LSITY OF CALIFORI 
 S
 
 •■1
 
 9 s 'J
 
 SOME 
 
 CONSIDERATIONS 
 
 ON THE 
 
 Law of Forfe iture, 
 
 FOR 
 
 HIGH TREASON. 
 
 Occafioncd by 
 
 A Clause, in the late ACT, for making it 
 Trcatbn to correfpond with the Pretender's 
 Sons, or any of tlieir Agents, o^c. 
 
 With an Appendix concerning Eftates-Tail in- 
 Scotland. 
 
 Sicut fecunia^ Jtaz-e, milile, vim exteram, ita Ala- 
 jejiatis Legibus intejlinam arcemus. 
 
 G ravin, de Leg. Rom. 
 
 The Third Edition,' further Corre6led and EnhirjjeJ. 
 
 L O NT> O N: 
 
 Printed for J. and J. R i v i n g t g n, at the Bible 
 and Crown in 6"/. Patil's Church-yard, 
 
 MDCCXLVTil.
 
 ADVERTISEMEN T. 
 
 T N the Appendix^ fome Things are 
 "* Jlated with more Exaiinejs tha?t i?z 
 the lajl Edition^ as to the Operatio?t of 
 the Stat, 7 Ann. upon the Law of For- 
 feiture i?t Scotland. The other Cor- 
 rections principally concern the Stile ; 
 except in a few Places of the Difcourfe^ 
 which are enlarged.
 
 [iii ] 
 
 I C L A U S E S 
 
 ^p_ Extracted from the 
 
 '^ A C T S of P A R L I A M E N T, 
 More particularly referred to in this Treatise. 
 
 
 Slaf. 7 Annx, Caj>. 21. mtituled, " yln 
 " ylH for miproving the Union of the 
 " T'Jiio Kiiv/domsy 
 
 llE RE A S nothing can more 
 conduce to im^jro'vinz the Union 
 of the t'jjo Knigdoyns^ '■jL'hich^ by 
 her Maj e fly s great Wifdom and 
 GoodnefSy hath been happily effected, than 
 ih*at the Ld'jjs of both Parts of Great Bri- 
 tuinfjould agree as near as may he j efpectally 
 thofe La'-jus '-jjuich relate to High Treafon^ 
 a d the '^Proceedings thereupon, as to the 
 Nature of the Crme, the Method of Tro- 
 A 2 fecution 
 
 . >• 
 
 a » > v.- 1 >■
 
 fecutlon aftd Tryal, and aljb the Forfeitures 
 and Tunifhment for that Offence i which 
 are of the greatefl Concern^ both to the 
 Crown and to the Suhjeti : To the end 
 therefore that the faid Union may be more 
 effeffually improved^ Be it enabled, by the 
 ^eens mofl Excellent Mcijefly, by and with 
 the Advice and Confnt of the Lords Spiri- 
 tual arid Temporalj ayid Commons^, in this 
 frefent Parliament afembled, and by the 
 Authority of the fame , T hat , from and after 
 the Firft ^Day d^/July, in the Tear of our 
 Lord One thoufand Se^vcn hundred and 
 Ni.iCy fuch CriniiS and Offences, which are 
 High Trcafon, or Mifpnfion of High Trea- 
 fon, within England, ft:all be conftriicd, 
 adjudged, and taken to be High Treafoii, 
 and AJifprifo'd of High Treafon, within 
 Scotland 5 aiid that, from thenceforth, no 
 Crimes or Offences fiall be High Trea/onj or 
 Mifprifon of High Treafon, within Scot- 
 land, but iLofe that are High Treafon, or 
 Mifprifion of High Treafon, within England. 
 
 [Then follow fcvcral Claufcs relative to 
 the Manner of Profccution andTryalj and^ 
 after them, it is faidj, 
 
 Be
 
 r v] 
 
 Be it further Enacled, &c. That^ from 
 and after the faid firjl T>ay of]i\\)\ in the 
 faid Tear of our Lord One thou fund Seven 
 hundred and Nine, all Terfons com'iBed 
 of High Treafon, or Mifprifinn of High 
 TreaJ'oUy in Scoi\^n^,fiall be fubje^ and li- 
 able to the fame Corruption of Blood, ^ains, 
 ^Penalties, and Forfeitures, as Perfons con- 
 'uiBed of High Treafon, or Mifprifion of 
 High T^reafon, in England. 
 
 Provided aVjjays, That, li'here any Per- 
 fon nos; is, or fall be, before the faid Fir ft 
 Day of]\x\\,feifedofany Mejfuagcs, Lands, 
 Seigniories, Rents, Tenements, or Her edit a- 
 7nents, in ScotLind, that is to fay, an Ejiate- 
 Tculzie, affecled \z-ith Irritant ay.d Refoht- 
 tive, or Prohibitive Clatfes, and is, or be- 
 fore tie fdid Fir ft T)ay of ]\x\y fall be, 
 married, if any IJfue of that ^Lirria>re be 
 living, or there be PoJfbiUty of fuch Ijfae 
 at the Tiync of the High Treafon committed, 
 that then, in fuch Cafe, the (aid Aleffua^cs, 
 Lands, Seigniories, Rous, Tenements, ayid 
 Hereditaments, fall not be forfeited upon 
 the Attainder of fuch Per fon for High 
 Treafon (but during the Life of the Pcr- 
 '^ 3 fon
 
 [ vi ] 
 
 Jon fo attainted only), fo that the Iffuci 
 and Heirs in Tail of fuch Marriage, pall 
 inherit the fame. 
 
 [Then follow other Provi(ions, relating 
 to the Method of Tryal, and the Offences to 
 be adjudged, or not adjudged, High Treafon 
 in Scotland 3 and, after them, it is faid] 
 
 Provided al'-ji'ays, and he it further En- 
 aBed, by the Authority aforej'aid. That, after 
 the T>eceafe of the Terfon, isuho pretended to 
 be Trince of Wales, during the Life of the 
 late King James, and face pretends to be 
 King of Great Britain, and, at the End of 
 the Term of Three Tears, after the iimne^ 
 diate Sticcejfion to the Cro^jun, upon the 'De- 
 7nife of her prejent Majejiy, fjall take Ef 
 feB, as the fame is, and [lands liwAted by 
 an Act 7nade in the Firft Tear of the Reign 
 of his late Majefty King William the third, 
 intituled, " An AB for the further Limit a- 
 ^^ tion of the Croiz^n, and better fecuring the 
 " Rights and Liberties of the Snhje&," no 
 Attainder for Treafon fiall extend to the 
 T>ifinheriting of any Heir, nor to the 'Pre- 
 judice of the Right or Title of any Per Jon 
 or Perjons, other than the Right or Title 
 
 5" ^f
 
 t)f the Offender or Offenders, during htSj 
 her, or their natural Lives only : And that 
 ft (hall and 7nay be lawful for every Per/on or 
 ^erfons, to whom the Right or Inter efl of any 
 Lands, Tenements, or Hereditaments, after 
 the 'Death of any fuch Offender or Offend- 
 ers, f.wuld or might have appertained, if 
 no fuch Attainder had been, to enter into 
 the fame. 
 
 Stat. 17. G. il. C. 29. intituled, " AnA6i to 
 " 7yiake it High Treafon to hold Corre^ 
 " fpoyidence with the Sons of the ^re- 
 " tender to his Majejlfs Crown; and 
 " for attainting them of High Treafon, 
 " ifi cafe they fall land, or attempt to 
 " land, in Great Britain^ or any of the 
 " Dominions thereimto belonging ; and 
 ^' for fufpending the Operation andEffeci 
 *' of a Cldufe in the Aci of the Seventh 
 " Tear of the late fifteen AnnCj for Ln- 
 '■' proving the Union of the two Ki-,ifr~ 
 "^ doms, relating to Forfeitures for High 
 '' Treafon, until aftt r the Dccenfe of the 
 " Sons of the faid 'Pretender r 
 
 Scclio!! 3 . And whereas, in and by the 
 fdid recited Acl of the Reign of her fiid 
 late iMajcfty S!j/ee?i Aiinc, it is 'Provided 
 
 A 4. d'rid
 
 [ viii ] 
 
 and EnaBedy That, after the 'Deceafe, &c, 
 [as above] Be it farther Enaifed, by the 
 Authority aforefaid. That thefaid'Provifa 
 fo made^ by the lafi-recited Claufe, Jhall not 
 take place, nor have any Operation-, Force, 
 or Effe£i whatfoe^ver, until after the T>e' 
 ceafe, not only of the faid Pretender, but 
 alfo of his Eldeji, and all and every other 
 San and Sons. 
 
 CON-
 
 CONTENTS. 
 
 ^g^fj NTRODUCTION, Covcernhig the A fee 
 ^^*^^^ tion of the People of England to-wards their 
 I^J l^J ^'"i'<^'fii Cojifitution of Government in all its 
 
 • P^^^^ i their ^verjiou even to piaujihle Inno' 
 ttt^SSM>^ vat ions ^ yet that it is expediejit, in a free 
 Cou7itry-) to explai7i the Grounds of Meafures-, feemingly 
 fevere^ thot/gh taken in fupport of the antiejit Conftitutiojiy 
 and founded ow its Principles. p, 1---7 
 
 State of the ^efiony cleared of Circamflances not be~ 
 loming to it^ lahich have fojr.etimes hccJi blended voith it j 
 offers no Natural Rights or Civil Liberties of the Voflerity 
 of attamted Verfons j ojily the Civil Rights of the at- 
 tainted, p. 7, 8 
 
 General Reflexions on the ImperfeSiion of Huma7i Vu- 
 7tifJ:7nevts applied to this ^ejlion. p. 8 — ir 
 
 I.] The ^tejiion argued, froTn Principles of Reafon^ 
 yuflue, and Policy', fcparate fro7n the Conf deration of a7ty 
 particular Mu7iictpal Laivs. 
 
 The fundaTnental Propoffion laid down, That the Right 
 of Inheriting is the Creature of Civil Society : The Confe- 
 ^uence dravjn. That Society 7nay hejlovj that Right up07t 
 Conditions befl fuited to its i)v:n Exigencies. p. 11— -12 
 
 The Propofitton proved agaijijl thoje, vuho think the 
 Right of lnher!ti7ig derived froTfi Nature : 
 
 The Laiv of Nature defned ; its Principles laid doiufi^ 
 ««i to the E7idf Acijuiftion^ a}id Transferring if Property : 
 
 Thf
 
 CONTENTS 
 
 The Operation of thefe in a State of Nature ; the CoK- 
 fequcnce dra'vjjz-, that there could be no Right of Inherit- 
 ing antecedent to Civil Infiitutions : 
 
 Suppofng there 'were fuch a7i antecedent "Righty 
 
 1. Either unneceffary^ or ineffeHual to the End pro- 
 pofedj the Bejteft of a Man's Children : 
 
 2. IVould charge the great eft Abfurdities on the Laws 
 of all Countries. p. 13 — 21 
 
 This Right ivflituted by Civil Society, upon Reafons of 
 geiieral Co7tve7iience-, lohich have no Relation to the ChiU 
 drejt as fuch •, the Confequence drawn^ that Reafons of a. 
 like Nature T:?av account for the Interrupiiojz of it : And 
 proved agaivfi thofe-, v:ho ad7iiit it to be i?tjlituted by So- 
 ciety, and yet Juppofc, that the great End of it ixias the 
 Benefit of a Maiis Childreyi-, to be attended, ofi their 
 Suppofition, vjith great ylbfurdities in the Marmer of in- 
 flituting it ; 
 
 1. Erovi the Extent, to 'which it if carried 271 one Re^ 
 fpeci, a7zd the Boundary fct to it in another : 
 
 2. From its hci7tg equally ivcjfe&ual to the E7jd propofed 
 in a State of Society, as of Nature j a7id 7nore U7i7iecejfary : 
 
 3 . From its bring made liable to Interruption, by the g^ene- 
 fal Power of yilienation permitted to the Father ■ '^xhich 
 ought 7i()t to have been, if ififlituted folely or pri7tcipally 
 
 for the Benefit of the Childre7i. p. 2 1 —-28 
 
 The fa7i:e Recfhtivg, '•which holds for the Father s Power 
 cf Alicnatio7i by Sale or Gift, concludes for Alie7iation by 
 Forfeiture. p. 28, 29 
 
 The Forfuifurc of rhnours, though not alienable by hi7n 
 i':ho c;j/Oyi thc-a in England, difinguijhed from that of 
 ether rr:-p-'yfy : 
 
 Shewn to fl/:::d upon its ovjn Reafo7:s. p. 29, 30 
 
 The I/Jcrrup'::!):? of Dcfcoit prQceedi77g fro7?i the Intcr- 
 pnfticu cf ,';■':■ j:ia:7!ted between an Anceftor or an Retry 
 ?nore re;,-/,-'.-' ■;■/ Dr-ree than him attainted., called Cor- 
 ruptio7i oj i-'JoiiJ, explained io he, in point of Rcaj'i::.^ a ne- 
 (cjfary C::vf,;u.:ice of the l.r;w of Attainder, p. v^---;^ 
 Oh]ell'rj : V,.,.;,.' F-riily a:iJ gaud Confcicnce, in rej^^ul of 
 iheChilMci^ a->f.^::red; 
 
 I. By I'- ■'--::: [, th.!' En;!ity a;nl Co'/fience do rot in- 
 terfere in ti:.-, i\-:f ■
 
 CONTENTS. 
 
 2- From the general Poliry of Law. p. -^^ — ^9 
 
 II.] The ^i?jito?i argued) frorn the Municipal Lauos of 
 mail) ft fe Countries y 
 
 Of the Jews j 
 
 ■ Of the Achenians; 
 
 Of the Romans j 
 
 l-rom the Law of Fends : 
 
 7 his lajl inffled upo?ii as cojincSied ivith the Laws of 
 Enobnd. p- 39—50 
 
 The great Principles of the Feudal Policy fated : 
 
 Cleared of adventitious Circuf/jfances^ which, i?z differ- 
 ent Countries, have corrupted it ; and fhewn to he free : 
 
 A Policy refemblirg it fuhffted in England before the 
 Conqucfl : 
 
 Forfeiture of Inheritances for High Treafon known here, 
 antecedent to the Reception of it : 
 
 The Feudal Policy received hy free and national Covfent : 
 
 Made no Alteration i?i this Saniiion of the Law of 
 Treafon : 
 
 Has added new Ecafons, peculiar to i^filf, in Support 
 of tt. p. 50 — 60 
 
 Ohjecfion^ That iji Engknd the Policy is a Fi^ion, and 
 the Rcafon of it cea fed with the Military Tenures, a?ifweredj 
 
 I. From Maxims of Law, a^ to Fi^ioiis ; 
 
 1. From the prefent State of the Englifh Conjlitution, 
 '■jjhtch is Feudal. p. 60— -65 
 
 This Kind of Forfeiture fuhffs in 
 Germsny, 
 Switzerland, 
 The Low Counrries. p. ^f^...^-j 
 
 Ohjeclion, frovj the Nature of a mixed Government : 
 
 Anfwered frojn the fame Topic of Argument confdered 
 viore exactly . p. (^7, (^^ 
 
 III.] The ^eflion argued-, as to the particular Efiates 
 and Rights of Property, to which this Forfeiture extends : 
 
 (I.) By the Feudal Law^ examined in four Bra?iches : 
 
 1. Perfonal Things ; 
 
 1. 'Ejlates in Land ; 
 
 Craig'i Opinion, That an Eflate dcjcending frcm a Fa- 
 ther to an attainted Son, ought, infead of efcheating to 
 the Crow'!^ to go nnmcdiately to the F.i'U-r frov; ti^e Col- 
 lateral,
 
 CONTENTS 
 
 InteraU 'without 'Notice of the Attamtedj or his Hc^riy 
 fefuted; 
 
 { I .) From a general Frinripe cf Po'iiy 'n a/' State; • 
 (2.) From the Policy of the Corn'mon Lain yyEngiand j 
 ( ^). Frotn ge-aeral Convenience. 
 ^. HoJiours by Te?iure. 
 
 4. Do-vjer. p. 6'i--j6 
 
 (11.) By the Laiu of England ; 
 
 The Prerogative of the Croivu in Forfeiture, and the legal 
 IJotion of it : 
 
 This Law purfued in every Injlajice as the Feudal Lav: ; 
 
 1. Goods and per final Thiiigs. 
 
 2. Lands ^ particularly of the Forfeiture ofEflates Tail ^ 
 Difference between iheni and Ejlates 171 Fe^-fmple^ as to 
 
 the EffeB of Attainders upon them-, founded on what 
 Reafon ; 
 
 ObjeBion from Analogy^ That the Law of impedjng 
 JDefce7its has been altered as to Aliens ,• fo it may be in 
 Treafon , anfwered from the Points of Difference between 
 the two Cafes : 
 
 The Regard^ which our Law has to this Part of the Law 
 of Forfeiture : 
 
 Adv\. ■"■■ '''g/-> which it has over the Feudal Law : 
 
 3. Ho:, ours by Tenure^ Wnt^ and Patent : 
 
 4. Dower ^ confdered differently in the Law of Enr;land 
 and the FeiuLd Law : p. 7(5-- 8 7 
 
 Objc£iion to the impeding of Defccnts by Corruption of 
 Bloody as dcpc7iding 7iot 071 natural:^ but artificial Principles^ 
 anfwered^ 
 
 I. From the ge77eral Principle; of the Lav:s of Defce7it : 
 3. Fro7M the Nature of le7^alCo7ifru[vinn : 
 General Abfurdtties flowing from the Provijo in Stat. 
 -jth ^^een Awi'iQy c. 21. by which the Offender can for " 
 jfeit a Real EfUte o'r.ly for his own Life: 
 
 Particular Abfurdities as to the late Afi concemins, 
 the Pretender s S'j}:s^ which would have followed upon fuf' 
 fering that Prov:]o to take place at the Time of the Pre- 
 tender's Dr.rfh. p, 3 '---95 
 IV.] Jhe <f)ue(}ion argued-^ as to the Manner a-.id Cir- 
 (ur»fa;/cci of exaiiing ibis Forfeit ure j the Trcafo7is. tf 
 
 which
 
 CONTENTS. 
 
 *c:hich it is .^^ lied ; avd the Covfquericcs of ulolifljiag itj 
 i-apohit '■[ "-'tate I'olicy : 
 
 J'/je L''::ty an J IVifdom of our La'-jjy as to the InfliHion 
 of th:: ■"■cvalty-, lbe-jj?t-, 
 
 T Yr)77! itsTenderncfi to the Poflcrity of Offenders^ in 
 its C .:rc of luv/jlly Sct(Ic?ne?jts : 
 
 Z. I'ro'n the ixaci Jufticc ll'vxv to thr Offender himfelfj 
 f I J As to the Dejcnpt!07i of the Crhfte j 
 [z.) As to the Trjal : 
 
 :; ¥ro'n theTe:-:der??efs (l:c-^v. to him. by a-!oii:i}/g a Re- 
 far' f')r Pjrdo-! in the Prerogative of the Croivr.\ p. 95--io6 
 
 C'--V!^7.'s of Lord Ik'.e a?id Lord Coke, t7s to the Se- 
 I'erity of the r a-v: 'fTreaJoj;. p To6, 107 
 
 Oi ]icii::n That the Dejeriptio?? ofTreafj?i in England is 
 appiica to Oferces. ijhiJovmy if/jure the Per [on avd Advii' 
 vif ration nf the Ki7;g. ii:th-:<t a:7):ii:g at thof, ii-huh may 
 be :7:curred ag.7:7i[i the Pe'^ph bj that yl imiiifratioTt itfelf 
 
 (I ; Sh'--j:-> :;; oue l.ifht (as it iO-;tcr?/s p-ivate Men, 
 a7id the Mi-iifers of the Ki7-f)^ not to he tfue lu Y-ici ,* 
 
 1. prom th: general Koti07is of the Laia, as to public 
 Cyir:es ; 
 
 2. From the Cafes tvduded i7t the St at. 25 Edw. III. 
 (I.L) She-^n iji a7iother Light (as it coiicems the Kirtg 
 
 L'i^/'J'elf), to C07ttrad:^i or 7/:iJiake the Prijjcip/es-, on li'hich 
 the Conliitutio}i is fra?7.ed; 
 
 I. Fro7u the Notio7j) luhuh the La-jj enter taws of the 
 Kirg- 
 
 z. Fro7n the Difference betvjcc?; Ahfolute a7id Limited 
 ^'o7.ar(!:; . 
 
 i\\\) She--j:v to lead izto the Da72ger of CG7frruc7i've aiid 
 arhnrary Treafv7is. p. 107—126 
 
 Oejeel^07i dra\L-72f>-o?n the Temptation! gi've7i to Ali7iiffers. 
 to ac'U e th? Pciver cf exacimg this Forfeiture^ aiifii:ered-, 
 
 1. Particularly.) from the Po ny of Goicernnhevt^ intro- 
 duced hy the Revolution. 
 
 2. Ge7/erally, from the e>.tevfve Ahfurdities of the 
 OhjeHiov. p. 126---131 
 
 A ^iejlion asked., Snppofe there had ieen 710 forfeiture 
 hy the a?jtievt Conflitution :, 'v:o'<!d it have Lce-n thought 
 n^ht to viflitutc it no^j: ? anf'-jjered. p, 131, 1 ?2 
 
 Olpjc^ionj
 
 CONTENTS. 
 
 OhjeSiionj The Terror a rifmg from it is fo great^ that 
 B.efijiance to bad Governments ijJiU become more difficult 
 than the Frinciples of Liberty allovj : 
 
 Anfwered at large ,• 
 
 I. That the Abolitiojz of thii Forfeiture iviH be jmfafe to 
 good Governments ^ and the Contiyiuance of it not deter a 
 jufiifiable Ref fiance to bad : 
 
 a. That the ObjeBion proceeds fro7» erroneous Nodonfj 
 both in refpeiJ of common Experience^ and the Nature of 
 Laiu: 
 
 3. That the Abolition i-:i'i not attain the End propofed 
 by itj the Frote&ion of the Ejiates of ho?ie[i Men i« Civil 
 Troubles. p. 132— 14.2 
 
 Conclufouy applied to the peculiar Necejfty of thefe 
 Times. p. 142—151 
 
 Appendix p. I5i~--i90 
 
 
 ji 
 
 S O M E
 
 [^ ] 
 
 
 SOME 
 
 CONSIDERATIONS 
 
 ON THE 
 
 Law of Forfeiture, ^c. 
 
 s| H E People of England have 
 ever entertained lb hi;;li a Ve- 
 neration ibr their Form of Go- 
 vernment, as to flibmit to it 
 with an Acquicfcence, equal to that Ardour, 
 which they have fhev/n in the Defence oi 
 it. To this Felicity of Temper and Co/;- 
 du£l it is owing, that their groundlefs Jea- 
 loufics fcon die away, when they find t'lc 
 Minift^i".: of Stare purfuini^ Ariel ly the Spirit 
 and Intention of the Law ol' the Land ; 
 which is acknowledLcd in every Inftance ro 
 be the beft Rule, however oppofite to tran- 
 iicnt Opinions, or momentary V/lHics. Tlic 
 
 B Trero-
 
 2 Confiderations on the 
 
 Prerogative itfelf, tlio' in the antient Exer- 
 cifc of it fcarce to be diltinguifhed from Ty- 
 ranny, yet circLimfcribed by that Rule, has 
 been cftcemcd of general Advantage 5 and 
 thoie great Men, who aiTcrted our Liberties, 
 at the Beginning of the Civil Wars, meant 
 nothing more than to reduce it to its juft 
 Bounds, without a Thought of offering the 
 lead undue Violation to it. In Refumptions, 
 which have been ftrong Lcgiflative Ads to 
 refcind Grants made by the Crown, to the 
 Difgracc of him who wore it, a Saving was 
 always exprefied to the Royal Power of 
 Granting in the mod unquiet Times. The 
 Condud of the Houfc of Lords (a Body, 
 whofe Privileges have been the Source of 
 jealoufy), as to the Cafe of the Aylesbury 
 Men in a late Reign, when the Two Houfes 
 of Parliament appealed againft each other to 
 the Throne and to the Public, gained the 
 Applaufc of the People, even againft that 
 great and deferved Favourite, their own Re- 
 prefentativc j becaufc that Houfc aded in 
 Support of legal Rights, and the antient Ju- 
 rifdidion of Parliament. Theie Inftanccs 
 prove, that, well knowing the Wifdom oi 
 their Anceftors in modelling the Conftitution 
 with an admirable Equality, the People were 
 7 dcfirous
 
 Z/^^' <?/ Forfeiture. 3 
 
 defirous to tratifmit it down to their PoRcrity, 
 as a thing lacrcd and unalterable. In this they 
 proceeded on the tendered Regard to the 
 Welfare of the Realm, and to a Truth too 
 often experienced in our Hiflory, that when 
 old Foundations arc weakened, or Land- 
 marks removed, tlio' with plauilble Dcfigns 
 to fecure or extend Liberty, the Eiiglijh 
 Subject is a Lofer by every Innovation. 
 
 But the Heat of honeft Men being once 
 raifed, and the cooler Pafllons of artful Men 
 diilcmblcd by a fpeciousZeal for publicGood, 
 the calm Voice of Reafon andthcLawfinds no 
 Attention ; and Perfons of icfs Underftand- 
 ing, incited by Example, add greatly to tiic 
 Weight of that Clamour, which, for a time, 
 has ever been too flrong for Argument. Nor 
 in thefc lad is it to be wondered at, (ince cn- 
 Jarged Views are requifite on xMattcrs of Ge- 
 neral Concernment, which few are enabled 
 10 form either by Nature or Iiducation, and 
 from which more are called off by tl:c 
 nearer Profpecl of a narrow and ima^iiiary 
 Sclf-intereft. As the worft Evils of Society 
 flow from fhort-liiihted or rcrvcrted lud^- 
 ments, the Confdtution, with a Policy \^c- 
 culiar to itfelf, cncour.iges ever}- Method ct 
 I) 2 pop:i;.\;
 
 4 Confiderations on the 
 
 populir Inftrudion. A Freedom of Debate 
 in Parliament tends to clear and lay open 
 the Grounds of public Proceedings ; and the 
 Liberty of the Prefs is as naturally fitted to 
 the Support of good Government, as to the 
 Ruin of bad. Mcafures, that carry with 
 them a fallacious Appearance of Lenity, are 
 cxpofed by this Means ; and thofe, which 
 carry with them the Form of Severity, but 
 have the Subftance of Strength and Safety, 
 arc fct in their juft Light" for the Appro- 
 bation of the People. In the laft Cafe, fuch 
 Inftrud-ion is a Matter of Neceflity ; be- 
 caufc whatever has the Air of Severity, is 
 feemingly repugnant to the Genius of a free 
 Government, and ungrateful to generous 
 Minds ; above all to EngUjhfneriy trained in 
 the Principles, and celebrated for the Exer- 
 cife, of Humanity. Befides, in an Age fond 
 of Liberty, but impatient of thofe falutary 
 Reftraints of Law, which alone make Li- 
 berty either lading or valuable, it is natural 
 to fuppofe, that fome would be for throwing 
 down the Fences, which may controul irre- 
 gular Attempts ; and therefore, no wonder, 
 if fucli as mean to repair and keep them in 
 Order, fhould become the Objed of their 
 Cenfure. That Ccnfurc ill-undcrftood, and 
 
 not
 
 Law <9/'FoRFElTURR. 5 
 
 not properly refuted, might make an Impref- 
 fion, and overcome the national Affcdion 
 for tlie Law, if coloured by fair Pretences j 
 cfpecially, if receiving Strength from the 
 concurrent Senfe of the Patrons of Liberty, 
 who have declared againft the Multiplication 
 of Penalties j tho'it be one thing to multiply 
 and extend them^ another to maintain thofc 
 Terrors, which have been, in all time*, 
 cfteemed the Safeguard of Government. 
 One principal Terror of this kind, it is the 
 Argument of this Book to vmdicatc ; the 
 forfeiture of Inheritances for HiL^h Trealon. 
 That is a Safeguard, with which every well- 
 regulated State, whether built on Maxims 
 of Monarchy or Freedom, has ever been 
 provided j and without which it were liable 
 to perpetual Difordcr from the dcfperate 
 Sallies of Refcntme.it, or the daiing Pro- 
 jeds of Ambition. Here too our own Con- 
 ftitution prcfcrvcs its ullial lixcellence ; and, 
 being framed with much Wifdom and Hquit\ 
 as to the Crime of Trer.fon, it lecmsdiliiai t 
 to account for the Condud of thofc, who, 
 in the Parliament of the 7thof Qiiecu Armv, 
 were for abolilhing that Punifhmcnt of tiic 
 Crime, which has iubfilkd for Ages pall, is 
 interwoven with the tirft Principles, ^.wA m- 
 D 3 ti:na[Ciy
 
 6 Coniiderations on the 
 
 timatcly connccled with the Foundations of 
 our Policy. The greateft Men of the Time 
 oppofed it in the Houfe of Lotds j and, when 
 the Temper of the Commons was fuch, that 
 they would not have palled the Bill, which 
 was of great Moment to Scotla?id, without 
 the Claufe to abolifh the Forfeiture of Real 
 Eftates ill Cafes of High Treafon, the Lords 
 very artfully propofed an Amendment to fuf- 
 pend its Operation, perfdaded that the Pru- 
 dence of fucceeding Parliaments would take 
 occadon to repeal it. The fame Debate re- 
 vived in the lad Sellion, and the Bill for 
 making it Treafon to correfpond with the 
 Pretender's Sons, or any of their Agents, 
 has carried that Sufpenfion to a probably re- 
 moter Period, by an Addition made in the 
 fame Houfe, and approved in the other. 
 Nevcrthelefs, even this gentle, and almofl: 
 nccelTary, Alteration, to give Life and Vi- 
 gour to the Law, in a Jundure the mod 
 critical, created a Dillatisfadlion in fome 
 Minds, of which it may not be unfeafonable 
 to examine the Grounds. Indeed, it has 
 been rcprefented with fo many Confequences 
 of Terror, that it requires a better Authority 
 than that of a private Writer, to explain the 
 Reafonings, on which it ilands. In the 
 
 mean
 
 Zy^'K; o/* Forfeiture. 7 
 
 mean time he hopes it may be allowed him 
 to rpcak what he thinks tiic Truth j and, 
 with Deference to tliofe who have received 
 contrary Prejudices, to fhcw, that, in this 
 Inftance, they forget both a becoming; Re- 
 verence of their Anccftors, and Care oi their 
 Pofterity. 
 
