United Kingdom House of Lords Decisions

Lord Chief Baron (Parker,)—

“My Lords, At common law estates in fee simple, whether absolute or conditional, were forfeited for treason. By the statute of the 13 Edw. I., (commonly called the statute of De Donis,) the forfeiture of lands entailed even in case of treason was taken away; the reason of which will be best collected from the words of the statute, “Quod voluntas donatoris, secundum formam in charta doni sui, de cetero observetur; ita quod non habeant illi, quibus tenementum sic fuerit datum sub conditione, potestatem alienandi tenementum sic datum, quo minus ad exitum illorum quibus tenementum sic fuerit datum, remaneat post eorum obitum, vel ad donatorem, vel ad ejus heredem (si exitus deficiat) revertatur.”

Therefore, my Lords, the will of the donor, according to the form expressed in the deed of gift, was to be observed; so that they to whom the land was given under such conditions, should have no power to alien it, but that it should remain to their issue after their death, or should revert to the donor for want of issue.

By the express words of the statute they could not alien, by construction they could not forfeit or charge; and the express and constructive restraints stood upon one and the same reason, which was, That either alienation, forfeiture, or charge, was inconsistent with, and would have defeated, the provision and intent of the statute.

And the reason given by the counsel for the respondents, in the original appeal, That entailed lands were not forfeitable for treason, because they were unalienable is not well founded; because they were alienable when they were not forfeitable for treason.

For notwithstanding the strong words in the statute De Donis,

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* Lord Campbell's Chancellors, vol. v. p. 61.

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in Taltarum's case, in the 12 Edw. IV. an alienation of entailed lands by a common recovery obtained judicial allowance, and has been so practised ever since; and by the 4 Henry VII. they might be aliened by fine with proclamations; and yet the statute De Donis protected them from forfeiture for treason till the making of the statute of the 26 Henry VIII. c. 13.

By that statute, lands entailed became forfeited for treason under these words, all such lands, tenements, and hereditaments, which any such offender shall have of any estate of inheritance; and the reason was, because this statute, being subsequent to the statute De Donis, repealed it in this case: and the construction that these words should operate upon entails, was extremely right, as they otherwise could have no operation at all, because all other estates of inheritance (as I have shown already) were forfeited for treason by the common law.

I will now show your Lordships that entailed lands, though unalienable beyond all question, were yet forfeited to the Crown for treason. If the king made a gift in tail, saving the reversion to himself, the attainder of treason of such tenant in tail did not bar his issue; because the statute of 34 Henry VIII. c. 20, enacts, That the heir of entail in such case shall have the lands; any recovery, or any other thing or things hereafter to be had, done or suffered by or against such tenant in tail, to the contrary notwithstanding.

Which act coming after the 26 Henry VIII. that gave the forfeiture of lands entailed, was a repeal of that statute, and a restitution of the statute De Donis in this special case.

But the statute of the 5 & 6 Edw. VI. cap. 11, enacts, That every offender being lawfully convicted of any manner of high treason according to the course and custom of the common law, shall lose, and forfeit to the King's Highness, his heirs and successors, all such lands, tenements, and hereditaments, which any such offender or offenders shall have of any estate of inheritance, in his own right, in use or possession, within this realm of England, or elsewhere within the King's dominions, at the time of such treason committed, or at any time after.

This act coming after 34 Henry VIII., has repealed it pro tanto, and made lands of the gift of the Crown in tail, subject to forfeiture for treason as well as other lands entailed. This has been taken to be law from the time of making the act; and there is no colour for the observation made at the bar, That it depended singly on Lord Hales' opinion; though if it had done so the authority would have been very great. I now proceed

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to the most material act for your Lordships' consideration on this occasion, the Act of the 7 Queen Anne, cap. 21, for improving the Union of the two kingdoms.

This act recites the benefit that would accrue to the United Kingdom from the provisions of it. Enacts, That such crimes and offences which are high treason or misprison of high treason within England, shall be the same in Scotland, and no other.

And that the offenders shall be indicted and tried in the same manner as in England; and that all persons convicted or attainted of high treason or misprison of high treason in Scotland, shall be subject and liable to the same corruption of blood, pains, penalties, and forfeitures, as persons convicted or attainted of high treason, or misprison of high treason, in England: provided always that where any person now is, or shall be before the 1st of July 1709, seised of any lands, &c., in Scotland of an estate tail that is to say, an estate tailzie affected with irritant and resolutive or prohibitive clauses, and is or before the 1st day of July shall be married, if any issue of that marriage be living, or there be possibility of such issue at the time of the high treason committed; that then, and in such case, the said lands, &c., shall not be forfeited upon the attainder of such person for high treason, but during the life of the person so attainted only; so that the issue and heirs in tail of such marriage shall inherit the same, the said attainder notwithstanding.

