Corruption of Blood, Sovereign Forfeiture, and Property

By Lawrence J. Casella


Footnotes:

1 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681; 94 S. Ct. 2080, 2091; 1974 U.S. LEXIS 140, 27; 40 L. Ed. 2d 452:

Forfeiture also resulted at common law from conviction for felonies and treason. The convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown. See 3 W. Holdsworth, History of English Law 68-71 (3d ed. 1927); 1 F. Pollock & F. Maitland, History of English Law 351 (2d ed. 1909).

2 W. Blackstone, Commentaries p. 252:

Great care must be taken to distinguish between forfeiture of lands to the king, and this species of escheat to the lord; which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee and therefore entitled to both, have been confounded together. Forfeiture of lands, and of whatever else the offender possessed, was the doctrine of old Saxon law, as a part of punishment for the offence; and does not all relate to the feodal system, nor is the consequence of any signiory of lordship paramount; but, being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which escheat must undoubtedly be reckoned. Escheat therefore operates in subordination to this more antient and superior law of forfeiture.

But even Blackstone seems to forgot the distinction.

Felony, in the general acceptation of our English law, comprizes every species of crime, WHICH OCCASIONED AT COMMON LAW THE FORFEITURE OF LANDS OR GOODS. (emphasis added) 4 W. Blackstone, Commentaries, p. 94.

felonies that are not capital, and capital offences that are not felonies: which seem at first view repugnant to the general idea which we now entertain of felony, as a crime to be punished by death; WHEREAS PROPERLY IT IS A CRIME TO BE PUNISHED BY FORFEITURE, and to which death may, or may not be, though it generally is, superadded. (emphasis added) 4 W. Blackstone, Commentaries, p. 94.

3 A.W.B. Simpson, The History of The Land Law, Second Edition, Oxford University Press, New York, 1986, p. 19:

Escheat is of two kinds. If a tenant dies without heirs, then the land comes back to the lord from whom it is held, and this is escheat propter defectum sanguinis. Some difficulty is met within distinguishing between an escheat of this kind and a reversion, and this difficulty troubled the lawyers of the thirteenth century just as it troubles modern students. The simple rule is that escheat depends upon tenure and tenure alone, and so occurs only where a tenant in fee simple dies without heirs general. If, say, a life tenant dies, the land comes back to his lord, but this is not the result of tenure but because the residue of the fee simple remains in the lord in his capacity of grantor, not in his capacity as lord. Escheat propter delictum tenentis occurred when the tenant committed felony, and when felony involved a breach of tenant's obligation to serve his lord faithfully it was reasonable that the land should be forfeit to the lord.

4 Simpson, p. 13.

5 See Simpson p. 1-24.

6 See note 3 above. Also 2 W. Blackstone, Commentaries, p. 252:

The doctrine of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony, (under which denomination all treasons were formerly comprized) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vasal on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and out for ever." (footnotes omitted)

7 4 W. Blackstone, Commentaries, p. 94:

Felony, and the act of forfeiture to the lord, being thus synonymous terms in the feodal law, we may easily trace the reason why, upon the introduction of that law into England, those crimes which induced such forfeiture or escheat of lands (and, by a small deflexion from the original sense, such as induced the forfeiture of goods also) were denominated felonies.

Hence it follows, that capital punishment does by no means enter into the true idea of the definition of felony. Felony may be without inflicting capital punishment, as in the cases of self-murder, excusable homicide, and petit larceny: and it is possible that capital punishments may be inflicted, and yet the offense be no felony; as in the case of heresy by the common law, which, though capital, never worked any forfeiture of lands or goods, an inseparable incident to felony. And of the same nature is the punishment of standing mute, without pleading to an indictment; which is capital, but without any forfeiture, and therefore such standing mute is no felony. In short the true criterion of felony is forfeiture; for, as sir Edward Coke justly observes, in all felonies which are punishable with death, the offender loses all his lands in fee-simple, and also his goods and chattels; in such as are not so punishable, his goods and chattels only." (footnotes omitted) (emphasis added)

8 See Simpson, p. 19

9 2 W. Blackstone, Commentaries p. 252:

Great care must be taken to distinguish between forfeiture of lands to the king, and this species of escheat to the lord; which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee and therefore entitled to both, have been confounded together.

10 William Hawkins' A Treatise of the Pleas of the Crown:

Sect. 29. It is holden, That a Saving against the Corruption of Blood in a Statute concerning Felony, doth by a necessary Consequence save the Land to the Heir; because the Escheat to the Lord for Felony is only _pro defectu tenetis_, occasioned by Corruption of Blood. Also it is holden, That a Saving of the Land to the Heir prevents the Corruption of Blood, and also Loss of Dower. But it hath been adjudged, That a Saving against the Corruption of Blood in a Statute concerning Treason doth not save the Land to the Heir, because in Treason the Land goes to the King by way of immediate Forfeiture, and not by Escheat. (footnotes omitted)

11 See note 3 above. Also 2 W. Blackstone, Commentaries, p. 245:

The law of escheats is founded upon this single principle, that the blood of the person last seised in fee-simple is, by some means or other, utterly extinct or gone: and, since none can inherit his estate but such as are of his blood and consanguinity, it follows as a regular consequence, that when such blood is extinct, the inheritance itself must fail; the land must become what feodal writers denominate feudum apertum; and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.