 In entering upon the Argument of tlic 
 Forfeiture of Inheritances, it will be laid, it 
 is a (Irange Endeavour, to defend that, which 
 is inconfiftent with the firfl: Principles of 
 natural Jufticc j and therefore, whiill cr.i 
 Objection, that touches the j/fgnlum cau/'^, 
 is not removed, Arguments from Policy, 
 and the concurring Pradlicc of Nations, conic 
 too early j and mufl be confidered as we.ik 
 artificial Reafoning, oppofed to the llron;; 
 natural Didates of Senfe. 
 
 But why contrary to juilice? The An- 
 fwer is, that " The innocent Pollerity ouglu 
 " not to futfer for the guilty Ancelfor.' 
 
 It is not to the Purpofe of this liiVdy to fa- 
 tempt a Juftification of any Inllances, in 
 which the Laws of Forfeiture may, in fomc 
 Countries, have been carried to an Extie- 
 
 B 4 i^'i^v,
 
 8 Confiderations 071 the 
 
 mity, as little to be reconciled with Piin- 
 ciplcs of Policy, as of Clemency or juftice. 
 Among tlic ^Perjians and Macedonians^ not 
 only the Criminals, convided of Treafon, 
 were put to Death, but all their Relations 
 and Friends. The Defcendcnts oi Antiphon 
 the Orator were difqualihcd from advancing 
 themfclvcs, by their own Merit, to Eftates 
 and Offices in Athens. The Poftcrity of 
 Mariiiss f atlion were excluded by a Law 
 of Sylla from the fame Privilege. 
 
 When Forfeitures and Incapacities of this 
 kind are laid out of the Cafe, what is the 
 Force of the Anfwer, as applied fuigly to 
 theC^ieftion of Eftates or Rights of Inherit- 
 ance, enjoyed by the Crimmal himfelf, or 
 to be conveyed thro' him to others? It clear- 
 ly rcfults into this Abfurdity; That Rights 
 concerning Property, manifeftly derived, not 
 from. Nature (as will be fhewn at large), but 
 from the Favour of Civil Society, may not 
 be conferred upon fuch Terms as (hail bind 
 the PoffefTor to that Civil Duty, which he 
 owes the State conferring thofe Rights ; 
 and, for the Breach of his Duty, be fubje<n:ed 
 \o Forfeiture, 
 
 But
 
 Law ^ F O R F E i T U R F. . 9 
 
 But this is to offer flrange Violence, both 
 to the Conftitution of Society, and the Con- 
 clufions of Rcafoa. 
 
 If we confidcr accurately the Nature of 
 human Punifhn-icnt, we fhall find it attended 
 with unavoidab.e Imperfections. 
 
 How fhort is our Difcernment I The Sur- 
 face of Things and Actions is alone expofed 
 to our View : The inward Thoughts, the 
 habitual Temper, which form the greater 
 Partof moral Conduct, are entirely concealed 
 from us. It is for this Reafon, that Laws 
 aOign the fame Name, Nature, and Penalty, 
 to all Offences, which bear a Conformity 
 111 outward Refemblance, tho' intriniTcally 
 varying from one another by a thoufand 
 Circumftanccs, known only to the Searcher 
 of Heart$. 
 
 How much fhorter is our Power ! Vv^e can 
 cftimarc the Offence more exactly than v/c 
 can proportion the Punilhment. In regard 
 to a Man's ielf. Death is the laft Punifhment, 
 which can be infticled for the mofl: malignant 
 and cxtcnfive Crimes. But in regard to 
 
 others.
 
 lO Confiderations on the 
 
 others, this Power, Umitcd as it is, minutely 
 traced into its Confequenccs, operates per- 
 haps further than we with j fincc in no Cafe 
 can it be confined to the Criminal, without 
 reaching beyond him to fome conne6led with 
 him by Friendfhip, hitered, Con lent, or 
 Nature. What is flill more, it is not only 
 impofiible to disjoin thefe Connexions; but, 
 however that were poiFible, it is even ne- 
 ceflary to complicate them. Society was 
 founded on this Neceility ; it is liiccwifc 
 fupported, even whilft it fuffers, by it ; and 
 when they are thus complicated, whatever 
 happens to One, miift be mutual to All. In 
 the hiftance of a King and his People 5 
 a King executes by his Subjeds, and, in 
 Quarrels with Foreign States, they fuflfer 
 various Evils, for the Weaknefs or Liiquity 
 of his Government. In the Cafe of a Cor- 
 poration ; the Senfc of the Majority, or of 
 a chofen Number, ordinarily determines the 
 Body. Ow account of Faults committed 
 in their Corporate Capacity, their Markets, 
 Gates, Fortifications, Harbours, arc liable to 
 Forfeiture ; and yet many innocent Mem- 
 bers may fufFcr in the EfFcd of fuch For- 
 feiture. 
 
 To
 
 Law of ¥0K¥E IT 11 RE. II 
 
 To the Firft of thcfc Cafes it will be faid, 
 
 " That Princes own no Superior ; and, therc- 
 
 '' fore, in Contcfts with one another, can- 
 
 " not be feparated, for the Purpofes of ]uf- 
 
 " tice, from their People." To the Second, 
 
 " That tho' the guilty and innocent Members 
 
 *' of the Corporation are under the fame 
 
 " Sovereii^n Authority, and might be dif- 
 
 " criminated j yet the Corporate Eody can- 
 
 " not be punifhed for wrong Ads, but by 
 
 " thcLofs of thofe Privileges, which extend 
 
 " to all. But, in the Cafe of father and 
 
 *' Children, the Difcrimination might cafily 
 
 " be made, and Juliice fatisfied : Yet the 
 
 '^ Father commits Treafon, and forfeits that 
 
 " Eftate, which probably might have dc- 
 
 " fcended to his Children." 
 
 It may be anfwcred, in the Firft Place, That 
 this Punifhmcnt, being a Pillar of Society, 
 agreeably to the Genius of the whole Edilicc, 
 is erected on the great Principle of Society 
 itfelf, n.v.r.cly, to make the natural and fo- 
 cial Altecrions aControul upon iirr^^ular and 
 leliiih Paiilons. in t;ie Next, that notliing 
 is a Punifhmcnt, wliich does not alfcct a 
 Right, (Iriclly fo called. To make t!ic 
 
 Innocent
 
 I 2 
 
 Confiderations on the 
 
 Innocent fufFcr for the Guilty, and to inflid 
 that on the Guilty, which, in its Confe- 
 quenccs, may afFeft the Innocent, arc very 
 different and unequal Confiderations. " Every 
 thing, fays ^iijfendorf"^^ which caufes a 
 Sorrow or Lofs, is not properly Punilh- 
 ment. It is a Misfortune to be reduced 
 to Poverty by a Crime, which caufed ^he 
 Magiftrate to fct a large Fine upon the 
 Father of a Family ^ but not a Punifn- 
 ment. How many are there, who come 
 into the World without the Expedation 
 of a Patrimony ? How many, who lofe 
 all they have by War, Fax, or Ship- 
 wreck?"' Now, fince the Children have 
 
 no Right but from the Father, if he holds 
 the Property till his Death, or through him, 
 there is no Injury done, when he is juftly 
 deprived of that Wealth, which was acquired 
 under the Protcdion of Society, to be tranl^ 
 mitted to liis Pofterity in dated Rules of De- 
 fcent by pofirive Inftitution 5 and of thofc 
 Honours which are the Rewards of good 
 Condud, the Pledges of future Faith. Thefe 
 Benciits may be confidered as the Gifts of 
 cu'il Government ; but Life and Liberty are 
 the Gifts of Nature, and fhould never be 
 
 * /y. Vlil. f. ^, §.30. 
 
 taken
 
 Law (5/ Forfeiture. 13 
 taken away bccaufc of the Parent's Offence : 
 Nor llioLild a Subject be made incapable of 
 Employments, without fome Crime com- 
 mitted by himiclf. Sucli Severities are un- 
 wile, as well as unequitable. A DifFercncc 
 therefore muft be oblerved between the na- 
 tural Rights and common Liberties, \Yhich 
 are annexed to the PcrJ'on of every Subjed, 
 and the peculiar Difiindions of Society, fucii 
 :'.•; Richer and Honours. Thefe lall: are mierely 
 contingent ; and, if hoped for in the Courfe 
 of Succeilion, depend on the Conduct of 
 tliofe Anceftors from whom we would de- 
 rive them. And it is not to be faid. Men arc 
 punillied, when thefe contingent Advantages, 
 which themfelves neither acquired nor me- 
 rited, having, by rcafon of tiie '' civiiQuaii- 
 '' tication of their Blood" (as a great Lawyer 
 * of our own has exprelled it), been brouiUu 
 into View by the Defcrt of one Anccflor, 
 arc intercepted by the Crimes of another. 
 
 If It be thought, that what is here faid is 
 built on a xMilbke, and that " the Right 01 
 '^ Inheriting is conferred hy rhc Law ot Xd 
 "' ture, anterior to Civil :S')cietv ," it ivid^^ 
 fccm proper to Ihew the contr.iry, \vir;^, r,^ 
 
 -^ Lo'd Chief Tuftu-c //v.V
 
 14. Confideratioiis on the 
 
 much Clcarncfs and Brevity, as the Matter 
 will admit; tiic ratlicr, bccaufe the greatcll 
 Writers m\ the Natural Law arc extremely 
 perplexed upon it, and have found it diffi- 
 cult to tree their Reafoning from Ambiguity 
 of Words, mutual Cavils, and the Prejudices 
 arifing from civil Policy. The Law of Na- 
 ture is ufed in two Senfes ; either as confift- 
 mg of certain Regulations abfolutely nc- 
 cellary for fupporting the Purpo(es of Nature, 
 and Conditution of Things, previous to all 
 Civil Compact ; or as made up of thofc Con- 
 clufions of Natural Reafon, which different 
 States or Civil Societies have generally and 
 uniformly thought fit to cftabliih into Laws 
 by voluntary Confent. The firft is the only 
 flricT: and genuine Defcription of the Law of 
 Nature ; and, taking it in that Light, it may 
 be faid, that altho' the Right of inheriting 
 be known to the Laws of every civilized 
 Country, and is founded on the beft Prin- 
 ciples of Natural Reafon, yet it is not a 
 Right of Nature, or which can belong to 
 any Man in a State of Nature. To illuf- 
 trate the Propofition particularly, let thefc 
 Things be confidered : i. That the End of 
 Property is Subfiflence, by which End Na- 
 ture has bounded our Pretenfions to it, how- 
 ever
 
 Law c/' Forfeiture. 15 
 
 ever Civil Society may inlarge tlictn. Hence, 
 ill a State of Nature, \vc cannot ailumc 
 more tliau \vc ufc, nor hold it longer tliaii 
 \vc live, and arc capable of ufmg it. And 
 in this no Alteration arifes from Circum- 
 flances of Improvement. It is enough, tluc 
 the Thing improved becomes more advan- 
 tageous to ourielves, and tliat vvx pay to 
 Nature the Acknowledgments of Induifry 
 for the liberal Profufion ot her Gifts. 2. 
 That the manner of acquiring Property, in 
 a State of Nature, is by Occupancy j an Acl; 
 of the Body, not of the Mmd ; which laU, 
 cxprefll'd in any other way nantil Civil Laws 
 had marked out for Words or Writing a 
 Icttled Operation), v/ouid give a Title to 
 Property too precarious and difputable. ^. 
 That in the transferring of Propcrt}', the 
 Confent exprefled gives a flight to the Alie- 
 nee againft u\c xVlicnor ; and Occupancy 
 confirms that Right againfl: every one elfe. 
 But m the Cufe of Deicent, wh.re is the 
 Exprellion of Confent in the Alienor? It 
 will be laid. That the Alfedion ar.d Ilelatioii 
 of the Deceafed will create a Prc''imption 
 of Confent. This \b carrying t:ic Matter 
 very far, to lay, that the Lav/ of Nature, in 
 a State of Nature, transfers Pr.opci ty by Pre- 
 
 i'.mptjon.
 
 i6 Confiderations o?i the 
 
 fumption, in like maniici" as a Civil Law in 
 a State of Society. Where is tlie OccLipancj.'' 
 to complete the Transfer ? That Title may 
 accrue to ibme other more diligent than the 
 Heir, unlefs we will fuppofe Nature fo care- 
 ful as to keep Poffeilion for him. In a 
 Word, is it not more rational to fay, that 
 Tranfmiffion by Defcent, or Acquiring by 
 Inheritance, is that Ad of Pofitive and Civil 
 Law, which prevents the Property of the 
 Deceafed from reverting, as it would do in 
 a State of Nature, to the common Stock ? 
 But it may be objeded, That this Manner of 
 arguing fets the Principles of Nature at Va- 
 riance with one another : She expedls from 
 every Man the Nourifhment of his Children, 
 till they are able to fupport themfelves. If 
 he fhould die before that Period, will fhc 
 not affift him to complete his Views by tranf- 
 ferring his Property to them ? The Anfwer is 
 obvious. Upon the Principles here mention- 
 ed. Nature points out another Way. If he 
 forefees the Event of his Death probable, he 
 may make * conditional Gifts and Aliena- 
 tions 
 
 * The Wrirers on the Law of Nature fpeak of the 
 Right of making Donations mortis caufa (a Thing known 
 in the Civil Law), as a Right, which might fublill in a 
 State of Nature. And for a plain Reafon. The Right 
 
 of
 
 Laiv (?y'^ F o R F E I T u R E. 17 
 
 tions to his Friends, whilft he lives, for 
 the Support oi his unallilkd Children. Ir, 
 tluoLiLih Chance or Inadvertence, he neglecl 
 it, the Law of Benevolence, that funda- 
 mental Principle, requires fuch, as are near- 
 eft in Clood and Affection to the Deceafed, 
 to take upon themfelvcs this Care : Xay, 
 lays it, in a State of uncorrupt >>aru:-e, 
 upon the Confciences of thofe, under v;hoib 
 Notice the Orphans may fall 5 fo that Nature 
 has not left this compallionate Cafe ur>con- 
 fidered, unprovided. Yet, luppolc that Pro ^ 
 perty defcends by the natural Law 5 it the 
 Children are grown up, and are poilciTei 
 of what is fufficient for their Uie, before tlic 
 Father's Death, they (land in no need or' 
 thisSuccellion^ and by that Principle, wliica 
 confines Property to Subfillencc, and a Capa- 
 city of ui'luLS t'^^^'y ^''^ even barred froui 
 accepting it. Ir' they are weak, and unable 
 to maintain tliemfelves, tho' the Piopcits' 
 dcfcend, they cannot occupy j that is, av.- 
 quire ir, or complete that Transfer of ii, 
 
 of making a Gif: is a Naniral P.-"hr. Bu!: if i: bo maJe 
 jjil before the Deaih of rhi. (Jivcr^ in TruA tor r-tpA":'- 
 cu'.ar Pui-pofcj tlie i'vcci/i'-'n of chat Truft 'TUiit, in i 
 S:^:c: ot Iv^turC; ricic';"! merely en ti;e Fai a aiJ H'. nvi^ v 
 of rh:^'rru;lee : Wh-zrca^, in Civil Society, Lav, 3 tu.o 
 
 C wlii^h
 
 1 8 Confideratlons on the 
 
 which the prcfumed Affcdion or Will of the 
 Dcccafcd, by the Operation of Law, ten- 
 ders to them. Mow then are the Children 
 better provided for in this than in the other 
 Way, reafoning upon the Matter as in a 
 State of Nature ? 
 
 Wc may carry it fiill further, and fhew, 
 that if the Right of Inheriting be not con- 
 fidcrcd as a Right conferred by Society, the 
 greatefl Abfurditics muft be charged upon the 
 Civil Laws of all Countries. 
 
 I . If the Plight of Inheriting is a natural 
 Right, as arifing from the Principle of Af- 
 fcciion and P.elation, not pofitivelnftitution. 
 then it cannot be confined to a Man's Chif 
 dren, but, in Failure of IlTue, mud extend 
 to all iiis Kindred in their feveral Degrees. 
 Now tliat is no Law to regulate Men, eitlicr 
 in a State of Nature or Society, which does 
 not extend to particular Cafes; and Nature 
 will not (upiH'jfe a Right of Inheriting, with- 
 out any Rule to go by in the Application and 
 CA)nrcrring of it. That Rule can be bur 
 one ; yet Civil Lavv^> have purfued a thou find 
 differciU W^iys, contrary to the Law of Na- 
 tiuc, according to this Reaibning 2. If the 
 
 Ridit
 
 La\!o (t/'Forfeiture. 19 
 
 ilight of Inheritance came in by the Law of 
 Nature, and might fubfirt in a State of Na- 
 ture, we may, for Argumcnt-uike, imagine 
 the Defccnt carried on through fevcral Gene- 
 rations. In Confcqucnce, Prefeription (eitlicr 
 for a certain time, as by the Reman or our 
 Statute Law, or for time immcmovi:.!, a.<; 
 by x\\c Common Law) muii give a Ilighr } 
 othcrwife antient and obicurc Pretences o: 
 wrongful Poflcllion might befcr up, in order 
 to divcft the prcfent Owner, and to difturb 
 the public Tranqiiillity. But then the Law 
 of Nature would be deftruciive oi itielf: 
 For, is it not contrary to natural Principles,. 
 that a juft Right Ihall be barred by any 
 Length of Time, and the Accident of noc 
 demanding it ? Or, omitting that Coniidcra- 
 tion, can Prefeription determine the Matter, 
 without Civil |udicatures, to whom it may 
 be pleaded ? I las Nature decided of the legal 
 Prcf.irvipiion edablirp.ed in Civil Laws ariiing 
 ficm ior.g C^cntinuance :; or has it declared 
 licv/ main' Years fhall limit or bar a Ri^iit, 
 any more rl;an in wliat Order Inheritances 
 fhail dcfcend ? \i it hc^?. Civil Laws would 
 do well to foli'jv/ its Provilions, inftead of 
 differing from cue another and thcndelves. 
 Nor ]'^i it ];c (ahl, that Disputes about prior 
 C 2 O.ca-
 
 20 Confiderations on the 
 
 Occupancy are cxpofed equally to the Ob- 
 jcdion of difturbing the public Tranquillity, 
 as Difputes about Inheritances 5 both becaufc 
 thole of the firfl: kind lying within the ocu- 
 Jar ObfervatioQ of many, and taking their 
 Rife upon the Spot to be occupied, muft be 
 of eafier and fimpler Determination, depend- 
 ing not at all on legal Prefumptions, and arti- 
 ficial Reafoning 5 and becaufc, without the 
 Principle of prior Occupancy, there could 
 be no fuch thing, in a State of Nature, as the 
 Acquifition of Property. And, therefore, 
 any Difputes which might be fuppofed to 
 arife from it, arc to be confidcred as an in- 
 evitable Evil, whilft that State remains. But 
 the Right of Inheriting is not a Manner of 
 acquiring Property neceflary for the Subfift- 
 ence of Mankind, and to fupport the Pur- 
 pofes of Nature. 3. Civil Laws have always 
 diltinguilhcd between ^^jura Sanguinis and 
 Jura hereditaria ; confidering the one as 
 inflitutcd by Nature, the other by civil 
 Compact. The Roman Law fays. Hares e/i 
 Nomen Juris, Films No men Nature -, and 
 Cafes might be cited out of it, which wx^'c 
 afFcQed by this Maxim. In the Law of 
 England^ the lame Diftinclion is clearly 
 made. If a Man attainted be murdered by 
 
 a
 
 Law <?/'FoRFEITURE. 21 
 
 a Scrangcr, the Son fhall not have the Ap- 
 peal, bccaufe it is given to the Heir ; Yer, 
 if he is murdered by tiic Son, it has been 
 held by fome great Lawyers, that the Crime 
 is Petty-Trcafon, becaufe the Relation of a 
 Son remains. If a Man is attainted, and 
 have a Charter of Pardon from the King, fo 
 as to be capable of being returned upon a 
 Jury between his Son and another, the Chal- 
 lenge, on account of Confanguinicy, con- 
 tinues 5 notwithftanding the Corruption of 
 Blood is not taken away by the Pardon. 
 Now, if the Right of Inheriting be a Right 
 of Nature, the Name of an Heir cannot be 
 feparated from that of a Son, but they mud 
 ftand and fall together, bccaufe Jura San- 
 guinis nullo Jure Crjiii dirimi pofj^unt. Cur 
 againft this Reafoning we have the Authority 
 of Two Syllems of Civil Law, which arc 
 noble Efforts of human Reafon, and the 
 accumulated VVifdom of many Ages. 
 
 The Right of Inheriting being proved of 
 Civil Inftitution, it may naturally occur to 
 one, who turns iiis Thoughts upon this Sub- 
 ject, that " It is an Inllitution contrived only 
 '' for the Benefit of a Man's Children ; and. 
 C 3 ^' there.
 
 2 2 Confiderations on the 
 
 " therefore, ought not to be obftruded by 
 *' the Demerit of the Father/' 
 
 It will be proper to premifc the Anfwer 
 to this Objedion with obferving, that al- 
 tho' the Ili;:!-t of Inhcritinf^ be hitherto the 
 Exprcffion generally made wk of iti this Dii- 
 courfc, and relative to the Heir only j yet 
 tlic Argument holds equally true of the 
 Right of tranfmitting Property, which is re- 
 lative vo the Aivcefior. For Xi\<t(z Rights imply 
 ■:x\\d. fuppofe each other, if the fame Pcrfon be 
 confldcred both as an Heir and an Anecftor j 
 that is, in the two dilfcrent Lights in which 
 he frauds, with refped to thofe who have 
 gone before liim, and thofe who are to fuc- 
 cccd him 5 and therefore the Terms may be 
 faid to be ccnvei'tible 5 the one only referring 
 to him to whom the Property defcends, and 
 the otlier to him from whom it comes. And 
 novv^, if, without being thought guilty of Re- 
 finement, we may refort to the firft Elements 
 of Civil Society for the Rcafons on which 
 thefe Rights are grounded, they feem to be 
 Two ; and neither of them has any Rela« 
 tion to the Children : One, that when thofe 
 Things, in which a Man had gained Pro- 
 perty for iiis Subfiiknce, ccaied to be his in 
 
 the
 
 Law of Forfeiture, 23 
 
 the Courfc of Nature, the ncarefl: Relation 
 fhoLilci inherit and take Polleflion, left the 
 Eagerncfs to contend about fuccceding to 
 them, might turn the State of Civil Society 
 into a State of War. And hence the Rules 
 of Dcfcent have been extended in fo many 
 Countries, to take in the remoreft Kindred of 
 the firft Occupant or Purchafer. The other, 
 that, when every Individual gave up natural 
 Rights, as the Protcdion of Society was due to 
 him,forfubmittingliisownRcvenge to public 
 JuClice, fothis Right of tranhnitiing Property 
 wai conferred upon himasoneRccompcncc, 
 for purfuing his private Advantage in many 
 refpeds, where Nature interferes not, fub- 
 ordinately to the Good of Society 5 and to 
 make the Advantages, lb acquired, more 
 permanent than in a natural State, by ex- 
 tending the Enjoyment to Reprefentativcs, 
 as it were, beyond the Bounds of Nature. 
 How juft therefore is it, that he, who has not 
 only ceafed to purfue that Good, but taken 
 Meafures to dellroy it, infringing the original 
 Contrail, fhould forfeit the Protedion, and 
 lofe the Recompence, he gained by it ! And 
 if the Courfe of Dcfccnr, tho' in ii:s EiTccl, 
 and perhaps fecondary \'ie\v, beneficial to t!ic 
 Children, owe its Inilitution to Realoiu-, 
 C 4. V. li'ca
 
 24 Conllderations on the 
 
 which folcly regard Civil Society, why may 
 not Rcafons of the fame public and general 
 Utility account for the Interruption of it ? 
 
 In Support of the Notion here advanced, 
 2,\\d the Uie made of it, one may obferve the 
 Difficukics which muft attend any Endeavour 
 to explain the Grounds of this great Inflitu- 
 tion upon the other more obvious and com- 
 mon Notion, dated in theObjeftion. Now 
 It is a Confequence, that if the main Caufe of 
 providing a Courfe of Defcent for Property 
 was the Benefit o{ the Children, the firft 
 Makers of Laws concerning it muft have had 
 a particular Attention to them, not merely 
 as the Defcendents and neareft Relations 
 of their Father, but as left in the weak State 
 of Infancy and Orphanage. But then the 
 Manner of this Provifion is in no Sort pro- 
 portioned to the Caufe of it j for in fome 
 refpecls it does too much, and in others too 
 iittlc ; Too much, as the Right of Inheriting 
 becomes the mere Favour and Gratuity of 
 Law, to Children, wdio are not in that weak 
 State, at the Time of i\\c Father's Death, and 
 therefore not comprehended within the Rea- 
 Ibn and Foundation of the Right : Too lit- 
 lIc 5 for if their Bcnciit be the principal 
 
 Caufe
 
 Law (j/* Forfeiture. 25 
 
 Caufe of this Eftablifhmcnt, then the equal 
 Partition of the Father's Property fhould 
 take place between all the Children ; and 
 rhofe Civil Laws, which transfer the whole 
 Inheritance by Defccnt to the eldeft, ought 
 tc give proportionable Shares of it to the reil, 
 in cafe the Father has ncgleded it. But as a 
 farther Evidence, that the complete and prin- 
 cipal Rcafons of this Ertab'iiLment muft not 
 be drawn from this fubordinatc Etfcd and 
 fccondary Purpofe of it, but from the Foun- 
 dations of SocietV;, let it be confidered, that 
 of itfelf, and unattended by other Provifions 
 in Favour of Infants, this Ritziht of Inheritinir 
 is equally inefFedual to their Service in a State 
 of Civil Society, as it has been ^fhewn to be 
 in a State of Nature : and it is fomewhat 
 extraordinary in Reafoning, to afllgn that as 
 the final Caufe or main End of any Inftitu- 
 tion, which the Inftitution itl'elf is apparently 
 not fitted to attain. It is alfo more unnecef- 
 fary, becaufe in a State of Nature, antecedent 
 to Civil Policy, it is impoilible to fuppofe any 
 other Means ox providing for them, than 
 either fuch as may arife from the Exercifc of 
 Rights, which Nature has annexed to them- 
 fclves (of which Kind the Right of Inherit- 
 * Pa^c 17, JO. 
 
 mg
 
 25 Confiderations 07i the 
 
 ing is fuppofed to be), or fuch as may be 
 contrived by the tender AfFedion of the Pa- 
 rent, or the difinterefted Care of the Be- 
 nevolent. In a State of Civil Society, the 
 Means are various: Infants are not only of 
 private, but of public Concern. And furely 
 the Invention of thofe great Maders of Po- 
 licy, the antient Lawgivers of mod Coun- 
 tries, failed them unaccountably in this In- 
 fiancc, if rlrc great Caufe of cftablilhing 
 Dcfccnts was the Protection and Benefit of 
 Infants ; fince the fame End might have been 
 anlwered far better in other Ways, without 
 conferring any Rights of Inheritance at all, 
 or making any Alteration in the natural and 
 original Condition of Property. The Su- 
 preme Power of each State might have 
 taken all Cliildrcn out of the Hands of their 
 Parents, maintained and educated them in a 
 State of Equality under the public Care j and 
 ■»hen, without expofmg them to the Danger 
 of that enervate Indolence, or vicious Adi- 
 vity, too often owing to hereditary Wealtii, 
 migiit have drawn them out, according to 
 riicu- Age, Capacity, and Improvements, into 
 the Civil or Military Service, more ufefully 
 and more honourably for themfelves and 
 their Country. This Plan is \o obvious, asj 
 
 well
 
 Law of FoK¥E IT VKE, 27 
 
 well as grateful to the Imagination, that it 
 has been touched upon by many Writers, 
 and is beautifully purfued in Theory to its 
 utmoft Extent, by the Framers of imaginary 
 Commonwealths, ^Flato and Sir Thomas 
 More. But the Legillators of real States 
 faw the abfolutc Ncceility of cftabiifhing In- 
 heritances for the general Order and Welfare 
 of Society 5 and at the fame time knew the 
 Plan juft mentioned (at Icaft as to the full Exe- 
 cution of it) to be impracticable, without al- 
 lowing that Community of Goods, of which 
 vifionary Legiflators are fond ■, but which 
 neither the Pafllons of Men, nor the Cir- 
 cumftanccs of Society, could bear. 
 
 To thefe Arguments it may be added. That 
 the Courfe of Defcent is alike obftrucled 
 by one Sort of Alienation as another ; and 
 if the Benefit of the Children was the only 
 or chief Source of legal Defcents, it will 
 follow, that there oui;ht to be no ilich thine 
 as a Power of alienating, in any manner^ 
 vefted in the Farher : A Confcquence, which, 
 it will readily be allowed, fliould be guarded 
 againd j both as ir would dcftroy the mutual 
 and necellary Dependence of Families, and 
 introduce Perpetuities fo dangerous to that 
 
 Ch"cu-
 
 2 8 Conliderations on the 
 
 Circulation of Property, which animates all 
 focial Indudry. Hence it is, that a Man's 
 Poftcrity are not only indebted to the Laws 
 of that Country, which gave them Birth, for 
 a Capacity of Inheriting, but, by the fame 
 Laws, arc commonly left in the Power of 
 the Father, as to their receiving actual Be- 
 neht from that Capacity. In England^ a 
 Tenant in Fee Simple may charge, wafte, or 
 fell his Eftate, and convey it away for ever 
 from his Heirs. He may devife it by Will 5 
 and, unlcfs in Cafes of Fraud, the Law 
 will not intcrpofe to make it void. A Te- 
 nant in Tail is Mafter of his Eftate, if he 
 purfucs the Methods of Conveyance proper 
 to it. In thcfe Inftances it may fcem very 
 hard, that any Man fliould difpofe of a For- 
 tune from his Poftcrity -, and yet the Law 
 having put them out of the Father's Power, 
 as to every Grant, which they receive from 
 the Kindncfs of another, and the honcft 
 Fruits of pcrfonal Merit, it wifely forbears 
 to break in upon the Law of Nature, which 
 allows a Freedom of Alienation 5 and ex- 
 pels no more from the Father, than that he 
 conduci: the Child, as long as he is able, 
 thro' the Wcakncfs of Infancy, to a Condi- 
 tion of fupporting himfclf by his own La- 
 7 bour
 
 Law <?/ Forfeiture. 29 
 
 bour and Attention. Shall it then be in his 
 Brcafl: to alicne in the Forms of Law, as In- 
 tereft or Humour leads him ? And fliall not 
 his Attempts to diflblvc Society be equitably 
 condrued, for Reafons of public Ufciulnei's, 
 a virtual Intention of exerting his utmoft 
 Power to alienate thofc Benefirs, which 
 might have been derived thro' his Chanel. 
 from the Favour of Society? Is it (it or rea- 
 fouable, that this Privilege oF alienating at 
 Diicrction, to the Prejudice of his Poftcrirv, 
 fhouki be fo freely indulged to him, upon a 
 plain Principle of natural Equity, that every 
 Man may dii'pofe of his o'^'n Property as he 
 pleafcsj and that the Society, Vv'hich has from 
 Favour, and pofitivelnftitution, conferred on 
 him a Right to tranfmit that Property to 
 Pieirs, ihould not be allowed to confer fucii 
 Favour upon its own Terms (Terms indeed 
 cilential to its Safety) ? That is, in other 
 Words, Is it fit or rcafonabie, that Society 
 fnould be denied the Benefit or that Prin- 
 ciple of Equity, by which the Priviicge of 
 alienating, fo valuable to each Individual, 
 is indifputably framed and fupportcd ? 
 
