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.
[10]*10In 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 con[11]*11dition, 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,
[12]*12It 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 [13]*13lands; 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 extin[14]*14guished 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 [15]*15Foster 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. [16]*168. 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,
[17]*17This 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.
[18]*18Smith 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.
[19]*19By 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 [20]*20was 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 [21]*21he 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 com[22]*22niits 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.
[23]*23Again: 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 [24]*24attainder 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.