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The Pamphlet Collection of Sir Robert Stout: Volume 14

25.—(VII.)

25.—(VII.)

Escheat.—Where the tenant died without heirs of his blood, or where the descent of the lands to such heirs was impeded by the extinction of the inheritable quality of the tenant's blood, which might be by commission of treason or felony, or generally propter delictum tenentis, i.e. by a failure in the performance of some duty or condition inseparably annexed to the tenure, the lands escheated, or fell back to the lord who gave them i. On this subject Sir Martin Wright has the following important observations, more particularly with reference to the legal distinction between Escheat and Forfeiture :—

"Strictly speaking, according to the legal notion of an escheat, it imports something happening, or returning to the lord upon a determination of tenure only; and in this sense all escheats, even to the king, are properly feudal, and such lands or tenements as are not held immediately of the king, and yet happen to him upon the commission of any treason, are not escheats, but forfeitures, which were given to the king by the common law, and do not depend upon the law of Feuds or Tenures, but upon Saxon laws that were made long before the introduction of Tenures, and which prevail even to this day" k.

The officers to whom it belonged to enquire into the escheats, wards, and other casualties that fell to page 188 the crown, were called escheators. There were by the common law two principal escheators, the one ultra Trentam, the other citra Trentam, who had under them sub-escheators l. In the reign of Edward II. several escheators were made in every county for life m. By the statute 14 Ed. III., stat. 1 cap. 8, it is enacted that there should be as many escheators assigned as when King Edward III. came to the throne, and that, says Lord Coke n, was one in every county, and that no escheator should remain in his office above a year. And the act declares that the same escheators were to be chosen by the Chancellor, Treasurer, and Chief Baron of the Exchequer. By the statute 1 Henry VIII. cap. 8, intituled "The act of Escheators and Commissioners," he that was once escheator should not be made escheator again within three years after the aforesaid whole year ended. The preamble of the last mentioned act throws light upon the grievous nature of these feudal services :—"Forasmuch as divers of the king's subjects lately have been sore hurt, troubled, and some disherited by escheators and commissioners causing untrue offices to be found, and sometimes returning into the courts of record offices and inquisitions that were never found, and sometimes changing the matter of the offices that were truly found, to the great hurt, trouble, and disherison of the king's true subjects." And other statutes contain evidence to the same effect o.

i Co. Litt., 13a. 2 Bl. Comm., 72-3, 245-6. 3 Cru. Dig. 453 4. Mad. Exch., 202 et seq.

l Com. Dig. Escheat., (C.) Co. Litt., 13b, 92b.

m Co. Litt., 13b.