This act, by reference, re-enacted, and extended to Scotland, all the laws of England concerning treason which were then in force as strongly and effectually as if they had been transcribed into the body of it; and as at the time of making the act, all the estates of inheritance were and still are forfeited for treason, we think upon the supposition in your question, that an estate tailzie, with prohibitive, irritant, and resolutive clauses, is an estate of inheritance, and that such an estate of inheritance is forfeited; for otherwise the forfeitures in England and Scotland would not be the same, though the act expressly requires they should be so.

But it was objected by the learned counsel for the respondent, That by the Scotch Act, 1685, estates tailzie, with prohibitive, irritant, and resolutive clauses, were unalienable; and by the Scotch Act of 1690, it is provided, That no forfeiture should prejudge the heirs of entail therein mentioned, provided the right of entail was duly registered: from whence it was inferred that Sir William Gordon could only forfeit for his life.

But, my Lords, we are humbly of opinion that the Act 7

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Anne being subsequent to these Scotch Acts, has repealed them pro tanto, in the same manner as the 5 & 6 of Edw. VI. repealed 34 Henry VIII. which made lands of the gift of the Crown in tail unalienable; and that this estate tailzie is therefore subjected to forfeiture, that the forfeitures throughout the United Kingdom may be the same.

But it was objected by one of the learned gentlemen, That the third clause which gives the forfeiture would not have induced a forfeiture of this estate-tailzie, without the aid of the proviso; and that the proviso, which only imports an exception, ought not to extend the construction of the foregoing clause.

But, my Lords, we are humbly of opinion that the clause which gives the forfeiture, would have induced a forfeiture of this estate tailzie, though the proviso had been omitted out of the act; and we agree, that the proviso ought not to extend the construction of the foregoing clause.

But as the proviso is in the act, and the respondent's case is not the case described in the proviso, exceptio firmat regulam in casibus non exceptis, and greatly strengthens the construction we put upon the act.

As to the reversion in fee, or clause of return, supposing that by the law of Scotland it was in Sir William Gordon at the time of his attainder, we think that to be so clearly forfeited, that it would be wasting your Lordships' time to attempt to prove it. But as to the substitution or limitation to the heirs male of Sir James Gordon, and the intermediate substitutions or limitations between that and the reversion in fee, upon the supposition in your Lordships' question, that no estate or interest was thereby vested in Sir William Gordon, we are humbly of opinion that no estate or interest derived under any of these intermediate substitutions or limitations is forfeited to the Crown by the attainder of Sir William Gordon; because the substitutes claim as persons described, and their estate or interest successively is to be considered as a new acquisition, which can be no more forfeited by the attainder of Sir William Gordon than a remainder limited after an estate tail in England can be forfeited by the attainder of the tenant in tail for treason.

Besides, there is a saving in the Act of 26th Henry VIII. to all persons (other than the offenders, their heirs and successors, and such persons as claim to any of their uses) of all such right, title, interest, &c., as they might have had if the act had not been made.

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And in the vesting act of the 20th of his Majesty's reign, there is a saving to all persons (except the forfeiting persons, their heirs, executors, administrators, and assigns, and persons claiming to their use, or in trust for them) of their estate, right, title, interest, trust, possession, reversion, remainder, and so on.

And we are humbly of opinion that the saving words in these acts, and particularly the word right, are sufficient to preserve the several estates or interests of the substitutes in this settlement from forfeiture.”

Lord Chancellor (Hardwicke) further explains the reasons of the judgment in a letter to Lord Kames as follows:—

“That you may the more clearly see the grounds whereupon the House of Lords proceeded, I take the liberty to inclose a copy of my Lord Chief Baron Parker's argument in delivering the opinion of the Judges in the House of Lords upon the question proposed to them, together with a copy of their Lordships' order taken from the journal. I found some difficulty in stating my question, so as to avoid making the English Judges judges of the Scotch law, (which would have been highly improper,) and simply to refer to them the main point arising from the construction of the Act 7 Anne. For this reason I was forced to frame the question hypothetically, and to insert two suppositions of points merely of your law, reserved for the determination of the House, and which were determined by the opinion of the Lords, given in the debate, after the Judges had been heard. All the Lords concurred, that, by the law of Scotland, an estate tailzie with prohibitive, irritant, and resolutive clauses, is an estate of inheritance; and that by the same law no estate or interest in the lands was vested in Sir William Gordon by virtue of the limitation in the settlement of 19th October 1713, to the heirs male of the body of Sir James Gordon; though that would have been clearly otherwise by the rules of the law of England. The question put to the English Judges was reduced purely and simply to the construction of a statute of the Parliament of Great Britain, which it is equally the office of the King's Courts in both parts of the United Kingdom to expound; and every thing that could make a point in the Scotch law, was kept apart for the decision of the Lords, the proper Judges of it.