 But it inay be faid, '' The Alienation by 
 ■ Forfeiture is more c.vtcnfive tlian any 
 
 ''• othc.
 
 30 Confiderations on the 
 
 " other allowed in the Law of England^ 
 " bccaufe it is attended with the Lofs of 
 " HonouiS;, which cannot othcrwife be ali- 
 " cned ; and the Corruption of Blood ftops 
 " the CoLuTc of regular Defcent, as to Eftates, 
 ''^ over which the Criminal could have no 
 " Power, becaufc he never enjoyed them." 
 
 As to Honours, they have fo far been 
 alienable amongft us, in former times, as 
 that a Man might, by Surrender, reftore them 
 to the Crown, that Fountain, from which 
 they flowed. The Law is now differently 
 underftood in this refpcd. But tho' they are 
 not alienable, like moft Inheritances, fince 
 that would be to debafe and proftitute them, 
 yet they fecm peculiarly the proper Obje<5V 
 of Forfeiture 5 for, being, in a ftrider Senfe 
 than other Kinds of Property, the Gift and 
 Creation of Society, the Terms, on which 
 they arc given, mufl: be intirely fubjcft to 
 its Power. And is it not natural and politic, 
 that aDiftindion beftowed only for the Praife 
 of them, who do well, fhould be forfeitable, 
 on the Commifllon of Crimes, for a Terror 
 to Evil-doers r 
 
 As
 
 Law of FoKVEiTui^E. 31 
 
 As to the Corruption of Blood, it will be 
 cafily undcrftood, when the Meaning and 
 ReAlbn of it are cxprcfled in common Lan- 
 i^uage, free from legal Terms of Art. The 
 Fropofition to be explained is no nKjre than 
 tills ; That if a Man is not capable of traiif- 
 mitting Property acquired by himfelf to an 
 Heir, it fecms a nccellary Confcquencc in 
 ileafon, which is the Ground of Law, that 
 he fhall not be capable of receiving from an 
 Anccftor, either to enjoy, or to tranfmir. 
 And the Propofition may be made out by a 
 very fhort Deducnon. The Methods of ac- 
 quiring Property can only be divided under 
 tiie two general Heads of Purchafe ('Fcrqra- 
 (itum\ 7iSx^v)z{'Cz\\x.(Hj:r-jd'itp,s)-y the one 
 referring to him, who takes or acquires Pro- 
 perty in the firft Inllancc by his own or an- 
 other Man's Acl: > the other, to iiim, wh:> 
 rakes or acquires the Property of an Ancefloi 
 immediareiy upon his Dece.:tfe, by Acl and 
 Operation of Law. 1. V/iioever acquires 
 Property by Purchalc, muft do it in one of 
 thele Ways ; by prior Occupancy, by Emp- 
 rson, or by Gut. The:e are the natural, 
 Mays of acquiring Property, and mull fub- 
 i;^; in a S^are of Nature, anterior ro Cjvii 
 
 Snrii-'-v.
 
 32 Confideratlons 07i the 
 
 Society. Here the Cafes are infiniteiy com- 
 plicated and various, and tlie Rules of Evi- 
 dence will vary, according to the Nature 
 and Circumftances of every Cafe. And 
 whoever claims, under this Title of Pro- 
 perty, claims in his own Perfonal Right, 
 without deriving from Anceftors. There- 
 fore the Son of an attainted Pcrfon is equally 
 favoured in whatever he takes by Purchafe, 
 and in the Remedy he purfucs for this Right, 
 as any other Subjed of the State. 2. Acquifi- 
 tion by Dciccnt is not Natural, but merely Po- 
 iltive (as has been fhewn), and founded on 
 the Policy of Civil Laws. Here the Cafes 
 cannot be complex, becaufe the Laws of De- 
 fcent in moft Countries are very clear ; the 
 Rule of Evidence is fingle, and will not ad- 
 mit either of Rcftraint, or Extenfion, in ap 
 plying it. This is particularly true in the 
 Feudal Law. For by that Law whoever 
 claims under the Title of Defcent as Heir, 
 ought ftrictly to deduce his Pedigree thro* 
 Anceftors from the firft Purchafer or Ac- 
 quirer. And that is the reafonablc Rule of 
 Evidence in Defcent. Yet becaufe fuch Evi- 
 dence may often be difficult, a more fa- 
 vourable Rule has been introduced in Ii^ng- 
 landy that it fliould only be neceftary for 
 
 a
 
 LaV) d?/" F O R F E I T U R E. "X^l, 
 
 a Claimant by Dcfcent to prove hitiilelf 
 Heir to the Peifon laft fciied. This is taken 
 to be lufficicnt prefumptivc Evidence of Rela- 
 tion to the tirft Purchafer; the Law cxpccrs 
 this fhould be exaclly proved, and does nor 
 require the Evidence to be carried further- 
 The Confequences flowing from hence, in 
 point of Reafon, are undeniable, i. That 
 when he,who was laft feiied of the Inheritance, 
 has committed Treafon, and the Law hasfaid, 
 that he fhall no longer enjoy it iiimfelf, nor 
 iranfmit it to an Heir, of courfe no fuch Title 
 can be made by any one who claims as Hcii* 
 within that Rule of Evidence. 2. If the 
 Claimant cannot make Title where the Of- 
 fender was fcifed, becaufe the Vinculum of 
 Defcent is deftroyed 5 neither can he make 
 Title where the Offender was not fcifed, if 
 that Otfender be an Ancellor, who forms the 
 Vinculum between the Claimant and the An- 
 ceftor, who was feifed. What then is the 
 general Reafon of Law upon this Cafe ? The 
 offending Anceftor is by Acl of Lawdifabled 
 from inheriting or tranfmirting Property to 
 Heirs. Shall then the Law, which is only to 
 be moved by Confiderations, that atfecl the 
 Whole, be moved, in this Inftance, by pcrfo- 
 nal Companion to his Family ; and make an 
 
 D Effort
 
 34- Confiderations on the 
 
 Effort of itfclf, inconfiftently with its own 
 folcmn Ad, to fupply that conneding Link 
 in the Chain of Defccnt, which has been 
 {Iruck out of it, for the Traitor's Infamy, 
 and the public Benefit ? 
 
 After this, it may be objeded, that " The 
 Expectation of Inheriting, in which the 
 Children are educated, confers a Right 
 on the Principles of Confciencc, whicii 
 fpeaks the Dictates of the Law of Nature. 
 It is ever thought a CrueUy, that Fathers 
 fhould alienate from their Children by 
 wafteful Expence, or Gifts to Strangers, 
 The Roman Law for this Reafon provided 
 Gluerela. Tejiamenti inofficiojt ^ and fome 
 local Cuftoms in England gave the Writ 
 de rationabiU parte bonorum. Why then 
 Ihould Society make thefe Alienations 
 the Confcquencc of an Ad, which has no 
 immediate Reference to alienating j elpe- 
 cially when it is the Bufinefs of Laws to pre- 
 vent the ill Confcquences naturally arifing 
 from Mens Actions, inltcad of adding to 
 them by Implication and Con(tru6tion ?" 
 The Objection fccms founded on good Rea- 
 fon, and yet mult give way to better. If wc 
 confidcr the kind of Expedation here fpoken 
 
 of.
 
 Law /^/'Forfeiture. 2j 
 of, it will be found to arifc only from the 
 ordinary Courfc of Families and legal Dc- 
 fcenrs, and not given in fuch a Manner, and 
 with liich Circumftances, as to confer a 
 Right, on any Principles of Law or Con- 
 fcicnce. Whether therefore we take tlic 
 Right of Inheriting as conferred by Civil 
 Society, or, for Argument-fake, by Nature, 
 the Expectation arifing from it is the fame -, 
 fmce it mud be confidered, in the fir ft Cafe, 
 as beftowed originally on Condition ; in the 
 fecond, as qualified by Civil Infiitution, like 
 many other Rights of Nature. And if thofc 
 who form the Expectation will regard that 
 as abfolute, which depends on the Perform- 
 ance of exprefs Conditions, the Inattention 
 mufl: be imputed to themfclves, and not to 
 the Law of their Country. To wafte a 
 Fortune which would have made an \\o- 
 nourable Support for a Man's Family, is 
 dcfervedly cfteemed cruel and againfi: Con- 
 fcience. Why is it not prevented by riic 
 Care of Legiflators ? Becaufe no complete 
 Provifion could be made a gain ft that Evil, 
 which would not be attended with more 
 general Inconvenience ; and the Compliance 
 with the contrary Duty is derived from the 
 Manners, and the Heart, gronr.iiid upon 
 D 2 rru:-
 
 36 Confiderations on the 
 
 Principles, and enforced by Sandions, of an 
 higher Order than belong to Civil Laws. 
 If the greateft Good of every Community 
 be the Objed of Laws contrived for it, as 
 unqueftionably it ought to be, every leffer 
 Intereft muft yield 5 it being only the Pro- 
 perty of Divine Government to reconcile 
 all private with public Good in the final Re- 
 fult of its Difpenfations. Hence it is, that 
 tho' Laws prevent Confequcnces injurious to 
 Particulars, where they can, conftftcntly with 
 fecial Good, yet in Matters which concern 
 the Exigence of the Society or Government, 
 Confequcnces injurious to Particulars muft 
 not only be fuffcrcd to take place, but even 
 fought for and indulged, if they have a 
 Tendency to prevent Confequcnces injurious 
 to Government itfelf. On this Rcafon (land 
 thole fevcre Laws, which have been made in 
 feveral States againft Neutrality in times of 
 common Danger. It is agreeable to the 
 Policy and original Compad of Government 
 to blend and involve the Intereft of every 
 Member with its own ; on which Account 
 the Fortunes of private Men in all Coun- 
 tries muft depend upon public Revolutions. 
 Were it, in any rcfped, the Aim of Civil 
 Laws to make particular independent of the 
 
 ibcial
 
 Law ^Forfeiture. 37 
 
 focial Good, as it would be a very fingular 
 Strain of Policy, fo it would proceed upon 
 a Principle more contrary to the Law of 
 Nature, than thofe, who are fond of that 
 Law, would defire to fee charged upon their 
 Dodlrinc. Befides, nothing is more natural, 
 on the Principles laid down in this Eflay, 
 than the Conftrudlion which Civil Laws 
 have put on Treafons againfl: Government, 
 that when a Man endeavours the DilTolution 
 of it, he means to difclaim all thofe Bene- 
 fits and Rights, which it has either made him 
 capable to enjoy, or the Inftrument to con- 
 vey : Nothing is more necellary, than to 
 try whether thofe Attachments, which are 
 conncd:ed with our Paflions and AfFedions, 
 will prevail, when thofe, which are founde4 
 only in Reafon and Convenience, have no 
 Power. Sic legibus comparatmn eft (fays 
 Tully) iLt filiorwn car it as amiciores reddat 
 parentes Reipiiblica. Thus Society, by 
 making the Lofs of thole Rights it confers 
 upon every Man, a Penalty for the greateft 
 Crime, which can be committed againfl his 
 Country, interefts every Relation and De- 
 pendent in keeping him f,rm to the general 
 Tranquillity and Welfare •■> at the fame time, 
 it gives him an Occafion ot reflecling, that, 
 
 D i when 

 
 3B Confiderations on the 
 
 when he attempts it, he mufl break thro' 
 every private as well as pitbiic Tye ; which 
 enhances his Crime, whilft it is an Aggra- 
 vation of his Punifhment. Nay more, he 
 may hope to efcape from the jufticc of his 
 Country with his own Life, if that alone 
 wcie to be forfeited ; but the Diftrefs of 
 his Family will purfue him in his fecurefl: 
 Thoughts, and abate the Ardour of Rcfo- 
 lution. Many Indances occur in Iliftory, 
 and daily Experience, of Men, not afhamed 
 to commit bale and felfifli Enormities, who 
 iiavc retauied aTendcrnefsfortheirPofterity 
 by the ftrong and generous Indind- of Na- 
 ture. The Story of Licinius Macer, who 
 was Father to Calvus the great Orator, is 
 very remarkable, as related by a Roman 
 Annalifl. Having gone thro' the Office of 
 Pra:ror, and governed a Province, he was 
 accuied, upon returning home, of Extortion, 
 TxwA Abufes of his Power. The very Morn- 
 ing of his Tryal he flrangled himfelf, after 
 having fcnt Word to CtcerOj who was pre- 
 paring to plead againft him, that, being 
 determined to put an End to his Life before 
 Sentence (tho' tlic FVnalty did not extend 
 fo taking it away;, the Profecution could 
 
 nor
 
 Law (?/^ Forfeiture. 39 
 
 not go on, and his Fortune would be favci 
 to the Benefit of his Son. 
 
 Upon the Whole then, Where is the 
 Wrong ? It is agreeable to Juftice to bcftow 
 Rights upon Condition. It is the Wifdjom 
 of Governments to lay hold on human Par- 
 tialities. 
 
 But it is not enough to reft upon Argu- 
 ments from Reafon, to prove there is no- 
 thing in Forfeitures of this kind inconfiftent 
 with Juftice : It muft likewife be proved, 
 that they are agreeable to the Pradicc and 
 Genius of the freeft States. This is doubtlefs 
 a Matter of much Importance, and likely 
 to have the grcateft Weight with thofe, who 
 arc more ready to fufped a Fallacy in ftrong 
 Rcafons, than great Authorities. It may 
 be ncccHary to be large in Oiewing it, bc- 
 caufe it has been relied on to a contrary 
 Purpofe. 
 
 In the Je'Sjijh Republic there arelnftances, 
 in which Children were deftroyed, by the 
 Intcrporuion of Providence, for the Crimes, 
 and to increafe the Sufferings, of their Fa- 
 thers. This by no means furniflies an In- 
 I^ 4 fercnce
 
 40 Confiderations on the 
 
 fcrcnce to the Nature of human Punifh- 
 meiits, being inflided by the Hand of God, 
 \v ith an cxprcfs Prohibition to the Civil Ma- 
 giftrate to imitate it, and founded on the 
 particular Conftitution of their Theocracy. 
 But the Forfeiture of inheritable Eftates 
 {lands upon other Reafons, and was confe- 
 qucnt on a Judgment pronounced and exe- 
 cuted by the ordinary Magiflrate. The 
 taking away of Lands iiom. Mcphtbojleth by 
 T>izn:id, and the Confifcation of Nabotb's 
 Vineyard by Ahab^ are Examples of it > and 
 tho' both fuifcred unjuftly, yet, had their 
 Trial been conduded with Opennefs and 
 Injpaitialiiy, there had been no Danger from 
 the niiftakcn jealoufy of the King, or the 
 OpprcfTion of the Tyrant. In the time of 
 Ezra, after the extraordinary Providence 
 was, in a great mcafurc, departed from the 
 "Je'uJs, there is an Evidence of it in that 
 public Ad of the State, by which all, who 
 had married foreign Wives, were to make 
 their Appearance before the Elders in three 
 Days, under Pain of forfeiting their whole 
 SubAancc. 
 
 By thcConftirution oi Athens there were 
 three Sorts of Injamoiis *, which was a 
 
 ■* Petit, Leg, Att. 508, 
 
 Term
 
 Law <?/" Forfeiture. 41 
 
 Term of Art in their Law. i. Thoic, 
 who aimed to introduce Tyranny, as in the 
 Cafe of fuch as aided Tijijtratns. 2. Thofe, 
 wlio owed Money to the Public, and neglect- 
 ed or refufed to pay it. 3. Thofe who had 
 received Bribes, behaved ill in Sea or Land 
 Fights, thrown away their Shields in Battle; 
 all fuch were banillied, and deprived of every 
 Immunity, both they, and their Pofterity. 
 It is true, Judgment of Forfeiture was only 
 inflicled difcretionarily in the firft and third 
 Kind of thefe Lifamies, but followed in 
 Judgment of Law as to the fecond. ?///- 
 tarch tells us, that Thenujlocles, for con- 
 cealing the treafonable Correfpondence of 
 Tanfanias with the King of Terfia^ for- 
 feited his whole Eflate, to the Value of 
 Eighty or One hundred Talents, to the Athe- 
 nian Treafury 5 and his Children took Re- 
 fuge in 'Fcrjia. Thus, if before Sentence 
 pronounced, efpecially in the Cafe of Mur- 
 der, a Man tied fiomjullice into perpetual 
 Exile, the Confequence was, a Forfeiture 
 and Sale of his Subflance by the proper Offi- 
 cers for the Ufe of the public Cofters. It was 
 another Law witli them, that any Magiilratc 
 corrupting others to advifc, or himfelf ad- 
 vifing, the People to abrogate the Laws 
 
 Criminal,
 
 42 Confiderations on the 
 
 Criminal, fhould forfeit his Subftance, him- 
 felf and his Pofterity be outlawed, and fub- 
 jcd to be deftroyed with Impunity. They 
 looked upon thefe to be the Pillars of the 
 Commonwealth, and that it was the Ma- 
 giftrate's peculiar Duty to uphold them. 
 ^emojihenes * accufed a Man before the 
 People, who had propofed a Vote, by which 
 Fines and Forfeitures were, in EfFed, to be 
 taken away. He fpeaks of the Guard, which 
 had been fet on that Part of the Conftitution 
 by the Care of their Legiflators 5 and alligns 
 a very artful and flattering Reafon to the 
 Athenians for a Law, which made it For- 
 feiture to propofe the Rcftitution of Perfons 
 in particular Circumftances of Guilt ; That 
 " the Legiflator, knowing the natural Lc- 
 " nity and Compaflion of his Countrymen, 
 " would not expofc the public Safety to the 
 " Pretences or Abufc of it." 
 
 By the Roman Law, the Crimen laf£ 
 Majeftatis f comprehended many Branches, 
 of wliich the Crimen ^erditellionis was, in 
 all rcl'pcds, the mofl fcvcrely diflinguifhed, 
 m<i at firfl: the only Capital. It was fo from 
 
 ■* Dem. adv. T'wiocrat. 
 
 •*- Ntj'tut. de I^f? Rom. Par 1557 
 
 the
 
 L^xy ^ Forfeiture. 43 
 
 the carlicft Times of the Republic ; and is 
 marked out as fuch by the Laws of the 
 Twelve Tables ; which is not only an Evi- 
 dence of the Pradicc in Rome^ but of the 
 Regard had to it in Greece, from whofe 
 Commonwealths, particularly y^^^<:7ZJ, thofe 
 Laws were borrowed. By Capital, amongft 
 the Romans, was meant, not only the Pu- 
 nifhmcnt of Death, but the Mimitio Capitis, 
 which, in the largeft Senfc, included the 
 Lofs of all Capacities, and a Forfeiture* of 
 a Man's Subftance to the Trcafury ; bccaufc, 
 as the Digeft phrafes it, Qu.t Civitatem ami- 
 fit, Haredem habere non poteji ^ *■' He wlio 
 " has loft the Rights of a Citizen, can have 
 *' no Heir 5" it being confidered by the 7?^- 
 man Law, as a Privilege conferred by Society, 
 
 * Biiliop Burvet^ in the Second Volume of his Hi- 
 ft-ory, />. 522. whfre he fiys, ihac Forfeiture was ncvci 
 the Pj act ice of free Governments, lays it down, Tha; 
 '' it was tn rnvcntion under the Tyranny of the Fm- 
 " perors, who had a particular Revenue called the F//c^ 
 '' from when::e i: was ca'iled Confiication." To this 
 one may cppofc ihc Word:; of Ciqacius ^——Vifcus erat 
 Vopnli^ 7iunc hnpcratons. Cujac. adL. Jul. Maj. Which 
 Paflagc innmarc:;, ihat Forfeitine was a known Punilli- 
 ment diiring the Republic. I-- was then called Bojiorum 
 V>th!icat:o. But the B^ll.op {ecms to have been milled 
 by the late Origin of ihc Word Conf [cation, to imagin* 
 rhe Thing iiieif W35 introductd no earlier. 
 
 to
 
 44 Confiderations on the 
 
 to tranfmit Property by Defcent. This Crime 
 of Trcafon was puniflied both by Death and 
 "Forfeiture. The Cafe of Sp. Malius, in 
 Lt-vyy is exprcfly to this Purpofe : He is laid 
 to have been put to Death for aiming to dc- 
 ftroy tlie Republic, and his Goods and Eftates 
 fold, which he had applied to the moft un- 
 worthy Uie. When the Sentence of For- 
 feiture palled upon any Man, without de- 
 priving him of Life, it was given in the 
 Form of Interdicting from Fire and Water. 
 Cicero s Eftates were confifcated by that Form 
 propofed to the People after his falfe Step of 
 withdrawing from Rome^ and not by any 
 cxprcfs Words in ir, but by the legal Opera- 
 tion. Antonyy Dolabella, LeplduSy were 
 adjudged Enemies to the Commonwealth, 
 and their Eftates conhfcatcd. Even Cafar, 
 who was for mitigating the Penalties on the 
 Catilinarian CcnfpiratorSj moved a Confif- 
 cation of all their Property to the public 
 Coff\:rs. This particular kind of L£fa)Ma- 
 jejlas was held in fuch Horror, that En- 
 ccuiragcment was given to Accufers. By 
 Law, the Informer had his Pardon, if an 
 Accomplice ; nay, if his Accufation was 
 ngainft a Magiftrate in Ofticc, provided he 
 were capable, his Reward was that Magiftracy: 
 
 4 ' If
 
 Law ^y Forfeiture. 415 
 
 If the Accufcd was only a Magiftratc cled, 
 he was allowed a Scat in the Senate, and to 
 give his Opinion in the Rank of that Magi- 
 flrate. The Accufed was immediately dif- 
 abled from paying, felling, alienating ■■> and 
 no Dignity was exempted from the fevered 
 Methods of Examination. What is ftill 
 more, this was the only Charge, which pur- 
 fued a Man s Memory and Pofterity; for, in 
 cafe he died while the Profecution was de- 
 pending, his Heirs were obliged to defend 
 it : Otherwife Confifcation cnfucd, as if the 
 Crime were admitted or confclTcd. 
 
 Thus it flood in Matters of Trcaibn 
 thro' the bcfl Ages of the Commonwealth. 
 The Cornelian and the Julian Laws were 
 thefirft, which made fcveral other Species 
 of Lafa Majejias capital, as well as "Per- 
 duellio. As to public Crimes not within that 
 Dcfcription, thefc Laws feem chiefly de- 
 flgned to confirm, or perhaps inlarge, the 
 Sanction of thofe, which had been growing; 
 up gradually, to guard againfi: Offences, as 
 Corruption incrcafcd. Public and private 
 Force, t'lc one with Arms, the other \vit]> 
 our^ wc .v.mifncd with the utmofl: Seve- 
 rity : !:'• ft by perpetual Banifhmcnt to 
 
 Ibmc
 
 46 Confiderations o?i the 
 
 fome certain Place (deportatio), which was 
 accompanied with Lois of all Rights and 
 Capacities, and Forfeiture of Eftate ; the 
 other with a Confifcation of One Third. 
 
 By the Cornelian Law, the Murder of a 
 Father or Patron was capital 5 and by the 
 Julian^ the Murder of any Citizen was pu- 
 nillied with intire Confifcation and Banifh- 
 ment. 
 
 The Crime of Peculate, or Embezzle- 
 ment, by the fame Law, was punifhed in 
 like manner, ^apinian fays, a Proceeding 
 was allowed for this Crime againft a Man's 
 Heirs. And long before the making of that. 
 Law, in the Inftancc of Scipio AftaticuSy 
 Brother ioAfricanus, a Fincfo heavy was fet 
 upon him, being charged with having con- 
 cealed Part of the rich Booty brought home 
 froniy^'^, that his Eftate would not fuffice 
 to pay it : and, in fuch Crimes, they were 
 often fentenccd to refund four times the 
 Value. 
 
 The Laws, which concerned Abufes in 
 the Government of the Provinces, were 
 equally ftrong : So were thofe concerning 
 
 Bribery
 
 Law of Forfeit V RE. 47 
 
 Bribery in Elcdions and Judicature j con- 
 cerning Deceit (wliich branched out into 
 many Particulars), and clandeftine Meetings. 
 
 This is a fhort State of the Laws, which 
 had the Penalty of Forfeiture during the 
 Republic. Augnftus introduced little or no 
 Alteration. In the fingle Cafe of Caffius 
 Se'verns, being much galled by the Licen- 
 tioufnefs of his Writings and Convcrfation, 
 he caufed the Matter of Libels to be treated 
 capitally, as a Crime of Ltefa Majeflas. 
 For the reft, the Mildnefs of his Nature in- 
 clined him, and the Liberty of Rome, fo 
 lately loft, made it hislntercft, not to deviate 
 in Things of this high Importance from the 
 Conftitution of his Country. At the fame 
 time, he law his own Security, and the 
 Tranquillity of the State, depended on the 
 cxacteft Support of his Authority, and the 
 Execution of thcfe Laws. Tacitus *^ in 
 dcfcribing the Progrefs of the Laws of Ma- 
 jefty, and the undue Extenfion of them in 
 the Reign of Tibernis^ exprclles himlclf ia 
 this Manner : Nomen apud vcteres tdenu 
 fed alia in judicium veniebant -, Ji quis pro' 
 * L. i. An7i. r 71, "z 
 
 ditionc
 
 48 Confiiderations on the 
 
 dittone exercittim, attt plebem fedit'tonibuSy 
 denique male gefta Rep. majejiatem ^opuli 
 Romani minuijjet. FaBa arguehantur, diBa 
 impune erant. The great Point, on which 
 he infifts, is, the Difference between the 
 Crimes, of which Men were accufed under 
 the Commonwealth, and under the Tyrants, 
 whoteppreffed it. An unguarded Saying was 
 Treafon againft Emperors j but in the free 
 State, a Man could only be accufed of Adions, 
 which had a dired Tendency to overturn Go- 
 vernment. And it is to be obferved of this 
 Hiftorian, who writes in the Spirit of Li- 
 berty, and cenfures with great Strength and 
 Weight, that he never excepts to the Pu- 
 nifhment of Forfeiture, as either a new 
 Inftitution of thofe Times, or unjuft and 
 impolitic in its own Nature. The fucceed- 
 hig Princes framed feveral Laws, which car- 
 ried thefc Offences to an Height of unjufti- 
 fiable Severity. Arcad'ms and Honorius en- 
 afted one, which has been branded by the 
 Civilians, as eminent above all for its Cru- 
 elty : The moft remarkable Terms of it 
 were, '• That the Intention of confpiring 
 " fhould be punifhed without any Overt- 
 " act J that they, who prefumed to intercede 
 " for thole acculcd of Treafon, fhuuld be 
 
 *' dif-
 
 Law <?/^FoRFEITURE. 49 
 
 difgraccd j that not only the Edatcs of 
 the Criminals fhould be confifcatcd, but 
 their Sons rendered incapable of inherit- 
 ing from the Mother, or any Relations, 
 or even of taking by the Will of a Stran- 
 ger ; that they fhould be perpetually in- 
 famous, and difqualified from afpiring to 
 Honours and Dignities, or claiming the 
 fame Privileges of legal Credit with other 
 Men in judicial Contefts j that, in a Word, 
 the very holding of their Lives was to be 
 taken for a Mark of Impcratorial Mercy; 
 and yet, it is faid, their Condition fhall 
 be fuch, as to make Life a Punifhment, 
 and Death a Comfort." 
 
 Some of the later Emperors by Law 
 mitigated thcfc, and even the antient and 
 more juft Severities ; but we neither find 
 fuch Severities, nor Mitigations, whilfl: the 
 Republic exifted. This is cafy to be ac- 
 counted for. Different Emperors, according 
 to their Tempers of Mind, or Maxims of 
 Adminiftration, might hope to render the 
 arbitrary Power, by which they governed^ 
 fccurc or agreeable, by influencing the Fears, 
 or engaging the Alieclions, of their People ■■, 
 by fetting forth Terrors to Rcfillancc, or 
 
 E Prctcn.G^
 
 5© Conliderations 07t the 
 
 Pretences of Lenity to Submiflion. But the 
 great Men of the Republic, confidering the 
 Exigencies of Government, and knowing, 
 that the Freedom and Excellence of their 
 Conftitution deferved. all Reverence from 
 thofe, who lived under it, and inviolable 
 Protedion from thofe, who regulated and 
 adminiftercd it, difdained to "ad otherwife 
 than upon one Model, according to the 
 Rules of Juftice and true Prudence; not 
 the Dictates of Cruelty, or falfc Clemency, 
 
 We have fccn, that the Forfeiture of Eftatcs 
 of Inheritance for a Man's Heirs, as well as 
 himfcif, is not inconfiftent with Jufticc. 
 Strong prcfumptive Arguments have been 
 drawn from the Condition of human Na- 
 ture, the Law o^ xXizJein's, AthinianSy and 
 Romans, to fhcw it agreeable to Policy ,• 
 which will receive great Strength from a 
 View of the Feudal Law, efpecially when 
 deduced from its Source, and applied to the 
 Er.glip Conftirution. 
 
 The Policy of Feuds has in it thofe Prin- 
 ciples, wliich ought to prevail in the Found- 
 ation of all Policies, mutual Defence and 
 Freedom. It vv^as contrived by the People, 
 
 who,
 
 La-io o/* Forfeiture, 51 
 
 who fprung from that great Seminary of 
 Nations, the North, as an AfTociation to 
 extend, prcfcrve, and enjoy Conqucfts. 
 The General or Prince, claiming to himfclf 
 the Sovereign Property, parcelled out the 
 Lands to his Commanders, who again made 
 fmaller Divifions to others, under a Condi- 
 tion of ftipulated military Services, and of 
 cxprcfs Fealty, to be true to the Lord 5 but 
 that lower Fealty, to be governed by their 
 Regard to a more comprchcnfive, which 
 centred in the Prince, and in a Support of 
 the great Ends of the Conditution. The 
 Potentates of the more Weftern Parts, 
 difturbed by the SucceflTes of io formidable 
 a Confcderacv, refolved to turn this Policv^ 
 againrt: the Inventors, and to difpofe of 
 thcmfclves, and their Country, in the lame 
 manner, hi Matters of mutual Lnport- 
 ance. Aid v/as to be mutual 5 and, in confc- 
 quence of the Fealty, which enjoined it, the 
 Feud or Parcel of Land, enjoyed by the 
 Stipendiary, was taken to be a Security for 
 the exadl: Performance of his Engagements. 
 Now it followed from the military Relation 
 thus begun, that the Lord muft have grcdt 
 Int:rcft in the Vaflal's Qualincations. Hence 
 '!ic Feud could not be aliened cit!:cr in 
 E :. Whole.
 