Escheats are frequently divided into those propter defectum sanguinis and those propter delictum tenetis: the one sort, if the tenants dies without heirs; the other, if his blood be attainted. But both these species may well be comprehended under the first denomination only; for he that is attainted suffers an extinction of his blood, as well as he that dies without relations. The inheritable quality is expunged in one instance, and expires in the other; or, as the doctrine of escheats is very fully expressed if Fleta, "dominus capitalis feodi loco haeredis habetur, quoties per defectum vel delictum extinguitur sanguis tenentis." (footnotes omitted)

12 See note 10 above.

13 In American law, fee simple absolute title is the highest title one can have. A life estate is less than fee simple absolute, because, upon the death of the life tenant, the title to the property reverts to either the grantor or another designated by the grantor. American law of forfeiture contemplates the forfeiture to the government for the life of the person whose property is forfeited, by implication the right of reversion is vested in his heirs: "The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted."

"Fee forfeiture" is used in opposition to the forfeiture of a life estate. In a fee forfeiture, the right of reversion has been taken by the government as well; in other words, the government has taken fee simple title to the property.

14 See note 10 above. Also see 2 W. Blackstone, Commentaries p. 252:

...And therefore in most (if not all) of the new felonies, created by parliament since the reign of Henry the eighth, it is declared that they shall not extend to any corruption of blood...

15 It has been shown that forfeiture and escheat are two different and distinct legal concepts. To avoid lengthy and awkward periphrasis, the term "forfeiture" shall be used since that is the term wrongly used in statutes and cases.

16 See note 10 above.

17 The procedural background of _Calero_ makes it unique in forfeiture law. Under 28 U.S.C. ß1253, a three-judge federal district court is required to hear a suit seeking to restrain the enforcement of a state statute. Appeal to the U.S. Supreme is a matter of right in any case required to be heard by a three-judge district court. Therefore, in _Calero_, the Supreme Court had to decide whether a Puerto Rican statute was a _state_ statute under the three-judge law before it had jurisdiction to hear the appeal.

The court's inquiry into the status of Puerto Rico under the three-judge law brought out some interesting aspects of forfeiture law. The conclusion itself was unspectacular: Puerto Rico was a state, "sovereign over matters not ruled by the Constitution." What was unique about the case was the freewheeling and unnecessary speculation about the origins of forfeiture. The court's history of forfeiture law was dicta, irrelevant to the issues.

State legislatures can pass forfeiture statutes if their respective constitutions permit. They could pass any statute not prohibited by the federal constitution. Of course, the court is the final arbiter of whether a state forfeiture statute violated the federal constitution, but whether the state constitution empowers the state legislature to pass them, the court has nothing relevant to say. A state court's opinion of the constitutionality of a statute under the state constitution is binding on the federal supreme court.

It is true that this is a state court case, but it has been cited often enough to support federal forfeiture laws. Moreover, it reveals the Supreme Court's views on forfeiture jurisprudence.

Especially strange is the way the Supreme Court transmutes state power into federal power. It says that a state is "sovereign over matters not ruled by the Constitution" like forfeiture. This seems to be a direct acknowledgment that forfeiture is not a matter addressed or covered by the constitution. Then, when the issue is the federal power of forfeiture, the constitution seems to rule over this matter. The court seems to view the federal government as the equivalent of state governments.

18 See note 17 above.

19 1 W. Blackstone, Commentaries p. 156.

The power and jurisdiction of parliament, says sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds, And of this high court he adds, it may be truly said 'si antiquitatem spectes est vetustissima; si dignatem, est honoratissima; si juridictionem, est capacissima.' It hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all government reside somewhere, is entrusted by the constitution of these kingdoms.(footnotes omitted)

20 US v. Fox, U.S. v. Fox, 94 U.S. 315 (1876)

The power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. McCormick v. Sullivan, 10 Wheat., 202. The power of a State in this respect follows from her sovereignty within her limits, as to all matters over which jurisdiction has not been expressly or by necessary implication transferred to the Federal Government. The title and modes of disposition of real property within the State, whether inter vivos or testamentary, are not matters placed under the control of federal authority. Such control would be foreign to the purposes for which the Federal Government was created, and would seriously embarrass the landed interests of the State.

21 See note 20 above. Also Hamilton v. Brown, 161 U.S. 256 (1896):

By the law of England, before the Declaration of Independence, the lands of a man dying intestate and without lawful heirs reverted by escheat to the king as the sovereign lord; but the king's title was not complete without the actual entry upon the land, or judicial proceedings to ascertain the want of heirs and divisees....

In this country, when the title to land fails for want of heirs and devisees, it escheats to the state as part of its common ownership, either by mere operation of law, or upon an inquest of office, according to the law of the particular state. 4 Kent. Comm. 424; 3 Washb. Real Prop. (4th Ed.) 47, 48