect baron’s right. It is impossible even to suppose a stronger instance to demonstrate that after issue no circumstance can make the least alteration in baron’s vested right to her estate for life. This gives a full answer to 1 Ventr. 417. that an alien or attainted person cannot take by any act in law, because here he had taken; the estate had by having issue become vested in him during his life.

In Godb. 323. Coventry attorney general says that “ Tenant “ by the curtesy, during the life of feme cannot convey it, but he may forfeit it by way of discharge;” and he cites 13 H. 7. 17. but the only words on the subject in 13 H. 7. 17. are those which I have literally translated and before stated. In the first point the attorney general is contradicted by Co. Lift. 30. a. and the other was not then law.

The same doctrine is laid down in 2 Bac. 219. where it is said that persons attainted of treason or felony &c. shall not be tenants by the curtesy; that their title shall never arise even for the benefit of the king, hut that the estate of the wife shall be discharged of it forever. The authorities which Bacon cites are Bro. Tit. Curtesy pl. 15. p. 250. which is a transcript of 13 11. 7. 17. there quoted. Staundf. 196. is the same, and he quotes the same; and Godb. 323. He also cites Co. Lift. 291. a. 3 Inst. 43. as authorities in analogous cases; and in a note to it he states the words of Keble, for which he cites 7 Co. 25. by which I am confirmed in my want of confidence in the accuracy of the best abridgments, as authorities, as I observe that in neither of those pages is the doctrine laid down, which he states.

So that all the authorities respecting the discharge of the wife’s estate rest on the dictum of Keble. In Bacon it is said the title of tenant by the curtesy shall never arise. This expression shows that he is laying down the law where a man comniits treason before issue; because by having issue the estáte ^las arisen and is vested in the husband for the term of his own life; it has therefore become absolute and indefeasible during his life. “ The wife’s estate shall be discharged of it forever.” From what time is this discharge to operate i From the time of ^ treason, or from the death of the wife? The expression is so general, that the attainder is to have no effect upon the estate of the wife. If the dictum of Keble 13 H. 7. 17. were law, this would be the necessary consequence. For “ a pardon shall not “ devest any interest either in lands or goods vested in the subject; neither shall it, without express words of restitution, “ even devest any title from the king.” 3 Mod. 101. “ If the “ king present to a benefice on being entitled to it by simo- “ niacal contract, his presentee shall not be removed although “ the simony is pardoned.” 2 Mod. 52. 2 Hawk. 396. On the principle therefore of 13 H. 7. 17. the executors of Mrs. Galloway may recover the mesne profits from the time the estate was taken possession of by the commonwealth, if the de~ fendant has been in possession so long; nay, she herself (as he became dead in law) might have recovered it by ejectment. But that this is not the construction, that this dictum cannot be law at this day, is clear from two most respectable authorities. For Lord Hale IP. C. 251. and Lord Coke in 3 Inst. 19. lay it down that where “baron is seised in right of feme of lands of in- “ heritance and is attainted of treason, the king shall hold during the coverture.” It is not stated whether issue was had before the treason or not; but as the husband, though seised in fee in right of his wife, yet by having issue is entitled to an estate for term of his own life in his own right, it must be inferred that Lord Hale and Lord Coke confine their position to the case of treason committed by baron before issue. Let it not be said that there is no difference whether the treason be committed before or after issue as to this purpose; by issue the estate of baron in the lands of inheritance of feme becomes entirely altered; it becomes from that moment vested and permanent for his life. Lord Hale adds, “ and so if tenant for life be attainted of treason the king hath “ the freehold during the life of the party attainted.” I have repeatedly stated that by having issue baron is entitled to an estate for term of his own life in his own right, (he is become tenant to the lord, Co. Litt. 30. a.) and therefore if attainted of treason, the king hath the freehold during his life.