 52 Confiderations on the 
 
 Whole, or in Part, without his Confcnt : 
 It might not be fold, exchanged, mort- 
 gagedj incumbered, or devifed. On the 
 other hand, the Lord could not difpofe of 
 the Seigniory without the Vairal's Confcnt , 
 for it is certain, that the Vaflal would, in 
 his Turn, be much concerned in the Wif- 
 dom and Temper of his Mafter. In both 
 Cafes, the Freedom and Necellity of this 
 Policy required a moft faithful Obfervance 
 of the fcveral Parts of this Relation. If 
 the Vaflal failed in his Services, or in per- 
 forming his Fealty, or endeavoured to dif- 
 unite the Bands of Duty and Connection, 
 by wafting or transferring the Feud, or, in 
 general, did any thing to injure the Lord's 
 Honour, Perfon, or Eftate, it was forfeited 
 and rcfumable. If the Lord proved guilty 
 of Injuftice or Opprellion, his Seigniory 
 was forfeited by the fame Lav/, and the 
 Tenant was to transfer his Fealty to the 
 Lord next above him, or to the Prince, as 
 the fuprcme Guardian. Thcfc Obligations 
 were cxpcded from all, who had any Part 
 afhgncd them, tho' it were by the Tenure 
 of the Plough or Husbandry, in promoting 
 the common Welfare. 
 
 Sucli
 
 Law ^Forfeiture. 53 
 
 Such arc the Principles and the Engage- 
 ments of this PoHc}';, which not only run 
 thro' all that intricate Variety of Feuds, in 
 Countries where it is prcfervcd purcft, 
 but even where it received a large Tincture 
 from the particular Cuftoms of Nations, 
 which adopted it. It is not material to in- 
 quire, whether the Policy was received in 
 England before or after the Conqucfl. The 
 Difputes between the Learned are endlefs, 
 Something of the fame Kind is admitted to 
 have been maintained amongft us very early, 
 even by the warmcft Advocates for the 
 Norman Original of it in England. Sir 
 H. Spelmaji *, in his Treatife of Tenures, 
 allows, that an Oath was taken, not of 
 Fealty indeed, but to defend the Lord of 
 the Territory, and for Lands, as it were, 
 held in Socage, but not by Knights Service. 
 It is true likewife, that there was no feudal 
 Efciicat ; yet a memorable Law of Canute 
 (who caufed the Saxon Laws to be obferved 
 ftrictly, afterwards called Ed'ujard the Con- 
 feffor's) exprellcs a Punilhment refembling 
 it : ^li fngiet a dornino j'no '■eel jbcio pre 
 thniditate m expeditione 7iavali "xr/ ter- 
 
 F ; refir;^
 
 54- Confiderations on the 
 
 reflri, perdat omne quod fuum eft, & fuam 
 ijyfms 'vitam y ir mantis mitt at dominus ad 
 t err am, qitam ei dederat , & Jt terram 
 hared'ttariam habeat, tpfa in rnanum regis 
 tranfcat. In this Cafe the Lands holden 
 of any Lord arc to revert to him 5 and the 
 Hereditary Land, or Saxon Bocland, which, 
 according to the Antiquaries, was free from 
 Service or Tenure, is directed to go to the 
 King, as a Regal Forfeiture. Confequcntly, 
 this Penalty of forfeiting Inheritances fub- 
 fifted in England before the Period com- 
 monly called the Conqucft ; refembles the 
 Peudal Policy, tho' varying in fome Cir- 
 cumftances ; and, clear of Feudal Notions, 
 may be juftified from anticnt Ufage, upon 
 the general Principles, and for the Security 
 of Government. 
 
 Let it now be taken for granted, that 
 altho' the Kingdom had Traces of Fealty 
 and Forfeiture, that is, of a Feudal Policy, 
 from the carlicH: Times, yet that the Law 
 of Feuds, llriclly undcrdood, was not re- 
 ceived till after the Conqueft; and we ihali 
 not find the Qiicuion affcclcd by it, other- 
 wife than as it throws new Light upon the 
 Argument, and. affords additional Reafons 
 
 peculiar
 
 Z//3^' ^ For F EiTUR E. 5 5 
 
 peculiar to itfclf in Support of it. The 
 two Inquiries to be made arc, Wiicther the 
 Law of Feuds was received with any Cir- 
 cumftanccs of flavifh Submillion j and what 
 Alterations arofe from it in the State of 
 Forfeitures. 
 
 The firfl: of thefe Inquiries may be rc- 
 folved by obferving, that the Policy was not 
 impofed, but came in by free and National 
 Confent, at a Parliamentary Meeting in the 
 Eighteenth Year of the Reign of IVtUiam 
 the Firft. The Law, enading the Reception 
 of this Policy, is obferved, by a learned and 
 judicious Writer*, to be penned, as if the 
 King were merely pafllve, the mere clearly 
 to exprefs the Confent of the Commune Con- 
 cilium to fo confiderable an Alteration ; for 
 the reft of the Conqueror's Laws are worded 
 in another Manner, and feem to mention 
 the Comynune Concilium only in reference to 
 that Law. But, by fevcral of theie, the 
 King engages, in favour of the Tenants, to 
 make no unjuft Tallages or Exactions, and 
 to demand no other than fuch Services, as 
 are purely feudal, and for the Beneht of the 
 Kingdom. Thus the Policy of Tenures, as 
 
 * IVrifJjt o\ TcnuicSj f. 66. 
 
 £ 4 nJo^^ili
 
 5 6 Confiderations on the 
 
 adopted in England, has nothing precarious 
 or iUibcral. Even the Villeins, who were 
 Bondmen to the Saxons, by being admitted 
 to Homage and Fealty, received Infranchife- 
 ment, obtained Freedom of their Perfons, 
 and an Ufe of occupying their Lands j and 
 by fuccelTive Statutes were advanced to 
 fome Account in the State. 
 
 As to the Second Inquiry, concerning the 
 Alterations introduced into the State of For- 
 feitures by the Reception of the ftrid Feudal 
 Policy, it is remarkable, that in the Cafe of 
 High Treafon no Innovation was made. 
 Indeed the Efcheats of Hereditary Lands 
 for Petty-Trcafon, and Felony, arofe from 
 that Policy j fo that where Tenants held 
 mimcdiatcly of the King, any Devolutions 
 for thcfc Crimes were properly Efcheats ; 
 but, upon Commillion of High Treafon, 
 the Lands and Tenements, which came to 
 him, were not Elcheats, but Forfeitures 
 given to him by the Common Law, derived 
 from the Saxon^ Times, not depending upon 
 Feuds, and exactly agreeable to the Law of 
 Ca?iute already cited. Thefe, of whatever 
 kind, fell into his Hands, without any re- 
 gard to the Seigniory of mcfne Lords. The 
 
 original
 
 Law ^Forfeit URF. 57 
 
 original Feudal Law * llippofcs no Efchcat 
 or Forfeiture, but to the immediate Lord, 
 even in Crimes, which concern the Prince 
 or Proprietary. In the Law ot England it 
 is other wile ; and it we would allign a 
 Feudal Rcalbn for it, as well as Reafons 
 drawn from general Policy, it feems pro- 
 bable, that Lords, being, in many rcfpeds, 
 anfwerable for the Tenants Misbehaviour, 
 were confidercd as having failed in their Duty 
 to the Crown (from whom the Lands both 
 of the Lord and Tenant were llippofed to be 
 derived), by making Choice of an ill-in- 
 clined Feudatary 5 and were induced, by this 
 Penalty, to obferve a more than ordinary 
 Care, in the Elcclion of Pcrlbns to fo great 
 a Truft. The iamc Reafon had Weight in 
 Cafes of Felony, where the Land Ihould 
 return to the Lord, and he might remit the 
 Crime or Efchcat ; yet bccaufc a Neglect is 
 fuppofed, on his Part, in the Appointment 
 of a Tenant, the Land, and a Power to waftc 
 it, Hull belong to the King a Year and a 
 Day, in Prejudice of the Lord. Among the 
 Saxons J there was no Efchcat of inheritable 
 Land in Felony -, and Sir //. Spelman f thinks 
 the Ke?itipj Gavelkind h\^\\\w, of the Father 
 
 * P. 117. t C. 2;. 
 
 4 t«
 
 5 8 Confiderations on the 
 
 to the Bough, and the Son to the Plough, 
 was univerfal throughout the Kingdom. But 
 in Matters of Treafon, which flrike at the 
 Foundation of Policy and Government, even 
 Gavelkind Lands are forfeitable, and always 
 were 5 which is derived from thofe antient 
 Lawgivers, as well as the Privilege in Fe- 
 lony. 
 
 It has been fhewn, from the Nature ot 
 the Feudal Policy, that the great Principle 
 of the Law of England, that all Lands 
 bear a Reference to the King, as having the 
 Supremum IDominmm, is founded on the 
 greateft Wifdom, and a true Regard to the 
 common Safety. On this Account it is faid, 
 by the Feudal Writers, that Fealty could 
 not be difpenfcd with ; and tho' fworn only 
 to the Lord, yet its Virtue and EfFcds ope- 
 i'ated, to the Benefit of the Whole. Hence 
 the Obfervance of it was a main Article of 
 Inquiry in the Lord's Court. For the fanve 
 Reafon, thefe Writers lay it down, that the 
 dircd Dominion cannot be alienated from 
 the politic Capacity of the King 5 that Fee 
 has its Name from Fealty 5 that no Covenant 
 can be made againfl: performing it 5 that tho' 
 the Oath be ff arcd, yet the Duty is virtually 
 
 implied
 
 Law of Forfeit VRt. 59 
 
 implied ill the Acceptance of the Fee of Feud 5 
 and that the Failure in thib Fealty is the Lois of 
 the Land. It has been aheady fuggefted too, 
 that a Government thus depending on Fealty, 
 and the Neglect ot" it attended with fucli a 
 Punifljment, was the eaiiieft Condirution of 
 England y and the good Effeds arifing from 
 it might induce our Anceftors, with more 
 Readinefs, to embrace a Policy, which pro- 
 mifed to convey the fame happy Effeds 
 with greater Certainty, as it fcemed to have 
 this Advantage over the antient Form, that 
 it cemented all Orders of xMen more clofely, 
 and enforced their Conncclion more mi- 
 nutely : They were however not aware, that 
 it would foon be made a Pretence for the 
 Introdudion of thole burden fome Services, 
 which occafioncd all the Uneafinefles of 
 fucceeding Reigns. Sir //. Spebaan *, in 
 one Place, exprefly fays, it is not his Opi- 
 nion, that the Conqueror introduced Feuds 
 or milit.u-y Services in a general or lefs Arid 
 Senfe, but the Law of Tenures in its full 
 Extent, and thofe Services, which were the 
 Grievances. The Nation foon felt the 
 Weight, and threw it off in the Reign of 
 his Soil Henry tlie Firfl, who, in his Char- 
 
 * Tr. 01 Ten. c. 28. 
 
 ter.
 
 6o Confiderations on the 
 
 ter, mitigating Wardfhip, Marriage, and 
 Relief, took away tiie evil Cuftoms, which 
 had been engrafted upon Tenures, and re- 
 duced the Policy to its pure State, and ori- 
 ginal Intention. They revived again by 
 degrees, and were, at different times, li- 
 mited and reftrained by our Kings, being in 
 themfelves not at all eflential to this Form 
 of Government, but deftrudive of it, in 
 giving it the Air of Slavery, when it was 
 founded an Principles of Liberty, and break- 
 ing the Spirit of the People by Opprellion. 
 The Stat. 12 Car. II. c. 24. has fince abo- 
 lifhed even the military Services ; and the 
 Feud or Fee is much varied from its firft In- 
 ftitution in the Courfe of Time and Law. 
 It may then be objeded. That the Principle 
 of the Law of England, " which fuppofes 
 " all Lands derived mediately or immcdiatc- 
 '' ly from the Crown, is no more than a 
 " Fidion ; and the military Services being 
 " abolilhed, and the Crown-Lands difpcrfed 
 " amongfl: the People, the Reafon of it 
 " ceafcs." 
 
 I. As to its being a Fidion, it is very 
 true, the Right of the People of England 
 to their Property docs not depend upon, nor 
 
 was
 
 Law <?y Forfeiture. 6i 
 
 was ill Fad derived from, any Royal Grant. 
 The Reception of the Feudal Policy, in this 
 Nation, exactly anfwcrs the Definition of a 
 * Fidion ; which is fome Suppofition ia 
 Law, for a good Reafon, againft the real 
 Truth of a Fad, in a Matter poflible to 
 have been adually performed, according to 
 that Suppofition. This being admitted. What 
 follows? It will be urged, " That Fidions 
 " of Law are to convey Benefit, not Injury, 
 " to the Party ufmg or adopting them ? and 
 ** that this is a prepofterous Fidion, which 
 " tends to the Ruin of Families, by putting 
 ** their Eftates, for the Fault of one An- 
 " ceftor, into the Power of the Crown." 
 It has been fhewn, that the Forfeiture of 
 Lands for Treafon was known in England 
 before the Introdudion of this Policy (what 
 ever might be the Cafe in rcfpc6l of other 
 Crimes) j and, even after, was never niodcllcd 
 upon the Rules of it. But not to decline 
 arguing the Matter upon ftrid Feudal No- 
 tions, it will be ncccffary to try this Fidion, 
 as it concerns Inheritances, by Maxims, which 
 are in Law the Boundary of fuch Fidions. 
 Does it prejudice the Right of Strangers ? 
 Thar cannot be faid. Such Right is favcd, 
 
 " Caiv. Lex Jurid- 
 
 both
 
 62 Confiderations on the 
 
 both by the Intention of the Common Law, 
 and the exprefs Words of Statutes. And 
 as to the Intereft of the Heir, it is derived 
 from that of the Anceftor, and intimately 
 conneded with it. Is this Fiction ftrained 
 to a collateral Purpofc, which does not na- 
 turally flow from it ? Neither can that be 
 faid. For it is the very Point and Confc- 
 quence of the Fidion, that> when the Te- 
 nant hath broke through his Engagements, 
 the Land fhould return to him, of whom 
 it is originally holdcn. In every Law, which 
 has the public Advantage for its Objed, it 
 may happen, that private Interefts fhall in- 
 terfere and fuffer. Yet, if it be a Suffering, 
 becaufc of a jufl and ncceffary Sandion, it 
 muli not be confidered as an Injury; the 
 End of that Sandion being to heal the Pra- 
 viry, and deter from the Imitation, of bad 
 Condud. And thus the Feudal Policy, a 
 Fidion, bringing Forfeiture along with it, 
 may be confidercd as conveying Benefit to 
 i\\z Nation, and thofe who adopted it. 
 
 2. It is a Maxim in Lav/, That Fidions 
 are not to maintained beyond the Reafon, 
 v/hich gave Rife to them. And it may be 
 fciid, " Thar the Abolition of Tenures by 
 
 " Knights
 
 Z/<»u; ^ Forfeiture. 63 
 
 " Knights Service, and the Fruits of them, 
 " has deftroyed the Rcafon of this Prin- 
 " ciple." But has not the Stat. 1 2 Car. II. 
 declared all the Ground of England to be 
 held in Common Socage ? And is not Fealty- 
 due for Socage Lands ? And is it not agree- 
 able to the Ends and Welfare of Govern- 
 ment, that it fhould be due ? What were 
 the Aids formerly granted and aflefled in 
 Parliament, for the Support of the King's 
 Wars ? Or, What is the Land-Tax, now 
 annually raifed for the current Service, but 
 of Feudal Original ? A Kind of general Efcu- 
 age, or Commutation for Service, accord- 
 ing to the Provifions of Magna Charta ? Is 
 then the Policy, or the Realbn of it, ceafed ? 
 What is this but a Regard to the Defence, 
 Security, and Honour, of the Realm ? It 
 was thought in the Feudal Law, that a Man, 
 who had once violated the facrcd Relation 
 he engaged in for the public Benefit, ought 
 to be excluded from it. Does the Rcafon 
 fubfift no longer ? The Strength of the 
 Kingdom is in the Landed Intcrcfl:. Every 
 Man, who Iharcs in it, has Influence over 
 his Tenants and Followers, and; in a greater 
 or a Icfs Proportion, may prove an ufcful 
 Friend, or a dangerous Enemv. If he has 
 
 maliiMiant
 
 64 Conliderations on the 
 
 maiigiiant Difpofitions to the Laws and Go- 
 vernment working in his own Mind, it is 
 probable they will not flop there, but he 
 will communicate and infufe the Poifon into 
 others, till his Schemes are mature for Adion, 
 and break forth to the Terror, if not to the 
 Ruin, of his Country. 
 
 Thefc are the Principles of the Feudal 
 Policy, as far as it may be necefl'ary for us to 
 confidcr them with a View to the prefent 
 Qiieftion. They are Principles of Freedom, 
 of Juflice, and Safety : the EngliJJo Confti- 
 tution is formed upon them. Their Reafon 
 will fubfii>, as long as the Frame of it fhall 
 ftand 5 and, being maintain'd in Purity and 
 Vigour, will preferve it from the ufual Mor- 
 tality of Governments. 
 
 Let not then the Mateiials of this noble 
 Fabric, defigncd by the Wifdom, and ered- 
 cd, at infinite Hazard, by the Valour, of our 
 Anccftors, become the Objcd of Avcriion 
 and Hatred, or be held in DiQionour and 
 Contempt. Formerly, the Evidences of our 
 Conftitution were perverted, to fupport the 
 Maxims of Slavery ; they were abufcd, to 
 varnifh over the Purpolcs of Liccntioufncfs. 
 
 Happy
 
 Law ^Forfeiture. 65 
 
 Happy it is for us, that \vc live, when the 
 Maxims of the one are cxpofed, the Pur- 
 pofcs of the other difclaimcd. And, whilft 
 thofe Evidences are not deftroycd, Conclii- 
 fions, juQly deduced from them, will pre- 
 vail to lateft Times, againft the Artiticc of 
 falfe Reafoning, the Efforts of vain Ambi- 
 tion, and the Corruptions of a carclcfs 
 Poftcritv. 
 
 This Policy has been received, and llib- 
 fids, in almoif all Countries of i^/'/r^?;'.'', tho' 
 differently modelled and difguifed; in fome 
 fo deformed, as to be abufcd to Purpofes of 
 the hardeft Opprcllion. The Conftitutioa 
 of Germany is free. What is the Ban of the 
 Empire, but a Proccis of Forfeiture, ifiucd 
 by the Emperor againfl Princes, who, break- 
 ing the fundamental Laws, are deprived by 
 the Judgment of the Stares, both they ^iwA 
 their Pofleriry ? Matthicu, Servant xo Htiiry 
 IV . of France, and the Hilforian oi his 
 Death, fays, that he once asked an Avoyer_, 
 or fupreme Magillrate, in S-Jsitzcrland, how 
 the Crime of Treafon came to be fo rare 
 amongft them ? " Becaufe, anfwered the 
 " other, we punifn Traitors with the ut- 
 " moft Rigour, and exterminate t!:eir Fa- 
 
 F " milieu.'-
 
 66 Confiderations on the 
 
 *' milics." In Holland, the Penalty of Con- 
 liication was inflidcd anticntly, by Judg- 
 ment of Law, for certain Offences. An 
 excellent Writer fpoke in Terms too gene- 
 ral and inaccurate, when he faid*, " in that 
 " Province it was redeemable for an hundred 
 " Guilders." For tho' it be true, t'ia*" by fpe- 
 cial Grants of fbme of the o'd i-Oiirus of 
 Holland to CQn:i]n. Families aiiJ 1^1 1^ .srLcre, 
 this Privilege of Pvcdceniing Foricl.ares 
 prevailed ; yet the municipal Law of the 
 ( ounrry was othcrwife at that time (not- 
 withfuinding it has Hncc received an Altera- 
 tion). This is not only the Cafe ui the fe- 
 parare Adminillration of many of the Pro- 
 vinces; but we are told, by thofc who treat 
 of the (^onditution of the Lo'uJ Countries, 
 That the Council of State condemns any 
 officer, wliO abufcs a public Truft in the 
 finances, the Armies, the Negotiations, or 
 ]uftice or' the Republic, to the heaviell Pe- 
 nalties, by Fine, fuited to the Grime, the 
 Exigency, and Example. And it is much 
 the iame Thing to the Children of a Cri- 
 minal, whether the Fortune of the Family is 
 taken irom them by Judgment of entire 
 
 * Buiuet\ ii.ii. of his own I'lmcsj ad Vol p. 57.2. 
 
 For-
 
 Law of Forfeit UKE. 67 
 
 Forfeiture, or by a difcrctionary Sentence 
 condemning to a fcverc FinC; which may 
 equal or exceed the Vahie of it. This Dif- 
 ference between them is obfcrvable, that in 
 Crimes, where the Forfeiture is to be U- 
 mited by the varying Difcretion of the 
 Judges, a Man may fl:ttcr himfelf, before 
 he contracts the Guili', with fome fpecious 
 and tempting Arguments (which we arc 
 dextrous enough to invent, when we wifli 
 to impofe upon ourfelves), that the Confe- 
 quences of this Kind may be lefs fcvere than 
 the Event proves them. Dut in Crimes, to 
 which it is annexed, as an edabUfhed Punifh- 
 nient, there is no room for fuch Arguments ; 
 and he may read the certain Confequences 
 in that Law, which, as it is the inflexible 
 judge, fo it ought to be the invariable Mea- 
 fure, of his Actions. 
 
 Thus wc may rcafon from the Practice of 
 free States. Yet one might frame a plaufible 
 Objection here: " To what End fervcs a 
 mixed Government, if flich Severities are 
 expedient to fupport it? In popular Go- 
 vernments, they may be expedient to de- 
 ter private Men from con (firing to fet up 
 " Tyranny j in Kingdom.s, a Democracy, 
 F 2 " Scacavcs
 
 68 Condderations on the 
 
 " Schemes of Civil Policy, which are found- 
 " cd on Extremes, muft be maintained by 
 '■^ them." This is ib far from being rightly 
 argued, that a mixed Government unites and 
 confirms the llearons, which make fuch Se- 
 verities expedient, both under popular and 
 monarchical Govcrnm.cnts. Where Things 
 are cxaciiy balanced, the ftronger Defence is 
 ncceiiary to proted the feveral Eftates, that 
 no one may break in upon the Privileges 
 allowed to any other. And, as the Law of 
 Englnnd is framed with a fingular Felicity, 
 liic Defect common to Republics, a Want 
 of Power to pardon, or, at leaft, the Diffi- 
 culty ot procuring Pardon, isfupplied, which 
 guards againft a rigorous Severity ; and the 
 Oppreillon in State Crimes, common to Mo- 
 narchies, is prevented by the well- tempered 
 Courfe of Proceeding, which guards againft 
 a dangerous Injuiiice. Of thefc Particulars 
 fomerhing fnall be faid hereafter. 
 
 It will be proper to examine, in this Place, 
 what Eitatcs, and what Rights of Property, 
 were forfcirablc by the Feudal Law 5 and, 
 in comparing the Notions of the Law of 
 Enilluiid Vv'irh it, tliis Matter vvill receive 
 the cleared liluflration. 
 
 ;{. All
 
 Law (?/" F O R F R I T U R R. 69 
 
 1. All Goods and pcrfonal Things, as 
 Money, &c. being a Man's own, and ap- 
 plicable to any Purpoles he plcafcs, have 
 been cfleenied a proper Subjecl of Forfeiture. 
 They were taken to be the Produce of the 
 Feud, belonging to it ; and were forfeitab e, 
 cither in \\'holc or in Part, for Offences of 
 inferior Moment. 
 
 2. Feuds, or Eilatcs in Land, whether 
 for Years, for Life, or defcendibic. r. In 
 Crimes that concerned the Lord or Feud, 
 whether the Feud was no-vnni, ijcl antlauuvi, 
 that is, iirft granted to the Offender, or de- 
 rived from an Anceftor, it was open to the 
 Lord. 2. In Crimes, that concerned others, 
 if the Feud were anticiu, it went to x.\\z 
 next Branch of the Fami'y ; if new, ir was 
 open to the Lord, becaufe Feuds, in the firll 
 Infiance, unlefs it were cxprefly provided 
 otherwife, could only defcenJ, without in- 
 clining to a Collateral. In both Cafes, the 
 immediate Heirs of tlic Criminal were ex- 
 cluded. In this lafl: Species of Crixcs, the 
 aiitient Feud went to the next Collatera! Re- 
 lation, tho' the Conlcnt of the Lord, as 
 well as !us, was neceffiry to the ordinary 
 
 F ^ Sur-
 
 -'O Confideradons on the 
 
 Surrender or Alienation of it. In tlic for- 
 mer, it returned to the Lord, tho' the Con- 
 fcnt of the Collateral, as well as of the 
 Lord, was necclTary to the fame Ends; lb 
 that the Power of conveying an antient Feud 
 from a Man's Fleirs, except by Crime, .was 
 not abfolute in him, without the Confcnt of 
 both thefc. And yet, in one Kind of Of- 
 fences, there is a Devolution to the Colla- 
 teral, without the Intervention of the Lord ; 
 and, in the other Kind, there is a Devolution 
 to the Lord, without the Intervention of the 
 Collateral. This Corruption of Blood, by 
 which a Man cannot have an Heir, intro- 
 duced a very important Confcquencc into 
 Feudal Defcents, That where-ever it became 
 necellary for one, v/ho would make Title to 
 another, to derive the Eftate through an 
 attainted Peribn, except where the Perfon 
 claiming was particularly defcribed in the 
 Invcftiturc, the Attainder was a Bar to his 
 Title 5 as in the Cafe of a Grandchild claim- 
 ing an Eftate, in Fee, from the Grandfatiicr, 
 the Son having committed Trcafon, and dy- 
 ing, in the Life of the Grandfather. Some 
 FeudiAs have not been willing to allow this 
 Cafe, on account of its Hardship: And 
 
 Craig,
 
 LaiV ^^/"FORFEITURE. 7I 
 
 Craig *, a very able and elegant Writer on 
 the Law of feuds, is diiplcaled with rlic 
 ]udgment in Scotland, which determined 
 theQueftion in that Country. He intimates 
 that this may fecm (Irangc, the Son havin,'; 
 never been in Polienion, nor being capable 
 of it. And it mufl: be admitted, there is a 
 Teeming Hardfhip: Yet, becaufe of the Rule 
 of Evidence in Delcents, by which the Son 
 mufl: neceflarily be named in conveying the 
 Defcent, the Grandchild is exckided. Tlic 
 fame Reafon governs the C"afe of an Edatc 
 defcending from the Uncle to the Nephew, 
 if the Blood of the Nephew's Father {thro' 
 whom the Eflate muft: be derived from the 
 Uncle) be corrupted. But he goes further, 
 and fays, That allowing this muil be 'lo up- 
 on legal Notions, yet, at leaft, the Eliare 
 might have gone over to the next Collateral 
 Branch, inflead of efcheating to the Crown 
 (of whom it feems, in the Cafe he dates, 
 to have been immediately held) fince it 
 would not be neccfiary for the Collateral to 
 convey thro' the Criminal. He mi., ht trace 
 his Defcent from the laft common Anccllor, 
 who was an innocent Man, and a good Sub- 
 
 * D" Ji<r F. /. 3. 11 1 6 § ir. 
 
 P 4 jccl,
 
 72 Coniiderations gu the 
 
 jcd, without the Icail Notice taken, in 
 making out the Line of Defcent, either of 
 tiie Attainted or hisPoflcrity, any more than 
 if that Branch of the Family had never been 
 a Part of it. 
 