To repeat the several reasons of the judgment in the cause of Park would swell my letter too much; but I will fling out two or three ideas.

1. My foundation was the express declaration of the legislature

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in the preamble of the Act 7 Anne, which is the basis of the subsequent enacting clause, “That nothing can more conduce to improving the union of the two kingdoms, than that the laws of both parts of Great Britain should agree as near as may be, especially those laws which relate to high treason, and the proceedings thereupon, as to the nature of the crime, the method of proceeding and trial, and also the forfeitures and punishment for that offence, which are of the greatest concern, both to the Crown and to the subjects.”

2. The enacting clause relative to this subject, is penned in words still more general, and therefore the question must be a question of construction and exposition, wherein, though the proviso immediately following cannot extend or superadd to the enacting clause, it must be allowed to explain and illustrate the meaning of the words.

3. That judges are obliged to make that construction which will best attain the declared intent of the legislators, provided the words of the law will bear it; and therefore that such a construction as would produce the greatest equality between England and Scotland, in forfeitures for treason, must be the true construction.

4. In this I felt the force of the difficulty arising from the difference between the nature of your strict Scotch entails with substitutions, and our English entails with remainders over, which you have so clearly explained, viz., That in the former every person called to the succession is considered as an heir, and has the fee in him; in the latter, the fee or estate in the land is broken and divided into distinct parts. But then I considered what was to be allowed as the consequence of this diversity between the two laws. Was a tenant in tail, although admitted to have an estate of inheritance descendible to his issue, to forfeit only for his life? or was every tenant in tail, by reason of being invested in the ideal fee, to forfeit not only for himself and his issue, but also for all the substitutes?

Either of these would plainly destroy the equality in forfeitures professed to be established by the Legislature, and not only contradict the intent of the act, but also the express words of the preamble.

The knot lay here. To avoid forfeiting the whole fee—for as your law places that fee in every tenant in tail, and don't admit of a division of it into particular estates and remainders, there was more colour from legal reasoning to carry it to that large extent, than to make a man who had a fee in him to forfeit

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for his life only. But I could not satisfy my own mind that this large extent was either agreeable to the intention of the Legislature, or a just and equitable measure between the two nations.

5. How was this to be avoided? By expounding the act by analogy. And if you will apply your usual penetration to this point, you will find that there is often no other possible way of making a consistent sensible construction upon statutes conceived in general words, which are to have their operation upon the respective lawsoftwo countries, the rules and forms where of are different.

These general words will probably always be taken from the language or style of one of these countries, more than from the other, and not correspond equally with the genius or terms of both laws. You must then, as in other sciences, reason by analogy, or leave at least one half of the statute without effect. This head of the argument from analogy is not unknown in the law of England. It was long since established upon the statute, De donis conditionalibus, 13 Ed. I., which enacts, that a fine levied by tenant in tail shall be ipso jure nullus. Stronger words could not be found in the concise words of those ancient laws, to render such a fine an absolute nullity. But what said the Judges when they came to construe this act? They said, it should be construed by the reason of the common law, (i. e. by analogy to that law.) That the question was to create a disability in some persons, to alien to the prejudice of others, and the common law took notice of such disabilities; and, for that reason, a tenant in tail ought to be ranked with ecclesiastical persons seized in right of their churches, or husbands seized in right of their wives, who, by the common law, were disabled to alien to the prejudice of their successors or their wives. That therefore the fine should not be a nullity, and merely void, but should work a discontinuance, take away the entry of the issue, and drive him to his proper action to recover the land.

There are other instances of the like nature in our law; but I am aware that to these it might be objected, that it was reasoning by analogy from one part of the law of England to another part of the law of the same country, which is not the present case. I think that doth not weaken the example.

The rules of construction upon acts of Parliament are, in many respects, the same with those upon wills; and by the construction made in the case of Park, the words of the preamble of the Act 7 Anne, which is the key to the meaning of the legislators,

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are strictly complied with, viz., “That the laws of both parts of Great Britain should (as to forfeitures for treason) agree as near as may be.” And the world must allow that the favourable side for Scotland was chosen.”

“But though by this decision the like force is given to such substitutions in your tailzies as to English remainders, yet they are by no means turned into remainders to any other purpose, but are to be governed by the rules of the law of Scotland to every other effect; and therefore you express yourself with strict propriety when you say, that by this judgment a remainder is introduced into our law with respect to forfeiture only.”—Letter dated 12th July 1757. Kames, El. p. 381.