Again: If feme tenant in taz/'takes baron, and he becomes entitled to an estate by the curtesy, which he does by having issue" capable of inheriting, not only his wife and he, but he alone may make a good tenant to the prsecipe to suffer a recovery to bar the intail. Cases Talb. 167. Harg. Co. Litt. 326. a. where, and in a note to Ca. Talb. said to be a more accurate statement of Lord Talbot's argument, it is said in general terms, “That baron “ alone may by deed only and without any line levied by feme “ convey a sufficient freehold to the grantee to make him a “ tenant to the prsecipe.”

The last but not the least consideration is, “ If a man taketh “ feme seised of lands in fee and hath issue, and after feme is “ attainted of felony so as that the issue cannot inherit to her, “ yet he shall be tenant by the curtesy in respect of the issue “ which he had before the felony: but if feme had been attainted “ before issue, albeit he hath issue afterwards he shall not be “•tenant by the curtesy.” Co. Litt. 40. a. Now suppose baron and feme both commit treason &c. at the same time after issue, and are attainted. Baron’s vested right to tenancy by the curtesy of her estate is not forfeited by her attainder. According to the conclusion deduced from 13 H. 7. 17. her estate is not forfeited by the attainder of baron, but is dischargedfor ever: therefore in such case it is not forfeited at all; a position which it seems to me cannot be supported.

I will take another position and consider the subject from a different point of view. I will lay it down that the point-stated in 13 H. 7. 17. was then the law of the land, and will inquire whether or not it be even the law of England since 26 H. 8. c. 13. and 33 Id. 8. c. 20.; and more particularly whether since the act of Assembly by which Joseph Galloway was attainted, and. which must be our guide in forming our judgment upon the present occasion, the words of Keble be the law applying to persons attainted by this act of Assembly or not. “ By the cora- “ mon law all lands of inheritance whereof the offender is seised “ in his own right and also all rights of entry to lands in the “ hands of a wrong doer, are forfeited to the king upon attain- “ der of high treason.” 2 Hawk. 448. 2 Bac. 673. It may therefore be inferred that though the husband by having issue is entitled to an estate in the lands of the wife for term of his own life in his own right, yet being seised in fee in right of his wife such lands are not forfeited to the king by common law, on the attainder for high treason; but she shall hold them discharged ^is fight to tenancy by the curtesy. Lands intailed were not forfeitable at common law or by 25 E. 3. c. 2. on attainder of the tenant in tail for high treason, saving only during the life of the tenant in tail. 3 Inst. 19. By stat. 26 H. 8. c. 13. every person attainted of high treason “ shall forfeit to the king all such “ lands, tenements and hereditaments which he shall have of any estate of inheritance, use or possession, by any right, title or “ means.” It has been adjudged that by force of the words “ of “ any estate of inheritance,” estates tail are forfeited, because these words would be void if they did not include estates tail; for estates in fee simple were forfeited before. 2 Hawk. 452. 2 Bac. 580. Co. Litt. 372. b. And by stat. 33 H. S. c. 20. “ If “ any person is attainted of high treason by common law or “ statutes; every such attainder by the common law shall be of “ as good strength, value, force and effect, as if it had been done “ by authority of Parliament. And the king shall have as much benefit and advantage by such attainder as well of uses, rights, “ entries, conditions, as possessions, reversions, remainders and “ all other things, as if it had been done and declared by authority of Parliament.”

The words of each of these acts of parliament are more extensive than the words of forfeiture by the common law. The words in the first act have been held to extend to estates tail. The words in the second act will include tenancy by the curtesy; for baron by having issue is entitled to an estate for term of his own life in his own right.

The words of the act of assembly by which Joseph Galloway was attainted are still far more extensive than the words of these statutes. The legislature could not have used more comprehensive general woi'ds to embrace the subject matter in question. It necessarily follows that Joseph Galloway forfeited all his estate and interest in the premises for the term of his own life. Therefore from either point of view, and especially from the last, my opinion is that judgment be given for the defendant.

Judgment for Plaintiff.  