 If this Pveafoning be thought material, it 
 n>ay be faid in Anfvver, i. Cy way of ge- 
 neral Foundation, that it is a Principle in 
 all States, where a Man is neither a Subjed 
 by Birth or exprcfs Conipa£l, or has volun- 
 tarily renounced the mutual Obligations, to 
 confidcr him as not within their Obedience, 
 or even Notice. But where he has forfeited 
 liis Civil Rights by Crime, he is regarded as 
 dill fubjecl to their Power; and, in every 
 refped, within the ftrid Confideration of 
 the Law. 2. That the antient Common 
 Lavs^ of England clearly proceeds upon this 
 Principle. Where a Man v/as not capable 
 of Civil Rights by Nature, as an Alien 
 born, and never naturalized, being unknown 
 to the Lav/, he was excluded from inherit- 
 ing; and the next of Kin v/iilnn the Alle- 
 giance, who did not claim under liim, was 
 admitted ; c;, v/hcrc lie had incurred Civil 
 Diiai)ilitie.s i-y liis ov/n voluntary KOi, not 
 criminal, as one who entered into Religion, 
 
 or
 
 73 
 
 LaiL^ of Forfeiture. 
 
 or abjured the Realm, he was taken to have 
 unueri;one a civil Death, and tlie next in 
 Courie of Dclcent entered. But where he 
 is attainted oi Treafon or Felony, the Law 
 will not pals him over, and marks him out 
 in rei exemplum c^ injcwiiam. Hence it is, 
 that tho' he was never in Poilellion, nor 
 thofe who claim under him more capable of 
 inheriting than he, by reafon of the confc- 
 quential Diiability arihng from the Attainder 
 of the Ancellor, yet the Ellatc will be in- 
 terrupted in its Courfe to tlic Collateral, 
 and cfcheat. For it is determined in all the 
 Law-Books, and allowed by tlie learned 
 Writer himfcif, Vvithout Objedion, or Hefi- 
 tation, that if the Father of Two Sons, of 
 whom the eldcll is attainted, die feifcd of 
 an Eftate in Fee, and h:)x\\ lurvive liim, the 
 }-ounger Brother vvill not be Flcir to the Fa- 
 ther, becaufe the eldefc cannot be palled 
 over. This Cafe would be the fame, liip- 
 pofuig the attainted Brother dead at the time 
 ot the Father's Deceafe, if he left Children, 
 fince their Right of Rcnrelentation, which 
 mud correfpond to the Circumdances of 
 him who is reprelented, would operate 
 fo far as to impede t!ie Defcenr. And the 
 Cafe being put in this Manner, as oi tlie 
 
 attainted
 
 74 Confiderations 07t the 
 
 attainted Son dead before the Father, and 
 leaving Children, it comes exadly to the 
 Cafe * objeded to by Craig, of the Grand- 
 child difablcd from inheriting the Eftate of 
 the Grandfather, by tlie intermediate At- 
 tainder of the Son 5 in which Cafe he thinks, 
 tho' the Grandchild cannot, yet the Colla- 
 teral (that is, in the Cafe here put, the 
 younger Brother) might inherit, confiftentiy 
 with the Rule of Evidence in Defcents. It 
 is difficult therefore to account, how this 
 great Writer came to allow an Efcheat, to 
 the Prejudice of the younger Brother, in cafe 
 the attainted elder furvived the Father j and 
 to complain of its HardHiip, in cafe he died 
 before the Father, and left Pofterity behind 
 him. The Pofterity of the Attainted cer- 
 tainly do not ftand in fo fair a Light as the 
 younger Brother, the immediate Dcfcendant 
 of an innocent Father, and who, in convey- 
 ing the Dcfcent, might claim immediately 
 from him. This great Writer Ihould have 
 denied the Equity of both Cafes, when he 
 thought proper to deny one. But the Truth 
 is, they ought both to be allowed, as fall- 
 inc; under the fame Rule of Rcafon and Po- 
 
 'D 
 
 licy,
 
 Law c/ Forfeiture. 75 
 
 licy, as well as Law. 3. One may venture 
 to fay, it is more probably beneficial to the 
 immediate Heirs, on whom the HardChip is 
 thought principally to lie, that the Eftate 
 fhould fall into the King's Hand, than to the 
 collateral Branch; becaufc, in this latter 
 Courfe, there can be little Hope of Rcftitu- 
 tion, and it might expofc Families to endlcfs 
 Jealoufy andDifunion. The King receives 
 more Advantage from Acls of xVIercy, than 
 from the Coming in of Forfeitures : and it 
 is mod agreeable to Reafon and Policy, that 
 the Difpofition of them fhould belong to 
 feinij who is in Law confidered as the Foun- 
 tain of Juftice, and Guardian of the public 
 Safety. This Confideration might be one 
 Inducement, amongft others, to that Peti- 
 tion of the Commons, 21 Ed-jv. Ill*, in 
 which they pray the King, not to alienate 
 his Franchifes. At Common Law, many 
 Lords had, by Special Grant, or in Right oi 
 their Counties Palatine, Royal Efchcats of 
 the Lands held within their Franchifes, of 
 Perfons attainted. Hence it became their In- 
 tcreft, from a Defire of enlarging their Pof 
 fellions, to purfue Offenders with an unbc- 
 
 * Cott. Rec. p. 58. 
 
 comini:
 
 7 6 Confiderations ojt the 
 
 coming Violence j and the Lenity of the 
 Crown was precluded by their private Right. 
 
 3. Titles, Dignities, and Honours were 
 forfeited, as following the Reafon of Lands, 
 being originally derived out of them, or an- 
 nexed to them by Tenure. 
 
 4. The Lofs of Dower, by the fame Law, 
 arifes from every Circumftance which de- 
 ftroys the Right of the Heir, except it be 
 any Ad done by the Heir himfelf. A Wo- 
 man was to be endowed of the Lands, 
 whereof the Husband flood fcifed at his- 
 Death. She had an Evidion, to turn the 
 Alienee out of Folic flion, in cafe of any 
 Alienation made, not completed regularly 
 by Livery and Scifin : but when the Crime 
 of the Husband, or Lord, occafioned For- 
 feiture, the one taking place before the 
 Death of the Husband, to deftroy his Scifin ; 
 the other perhaps, after his Death, and be- 
 fore Affignment of Dower made to her ; 
 the Right of the Heir being, in cither Cafe, 
 deftroycd, her own, tho' generally favoured 
 mcft higlily, fubllOcd no longer. 
 
 The
 
 La'w ^/Forfeiture. 77 
 
 The Law of England, which is com- 
 pounded out of many Syftcms of Law and 
 Cuftom, agrees, in fomc refpec'ls, with the 
 Law of Feuds 5 in others, has a manifeft 
 Advantage over it. 
 
 All Forfeitures for High Trcafon belong 
 to the King : and by the Uie made of this 
 Prerogative, it fliould feem, that he is in- 
 truded Vvirii it for the Purpofe of Reflitu- 
 tution to tlie Traitor's Family, as it may ap- 
 pear riglu from Circumftanccs ; to reward 
 the Merit of thofe, who have been faithful 
 to himfelf and the Commonwealth; or to 
 be applied to public Services^ as either his 
 own Wifdom ihall direct, or the Parliament 
 ad vile. 
 
 I. As to the Forfeiture of Goods, and 
 Things perlbnal, wliich the Party has or is 
 intltled to in his own Right, thcfe, being 
 intirely in a jVIan's ovvn Power, or defcend- 
 ing to Executors, and not his Heirs, very 
 properly follow the Conviction. Before 
 Sentence, he may appiy them to the Pay- 
 ment of Debts, to the SubfilleriCe of him- 
 felf and Family, and \> prevented only from 
 
 a
 
 78 Confiderations on the 
 
 a fraudulent Sale to difappoint the For- 
 feiture. 
 
 2. As to the Forfeiture of Lands *, by 
 the Common Law, all Lands of Inheritance, 
 which the Offender had in his own Right, 
 and all Rights of Entry to Lands, in the 
 Hands of a Wrong-doer, came to the King, 
 by Attainder of High Treafon. The In- 
 heritance of Things not holden, as Rent- 
 charges, &c. is alfo forfeited. But if a 
 Perfon committing Treafon hath, at the 
 time of committing it, only a bare Right 
 of Adion to Lands, or a Right to rcverfe a 
 judgment againft him by Writ of Error j 
 this Right, neither at Common Law, nor 
 by the Statute 33 //. VIII. is given to the 
 King ; becaufc of the Danger in un fettling 
 Poflellions, and the Poflibiliry of Prejudice 
 to Strangers. In like manner, no Right of 
 Entry to Lands, of which there is a Tenant 
 by FeofFmcnt, or other Title, no Ufe, (except 
 only Lands conveyed fraudulently to avoid 
 the Forfeiture) nor Condition of Re entry, 
 were liable to be forfeited previoully to that 
 Statute; neither could Lands in Tail, after 
 
 * n.t!c\ n p. c. V ] c 2.3 
 
 the
 
 Law i?/' Forfeiture. 79 
 
 the Statute JVeftm. 2. de Tion'is^ except foe 
 the Life ot Tenant in Tail, till 26//. VIII. 
 
 Before the Statute de T>onis^ EftatesTail, 
 being only Fee-limplcs conditional, were ex- 
 pofed to Forfeiture like Edates abfolutc. By 
 the Words of that Statute, qttod voluntas 
 donatoris obferuetitr, (Sec. a Perpetuity was 
 made, and the Donee reftrained to alienate 
 or forfeit. In a fhort time it appeared, how 
 much thefe Perpetuities were againft the 
 Reafon of the Common Law, and the true 
 Policy of the Kingdom. But the great 
 Men not being eafily induced to make an 
 Alteration in Parliament, the Judges found 
 a Way of cutting off an Entail by a Com- 
 mon Recovery, which was a Cafe held to 
 be out of that Law. Another W ound given 
 to thefe Perpetuities, was, by the Statute 
 4 H. VII. which made a Fine with Procla- 
 mations to be a Bar to the IHlic in Tail, and 
 {o repealed that Claufe of the Statute de 
 ^on. qitod Jiais ipfo jure fit null us. When 
 it was in the Power of Tenant in Tail to 
 alienate, there could not be the leaft Colour 
 orPiCtencc, why his Hllate, over which he 
 was bccoQic Mailer, ihould not become for- 
 feitable 5 for it was under the Notion of his 
 2 beinir
 
 8o Confiderations ori the 
 
 being without Power to alienate, thatEftates 
 Tail were, at firft, privileged : but the fre- 
 quent Attainders, during the Difputes be- 
 tween the Houfes of Tork and Lancajier, 
 made Parliaments cautions of creatin<^ new 
 Forfeitures. However, after the complete 
 Union of the Houfes in Henry VIII. by 
 Conflrudion of the Statute 26 H. VIII. c. 
 13. Eftates Tail w^erc made liable in Cafes 
 of Treafon, where the Party was attainted 
 by Confcillon, Verdict, or Outlawry * ; and, 
 by the Sratutc 33 H. VIII. upon any manner 
 of Attainder. 
 
 There is no Occafion to flatc all the 
 Cafes, eithc" extending Forlcitures, or limit- 
 ing them under the comprehcnfive Words of 
 the Statutes of H. VIII. It fuffices, that the 
 Principle, on which they (land, is uniform, 
 and agreeable to fuflicc ; 'viz^. that the Of- 
 icndcr's P.ii;'us and Interefis Ihall be for- 
 fcited, to thx Prejudice of himfelf and his 
 Heirs, to wliom the Common Law intends 
 no Favour, and whom the Statute exprefly 
 excludes from any ilcnciit of the Saving 
 Chuil'e j but that the grcatcft Tendcrncfs 
 
 fliould
 
 i^i£7 (^Z' Forfeiture. Si 
 
 ihould be ufed in prcfcrving the Rights of 
 Creditors and Strangers in Blood. Indeed, 
 in rcfpect of Lands, Forfeiture has a Relation 
 to the Time of committing the Offence, fo 
 as to avoid all fubfequent Charges and Ali- 
 enations; which may be the Caufe of Hard- 
 fhip toPerfons, who have been unwarily en- 
 gaged with the Offender; but, in Laws of 
 public Juftice, it is impollible to provide for 
 every Cafe of private Compaflion : and the 
 Cruelty and Reproach muft lie on the Part, 
 not of the Law, but of the Criminal ; who, 
 confcious that his Offence might foon be 
 laid open, had the Inhumanity to involve 
 others in the Confcquences of that Iniquity, 
 which proves fatal to himfelf. 
 
 There remains a material Difference to 
 be noted, between the Cafe of a Fee-tail and 
 a Fee-fimple*; which is, that, notwith- 
 ftanding the Forfeiture of Lands entailed by 
 an Attainder, yet the Blood of the attainted 
 Perfon is not corrupted, fo as, by any con- 
 fequential Difability, to affed the Iffuc in 
 Tail. Therefore, if the Son of the Dor*ec 
 in Tail be attainted of Trcafon, during the 
 
 =* I C'J. Dozi:tie\<. Cafe. 
 
 G Life
 
 8 2 Confiderations on the 
 
 Life of the Father, and die, having IfTue,, 
 and then the Father dies, the Eftate iliall 
 defcend to the Grandchild, notwithftanding 
 the Attainder : but it is otherwife in the 
 Cafe of a Fee-fimple, as lias been fhewn in 
 fpeaking of the Feudal Law. The Reafon is 
 obvious ; becaufe the lilue in Tail claims /^r 
 formam don't j that is, he is as much within, 
 the View and Intention of the Gift or Settle- 
 ment, and as perfonally and precifely de- 
 fcribed in it, as his Anceftor. But this is not 
 all. The Forfeiture of Eftates Tail came 
 in by the Conftrudion of the Statute of the 
 28th of Henry VIIL The Judges refolved, 
 tliat Lhc general Words of thofe Statutes 
 comprehended thcfe Eilatcs. But then fuch 
 ! ,a\vs being of a penal Kind, tho' they are 
 to be conftrued fo as to attain their full Ef- 
 fect, yet they are to be conftrued ftrictly ; 
 .md, however they might extend to make 
 Eftates Tail liable to Forfeiture, where they 
 arc adually in the Offender's PoITellion, and 
 confequently in his Power to alienate, they 
 could, by no Rules of Conftruftion, be ex- 
 tended to bring confequential Difabilities on 
 the Ficir, where the Eftatcs have not been 
 in the Oifendcr's PoUcirion. The Forfeiture 
 of Fee-fimplcs is by Cuftom immemorial, 
 
 or
 
 Z//7'Z£^ (j/' FORF EITURE. S^ 
 
 ot at Common Law, which corrupts the 
 Blood of the Criminal in Cafes of Trealbn ; 
 fo that no Pcrfon, who muft make his De- 
 rivation of Defcent to or thro' the Party at- 
 tainted, can inherit. But, where-ever he 
 need not be mentioned in the Conveyance 
 of Defcent, as between Two "^ Sons of an 
 attainted Father, nothing hinders one Bro- 
 ther from inheriting to the other ; fuice, 
 agreeably to the Rule of Law, the Defcent 
 is immediate : he can make himfclf Heir 
 to the Perfon laft feifed, without the Men- 
 tion of the Father. 
 
 All this is clear : yet it may be faid, 
 " That the old Law, as to impeding De- 
 ** fcents, has been altered in an Inftancc 
 *' fomcwhat refembling this Cafe of Cor- 
 *' ruption of Blood in Treafon, the Cafe of 
 " Aliens. Antiently the Eftatc (hould fboner 
 '' efcheat, than an Alien might makcTit.'e 
 *' to it himfclf, or convey one to another, 
 " But the Statute ii and 12 fV. and AI. 
 " C 6. clears the Interruption of Dciccnr. 
 " occafioned by an Alien Anccftor, in fa- 
 '' vour of natural -born Subjeds." Thi^ 
 
 * I J''entr. 413. 
 
 G 2 (lands
 
 84. Confi-derations on the 
 
 Hands upon a flnglc Rcafon. Lands de- 
 fcending to an Alien might not be taken by 
 him, bccaufe the King could not oblige his 
 Pcrion and Services. And it Teemed hard^, 
 that Subjeds, within the Allegiance, who 
 claimed under him, iliould be difabled from 
 conveying Dcfccnt, by the Operation of a 
 Reafon, of which the very Rcvcrfe was true, 
 as to themfelvcs. But who are the Aliens 
 enabled for this Purpofc ? Aliens (as the Law 
 lays) by the Ad of God, the Fortune of 
 Climate, the Decree of Nature. And in 
 favour of whom are they enabled ? Of fuch, 
 as arc not at all afFcded by the Reafon, 
 which excludes Aliens. But were the fame 
 Ability given to attainted Perfons, it would 
 he to admit thofe to a legal Right, who, 
 tho' bound to the Community by Nature, 
 moral Duty, and Experience, have difclaimed 
 fb.eLaw, and are difclaimed by it; and, by 
 their own voluntary Ad, have fhewn them- 
 felvcs Aliens in Affcdion. It would like- 
 wife be in favour of Heirs, whofe Intetefl-, 
 in this Cafe, is not feparated from that of 
 the Anceftor, both upon the general Notion, 
 -that the latter can bind the Right of the 
 former, at his Pieafure, in many Inftancesj 
 ap.d upon the particular Arguments unavoid- 
 ably
 
 ZL^sw ^ Forfeiture. 85 
 
 ably affecting both, which have been drawn 
 from Juftice, and the public Good. 
 
 To fhew how expedient thcfc Punifii- 
 ments are thought, and how much the Law 
 confiders them as cflential to its own Pre- 
 servation, it may not be improper to ob- 
 Icrvc, that a Corruption of Blood, by At- 
 tainder, is a Thing of fo high a Kind, as 
 that the King's Pardon can only reftorc, as 
 to Iflucs born after , but an Ad of Parlia- 
 ment is neceflary for the Rellitution of 
 Blood, in its full Nature and Extent. That 
 Corruption however goes only to Eftarcs 
 dcfcending, in the Courfe of Inheritance. 
 So it was in the Feudal Law. Nothing the 
 Heir takes, by Purchafc, is affecled. He is 
 capable under a teftamentary Devife, or 
 family Settlement, or legal Grant of any 
 Kind to Himfelf. But here the Law of 
 England happens to vary from tlie Feudal 
 Lawj bccaufe, by it, ail forfeitable Lands 
 are alienable at the Plcafure of the Party in 
 other Ways, than by Forfeiture ; vv'hereas, 
 in the Feudal Policy, they were forfeited, 
 tho' not alienable or chargeable in any W^ay 
 by the Ible Will and Power of the Tenant, 
 
 G 3 iV'A
 
 86 Confiderations 07i the 
 
 and merely defccndibJe to his next Heir upon 
 his Death. 
 
 3. Titles of Honour and Dignities, by 
 Tenure, were always forfeitable in the Law 
 o{ England, as following the feudal Reafon 
 of Lands. And thofc, which are by Writ 
 and Patent, whether to the Heirs General, 
 or in Tail Male, are forfeited by the Cor- 
 ruption of Flood, which impedes the De- 
 fccnt, and renders a Family ignoble. The 
 Right of Peerage is a fpecial Truft \-(i\^o{z^ 
 by the Crown for the Support of Govern- 
 ment ; and even before the 26 i/. VIII. 
 (within which, 2}:^ Honour granted to a Man, 
 and the Heirs xViales of his Body, has been 
 refolvcd by all the judges to be forfeitable) 
 it was not protected by the Statute de T^ont^^ 
 like Lands entailed, becaufe of the Con- 
 dition tacitly annexed to the State of Dig- 
 nity 'y in the fame manner, as if Tenant in 
 Tail of an Office of Truft mifufe or ufe it 
 nor, it is liable to Forfeiture by Force of the 
 Condition ; as has been laid down in fevcral 
 Books *. IJcfidcs, it fcems politically fit, 
 that the Eilatc being gone, tlie Honours
 
 Zy/3W <?/* Forfeiture. 87 
 
 fnould be taken away, bccaufe Wealth is ne- 
 ceflary to fupport their Dignity, and without 
 it they are an Incumbrance, and a Preju- 
 dice. 
 
 4. As to the Lofs of Dower, it is to be 
 juHihed in our Law, on the general Prin- 
 ciple, that Society may beftow Rights on 
 what Limitations it thinks fit, for its own 
 Safety, and on the Strength of the Conjugal 
 Tics to deter Men from Treafon. In the 
 Feudal Law, it is fupportcd, not only by 
 thefe Principles, but by artificial Reafoning; 
 becaufe the Lofs of Dower arifcs from every 
 Circumftance, which dcftroys the Right of 
 the Heir. But by our Law, Dower is fubftan- 
 tially affected, after the Title to it accrues, 
 which is undcrftood to be inftantly upon 
 Marriage, by no Ad of the Husband, except 
 the Crimes of Treafon. 
 
 Thefe are the Severities, by which the 
 Englifi Conftitution binds the Obfcrvance 
 of itfelf upon the Fears of Men, when bet- 
 ter Principles have loft their Effecl upon the 
 Confcience. They are eftablilhed to bear 
 fome Proportion to the Greatncfs of the 
 Crime, that he may thus fuffer, as Lord 
 
 G 4 Coke
 
 88 Confiderations on the 
 
 Coke fays *, " who intended to tear and de- 
 ^' ftroy the Majcfty of Government." 
 
 And now, after ftating and explaining the 
 feveral Rights of Property, afFeded by the 
 Consideration of this Argument, an Ob- 
 jedion may probably be made, that, to one 
 of a plain Undcrftanding, the Cafes, which 
 have been mentioned of impeding Dcfcents 
 by Corruption of Blood, carry with them 
 a Severity to be juftilicd upon no found na- 
 tural Principles, and are governed by arti- 
 ficial Conftrudtion. 
 
 To this there are Two Anfwers : i . From 
 a general Principle already laid down in this 
 Effay, that the Laws of Defcent, as pofitive 
 Inftitutions of Society, may be regulated on 
 fuch Conditions as feem beft to itfelf 5 and 
 being previoufly marked out, and uniform- 
 ly interpreted, no Man has real Caufe to 
 complain, 
 
 2. In all Laws, there are Cafes, which 
 depend upon artificial Reafoning. If the 
 general Ground-work be jufl and folid, tho' 
 
 * 3 Inft. />. 2H. 
 
 fome
 
 Law ^Forfeiture. 89 
 
 ibme hard Cafes are taken in, or governed 
 by that Realbning, they are often not to be 
 remedied or avoided, without Danger. The 
 fundamental Rule of Evidence in Defccnts, 
 that whoever would make Title to an Eftate, 
 mufl: prove himfelf Heir to the Perfon laft 
 feifed, is held facred. The Principle, that 
 no one, who has committed Trcafon, can 
 have an Anceftor, or an Heir, is equally 
 wife, and reconcileable with Juftice. When 
 thefe Maxims concur in any Cafe, they form 
 what is, in legal Phrafe, an Impediment 
 from Corruption of Blood. And they are 
 antient and extenfive Maxims. The beft 
 Lawyers of all Ages have been ib fcnfiblc 
 of the inviolable Regard due to legal Prin- 
 ciples, that they have thought it more fuited 
 to the Genius of Laws to relieve by Fiction, 
 than to depart from Principles. The Jus 
 T ojlliminii of the Roman Lawyers, which 
 reconciled the known Rule, that no Slave 
 was capable of making a Will, with the 
 Cafe of a Citizen taken in War, fuppofing 
 him, if he returned home, always to have 
 remained free, or, if he died in the Enemy's 
 Hands, to have died before he became cap- 
 tive; is a celebrated Inftance of this. The 
 tranfitory Adions of the Law of England 
 
 turnilh
 
 90 Coniiderations on the 
 
 furnifh another Inftance of it. It is an ex- 
 cellent Conftitution, that all Iffues fhall be 
 tried in the County, where the Caufe of 
 Adion arifes, for the fake of bringing Ju- 
 ftice home to the Parties, and for the At- 
 tendance of Jurymen and Witnefles : yet, 
 becaufc that may often be inconvenient, the 
 Plaintiff is admitted, in many Cafes, to lay 
 and try his Adion in what Place or County 
 he pleafes. Now, the End and Extent of 
 thele Fidions is obfervable : They both ex- 
 cept particular Cafes out of general Prin- 
 ciples, the one for the Advantage of thofe, 
 who have fought gallantly in Defence of 
 their Country , the other, for the Further- 
 ance of Juftice 5 yet with Safety to thofe 
 Principles. But noFidion could be invented 
 in this Cafe, without a Subverlion of Prin- 
 ciples j and that not in Favour of one, who 
 has defended his Country, but to preferve 
 and tranfinit the Inheritance of him, who 
 would have betrayed or deftroyed it. Thus 
 one may argue, without reforting to the 
 Maxim, that the King's Right fhall not be 
 barred by any Fidion ; the Mention of 
 which, on this Occafion, would carry lefs 
 of Rcafon than Authority, hideed, the 
 Lcgidativc Power may, by pofitive Statutes, 
 
 alter
 
 Law (?/ Forfeiture. 91 
 
 alter the Common Law, and limit the Ope- 
 ration of its Principles : and the Provifo, in 
 the 7th Ann. c. 21. by which the Offender 
 can forfeit a Real Eftate only for his own 
 Life, was defigned to make that Alteration. 
 But, whenever it takes place, let what will 
 follow be obferved : 
 
 1. It is confiderable, that fince the For- 
 feiture of Real Eftates has a Relation to the 
 Time of committing the Offence, a Man 
 having loft all Power over them from the 
 Moment of his Guilt, that Ad will give 
 Trcafon the Effed of a Settlement. The 
 Anceftor's Iniquity will convey a Benefit to 
 the Heir 5 which is an Abfurdity allowed in 
 the Law of no Country, and fubverts the 
 Order of Nature. 
 
 2. It is defedive, and inconfiftent with it- 
 felf. For the Forfeiture of Pcrfonal Eftates 
 will (land intire. So that if a rich Trader 
 of London, who has no Eftate in Land, 
 conimits Trealon, the Cuftom of the City, 
 which makes a Difpofition of his Fortune 
 for the fake oi his Heirs, is defeated : Which 
 cannot be juftihed on any Principles, that 
 
 do
 
 9 2 Confiderations on the 
 
 do not equally conclude to take away Real 
 Eftates for the like Crimes. 
 
 3. It will bring ftrange Inconfiftencies 
 into the Law, wliofe Severities are, at pre- 
 fent, applied in proportion to the heinous 
 Nature and EfFcd of Crimes. Treafons of 
 the higheft Kind occafion Forfeitures in the 
 Manner which has been dated. Inferior 
 Treafons, as thofe relating to the Coin, do 
 not extend to Corruption ol Blood, and 
 Lofs of Dower. Petty Treafon extends to 
 all, except the Lofs of entailed Eftates. 
 The higher Felonies to all, except Lofs of 
 Eftates Tail, and Dower. Some Felonies 
 are allowed the Benefit of Clergy, which 
 faves Life, and the Inheritance of Lands, 
 tho' not the immediate Profits; and dif- 
 charges under certain Terms. Sometimes, 
 where Clergy is not allowed, there is a 
 Saving againft Corruption of Blood, Lofs of 
 Dower, and Difherifon of the Heir. And 
 fome are followed by no Forfeiture, even 
 of Goods or Chattels. Shall then feverer 
 Penalties be inflided on him, who has de- 
 prived the mcaneft Subjed of his Life, than 
 on him who has attempted to throw his 
 Country into Confufion, to ftop the Sources 
 
 of
 
 Law (?/ Forfeiture. 93 
 
 of Government, and to render thofc Rights 
 and that Protection precarious, which alone 
 give a Value to Life itfelf ? 
 
 But it will be faid, for the fake of main- 
 taining a loft Argument, That it is to be 
 wifhed all Forfeitures were abrogated. Be 
 it fo. And let the reft of Europe imagine 
 to themfclves, and be aftonifhed, either that 
 the Virtue of the Eijglifn Nation is fo great, 
 as to make the ordinary Sanctions of legal 
 Authority fuperfluous j or, that thoic Ini- 
 quities, which weaken Government, and 
 cancel all the Bonds of Nature and Society, 
 are of fuch extenfive Influence, as to pre- 
 pare an Impunity for themfclves to the Com- 
 pletion of our Ruin. 
 
 It is impoiliblc to debate this Matter, 
 without entering into the general Argu- 
 ments in Defence of the antient Conftitu- 
 tion 5 tho' what gave Occafion to the De- 
 bate, was only a temporary ProviHon in 
 Support of it. And, as to the Ad of the 
 Jaft Seilion relating to the Pretender's Sons, 
 which contains that Provifion, thofc, who 
 had the Honour of framing it, proceeded 
 upon the m oft generous Views j the Satety 
 
 of
 
 94 Confiderations on the 
 
 of this Eftablifhment, and an Abhorrence 
 of every Attempt to overthrow it. To 
 have exempted tills Treafon from the Policy 
 of Forfeiture, had been doubt! efs very 
 ftrangc. And it would have feemed equally 
 ftrange, that in a Bill, which concerns the 
 Sons, the proper Sandion, originally given 
 to it, fhould lafi: only till the Death of the 
 Father, one not intercfted in its Contents, 
 and not till the Death of thofe, who ftand 
 in his Place, and are particularly interefted 
 in the Purport, and guarded againft by the 
 Intention, of it. Let it be remembered too, 
 that neither the Pretender, nor his Family, 
 if, by any calamitous Reverfe for this Nation, 
 they fucceed in their Defigns, will think 
 themfelves * bound by the Provifo in the Se- 
 venth of (^ueen Anne^ nor by any Laws 
 made fincc the Revolution. Why then 
 fhould not the fame Terrors be fet on the 
 Side of the Prorcftant SucceiTion, as are in 
 the Hand? of its Enemies, and which have 
 been the Safeguard of our Kings from the 
 Foundation of the Monarchy ? 
 
 * Since the fir ft EJirion of this Difcoiufe, the Pre- 
 tender's Son, in a Paper dated loch O^ioh. 174.5. and 
 publiih^d in Scotland, has declared all tlie Laws made 
 from the Time of the Abdicacion to be in [henaielves null 
 and void 
 
 Cicero
 
 Z/^^e; ^ Forfeiture. 95 
 
 Cicero has Words very applicable to this 
 Purpofe : " When, fays he, wc are in- 
 *' treated to have Mercy 011 the Pofterity of 
 *' a Traitor, what Security is given, that 
 ** ourfelves fhall not undergo the mod cruel 
 " Punifhments, if the Crimes of the Fa- 
 '•^ ther fhouid profper?" The Notions of 
 CtcerOy occafionally fcattered in his Works, 
 are very wife upon this Subjedj and the 
 more to be regarded, bccaufe he never 
 fhewed a Warmth of Spirit, in Circum- 
 ftances, which required Coohiefs, to pci-plcx 
 the Meafures, heighten the Refentments, or 
 inflame the Sedition, of his Times ; but re- 
 fer ved it to fecond the Efibrts of his own 
 Prudence, in conducting Affairs of great 
 Difficulty, and lading Importance to his 
 C>ountry, In one of the Orations he inti- 
 mates, in a few Words, that Laws of Ter- 
 ror, in the Romrni Commonwealth, had the 
 Appearance of the feverefl: Juftice, with 
 the Intention and Effects of Mercy , '' That 
 " the Fear might extend to all, but the 
 '' Puniihmcnt to few*." True it is, they 
 contain a Power, to be exerted only in the 
 
 * Ut metui "jidchcet ad omnes-^ px?ia ad paucos per- 
 I'fvnet. Orat pro A. Ciuenr. 
 
 8 Dangers
 
 96 Confiderations on the 
 
 Dangers of the State j like Goliah's Sword 
 in the Tabernacle, not to be taken down 
 but on Occafions of high Necellity : at other 
 Times it ihould lie fhcathcd and untouched 
 in the Statute Book 5 as the fame great 
 Writer phrafes it, in tabulis tanquam in 
 •vagina reconditum. If one may judge of 
 the Spirit of the Law of England by the 
 Declarations of its Profeffors, it ought not to 
 be forgotten, that my Lord Coke delivers no 
 Maxim with greater Plcafure than that of 
 Cicero i and repeats it in feveral Parts of his 
 Inftitutes. But the moft pregnant Argu- 
 ments of Lenity, and Wiidom in providing 
 for the gentle as well as juft Adminiftration 
 of thisPowctj arc to be found in the Law 
 itfelf. 
 
 L In the Tendernefs Hiewn to the Poftc- 
 rity of Offenders, in rcfpcd of Settlements 
 in Truft to preferve Remainders, and De- 
 clarations of Ufes on Common Recoveries. 
 Many families are pofTcfTed of them, cfpe- 
 cially fuch as are formed for great Things ; 
 and Men, who enter into defperate Engage- 
 ments, are commonly cautious enough to 
 protC(Si: fome Part of their Eftates in that 
 Manner. The Law affords Means of avoid- 
 ing;
 
 Law of Forfeiture. 97 
 
 ing the hardeft and mofl: exceptionable Cafes 
 of Forfeiture. Inftead of Dower, Jointures 
 arc become general, which Forfeiture does 
 not touch. The Grandfather may, by Will, 
 devifc his Eftate in Fec-fimple to his Grand- 
 fon ; and fo may the Uncle to his Nephew, 
 aflfeded by the Corruption of the Father's 
 Blood; and they arc capable of taking. Nor 
 is it of fmall Advantage to the Heir, that 
 thcDeathof the Anceftor, before Convidion, 
 difcharges all Proceedings and Forfeitures. 
 He can then be attainted only by Ad of 
 Parliament. It has been intimated, that the 
 antient Roman Law was much harder in this 
 Matter. 
 
 IT, In the cxad Juftice, which is fhcwn 
 to the Offender himfelf And that in Two 
 Ways : 
 
 I . By the Clearnefs and Certainty of thofc 
 Laws, which mark out the Crime. An 
 Overt-ad of fome Statute-Trcalbn mufl: be 
 laid in the Indidmcnt, and proved in Evi- 
 dence by Two WitnelTcs, whofc Compe- 
 tency is laid under many Rcdridions for his 
 Benefit. No Man is to be rcafoncd out of 
 nis Life and Fortune by fubtle Analogy, and 
 
 H rhcto-
 
 gi Confiderations on the 
 
 rhetorical Aggravations, inhancing Mifdc- 
 iiicanors into Treafon 5 as was antiently the 
 Gafe, even in ordinary Courts of Juftice. 
 
 2. By the Fairncfs of the Trial 5 the In- 
 dependence of the Judges ; the Prcfentmcnt 
 of one Jury, the Verdid of another, m 
 efFed chofen by the Prifoner (confidering 
 the large Number of Challenges allowed 
 him), to pafs Sentence on himfelf; admit- 
 ting his Witneflcs, by Oath, to the fame 
 Means of legal Credit with thofe for the 
 Crown ; and the Limitation of three Years 
 for calling any Man to Account, except in 
 one * Cafe, mentioned in an Ad of Parlia- 
 ment. Thefe Things, as they are regulated 
 in our Law, reconcile all the Points of Wif- 
 dom and Juftice, in not making Guilt Icfs 
 obnoxious, but Innocence more fafe. A 
 confidcrabic Part oi the Security againfl: the 
 Abufe of Forfeitures is owing to that excel- 
 lent Stat. 7 JV.Wl. c. 3. which has, in feveral 
 Particulars, improved the Trial of Common- 
 ers, and Icflcncd the Power of the Crown in 
 that of the Lords. The Confequence has 
 
 * The Cafe of a Dcfign or Attempt ro afTidinate the 
 King; by Poifon, or o'.ht-Twiff, is excepted out of the 
 Limitation in Stat. 7 Jf\ III. f, 3. 
 
 anfwcred
 
 Law of FoKFniTu RE. 99 
 
 anfvvcred the good Intention of the Framcrs, 
 that Men might be tried for all which is dear 
 to t\\zri\ Jine judicum J avitid, aut temporum 
 infamtdy without Cruelty in the Judges, or 
 Difhonour to the Times. Let the Argument 
 then againft this Punifhment have been for- 
 merly as fpecious as it might, it can fcarce be 
 colourable now. To diminifh it, after giving 
 the grcateft Latitude of Defence, would fur- 
 nifh a real Encouragement to Treafon, by 
 making a greater Provifion for the Safety of 
 thofe, who are accufed of it, than of othcf 
 capital Crimes Icfs pernicious, and difap- 
 pointing the moft weighty Sanations of that 
 Law, which punifhes the Traitor. 
 
 lU. In the Tendernefs fliewn to the Of- 
 fender, by allowing a Refort for Pardon in 
 the Prerogative of the Crown. For tho' 
 Laws arc not to be framed on Principles of 
 Compailion to Guilt, yet Juftice, by the 
 Conftitution of England, is adminiftcrcd in 
 Mercy. It is the great Duty required from 
 the King by his Coronation-Oath, and that 
 Ad of his Government, which is moll in- 
 tircly his own, and pcrfonal. According to 
 the Exprcflion of the celebrated Lord Straf- 
 fordy " The King condemns no Man : The 
 
 H 2 [' grcax
 
 loo Confideratlons on the 
 
 " great Operation of his Sceptre is Mercy/' 
 And in an old * Record it is faid, that '' his 
 " Mercy is appropriate to himfelf above all 
 " the other States of his Regality." In 
 moft Republics, this Power, if it fubfift at 
 all, is fo rcftrained, and difficultly exerted, 
 as almoft to make good the Complaint of 
 the young Men in Livy^ that a Man mud 
 fola innocentia vi-vere. In Holland^ with- 
 out a Stadtholder, there is no fuch Power of 
 pardoning, notwithftanding it is eflential to 
 Policy; as necelTary as Juftice itfelf; and 
 giving it a Perfedion and Amiablenefs, which 
 fome have thought not originally belonging 
 to its Nature. The Emperor Hadrian un- 
 dcrftood it lb well, that, in Confideration 
 of the particular Circumftances of Albimts'^ 
 Children, he granted them Portions out of 
 the Confifcation, faying, " That his Au- 
 " thoriry was better ftrengthened by gain- 
 *' ing the Atfedions of Men, than by cn- 
 " rictiing his Coffers." There is no Cha- 
 rader more branded in Hiftory, than that 
 of an inexorable Prince, who can fufFcr lb 
 divine a Power, intruftcd for the Good 
 of his People, to lie dormant. His own 
 
 * 1/7, 4.]?t;/. Tarl. iiuitlccl Viae Cor. in far!. 
 
 Intcreft
 
 Law ^Forfeiture. ioi 
 
 Intercft is little undcrftood by him j and his 
 Condud becomes, to the laft Degree, ab- 
 furd, as well as detcftable, if he governs a 
 free People 5 fince it is not only to carry 
 Juftice, in fome Inftanccs, to the Height of 
 Injury 5 but it is, in refped of himfelf, to 
 be dangeroufly juft. In England j the great- 
 eft Weight has always been laid upon the 
 Prerogative of Pardoning ; which appears 
 from this ; that when Endeavours have been 
 ufed to bound the Exercife of it, the Senfe 
 of the Nation has difapproved them in Par- 
 liament. By the Statute 13 Rich. 11. c, i. 
 the King is retrained to grant Pardon of 
 Treafon, Murder, &c. but in a fpecial man- 
 ner; and it is made penal for any Officer of 
 State, or Subjed of the King, to intercede 
 for fuch a Pardon, which alio cannot pafs 
 by immediate Warrant. But three Years 
 were hardly elapfcd, before the Commons 
 acknowledged themfelves the Sufferers by 
 that Law; and, in the i6th Year of the 
 fame King, a very confidcrable Part of it is 
 repealed. To fay the Truth, this Prero- 
 gative is generoully exercifcd amongft us, 
 nor can it be regarded as a contemptible 
 Abatement of the Severity of Forfeitures, 
 both becaufe the Law, rcpofing a Confidence 
 M 3 ill
 
 10 2 Confiderations on the. 
 
 ill the King, will not fuppofe him inclined 
 to a6t wrong in the Things fubmitted to 
 his Wiidom, and becaufe, ever fmce the 
 Union of the Two Houfes of Tork and 
 Lancajlery it has been employed to the 
 Peace and Prefervation of the Subjcd, not 
 rigidly with-held to his Deftrudion. The 
 Clemency of the Crown has appeared not 
 only in Pardons palled under the great Seal, 
 but in the previous Confent always given to 
 Bills of Reftitution, as well as the final Ap- 
 probation of them. The Records of Par- 
 liament, even in the worft Times, are not 
 wanting in Examples of it 5 in good Times 
 it has fhonc forth with the bri^hteft Luftre. 
 Trom fome of thofe Bills we may obferve, 
 that, within a few Years after the Anceftor's 
 Attainder, Families have been reftored, as if 
 they had merited it by their Modefty and 
 Prudence. Hence they have been enabled 
 to retrieve their loft Honour by memorable 
 Services 5 and are held obliged to a difcre- 
 tionary Lenity for the Enjoyment of Inhe- 
 ricanccs, which, defccnding in the ordinary 
 Courle, might have provoked dangerous 
 Emotions of Family-Pride, or partial Re- 
 yard to their Anceftor J would have furnifhed 
 Gratifications of Rage, or Inftruments of 
 
 Re-
 
 Law of F OK ¥ EITVKE. IO3 
 
 Revenge, inftcad of compofing to Peace, 
 or raifmg the Sentiments of Gratitude; a 
 Gratitude lieighten'd by the Rcfledion, tliac 
 thcfe Inheritances had been juftly forfeited to 
 the Laws of their Country . 
 
 If we may confult foreign Annals on this 
 Point, we fhail find a remarkable Uluftra- 
 tion of it related by Mariana "^^ in the Con- 
 duit of King jfohn of Portugal, who, upon 
 an Occafion, which might have urged arbi- 
 trary Princes to great Lengths of Jealoufy 
 and Revenge, tempered Judicc with Mercy, 
 to his own Honour, and the Advantage of 
 his Kingdom. He ufcd to fay, that Govern- 
 ment either found Princes wile, or made 
 them fo ; and, being grown unpopular from 
 a Severity of Temper, and Freedom of Ex- 
 preflion, many of his Nobles, with the Duke 
 of Bragan.za at their Head, carried on a 
 formed Confpiracy againft him. He con- 
 cealed his Knowledge of it for fome time; 
 and, when it was breaking out into Action, 
 feized and punifhcd feveral, and their Eftates 
 were forfeited. The Duke of VifcOj his 
 Coufin-German, fuffcred for the Plot. But, 
 
 * L. 24. c. 10. 
 
 H 4 icTicad
 
 1 04 Confiderations on the 
 
 iiilicad of with-holding his Eftate from the 
 Family, he engaged their Affedion, by 
 giving it to his Brother Emanuel, and raifed 
 up an admirable Inftrument for the ]Good 
 of Portugal and himfelf, in one, who might 
 have proved a fadious and alienated Subjed. 
 Emanuel fucceeded him in the Throne, re- 
 (tored the Duke of Braganza's Children, 
 regulated the Execution of the Laws, and 
 broupJit the Wealth of both Indies into 
 Portugalj by encouraging the Difcoveries of 
 the New World. Something like this has 
 happened not unfrequently in Kingdoms 
 governed at the defpotic Pleafure of the 
 Prince. How much oftencr has it taken 
 place in England, a limited Monarchy j and 
 with what greater Probability will theBlelT- 
 ing be fecured to us, fincc that Settlement 
 of the Nation, which added new Life to 
 the Liberties of the People, reduced the 
 Conftitution to its right Bafis, and gave it 
 its proper Force and Energy ! In fuch Cir- 
 cumftanccs, we may apply to the Throne, 
 what was faid by an antient Poet, of the 
 Altar credcd by tlic Athenians to £om- 
 fafjion:
 
 Zy/^w ^ Forfeiture. 105 
 
 Mitts pofuit Clement ta fedeniy 
 
 Et miferi fecere fact am ■ 
 
 Hue njicit belliSj fcelerumque errore no- 
 
 centes, 
 Conveniunt, pacemqite rogant — - 
 
 Upon thefe Principles, tiie Objedioa on 
 
 the Part of the Crown, as if its being in- 
 
 vefted with this Power were of no Moment 
 
 to the Hopes of Families, feems rationally 
 
 anfwered. As the Exercifc of the Juftice 
 
 of Government is thus foftcncd and re- 
 
 ftraincd, what public Danger can arifc from 
 
 private Dcfpair? And fuppofe the Danger to 
 
 arifc, is it not in Government inftantly to 
 
 reprefs fuch Efforts, where Juftice is not 
 
 dillributed by Faction, but regulated by Law, 
 
 applied to favc theConftitution, and adapted 
 
 to the Genius of the People? It cannot be 
 
 denied, that, in Hiftory, there are a few 
 
 Examples, but principally dcftructive to the 
 
 Authors, in wliich our Princes have, in 
 
 Matters of Trealbn, preferred dark, hurtful, 
 
 and cruel Counfels to open, wiie, and juft 
 
 Proceedings. They are not to be infilled 
 
 upon. There is a Decency required, in 
 
 reciting the Faults of palf Times. We may 
 
 look
 
 to6 Coftfiderations on the 
 
 look back for Information and Warning, 
 and even for Reproof, but not Invedive. 
 An Alteration of Circumftances renders their 
 Renewal almoft impofi J ble; and, furely, it 
 may be faid, witliout Offence or Flattery, 
 that, whether it be purfued at large, or 
 paffed over in Silence, it is a Subjed, which 
 neither the mod fufpicious Friend can call 
 invidious, nor the moft malignant Enemy 
 will think to be expedient, in this Reign. 
 
 The great Lawyers of the Kingdom, Men 
 wifely and confcientioufly zealous for na- 
 tional Rights, have exprefled the higheft 
 Veneration for the Law of Treafon efta- 
 blifhed in England -, and feem more con- 
 cerned for the Certainty of it, than to leffen 
 the Severity. Lord Hale * fays, " That 
 *' Treafon, being the greateft Crime againft 
 " Faith and Duty, is defervcdly branded 
 " with the higheft Ignominy, and fubjed:ed 
 *' to the greateft Penalties, which the Law 
 " can inflift." Lord Coke, in the Begin- 
 ning of his Third Injiitute, enumerates the 
 Names of the principal Judges, who fat in 
 
 * HP, CI p%6. 
 
 JVeJimmfter-
 
 Law fii/' Forfeiture. 107 
 
 Weftminfter-Hall at the Time of making 
 the Stat. 2 5 Ed. III. and thofe fubfcquent 
 Statutes made as Opportunity offered, in 
 Confirmation of it, to deftroy arbitrary De- 
 terminations, which endeavoured to elude 
 it. " All thefe, fays he, we have named 
 ** in Honour of them and their Pofterities, 
 " for that they were great Furtherers of 
 " thefe excellent Laws concerning Trcafon. 
 " This was done, that the Fair Lilies and 
 " Rofes of the Crown might flourifh, and 
 " not be ftained by fevere and fanguinary 
 *' Statutes." Why fevere, and why fangui- 
 nary ? Becaufc the Defcription of Crimes*, 
 by which a Man might expofc himfeif to 
 Penalties, was fo various and uncertain, that 
 no one knew how to fpcak, ad, or behave 
 himfclf, in any manner. But, had he dif- 
 approved the Forfeiture of Real Eftatcs, in 
 Cafes of HighTreafon, as unjuft, he never 
 would have commended Laws, as clear from 
 fanguinary Stains, which refer cxprefly to 
 that Policy. Nor in another Place would 
 he have faid^ Lex Anglia efi Lex Miferi- 
 cordis, 
 
 • Scat. I //. iV.
 
 lo8 Confiderations on the 
 
 It may be mentioned, as an Argument for 
 abolifhing the Severity of the Punifhment, 
 that " It is ill-proportioned to the Crime 5 
 " for, by the Law of England^ Treafon is 
 *' intirely applied to fuch Offences, as may 
 ** injure the Perfon and Adminiftration of 
 '* the Prince, or fupreme Magiftrate, with- 
 *' out aiming at thofe which may be incurred 
 " againft the People by that Adminiftration 
 " itfelf, and is therefore partial and defedive. 
 " By the Law of Rome, it is applied to fuch 
 '' Offences, as afifcd the State and People. 
 " Hence the Inference is natural, that the 
 " Forfeiture of Inheritances is a Security to 
 " the Prince, but none to the People 5 and 
 '^ confequently, as it flands in our Law, is 
 '* to be compared with Forfeitures in Coun- 
 " tries fubjcd to arbitrary Power, and not 
 ^^ to be illuftratcd from free Goverments and 
 " Republics. This Opinion is favoured by 
 " jSlat. Bacon, a partial and fyflematical 
 " Writer on the Conftitution, who fays, that 
 '■^ amongft our Anccftors, ^' Treachery againft 
 *' the Country was Death, and Forfeiture 
 *' of the whole Eflate botli Real and Per- 
 *' fonal. Againft the King, it was only 
 \l Lofs of Life and Pcrfonal Eftate :" From 
 
 " whence
 
 Law of FoRiPEiruKE. 109 
 
 " whence he concludes, that Majcfty was 
 " not in thofe Days arrived at its full 
 " Growth." 
 
 Without examining how far this Fad is 
 truly dated, and the gradual Progrcfs of the 
 Royal Prerogative, the Propofition will ad- 
 mit an eafy Anfwer upon legal Notions; 
 yet, eafy as the Anfwer may fecm, it leads 
 to Matters of a very high Nature, and per- 
 haps fuch, as ought not to be treated any- 
 where, nor can be treated in a manner equal 
 to their Extent and Importance, but in a 
 Court of Law, or in full Parliament. How- 
 ever, whilrt: they are treated upon the Prin- 
 ciples of the Conftitution, as pointed out 
 in our Laws and Hiftory, the entering into 
 them, tho' imperfedly, may be of iJCt in 
 this Qiicftion, and prove a Satisfadion to 
 Ibme Minds. The King is confidcrcd, in 
 Law, in two different Capacities, the Politic, 
 and the Natural. In his Politic' Capacity he 
 never dies, nor is fubjcd to Infancy ; is un- 
 der the happy Inability of doing wrojig, be- 
 Ciufc ailing by lus Officers, and limited by 
 Law i combines Characters and Powers of 
 fuch a Kind, as to make him one of the 
 three Eftatcs in the Conftitution ; and forms 
 
 that
 
 no Confiderations on the 
 
 that Eftate which gives Life and Motion to 
 the reft. He reprefents the Kingdom in 
 tranfading with foreign Countries for the 
 Purpofes of Peace or War. He has a Con- 
 troul in the making of Laws 5 and when 
 made, without his Adminiftration of them, 
 they are a dead Letter. He is the Fountain 
 of Honour, Juftice, and Mercy. The exe- 
 cutive Power of the Government is lodged 
 intircly in iiis Hands; and for this Reafon 
 Offences arc referred to him, as being in 
 Contempt of that Power, and to bepunifhed 
 by it. Treafons which concern the Repre- 
 fentation of his Authority, or the Inftru- 
 ments, that convey it to the People, as his 
 Seals, his Coin, and certain great Magi- 
 ftratcs in the Execution of their Office, 
 relate to the Allegiance, which the Subject 
 owes him in this View. In like manner, 
 Treafons, which concern the Safety of the 
 Kingdom in refpcd of foreign Invafion, or 
 open Rebellion, or fecrct Confpiracy ; in a 
 Word, all Crimes of a public Nature, and 
 even Injuries to private Perfons; are fuppofed 
 to be againft his Peace, Dignity, and Crown. 
 So that, what in other free Countries are 
 called Laws relative to public Crimes, or 
 Crimes againfl: the State, pafs in England 
 
 under
 
 L^'iy ^ Forfeiture. in 
 
 under the general Denomination of Placita 
 Coron£y or Crown Law. 
 
 Nor can the Statute Law of Treafon be 
 rcafonably charged with Dcfcds, as only 
 comprehending Cafes in which private Men 
 oppofe thcmfelves to the Authority of Go- 
 vernment j fince feveral Abufes of that Au- 
 thority itfelf fall within the Care and Reach 
 of it. If a Governor of one of the King's 
 Fortrefles Ihould furrendcr it out of Trea- 
 chery to an invading Enemy ; if a Secretary 
 of State, employed to negotiate Matters 
 preparatory to treating with an Enemy, at 
 the Clofe of a foreign War, fhould receive 
 Bribes, and betray the Intercfl: of the Realm 
 in concluding the Treaty ; would not both 
 the Governor of the Fortrefs, and that Secre- 
 tary of State, be guilty of High Treafon 
 within the Claufe of * adhering^ and grc'mg 
 Aid and Comfort to the King's Ene?/iies ? 
 It is fcarcc confident with that ModcftV;, 
 which the Profcflbrs of the Law obfervc in 
 putting Cafes relative to Statutes of this 
 kind, to propofc any other than thofc, which 
 have cxiftcd inFadl, or fall clearly within the 
 
 * Star. 25 Ed. III. 
 X Letter
 
 112 Confiderations on the 
 
 Letter of them. But fomc will think it ncccf- 
 fary to the liiuftration of this Argument,to put 
 a ftrongcr Cafe, in which the pcrfonal Com- 
 mands of the King will not exempt a Mini- 
 ftet from the Charge of High Treafon. Sup- 
 pofe then an Officer of the Crown, under 
 Colour of the King's Commands, fhould 
 ifTue Commiflions contrary to the Bill of 
 Rights, to raife an Army in time of Peace, 
 without the Confent of Parliament ; and 
 engaging a Faction in the Scheme, fhould 
 aflemble Troops together, procuring Loans 
 from the People, by the Terror of them ; 
 what would the Offence be deemed? Were 
 a Bill of Indidmcnt for High Treafon found 
 on this Matter, the Judges in Wejlminfier- 
 Hnll might have no Doubt upon it in their 
 private Thoughts; and yet, by reafon of the 
 unexampled Nature and Confequence of it, 
 would tranfmit the Record into Parliament, 
 and obtain their Declaration, agreeably to 
 the Wifdom of that great Ad 2 f Ed-ju. IIL 
 which recommends this Method to them as 
 the fafcft in fuch Cafes, before any proceed- 
 ing to Judgment. When it came before 
 the Parliament, a flrid Attention would be 
 2;iven to thofc uniform Rcfolutions of the 
 bcfl Times on the Claufe of levying JVar^ 
 
 as
 
 Law of FovLF-EiTVRTS., 113 
 
 as particularly in the Cafe of affembling to 
 throw down all Inclofurcs generally through- 
 out the Kingdom, or ail Meeting - houfes, 
 the iirfl: during the Reign of Q. Elizabeth^ 
 the other during that of Q; Anne i from 
 which it appears, that it is War againft the 
 King, when intended for the Alteration of 
 the Laws and fettled Government. It would 
 perhaps be faid in the Two Houfes, though 
 formerly an Abhorrence was expreffed iii 
 the * Militia Oath, of taking up Arms by 
 the King's Authority againft his Pcrfon ; yet 
 fmce the Repeal of the Claufe in the Ad: 
 prefcribing that Oath, it cannot be extrava- 
 gant to affirm the Converfe of the Dodlrine, 
 that it is unlawful, and even treafonable 
 within the Statute, to take up Arms by 
 Warrant from the King's Perfon againft his 
 Authority. The producing of a Paper under 
 the King's Signet, which might be called 
 the Warrant, is no juftification. The Law 
 not only conftrues it to be void, but fuppofes 
 it not the Royal Ad, nor will receive it in 
 Evidence. And if futlicient Overt-ads can 
 be fixed upon this Officer, as the Inftrument 
 to execute the Purport oi it, he is anfwcr- 
 
 * The Oath was appointed i ^ C" 14 Car. II. c 3. and 
 
 repealed i W O' M. c. 8, 
 
 I able
 
 114 Confideratlons on the 
 
 able for it : fuch being tlie Wifdom of the 
 Conftitation, as when it has invefted the 
 Crown with the largcft Powers of Adlion, 
 lo Qialse the Inftruments and Organs of thofe 
 Powers account for the Abufe, or the ex- 
 ceeding of them, at their own Peril 5 and 
 thus they become a kind of Controul in the 
 very Excrcife. 
 
 As to Offences of a lower kind (which 
 ought never to be conftrued into Treafon, 
 where the Statute will not warrant it), fuch 
 as the evil Advice of MiniUcrs influencing 
 the King, not indeed to exceed the Limits 
 of his Power, but to abufe the Difcretion 
 with which his People have intruded him, 
 the proceeding by Impeachment of the 
 Commons for high Crimes and Mifdemcan- 
 ors, is a complete Remedy, and according to 
 the Degree and Height of the Offence, the 
 Judgment may be proportioned in Parlia- 
 ment. 
 
 Now if any one think, in cafe the King 
 fliould unhappily and obilinatcly intcrcft his 
 Pcribn, in lupporting the Aclions of hi.5. 
 Minillcrs againll the clear and eflablifhcd 
 Laws of the Land, that the Principles of a 
 
 Con-
 
 Laiu of Forfeiture, 115 
 
 Conftitution, lb limited and controuled in 
 all the Parts of it, fecm to warrant the pro- 
 viding; ot a judicial Remedy againft him, as 
 againft another Magiftratc or Minilkr of 
 State ; the Anfwcr to this Chimxra is plain : 
 Tliat every Conftitution of Government lias 
 its peculiar Cafes rending to Diflblution, 
 beyond the Power of any dated Remedy, 
 even tho' it be the mixt Form of Govern- 
 ment, which both avoids thofc, to whicli 
 other Forms arc fubjecl, and is lefs frequent- 
 ly in Danger from luch Convulfions, as are 
 proper to itfelf. The Englijlo Government 
 therefore, notwithftanding its durable Na- 
 ture, and fingular Advantages, partaking in 
 fo large a Degree of Monarchy, the Cafe 
 licrc propofcd would be a Cafe tending to 
 Diiroliuion, not to be fubjeclcd to the ordi- 
 nary Provillons of Law. The Reigns of 
 Charles I. and 'James II. are Evidences of 
 rliis. And it arifcs from the Nature of the 
 Tilings becaufe the King of England (un- 
 like tliC Ivings ol Sparta or ArragoJi, with 
 tlicir I'phon zvA El Ghifticia, Olficcrs ap- 
 pointed to ipJj-cd- and judge their Aclions) is 
 not only a A'a-ifiratc or General, but com- 
 pofcs an cilential Part of the Supreme Power. 
 So that, Oil the oriC hand, (hould a future King 
 I 2 attempt
 
 1 1 6 Confiderations on the 
 
 attempt to fubjcd the Crown and People 
 to a foreign Yoke, or to fee up a general 
 difpcnfing Power by Proclamation, to con- 
 troul the Operation of all the Laws j thefc 
 would be Cafes manifeftly tending to Diffo- 
 iUtion. Or fhould he fummon the Lords to 
 ainil; him in the making of Laws without the 
 Ileprefentative Body of the Commons, and 
 the Lords, inftead oi mediating, fhould fup- 
 port him in the arbitrary Defign of excluding 
 the Commons from a Share in the Legifla- 
 ture, it would be a Cafe tending to DifTolu- 
 tion. And tho' the Law will not fuppofe the 
 Poflibility of the Wrong, fince it cannot 
 mark out or aflift the Remedy ; yet every 
 Member of that Reprefentative Body might 
 exclaim in the Words of CraJJus the Roman 
 Orator, when he oppofcd the Encroach- 
 ments of a tyrannical Conful on the Autho- 
 rity of the Senate j Il/e no?2 Con fill eft ^ cuiipfe 
 Senator nonj'mn : He is no King, to whom 
 we arc not an Houfe of Parliament. On 
 the other hand, fhould the Reprefentative of 
 the Commons,, like that of ©^;/?;/«/"/e, fur- 
 render the Rights and Liberties of the 
 People into the Hands of the King, and the 
 King, inftcad of difiblviiig the Parliament, 
 fhould accept the Surrender^ and attempt to 
 
 maintain
 
 Law ^Forfeiture. 117 
 
 maintaia it, contrary to the Laws, and to 
 the Oath of the Crown j or fhould the Two 
 Houfcs take the Power of the Militia, the 
 Nomination of Privy-Counfcllors, and the 
 Negative in paiTmgLaws out of the Crown ; 
 thefe would be Cafes tending to Diflblution : 
 That is, they are Cafes which the Law will 
 not put, being incapable of diftrufting thofc, 
 whom it has invcfted with the Supreme 
 Power, or its own perpetual Duration ; and 
 they are out of the Reach of Laws, and ftated 
 Remedies, becaufe they render the Exercife 
 of them precarious and impradticable. This 
 Obfervation may be applied to every fimilar 
 Cafe, which can be formed in Imagination, 
 relative to the fcveral Eftatcs 5 with this Dif- 
 ference, that it holds ftrongcfl: as to the 
 King, in whom both the Common and Sta- 
 tute Laws have repofed the whole executive 
 Power : Nor could the Icafl: Branch of it be 
 lodged in the Two Houfcs, for the Purpofe 
 of providing a judicial Remedy againft him, 
 unlcfsthcConflitiition had crcdcd impcrium 
 tn imperiOj and were inconfiilcnt and de- 
 ftrudive of itfclf. Should it then be asked. 
 What ! Has the Law provided no Remedy 
 in refpcd of the King? and is the Political 
 Capacity thus to furnifh an Exemption to 
 
 I 3 him
 
 1 1 8 Confiderations on the 
 
 him in his Natural, from being called to 
 Account ? the Law will make no Anfwer, 
 but Hiftory will give one. When the iving 
 invaded the fundamental Conftitution of the 
 Realm, the Convention of Eilates declared 
 an Abdication, and the Throne vacant. In- 
 deed the Political Charader, or the King 
 confidered as an Eftatc, ftill fubfiftcd in 
 * Notion and Judgment of Law j the Right 
 of the People to be governed by a limited 
 
 Monarch, 
 
 * If it be thought, that this is a legal Subtilry, rc- 
 fembling the fubftantial Forms of the Schoolmen, which 
 might fubfift when the Matter was gone, it may be fjid, 
 that though Subtiities can anfwer no good Purpofes in 
 Philofophy, yet they fometimes anfwer very great and 
 excellent Purpofes in the Law, as particularly in this Rea- 
 foning applied to the Cafe of ihe Revo!u:ion. The Re- 
 fult and ftii£t Confcqucnce of the Inftances of Mal-ad- 
 miniftrarion, called, in the Votes of the Convention- 
 Parliament, Endeavours to fubvert the Conifitution, 
 was, that the whole Frame of it was in Fadl dilTolved j 
 fince the Confti-ution is a mere E?is raticAs v/iihout the 
 Exercife of the Government, and the Lords and Com- 
 mons cannot be regularly convened, nor exert any 
 Powers without the Concurrence of the King. But had 
 there been a Declaration, that it was didulved, the People 
 mufl: have been free to chufe a new Form o^ Govern- 
 ment; and all the Uilirpations, under v/hich rhey had 
 fuffercd, after abolii'hing the Monarchy, and the viiionary 
 Schctncsof Government, which the frui:fu! Fancy of that 
 Age produced upon the Dciith of Char'es I. r.nd of Cro7n' 
 fu.'C'//, v/ould have been again rcvivc>i, ro :he iJiiordtr ai;d 
 Ruin of the Nation. What then luiu ihc Convention? 
 
 On
 
 Lazv of FoKFEiTu?.E, 119 
 
 Monarch, according to the anticnt Exercifc 
 and Diftribution of Powers between the 
 Three Eftates, remained as much as ever : 
 but the Exercifc of the Government was 
 fufpended, which made it a Cafe tending to 
 Diffolution. And being extraordinary, the 
 Remedy fuggeded itfelf, and was fuited to 
 the Neceflity. 
 
 Erom the Whole of this Argument, thus 
 ftatcd, it will appear, upon what wife and 
 
 On the one hand, they pat an End to any Hopes, which 
 migh: have been raifed in favour of the unhappy Prince, 
 from the Confufion naturally confequent on a declared 
 Diffolution j and, on the other, difappointed the unma- 
 tured Schemes of ambitious or fpeculativc Republicans, 
 by immediately flicwing it to be their Opii.ion, that the 
 Conflirution fubfifted. They met, and tranfacled in a 
 Manner as near to the anticnt Cufloms., as Circum- 
 flances would admits then declared a peribnal Abdica- 
 tion of the Monarchy, and fupplied the Defc^ft by placing 
 another on the Throne- On this Account it i-, tiiat the 
 Cafes here propofed, inftead of being called Cafes of 
 flbfolutc DifTolution, are only faid to be Cafes tending to 
 DilToiUtion. So far the Hiftory of the Revolution lead--, 
 and it carries us no further. Mr. ILocke^ in confidering 
 the SubjcJl cs a Piiilofopher and Theorill, fpcaivs of fuch 
 Cafes, as ablolurely dilv)lvinc^ 'h.cCoiifti'uuon of Govern- 
 n",entj (o as that the Q^ielUon wuh the People would 
 bj on the Creation of a new one. But the Lawyers of 
 iho!e Times did not carry i: !■) fir; and the Rcafon, 
 vchy they c;J nor, was a Mader-ltroAe of Pwiicy and 
 Wildon': 
 
 J -t con-
 
 1 20 Confiderations on the 
 
 conftitutional Grounds the King may be faki 
 to be a Corporation by the Common Law. 
 And it will not be foreign tq the Q^ieftion, 
 to purfue the general Notion of Law con- 
 cerning the King a little further, to diftin- 
 guifh between the two Capacities, and to 
 fhew, in few Words, that there is nothing 
 annexed either to his Crown or Perfon, which 
 may not be explained to have a more imme- 
 diate or remote reference to the Dignity of 
 that Relation, which he bears to his People. 
 For tho' it be obfervable, that his Natural 
 Capacity imparts fome Peculiarities to his 
 Politic, and cfpecially this, that it caufes the 
 Crown to go by Defcent (which is the Cafe 
 of no other Corporations, whether confiding 
 of many Perfons or of one, whether tem- 
 poral or ecclcfiaftical, who take to them and 
 their Succeflbrs, not their Heirs) 5 yet this 
 Peculiarity is allowed by Reaibn of the Poli- 
 tic Capacity, and arifcs ultimately from that 
 Wifdom, which, from the carlicfl Times, 
 determined ^o many Nations to prefer Here- 
 ditary to Ekdive Monarchy. 
 
 It is ovv'ing to the Dignity of the farnc 
 Politic Capacity, that fome lie (Iricl ions arc 
 laid upon the N-^-tural, or iach ample Pri- 
 vileges
 
 Law <?/* Forfeiture. 121 
 
 vileges annexed to it. Of the firft Sort, it 
 may fuffice to mention, that the King can- 
 r>ot be fcifed to an Ufe j not only bccaufc 
 Corporations are not enabled for that Pur- 
 pofe by the Statute of Ufes, but for a Rca- 
 fon at Common Law given by Chief Jufticc 
 Markham in the * Ycar-Book oi Edward IV. 
 bccaufc he ought not to be joined as a Party 
 and Truftee in Defence of the Eftatc of one 
 Subjed more than of another. Of the latter 
 Sort, it is very important, that fiiould the 
 right Heir to the Crown happen to be an 
 Alien, neverthelcfs the Dcfcent has its free 
 Courfe 5 left there be an Interregnum^ which 
 the Law will not fufFer, For this Caufc it is, 
 that the Safety of the King's Pcrfon is pro- 
 tcded with a fuperlative Care. It is High 
 Trcafon to compafs or imagine his Death. 
 This Proted:ion is even extended to Rela- 
 tions, the Queen, and his eldcft Son. Ads 
 of Parliament rcfpeding them arc to be taken 
 Notice of by judges as public Acls, without 
 being pleaded. Hence it is, that his Prero- 
 gative for acquiring and prefcrving his pri- 
 vate Rights is proper to hinifclf, and out of 
 the ordinary Courfe of Law, in other lu- 
 
 * 7 Edv:, IV. fol. \C.
 
 12 2 Confiderations on the 
 ftances. Notwithftanding he be only of 
 the Half-blood to the King lad fcifcd, the 
 Crown Lands and Jewels defcend to him. 
 They cannot be diflributed in Coparcenary 
 amons; Females. Where Land comes to him 
 by Defcent from a collateral Anccftor, being 
 a Subjed, he inherits it in his Natural Capa- 
 city 5 but fliali hold \i jure Corona in his Po- 
 litic, and it fhali attend upon the PoflclTion 
 of the Crown. Purchafes made by him, 
 after the Accellion of the Regal Dignity, 
 veft in the fame Capacity. He gives and 
 takes only by Matter of Record ; and even 
 during his Minority, he may make Leafes 
 and Grants, and ITiall be bound by them, 
 for the Advantage of his Revenue, and to 
 rev/ard Merit. His Goods and Houfliold 
 are intitled to Exemptions 5 and in Courts of 
 Jufticc he enjoys many Privileges, yet fo, as 
 not to deter the Subjcd from contending 
 with him freely. 
 
 Now tho' thcfc t\vo Capacities cannot be 
 fcparated in the Adminidration of the Go- 
 vernment, yet arc they didinft in them- 
 felvcs, and ought to be divided in Argu- 
 nieiu. To fay then, that the State and 
 People are not confidcrcd in our Law of 
 
 Ti'caibn,
 
 Zy^T^J o/ Forfeiture. 123 
 
 Trcafon, bccaufc it is referred to the King, 
 is either to lay fuch a Weight upon Forms 
 of Exprefllon, as deferves no other Anfwer 
 than repeating the old Obfervation, T^tim 
 proprietatem 'verborum expendimus, fenfum 
 %'eritatis am'tttimus > or elfe it is to confound 
 the firit Principles of abfolute and limited 
 Monarchy. In abfolute Monarchy (con- 
 sidered as a corrupt and dcfpotic Form of 
 Government), the Propofition is true, that 
 Treafon is applied merely to the Pcrlon and 
 Adminiflration of the Prince, without Re- 
 ference to his People : and the Reafon is ob- 
 vious 5 bccaufe, in fuch a Government, his 
 Natural Powers arc co ordinate with, and 
 the Meafurc of his Political : Will and Plca- 
 fure arc the only Rule of his Aclions. But 
 in a limited Monarchy, like that of En(r. 
 land, where both the public and private Pre- 
 rogatives of the Crown, applied either to 
 the Political Capacity, or to the Pcrfon of 
 the King, arc inftitutcd and exerciied for 
 the Benefit of the People, and to fupport 
 the Dignity of his Office, the Propofition is 
 falfe ; and to advance it in any manner, is 
 to fet up a confulcd fantadical Notion, con- 
 trary to the Ground of Law. 
 
 If
 
 124 Confiderations on the 
 
 If therefore a fufficient Analo2;v remain 
 between the Law of Trcafon in other free 
 States, and the Law of Treafon in England, 
 the Queftion naturally occurs, What can be 
 the Meaning of Treachery againft the Coun- 
 try, or State Treafons, fo much talked of by 
 fome, in Contradiftindion to thofc marked 
 out by the Law of England ? It is difficult 
 to find a Meaning, except one, of which the 
 Confequcnccs are fuch, that had *i\r. Bacon 
 fcen them, as a confiftent Republican, he 
 muft have immediately difowned it. The 
 free and inquiring Spirit of this Age has led 
 Men to fearch the antient and forgotten 
 Parts of Hiftory for Epithets and Parallels 
 to Minifters. They have read, how, in one 
 Part of Britain, before the Ad for im- 
 proving the Union, a Man might be accufed 
 of High Treafon, under a Law againfl 
 *' impugning the Authority of the Three 
 *' Eftates, or procuring any Innovation or 
 '^ Diminution of it." They have read, 
 how the Spencers in Edward the Second's 
 Time, Morti'mer in the Reign of Edward 
 the Third, the Duke of Gloncefter, Earl of 
 Arundel, Trcfllian, and others, in the Rcig'a 
 oi Richard the Second^ were convidcd of 
 * P. io8. Trcalba
 
 Laiv <?/ Forfeiture. 125 
 
 Tixafon in Parliament, as the Record fets 
 forth, for " accroaching Royal Power, fub- 
 *' verting the Realm, and fundamental 
 ^' Laws;'' Exprcllions, which found well in 
 Parry Papers, as the Sportings of Fancy, to 
 exercifc the Sagacity, and flatter the Vanity, 
 of Readers ? but, when ufed as the adequate 
 Defcription of Treafons in Courts of Ju- 
 flicc, become too fcrious, and may be at- 
 tended with the moft fatal Mifchiefs. Un- 
 der fuch general Words arofc all the Com- 
 mon Law, or State Treafons, conflru<^ive 
 and arbitrary Treafons ; into which every 
 Offence, that cither was, or feemed to be, a 
 Breach of Allegiance, and the Laws, might 
 be raifed by Interpretation and Confcquencc. 
 Thcfc have \0\v2, been Strangers to theKinix- 
 dom, ever fince Lord Strafford s Attainder, 
 and above Two hundred Years before 5 and 
 it is to be cxpcdced, from the Wifdom and 
 juflicc of Parliaments, ever will be. Let 
 thcfc be as fludioully avoided, as the declared 
 ones enforced ; and furely it would be a very 
 ill txcluiige in a tree Government, to dimi- 
 nifli the Forfcitiuc at the Expcncc of that 
 Certainty, v\'hich the Law has given to the 
 Crime. As the Penalties, of which fo much 
 has been fuiJ, arc at prclcnt applied by Sta- 
 tute,
 
 126 Conliderations on the 
 
 tute, thofc, who mean well to their Country, 
 and take care to infpire their Pofterity with 
 the fame good Intentions, can fufped no 
 Danger to Innocence j and they will think 
 it of little Moment to folicit the Appro- 
 bation of thofe, who do not. Yet if one 
 might fuppofc State Treafons revived, and 
 founded,, as they were antiently, on intem- 
 perate W^ords, Mifdemeanors, and dubious 
 Offences, who would engage in public Bu- 
 iinefs, that values Repofc, has Wealth to 
 forfeit, and Dignities to aggravate his Fall ? 
 A miftaken Opinion, that he was ading 
 within Law, might be the Ruin of him ; 
 and it would become a regular and neceffary 
 Part of the Proceedings, as formerly in 
 Scotland^ to argue, in a folemn Way, the 
 Relevancy of the Charge, before any Evi- 
 dence was offered of the Fad. But it were 
 better to have no Law, nor Penalties to en- 
 force Lavv% nor the very Form of Civil So- 
 ciety, than to receive only an enfnaring Pro- 
 tcdion from it. 
 
 And now it may be urged, that '' The 
 " Protcdion given by Society mull: conti- 
 " nue to be enfnaring, wlulil the Law in 
 *' Controvcrfy fLibfills. Arrilice may pof- 
 
 ''' fibly
 
 Law of FoKFEirvKE. 1,27 
 
 " fibly be Lifcd by ill-dcfigning Miniftcrs 
 *' to involve innocent Men in Trcaibn, for 
 " the lake of Coniifcations." If tiiis Ob- 
 jcdion be attended to in all its Confcqucnces, 
 the Anhver to it, one might hope, will be 
 thought as fatisfaclory as the Nature of the 
 Thing can admit. For tho' Inftances may 
 perhaps be found to warrant the Affertion, 
 under Governments caft in another Mould, 
 under Laws of greater Latitude, nay, even 
 in our own Hiilory during Civil Diftra- 
 ctions, and Times of High Prerogative ; yet 
 is not the Force of it much abated by the 
 different Lights in which the Crown and 
 the Subjcd have regarded one another, and 
 the equal Terms on vv^hich they have flood 
 for many Years? Is not the Law of Treafoii 
 clear, the Courfc of Proceeding exquifitely 
 adapted to protccl Lmocence, to intimidate 
 or repel Malice : Has not the Security againft 
 rlic undue F xercife of the Prerogative, both 
 111 point of Rigour and of Lenity, been 
 greatly (Ircngthencd fince the liappy Revo- 
 lution ? Are not new Advantages iziven to 
 private Men, accufed of High Treafon at the 
 Suit of the Crown, during Tryal ; and does 
 not Accels to Mercy lie open thro' the whole 
 Piocceding ? Due when MiniUcrs or Fa- 
 f vouritcs
 
 128 Confiderations on the 
 
 vouritcs are impeached at the Suit of the 
 Commons, is not the Conftitution of Par- 
 liament as ftrict as it was antiently ? or, fmce 
 the Ad of Settlement took place, can any 
 Pardon be pleaded in Bar of an Impeach- 
 ment? Do not annual SefTions of Parlia- 
 ment, which in Reigns immediately pre- 
 ceding the Revolution, were frequently in- 
 terrupted, afford perpetual Opportunities to 
 check all the Extravagancies of inferior 
 Officers and Courts ? In a Word, Has not 
 Juftice had an uncorrupted Courfe in its 
 known and dated Chanels, whilfl: thofe of 
 Mercy have been enlarged, and the Current 
 has flowed purer, and more freely, than the 
 Memorials of pad Ages can boaft ? Shall 
 then fuch Suggeftions be raifed after this Ex- 
 perience, and the reafonable Profped, both 
 of the Continuance and Improvement of 
 thefe Blcilings, if we are juft to ourfelves, 
 and grateful to Heaven \ 
 
 But let it be faid again (for there Is no 
 Reafon to decline the very Point of this Ar- 
 gument), tiiat the Law ought to be abolifhed, 
 becaufcMiniflcrs may poilibly abufe it, who 
 firft invent Plots for their own Purpofes, and 
 afterwards ruin theh^nocent by falfe Charges. 
 
 And
 
 Z-^i£; ^ Forfeiture. 129 
 
 And who knows not, that this is the idle 
 Whifpcr, the dale Infinuation of real Con- 
 fpirators, to delude well - meaning Pcr'ons 
 into a Belief, that fuch Plots are eafily 
 forged, and the Forgery as eafily fupported ? 
 Whereas, were the Artilice attempted by 
 Miniftcrs in this Country, it would be at- 
 tended with peculiar Difficulties, from the 
 Nature of the Government, befide thofe ge- 
 neral ones, which the common Accidents of 
 Life fuggcft, arillng from the ftubborn Ge- 
 nius of Truth, and Conftitution of Things. 
 Indeed the Abufe is (ilriclly fpeaking) pof- 
 iible; but do we not govern ourfclvcs in the 
 tendered Concerns, and do we not live, by 
 Probabilities? Reafon thus on other public 
 Points, and fuppole Princes, or thole en- 
 truded by them, to have the filial lelt In- 
 tcreO: in abufing the Excrcile of Power, tho' 
 it be anlntcrefl-, to the lafl: Degree, ima-iinary 
 and ill-underftood, as in this Cai'e ; c-.'Ad \ on 
 will wreft all Parts of the AdminilirArion 
 from their Hands, diffolvc Civil Policy, and 
 leave each xMan to govern himfelf, becaulc 
 every kind of political Power is accouipanied 
 with T».mptation. Realbn thus in private 
 C^ondud:, and you mull lude yourfelf iVc>ni 
 tlic Eves of the World; Icll FaKhood may 
 
 R blad
 
 130 Confiderations 07% the 
 
 blail your Character, and Malice may op- 
 prcfs your Fortunes. The Saying is, and it 
 deferves to be engraven on the Hearts of 
 judges, That it is better ten guilty Men 
 Ihould cfcapc, than one innocent fuffer : 
 But the Saying is not. That it is better the 
 ftrongeft Terrors be negledcd to fccure Go- 
 vernment againft its guilty Enemies, bccaufc 
 a bare Pofllbility remains, that they may be 
 imjuilly held forth to the innocent Friends 
 of it. As if it were not the main Care of 
 Government to provide for its own general 
 Safcry, in which that of good SubjeciS is in- 
 volved : Certainly the next Care is, to pro- 
 cure fuch particular Safeguards for the Ho- 
 neii, as it can. But, when this is done, let 
 every one reflect, that he, who lives in So- 
 ciety, is expofed to innumerable Hazards 
 from the Workings of Envy, Revenge, and 
 Defamation. Laws can give a very incom- 
 plete Security againft them. On what, then, 
 does he every Day rely, and on what can he 
 better rely, than on the Steadinefs of his 
 Prudence, the Clearnefs of his Heart, the 
 univerfal Experience, which decides for the 
 Safety of Innocence, and the Order and 
 Courfe of Providence ? 
 
 After
 
 Law ^Forfeiture. 13^ 
 
 After all, it will be asked, '' Suppoic there 
 " had been no Forfeiture by the antient 
 " Conflitution, would it have been thought 
 " right to infiitute it now ?" This Qiieftion 
 can fcarccly be anfwered. Who knows what 
 Sanctions may be requifitc for Government 
 in Tome Periods? As the anticnt Difciolinc 
 of Rome degenerated, new Terrors were ex- 
 pedient on the Side of Law. Yet it is one 
 thing to take off old ReQraints, anotlier to 
 impote new. And the Conclullon is not 
 juft, that bccaufc the Doubt might be con- 
 liderable for ilcafons of Policy, whether fucli 
 a Severity fliould be tried in thelirfilnQancei 
 therefore it ought to be abrogated, after the 
 wiiolfome Effeds derived from if, and tV/z 
 Approbation of Ages. Tiicrc i:> nothing in 
 the Virtue of the prcient Times, wliicii 
 claims (o particular a Refpccl. It is ob- 
 fcrved by Cafar^ in his Speech againft put- 
 ting the Catilmarian Confpirators to Dearh, 
 that thofe, who fpokc before him in the De- 
 bate ibr fuperfeding the ordinary Forms of 
 Law, had caught the Attention of the Se- 
 nate, by pathetic Defcriptions of Sacrilege, 
 Rapine, and the Ruin, which nuul have cu- 
 iucd to the Connnonwealth, had the Trcaion 
 ))ccn cftx:clcd ; to v/hich he oppofes the 
 
 K 2 I)au^(.r
 
 132 Confiderations on the 
 
 Danger of Deviations from the old and re- 
 gular Method of Proceeding. Certain it is, 
 the honefl; Senators, not interefted in the for- 
 tunate Succefs of the Confpiracy, as Hiftory 
 has fuppofed him to be, thought that Dan- 
 ger of the moft Weight, which he attempted 
 to diminifh. Cafar had a difficult Part to 
 rake, and more Art could not have been 
 ihcwn upon the Subjed. But had he lived 
 in this Age and Country, to defend the Abo- 
 lition of Forfeitures, he would modeftly 
 have owned the Difficulty too much for his 
 Art, in a Cafe where the Danger of encou- 
 raging Traitors concurs with that of remov- 
 ing Foundations, to invent Arguments againfl: 
 ilich, as arife from a Regard to, that fupreme 
 Law, the Safety of the People ; and to that 
 antient Method of punifhing, which fcatters 
 falutary Terrors round the Throne. 
 
 Thefe Reafonings may appear to fome 
 more than fufficicnt. Yet, perhaps, others 
 will not be wanting, who may think, that, 
 " by the Dread of this Severity, Pvefiftancc 
 '' will be made very difficult j and it is a 
 " Maxim of Politics, that Governments 
 " ought to be calculated with a View to 
 " the Infirmities of thofe, who govern/' 
 
 The
 
 Law ^p/' Forfeiture. 133 
 
 The Maxim is true ; but never was extended 
 to prove it neceflary, that Refiftance Ihould 
 be eafy. No Form of Government can be 
 carried on, unlefs a high Degree of Con- 
 fidence be placed in it. Every Form is 
 liable to Abufe j but ought not, for that 
 Reafon, to be expofed to Ruin. Religion 
 itfelf, tho' of the mofl: perfcd Purity in its 
 Origin, and not of human Inftitution, has 
 been made a Cover to the worft Purpofes. 
 And yet who ever faid, there (hould be no 
 fuch thing as Religion for a Controul to Mens, 
 Actions? Even putting the Argument in the 
 ftrongefl: Light, and fuppofe the Form of 
 Government ever fo unreftrained. Refinance 
 ought to be difficult. If it were nor, Men 
 might be inflamed by flight Faults, by per- 
 fonal Affronts, by private Sufferings, to dif- 
 turb their Country. And when we confidcr, 
 in the bell Cauic, what Confufion, what: 
 Violence, what Cruelty enfues, it cannot be 
 thought on without Horror. Perhaps too 
 it may be fairly faid in Anfwcr to the Ob- 
 jeclion, and the better to latisfy thole who 
 make it. That in the worfl: Juncture of 
 Affairs, when the Conflitution is affected, 
 when tyrannical Defigns are openly avowed, 
 and fupportcd by every Injuftice, the Dread 
 
 K 3 ol'
 
 134 Confiderations on the 
 
 of this Severity will not create a Terror fuf- 
 ficicnt to prevent good Men from refilling : 
 On the contrary, by infpiring Caution, and 
 retarding Refiftance, till it is become ma- 
 ture, it may faciUtate and fecure the Confe^ 
 c]uences. A Man's Fears always bear Pro- 
 portion to his Hopes ; and one kind of Paf- 
 iion, or Weight of Confiderations, is balanced 
 with another. In good Times it is admit- 
 ted, when Men are moved by Ambition or 
 Refentment, private and partial Affedions, 
 they will be deterred from engaging by pri- 
 vate Confiderations. But in bad Times, 
 when they are moved by a Love of Liberty, 
 Order, and the common Good, Arguments 
 addreffed to private Fears will not weigh 
 down public Affections. 
 
 Once m ire : The bcfl Anfwer to this Ob- 
 jcLlion is ftill behind, That it proceeds upon 
 Notions contrary to common Experience, 
 and either deftrudive of Law, or incon- 
 Ment with the Nature of it. It proceeds 
 upon a Notion contrary to common Expe- 
 rience, as it fupcofcs thofc, who are entrufted 
 WMth Government, more likely to abufe their 
 Authority in an intolerable manner, than 
 fome of the particular Pcrfons, who owe it 
 
 Allc»
 
 Law <?/' Forfeiture. 135 
 
 Allegiance, to endeavour a Change, or a Sub- 
 verfion of it. It proceeds upon a Notion 
 deftruclive of all Syftems of Human Law, 
 as it fuppoics an Expediency of weakening 
 tliofc rirong Sanctions, whicli have been em- 
 ployed in every Country, to give them then- 
 due Force and Operation. The Checks 
 upon Government fhouid be of another 
 kind from thofc dcfigncd by this Objection. 
 Let us keep the Balance as even as we can, 
 by forming every Eftate in the Conllitution 
 a Controul upon the reltj but it is extrava- 
 gant to think of leaving the Icaft Strength 
 or Temptation to Individuals to controul 
 Go\ernment itfelf. It proceeds like wife 
 upon Notions inconfillent with the Nature 
 of Law in two refpects: i. As it implies 
 an Error in Theory; that a Lawgiver, fra- 
 ming a Scheme of Government, fnouid pay 
 as much Attention to the poflible Dillblution 
 as to the neceffary Support of it; and, in- 
 ilead oi' fecuring Obedience and Perpetuity 
 10 ir, by the ItrongeH: Sanctions, which W'lf- 
 dom can devife, or Juitice will admit, ought 
 to weaken tliofe Sanctions, for the fake of 
 Cafes whicli arc out of his Reach, and mull- 
 be lett to themfelves, in which both Lavv and 
 Government arc diilblved. 2. As it implies 
 K 4. a a
 
 136 Confiderations on the 
 
 an Error in Fad? that a Law for Punifh- 
 rncnt, as that of Forfeiture, or a Law for In- 
 dcmniry, as one made to aboUfh Forfeiture, 
 can operate in Times of Civil Diforder, as in 
 Tiiiics of Peace, cither to give Terror or Pro- 
 tedion It has in it the firft of thefe Errors, 
 becaufe in fuppofmg, that the Engli(h Leglf- 
 lature ought to aboHfli the Forfeiture of In- 
 heritances for Treafon, it implies, that they 
 mud provide for Cafes of extreme Neceflity 
 and DifTolution, and, as it were, inlargcthe 
 Plight of private judgment concerning thofe 
 Cafes, by taking off the ftrongeft Checks to 
 private Rcfiflancc. It has in it the fecond 
 Error confidcred in either Light. On the 
 one hand, ihould this Law of Forfeiture be 
 prefervcd, a juftiliable and national Refiftance 
 (fuch as that at the Revolution) will not be 
 attended with too much Difficulty and Ter- 
 ror : For when thofe, who are entrufled with 
 the Executive Power, have abufed the Dc- 
 iign, or exceeded the Mcafurcs, of their 
 Truft, there generally follows aWeaknefsin 
 the Hands of Government, which renders it 
 unable to exad the Forfeitures originally in> 
 tended to fecure it. On the other hand, ihould 
 the Law made to abolKh Forfeiture take place, 
 what Protcdion will be derived from the 
 
 Abolition
 
 La^uo (t/* Forfeiture. 137 
 
 Abolition of it in Times of Civil Trouble? 
 Silent leges inter aYma^ was Tnll/s Apho- 
 rifm, fuizgcikd by his own Experience, and 
 fupportcd by that of all Ages. It is true. 
 Men might be induced by this Abolition to 
 fhew a greater Ileadincfs to take Pait, or even 
 to lead, in Meafures of Refiftancc. But in the 
 End it would prove a Snare to their Dellru- 
 ction, inltead of a Security. Will the Con- 
 querors in a Civil W^ar think themfelves 
 bound by fuch a Law ? If one. may argue 
 from Fad, clearly not. They will inflict 
 tiiefe, and mucii greater Seventies, on the 
 Conquered, without regard to the antient 
 Conftitution of their Country, [)oth from 
 Policy and Revenge. W^hen tiic Troubles 
 of Greece ceafed, with the Surrender of 
 Athens, at the Conclufion of the Telooon- 
 nejlan War, the Thirty Tyrants exercifed 
 Cruelties againfr ihofe who wiihed ill to their 
 Authority, unknown not only to the Laws 
 oi Athens J but to thole Laws, which cement- 
 ed the general Union of the States, hi Rome^ 
 the Proicriptions of Sylla^ and the Second 
 Triumvirate, were contrary to the Genius 
 and antient Policy of the Commonweakli, 
 tho' accommodated to the Situation and In- 
 tercft of the Leaders. h\ Florence, the i3a- 
 
 nhhmcnt
 
 138 Confidcrations on the 
 
 nilhment and Extirpation of entire Families, 
 and the Confifcation of their Subftance, was 
 a frequent manner of Proceeding during the 
 Troubles of Italy, fo excellently defcribed 
 by Machia-vel '-, to which Severity it v/as 
 owing, that many joined with the Duice of 
 Milan, a Foreigner, in order to be reftored 
 to their own Country. But it was a Pro- 
 ceeding cxercifed in particular Inftances, ac- 
 cording as one Fadion or another prevailed, 
 not derived from a permanent Law or Policy 
 of that Republic, or grounded upon ftated 
 Crimes. Can then any Argument be drawn 
 for abolKhing this Law, from the Security, 
 which that Abolition may give to private 
 Men, in fuch Periods of Time ; or ought 
 any Inference to be made from the accidental 
 Severities of Civil War, to the equal, and 
 regular, and peaceable Adminiftration of 
 Jufticc ? 
 
 Yet {lill it may be added, That '' if the 
 " Forfeiture of Inheritances were taken 
 *^ away, the Unfortunate in Civil Troubles 
 *' would find it a favourable Circumilance, 
 " to have the Law on their Side, to intcr- 
 " pofc between the Diftrefs of their Condi- 
 '■■ tiofi;, and the Fury of their Adverfaries. 
 
 " With
 
 Law c/ Forfeiture. 139 
 
 " With that popuLir and healing Intention 
 " was the Statute 1 1 //. VII. framed, by 
 " which the Obedience to a King de facfo, 
 '^ or in the very W^ouds of it, the Prince and 
 " Sovereign Lord for the Tune being, is 
 " made Jawfuh" But he, wiio thinks 011 
 thisSabjccl, will obfervc, that it is one thing 
 to make a Law, which encourages a general 
 Obedience to Government, and another to 
 make a Law, which in its Confequences may 
 weaken the Bonds of that Obedience. Be- 
 iidcs, the Circumfrances of Henry the Se- 
 venth's Pamiiy and Rvign required the one, 
 tlie Circumfrances of this Royal Family and 
 Tin:ie by no means allow the other. Let it 
 be fuppofcd hov/evcr, that the Time would 
 bear it ; yet the Rcafoning juft ulbd, tofhcw 
 how little Protection would be dcri\cd ia 
 Ci,il Troubles from tlic Abolition of tliis 
 Forfeiture, will rv;ccive great Conlirmatioii 
 from conftdcriivj; v/hat have been tiic Con- 
 fir ucf ion -iiVi^i Elf eel of the famous Lavv' of 
 ihv.ry the Seventh. The natural Conltru- 
 dion friould feem to be that, which is moll: 
 for tile ■jer;efit of the People, to heal and 
 coniDofe Civil Differences. And it is \}a-z 
 lettled Rule, tliat Laws made for the Atrain- 
 mcnt of fiich public Endb Ihall be expounded 
 
 ia
 
 1 40 Confederations on the 
 
 in the largeft Scnfc 5 and tho' the Words 
 are fliort and imperfed, yet they fhall be 
 extended io^ as not to be ilhifory and vain. 
 Under this Rule an Equity has frequently 
 been admitted in Statute Laws againft the 
 Letter. Now the general Intention of that 
 Law was plainly to indemnify the Subjed, 
 who iliould not only fubmit to an ufurped 
 Authority de faBo, but Hiould be adive in 
 fapporting it. The Words of it fuppofe a 
 Kingly Government, and are applied to the 
 Allegiance and Service, which fhall be paid 
 to the Prince upon the Throne. The Rea- 
 fon of which was, that none of the antient 
 Contentions had ever ended in the Repub- 
 lican Form of Government, and the Law 
 was accommodated only to the Experience 
 of paft Times. But the Mifchief might 
 fubfift in Cafes not expreffed in the Words, 
 and the Remedy might, in the rcafonable 
 Methods of Conftru6tion, be made adequate 
 to the Mifchief. It is remarkable however, 
 that in the fingle Cafe, which has happened 
 jfince the making of that Law, in which 
 the Subjcd could apply it to his Benefit, it 
 iias received a ftricl: Conftrudion. For, af- 
 ter the Rcflorntion, many, who were called 
 10 Account for fubmitting to the ufurped 
 
 AuthC'
 
 La"-^ of Forfeiture. 141 
 
 Authority, infiltcd upon the Equity of the 
 Statute; but it was denied them ; and they 
 were told, i. That the Statute fappofed a 
 Monarchy to be the Medium of the execu- 
 tive Power, and provided only for a King de 
 fa^o. 2. That tho' the Authority de facfo 
 iubfifted, and was fubmittcd to for a Time, 
 yet it was ufurped wrongfully by a Party, 
 and every thing done under it was void in 
 Law; the very Qucftion, which that Law of 
 Henry the Seventh was intended to preclude. 
 Indeed the \di of Indemnity, after theRe- 
 ftoration, proceeds on the Suppofition of II- 
 legaiity in the Proceedings of the lare Times, 
 not only as to the High Courts of Jufticc, 
 but in every Part of the Government ; and 
 leaves thofc, who arc excepted, to be profe- 
 cutcd as Traitors at Law. This is a Decla- 
 ration in Parliament, which fecms to prevent 
 the equitable Conltruclion of the Law of 
 I/enryVll. and evinces, in a great meafurc, 
 what is here advanced, that from the Na- 
 ture of Civil Commotions thcfe Acls ot^ the 
 Legiflature will always prove a very v/cak 
 Support to thofc, who lean upon them : 
 Queftions of Law will be blended v/irh 
 Qiieftions of State, and both be governed 
 by Realbns of tcinporary Convcnicr.cc. Tiic
 
 142 Confi-derations on the 
 
 wife Hiftorian of Henry the Seventh's Reign 
 was {o fenfible of this, that, fpeaking of the 
 Statute concerning a de facfo King, he in- 
 timates, that it was not Hkely to laft, but 
 made to fatisfv for a Time ; and calls it " a 
 *' Law of a (Irange Nature, more juft than 
 " le,e;al, and more magnanimous than pro- 
 " vidcnt." Words very applicable to ilich 
 an Alteration of the Conftitution, as thefc 
 Objedors demand. 
 
 This important Subject has now, in fomc 
 manner, been viewed in all its Parts. The 
 firil: Endeavour was to clear it of Circum- 
 fbanccs, which do not belong to it in Eng- 
 land h ai^^d from which have arifen the ge- 
 neral Ccnfures upon it, to be found in the 
 celebrated Hiftorics of Civil Wars, and the 
 W^ritcrs on Liberty. The Foundations of 
 Reafon, on which this Part of the Conftitu- 
 tion is cftabliflied, have been expofed to 
 View ; Natural Right feparated from Civil 
 Right j and the latter Ihewn to be alone 
 concerned in the Creation, and confcquently 
 in the Forfeiture, of Inheritances. 1 he Ge- 
 neral Policy of Law has been illnflrated from 
 Free States, as the Power of iniiiding this 
 Penalty is moil ftrongly binding on human 
 
 Nature :
 
 Z.^i£; (j/' Forfeiture. 143 
 Nature : The particular Policy of Govern- 
 ment has been marked out as diftincl from 
 Policy of Law, in refpcd to the manner 
 and Circumftanccs attending, and the Ef- 
 fects arifing from the Adminiftration of this 
 Power. 
 
 To conclude : Such a Terror againft Trea- 
 fon was peculiarly adapted to thofe Ages, in 
 which it has either been introduced or en- 
 forced. It was fitted of old to the Genius 
 of this brave People, who, dcfpifing their 
 own Lives, were only to be moved by a ge- 
 nerous Regard to their Pofterity. It is fitted 
 to the Genius of thefe Times, when Perfons 
 are to be touched in that dcarefl. Part, them- 
 felves and their Families; and the Love of 
 our Country is held a Weaknefs, and mif- 
 takcn Principle of Adion. Men will be 
 made avcrfe to defpcrate Engagements, by 
 a Tcnderncfs, which, whether derived from 
 Inftind, Vanity, or Virtue, is of equal Mo- 
 ment. They pretend to be againft the Con- 
 tinuance of this Terror from the lame Tcn- 
 derncfs ; not aware, that to confefs the 
 Power of the Affedion, is to vindicate tiic 
 Wifdom of the Law. But, to fpeak plainly, 
 Reafon has marked out the due Oiiicc 0/ 
 3 thib
 
 144 Coiifiderations on the 
 
 this AfFcdion, as of all others. When fe-^ 
 paratcd from the Purfuit of public Good, 
 nothing can be more faUc and dangerous; 
 when united with it, nothing more jufl: and 
 beneficial. Nay, the fulled:, as well as 
 trucft, Indulgence of the Affcdion arifcs 
 from this Union. Tiie Honour of a Fa- 
 mily is Icfs obfcured by the Punilhment 
 than the Crime ; and whoever regards his 
 own Fame, and their lafting Intereft, will 
 beft provide for both, in laying every Check 
 on the malignant and deceitful Paflions, 
 which produce the Crime, and in affifting to 
 maintain, by the mofl: afFeding Sandions, 
 the Tranquillity and Safety of his native 
 Country. Nor let it be called Court-Adu- 
 lation and Cowardice to fccurc thefe cx- 
 tenfivc Hcnelits. What is Flattery, and what 
 is Cowardice, but cither artfully to in- 
 dulge, or tamely fubmit to, the Pailions and 
 Humours of Men, againft Rcafon, and the 
 Dignity of human Nature ? But, if that be 
 Flattery in public Condud, which can bear 
 a rational Examination upon Principles of 
 Liberiy, flrcngthcns the old Foundations, 
 fupports the legal Awe and Authority of Go- 
 vernment, every wife and honed Man would 
 be placed in the Rank of inch Paralites. 
 
 Could
 
 Z/^ie; ^ Forfeiture. 145 
 
 Could One of this Turn of xVIind pry into 
 the Depths of Futurity, and fee any of his 
 degenerate Family entertaining traiterous 
 Defigns, his Grief would be confiderable, 
 but his Indiiination would be greater. He 
 would grieve to fee the Fruits of his Induftry 
 facrificed to the Ambition of one ; but he 
 would call to mind, that as they were ac- 
 quired, enjoyed, tranfmitted, by the Pro- 
 tedion and Favour of Society, they were 
 due to the public Safety, when abufcd to 
 the Dcftrudion of it. He muft receive 
 Pleallire from refleding, that the Law of his 
 Country would fo far regard his Honour, 
 as not to own the Traitor's Defcent from 
 him ; and tho' he would compaflionate an 
 innocent Pofterity, yet knowing the Law to 
 have the Refourccs of Clemency, as well as 
 the Severities of Jufticc, he would hope, 
 that thefe might merit Pvcftitution by tUelr 
 Temper and Innocence 3 or, at lead, run 
 the Race of their Anceftors, and gain new 
 Riches and Honours by the fame Virtues. 
 
 Inftances there are in fliftory, in which 
 Nations, jealous of their Privileges, have 
 tonl'ciited by new Penalties fuited to an 
 OcCv-ifionj and more ftrongly cnforcc-J^, than 
 
 L any.
 
 146 Confiderations on the 
 
 any, which the Law of England furnifhe^j 
 to fccLUx the Government ellabUfhed. Henry 
 the Third of France, a Prince of the miidcfi: 
 Nature, as T>avila and Mez,eray inform us, 
 in a full and free Convention of the States at 
 Blots, being much preffed by the League *, 
 cnaded the feverefl: Laws againft Treafon. 
 It is true, tiiofe Laws did not fave him; 
 but he owed his perfonal Ruin to Quahtics 
 from whicli no human Means can fave any 
 Man ; to his own ill Judgment and Bafenefs, 
 and to the ftrange Enthufiafm of the Bigot, 
 who by Surprize aflaflinated him. Befides, in 
 rcfped of his Caufe and Family, thofe Laws 
 could have little or no Effcd, being untimely 
 made, not to prevent a Mifchief only forefcen, 
 or rifmg at a Diftance, but to remedy one that 
 was inftant, and grown too ftrong already; 
 and to deter a Party, whofe Chief was almoft 
 equal with the King himfelf, and which was 
 fupportcd by a confiderable Body of the Peo- 
 ple, intent to prefcrve the Succcllion to the 
 Crown in Princes of the National Religion. 
 Yet, be this as it will, if the Liftances of this 
 Kind arc not rare, and fometimcs have proved 
 fucccfsful, the rather ought we to conhrm 
 
 * Bnlfo?: Code d'Hmry III. L. 8. 
 
 anticnt
 
 Imw ^ t^OR f e it u r e. 147 
 
 anticnt and conltitiuional Terrors, for the 
 Prevention of a Mifchicf, which can only 
 become formidable from a carelcfs Contempt 
 of ir, and to fet them on the Side of that 
 Efcabhrnment, which is fixed o\\ the Prin- 
 ciples of the Confticution itfelf, and which 
 has {o often employed in its Defence the 
 Wifdom of Parliament, the AfFeclions, the 
 Wealth, and Valour of the whole Nation. 
 Mod of the civil Troubles, which have filled 
 the Annals of our Kings with fo many Lefions 
 cf Warning, took, their Rife from the Dif- 
 union of the Nobles, whofc private Attacli- 
 mcnts led them to follow different Standards, 
 while the Expectation of the People, being 
 equal fiom both Parties, inclined them to 
 wiTn for Rcpofc imdcr fome one Family, ra- 
 ther th.ui the Victory of cither. But where 
 the Experience, as well as the Expeclation, is 
 unequal, vvhcre the Genius of a Family 
 lias been for Generations repugnant to that 
 of the People, where this natural Repugnance 
 lias been liciglitencd by the Policy of arbitrary 
 C'ouiT;:, the Scrvih'ty cf foreign Nations, t!''.c 
 Prt^redion of detcrnuned Enemies 5 by t!;e 
 bafed Ataxirns of Supeiftition, difycnluig 
 with x\\z Obligations, or eluding tlie Sanc- 
 'ions of true Religion ; who can jior ! 
 L 2
 
 ^4^ Confiderations on the 
 plaud fuch Means of giving Vigour to the 
 Law, that it may prove a Defence propor- 
 tioned to the Grcatnefs of our Enjoyments? 
 We have a Religion to lofe, founded on 
 PrinciplcsofPurity, of Freedom, and Mercy: 
 Wc have a Conftitution of Government, 
 the bed formed to convey Peace and Hap- 
 pinefs to Mani<:ind : We have Honour to 
 lofe, of which tlic Monuments of former 
 Ages fhew, that as large a Patrimony as any 
 Country can boaft is defcendcd from our 
 Anceftors. Thcfe are Confiderations, which 
 cannot but affed good Men to the Heart : 
 They efpecially concern fuch as are called to 
 the public Service in Parliamicnt. A brave 
 vSoldicr would be covered with Confufion, to 
 defert the Poll: ailigncd him by his General 
 in a Day of Battle : fo every one of thefe 
 is equally incapable to defert that Station, in 
 which the Choice of the Crown or the Peo- 
 ple has placed him, a Guardian of the public 
 Liberty. And as he would appear in the Field, 
 if the Neccllity of the Times required it, 
 againft Traitors, who fl:iould invade thefe 
 invaluable Pvights, he is animated by the 
 fame Zeal, to lend his Voice and his Power 
 to arm the Law with that Terror, which 
 may prevent the dangerous NccelFity. 
 
 /) • Ko-VA
 
 Law f?/* F O R F R I T U R R. 1 49 
 
 Nova Bella mo-ventcs 
 
 Ad ^Pcenam pilchra -pro Libert ate vocahit. 
 
 Virg. 
 
 Let it be remembered further, that this 
 Zeal tor Liberty, which oppolcs itfclf to 
 the Lovers of Tyranny or Licentioiifncis> 
 infpires a due Regard to the rational Aflcrtors 
 of it. And have not the Defenders of Re- 
 voUuion Principles, and the Proteftant Sue- 
 cellion, a jiift Claim to fo important a Se- 
 curity againll any, who, in a future Time, 
 fliall attempt to eradicate and deftroy ei- 
 ther ? 
 
 Eut thefc Confiderations fhonld particu- 
 larly weigh with us, * when a Foreign Power 
 has made a ftrong, tho' vain, Effort, even 
 previous to a Declaration of War, in Con- 
 tempt of the moft facred Leagues, to (hake 
 tiie hrm Allegiance of the Suhjed, to alter 
 the Government of this Kingdo'm, and to 
 gratify a Ihamelefs Perfidy, and a ruinous 
 Ambition. If the Fleets and Armies of that 
 Power are fent out with a Pretence of fup- 
 
 * This Difcnurfe was vvrirccn a few Months afier the 
 Ala'm of a dciigned Invaiion from France in i"'45. 
 
 L 5 porting
 
 1^0 Confiderations o;^ //^^ 
 
 porting Allies and Friends, it means only tQ 
 extend and aggrandize itfelf. Examples of 
 other Countries too clearly fnew, that they, 
 who court and rely upon this Friendfhip, 
 nourilli a Strength, which will prove one 
 Day their Deftrudion. Vainly they flatter 
 themfelvcs, to confine the Confequcnces to 
 their Enemies. When once the Torrent 
 paffcs its proper Bounds, thofe, who have 
 given it Vent, are the firft to be born away 
 in the Pvapidity of its Courfe. The Glories 
 of the French Monarchy have never bceii 
 built upon the Juflice or Moderation of its 
 Princes; and, when they have given AfTift- 
 ancc to a Neighbour Nation v/ith generous 
 Profeffions, their Defign has uniformly been 
 to fubvert the natural ^Manners and Independ- 
 ence of that Nation. The People of £;?^^ 
 land have exprefTed their Senfe of this Truth : 
 the Parliament have fecondcd their Indig- 
 nation by a falutary Law. In the mean time 
 it is not to be doubted, that the Attempts of 
 Enemies, who hate our good Faith, and envy 
 the Sources of our Strength, may raifc a Spi- 
 rit of Watchfulnefs both in the Prince and 
 People : and as, on the one hand, they will 
 engage the Royal Family on the Throne to. 
 think their Security depends on a Lenity, 
 
 Wiidom,
 
 Laiii) ^Forfeiture. 151 
 
 Wifdom, Integrity of Govcnimcnt ; fo, on 
 the other, they will engage the Nation to a 
 Temper of Calmnefs and Loyalty, and in- 
 duce every private Man to reflccl, that the 
 Love of our Country comprehends and en- 
 nobles all the private Relations and Partiali- 
 ties of Life j and whatever tends mod: ef- 
 fcdually to perpetuate the Laws of it, tends, 
 at the fame time, to perpetuate his own 
 Name, Wealth, Honours^ and Pollcrity. 
 
 L 4 A P P K N-
 
 [ IS2 ] 
 
 APPENDIX. 
 
 OBob, 1^. 1745'. 
 H E Writer of the foregoing Effay, 
 in confidcring the Argument of 
 it, both as a general Qiicilion of 
 Law, and with a particular View 
 to the Law of England, has made it his En- 
 deavour to obviate every Objcvlion, which 
 either the Obfervation of others, or his own 
 Reafon and Invention could fuggefl to him„ 
 Yet he is fenfible, that one Difficulty re- 
 mains unfatisficd, which may not be im- 
 properly introduced from a Paflagc in the 
 Bool^ itfelf 5 where it is faid *, '^ That our 
 " Law varies from the Feudal Policy, to 
 *' which it owes its Origin; bccaufc, by 
 ^'' the former, all forfeitable Lands are aUen- 
 " able at the Picalurc of the Party in other 
 
 P. 85. 
 
 Way^
 
 APPENDIX. 153 
 
 *' Ways than by Forfeiture 5 whereas, in the 
 '* hitter, they were forfeited, tho' not aUen- 
 " able or chargeable in any way by the folc 
 " Will and Power of the Tenant, and 
 '' merely defeendible to his next Heir upon 
 " his Death." Now it may be added, " If 
 *' this Peculiarity be an Advantage, which 
 " the Law of England has over the Feudal 
 " Law, it may be complained of alfo, as 
 ■' an Advantage, which it maintains un- 
 *' duly over the Law of Scotland : and the 
 ** rather, after Provifion had been made at 
 " the Revolution to remedy the Inconfill- 
 ■ ' ency, and limit the Forfeiture of Inherit- 
 '' ances within its juft Bounds. In our Law, 
 '' the Tenant in Tail can alienc by Confcnt, 
 *' and upon that Reafon was made fubjecl: 
 " to Forfeiture by Crime. In that of tV<Y>/- 
 '-'■ landy the Tenant, under a ftricl Tailzie, 
 ■' cannot alienc, and yet is fubjed to For- 
 •^ feiture. By the Acl of the Seventh of 
 " QiTcen Anne J the Right of the Crown to 
 " fuch Forfeiture, which had been rcleafed 
 ^' in 1690. was again revived, to lafi: till 
 '^ the Pretender's Death, and then was to 
 " be cxtinguiQicd for ever. To fufpend the 
 '■'■ J'.xpc6lation of that Blcfling longer, by 
 ^' enacling the Forfeiture to continue till 
 
 " after
 
 154 APPENDIX. 
 
 " after the Death of his Sons^ is manifeftly 
 '^ unjuft, and contrary to the Terms on 
 '* which it was fufpcnded at that Time." 
 
 In this Effay it has been laboured, with 
 great Care, to fhew, on what a Variety of 
 juft, focial, and comprehenfive Principles, 
 both the Creation and Forfeiture of Inherit- 
 ances (land. And therefore, tho' it be true, 
 that the Reafon of forfeiting Eftates Tail in 
 England is faid to be derived from the Te- 
 nant's Power to aliene 5 yet it fhould be con- 
 sidered, that this Reafon is only one, and that 
 perhaps the lead weighty, feleded from many 
 others, which fupport it. The main Principle, 
 in which all the Points of this Argument 
 centre, is this, that every Right conferred 
 by Civil Law, is juflly limited by that Law, 
 according to the Genius, Confent, and Po- 
 licy, of different States. So that if the Icffcr 
 Principle, which may perhaps be thought 
 to come clofer to the ftrict natural Juflice 
 of the Cafe, cannot be appHcd, by reafon 
 of general Convenience, the greater is at 
 hand, which comprehends and decides it. 
 In the Argument of a famous * Cafe in the 
 
 * Ihh. Rep. 334. Sheffield X. Radchjfe. 
 
 Exchc-
 
 APPENDIX. 155 
 
 Exchequer- Chamber, it was intimated by 
 one ot the bed Lawyers of any Age, Lord 
 Ilobart, that it was not a necciTary or forc- 
 fccn Conftrudion of the Statute de T)onis^ 
 to exempt thefe Eftates-Tail, defcribed in it, 
 from Forfeiture , fince even after the Statute, 
 they were, in Effeft, the fame as Fcc-fimples 
 Conditional, which, on Ifllic had, were be- 
 fore hable to be affedcd by the Treafon of 
 the Tenant. It was therefore plainly his 
 Opinion^ that the Forfeiture of them might 
 be vindicated from other general Reafons 
 of Jullice and Civil Prudence. One cannot, 
 however, help acknowledging, that the 
 equitable and admired Maxim, " NoEdatc 
 *' ought to be forfeited by Crime, which 
 '' cannot be alienated by Confent," fcem- 
 nig to be received in Englandy furnifhes an 
 Evidence of the Exaclnefs, with which our 
 Law holds the Scales in the Bufinefs of For- 
 feiture i and how riudioufly it prefervcs the 
 Grace qf Syftem and Analogy, But it muft 
 at the fame time be acknowledged, that 
 this Maxim receives its Weight from being 
 grounded on another Maxim ; that " No 
 *' Eftate ought to be retrained from a com- 
 " plcte Power of Alienation by Confcnr." 
 And in whatever Law this lafl: xMaxim is re- 
 ceived.
 
 156 APPENDIX. 
 
 ccivcd, the firfl will be obfcrvcd of courfc. 
 Therefore if one attends to the Law of 
 Scot land J it will probably appear, that the 
 Want of adhering to the fird Maxim, fo 
 far as Cafes of Forfeiture fubfifl-, which can- 
 not be reconciled with it, is owing to the 
 Ncgled of the other Maxim, without which 
 the firft'may produce the grcatcft Danger 
 and Inconvenience. 
 
 To treat the Subjcd with Clearncfs and 
 Brevity, it will be material to fct forth, 
 
 I. The general Nature of Eftates-Tailzie, 
 and the Hidory of exempting thofe of the 
 ftrideft Kind, from Forfeiture for Treafon. 
 
 II. How far that Forfeiture was revived 
 by the Operation of the general enabling 
 Words in the Statute 7 Anna, c. 21. That, 
 
 from and after the firft Day of yufy 
 170C). all Perfons convided of attainted 
 of High Treafon, or Mifprifion of High 
 Treafon, in Scotland^ fhall be fubjccl 
 and liable to the fame Corruption of 
 Blood, Pains, Penalties, and Forfeitures, 
 as Perfons convided or attauitcd, ire. in 
 England y 
 
 1. As
 
 APPENDIX. 157 
 
 I. As to the Origin and Nature of Eftates- 
 Tail in Scotland, it is laid, by the Authors, 
 who have written upon them, that they are 
 derived {vom England J and in the Nature of 
 Subftitutions, o\. hidei comrnlffa., in the Ci- 
 vil Law, and Feiida Gentilitia^ in the Fcudai 
 Law. The celebrated Craig fpeaks of them 
 a:< receiving a ftrid Interpretation, being in- 
 jurious to the Courfc of Feudal Delcents, 
 the antient Fruits of 7'cnure, and Rights of 
 the Crown. The firft Dcfign of them was 
 to perpetuate Eftatcs in the xMalc Line, ex- 
 cluding the Heirs General, by which the 
 Lords and King loft: the Wardihip and Mar- 
 riage of Females. But they were fubjed; to 
 Forfeiture j and Members of the Entail wcic 
 apt to create Charges, and even alienate 
 without a Remedy provided for the next 
 Subftitute or Heir of Tailzie. To prevent 
 luch Charges and Alienations, prohibitive 
 Claufes (conceived in general Words, and 
 without any Penalty annexed) were added 
 to Entails; and yet tliey were for a long 
 time fo intirely new to the Genius and Prin- 
 ciples of the Municipal Law of Scotland, 
 that * Cra!g (who wrote in the Year i6co) 
 
 take?
 
 ^58 APPENDIX. 
 
 takes no Notice of any other Rcftraint oil 
 Alienation, than the old Feudal one of ask- 
 ing the Superior's Confent : And it might 
 well admit of fome Doubt, whether thofc 
 Claufcs would be allowed as legal, and 
 whether any or what Relief could be given 
 to the Heir in virtue of them. In refpcd of 
 Creditors for a valuable Confideration, the 
 1 8th x\d paffedinthc Parliament of 1621. 
 againll the fraudulent Difpofitions of Bank- 
 rupts, had rendered them of no Avail 5 and, 
 by Confcqucnce, had placed them in an un- 
 favourable Liglit. The Judges however, at 
 lad, made fome Efforts towards relieving the 
 Heir ; and, by Conftrudion of that very 
 Ad, confidercd him as a Creditor under 
 the prohibitive Claufe of the Scttlenient, 
 but only againil the voluntary and gratuitous 
 Deeds of his FrcdeccfTor: The Land was 
 Aill liable to Contrads of lawful Debt, 
 agreeably to the pofitive Words of that Ad, 
 which had been thus conftrudively taken 
 10 the Heu-'s Benefit. When the judges had 
 proceeded 'lo far in Support of thcfe Settle- 
 ments, it is cafy to imagine, that the Makers 
 of them would contrive Means of extend- 
 ing that Support much farther, and of ob- 
 taining, by the cxprefs Provifion of the Party, 
 
 what
 
 APPENDIX. 159 
 
 what the mere Operation of Law could not 
 efFeduate. To this Intent, the Claufcs irri- 
 tant and refohitive were infcrtcd 5 one, to 
 make void all Charges and Executions on 
 the Land, that the Creditor might receive no 
 Benefit from his Contrad ; the other, to ex- 
 tinguifh the Right and Title of that Member 
 of the Entail (who fhould fubjed the Land 
 to Debt), and of all, who claim under him. 
 Thus the Conditions of the Settlement were 
 enforced at the Peril of the fcveral Intercds 
 of thofc, who fhould be concerned in break- 
 
 ing tacm. 
 
 Lord Stair "^ (who was Prcudent of the 
 Scflion foon after thellcftoration), in his In- 
 ilitutcs of the Law of Scotland, intimates, 
 that lUch Claufcs did not become very ordi- 
 nary earlier than his o^/n Time ; and gives 
 it as his Opinion, that " they do not well 
 " quadiate with the Right of Property/' 
 for which Caufe, he fays (fpeaking of the 
 State of them, when he w rites), " they arc 
 *' fcldoin put upon Heirs of Line, Heirs 
 *' Male, or Heirs of Provifion, by Contracls 
 '■' of Marriage, as being lieirs oi Elood.'' 
 
 * Stair'. Jnji i £. Tit. 74, 4 Ji. Tit. 18- 
 
 He
 
 i6o APPENDIX. 
 
 He obfervcs * , that " in England thcic 
 '' Eftates were made void by a dillemblcd 
 " Proceeding of Fine and Recovery 5 and 
 " by Warrants to fell, purchafed in Parlia- 
 " ment, which pals without much Diffi- 
 " culty. If they become frequent with us^ 
 " it is likely v/e fhall find the fame Re- 
 " mcdy." And he adds, " Albeit ClaufcS 
 '* irritant in Tailzies be not penal, yet be- 
 " caufe they are againft the Common Law, 
 " and therefore odious, they fhoUld not take 
 " Effcd, before they be declared in a judi- 
 " cial Courfe." To the Reafons here laid 
 down, it muft be owing; that thefe Claufes 
 arc not expounded the moil liberally in Sup- 
 port o^ the Dcfign of the Maker : For if one 
 of them is by Negligence omitted in a Set- 
 tlement, and one (lands alone, tho' the Maker 
 intended borli ; yet tlicy are never fuppofed, 
 when they come in Judgment, to imply one 
 another. A Claufe irritant will annul Debts 
 contracled, but not the Right, which the 
 Debtor has to the Land > in which Cafe, the 
 Creditor is the only Sufferer : And a Claufe 
 refolutive will make void the Right of the 
 Debtor, but nor the Debts contracled 5 ill 
 
 * JnjI. 2 B. Tit. 3* 
 
 which
 
 APPENDIX. i6i 
 
 which Cafe, the Debtor is the only Sufferer, 
 After foiiic Experience, thefe Claufes were 
 found to tend greatly to the Injury of Cre- 
 ditors, and the good Faith of Commerce, fo 
 as to evade the plain Meaning o'i the Ad of 
 1621. as well as inconfiftent with the Na- 
 ture of Property and Dominion. Such Incon- 
 veniencies were more cfpecially apprehended 
 upon the Determination of the remarkable 
 Cafe of Lord Stormont in 1 662. in which irri- 
 tant and refolutive Claufes were adjudged 
 effectual in rcfped of all Creditors whatever. 
 Another Act of Parliament, therefore, was 
 thought neceflary, to reftrain their Opera- 
 tion, and to fecure Creditors and Purchafers, 
 who contracted bona fidc^ and without 
 Notice ; that is, were not aware of the Li- 
 mitations and Conditions annexed to rhe 
 Eftate. This was done in the Year 1685"^ 
 by a declaratory "^ Law concerning them. In 
 the fame Act, Occafion was taken, for the 
 iirfl: time, to give a Parliamentary Saadioii 
 to the Tailzies lo limited. But during all 
 this time, however the ordinary Rights of 
 Alienation might be retrained, or taken 
 away, the Higlit of the Crown to the For- 
 
 » V. Aa 22. 16S5. Scotch JJns of Pari V. III. o. 3=;. 
 
 M it It u re
 
 i62 APPENDIX. 
 
 feiturcofthefeTailzies upon Offences, which 
 legally incurred it, was never called in Qiic- 
 ftion ; and that Law rcferves and declares it, 
 by cxprcfs Words. 
 
 At tlic Revolution, the Forfeiture in Pre- 
 judice, not only of Creditors and ValTals, 
 but of Heirs of Entail, was declared to be 
 a great Grievance, by the Convention of 
 Eftatcs in Scotland. Nor was the Argument, 
 which now feemed to be drawn for defeat- 
 ing this Penalty, or AHenation by Forfeiture, 
 in Trcafon, from the Effed of the reftridive 
 Claufcs in Tailzies, to defeat the ordinary 
 Kinds of Alienation, any Reafon or Argu- 
 ment for declaring it fo. For furely it could 
 never be thought right, or confident in 
 Realbn (if fome ftrange Abufes of the Power 
 of inflicting this Penalty, recent at that time, 
 had not demanded it), to add by Act of Par- 
 liament (as was done in 165)0.) a nev/ and 
 more extended Operation to thofe Claufes, 
 not warranted by the Rules of conftruing 
 them, or the antient Policy of the Kingdom, 
 merely to five Tailzies from Forfeiture; when 
 the Parliament iiad been fo jealous of them 
 five Years before, as to rcflrain them, for the 
 fake of public Policy, in refped of Creditors 
 
 and
 
 y^PPENDIX. 163 
 
 and Commerce, even againfl: their natural and 
 judicially-allowed Operation. The Truth is, 
 that the Hifto:y of the Times, and the Claim 
 of Rii^hts made by that Kingdom, will unfold 
 the foleCaufc, why the Forfeiture, at lead in 
 rcfpect of the Heir, was confidered as a 
 Grievance. * Confifcations were promifcd 
 before Convidion or Procefsj Pcrfons in> 
 prifoned without a Reafon given ; forced to 
 depofe againft thcmlelves in Capital Crimes; 
 purfucd and forfeited upon Stretches of ob- 
 foietc Laws, frivolous Pretences, and de- 
 fective Proofs. Judges were influenced by 
 Commands contrary to Law, and turned 
 out of their Offices forDifobedience, incon- 
 fiftently with anticnt Ufage, and their nc- 
 ceflary Independence : Opinions given by the 
 Lords of Scllion, that to conceal the asking 
 of Rehcf for one forteited, and the refufmg 
 to difcovcr private judgments in relation to 
 other Mens Adions, are Points of Trcafon. 
 It is not to be wondered, when the Crime 
 was to (lich an high Degree precarious, the 
 Method of proceeding io arbitrary and un- 
 juft, the Lxamples of thofe, who fuffcred, 
 
 * ^,7f of S::. r,ir'. Vol. \V p 14-— 15", Se" the 
 DeclaratiTi nf E/?. ro^:t.::^::vz the Cl.v.v: nf hl?J:is, ^iC..— • 
 The Articles cf Gr.i-jaiue rc^r-fr^t^d^ &ic. 
 
 M 2 recent
 
 1 64 APEENDIX. 
 
 recent and numerous, that a Punifhment, 
 which is the Terror and fcvcreft Scourfre of 
 bad Men, fhould become formidable, as 
 well as odious, to good Men. The Attain- 
 der of the Earl oi Argyle in \68f. is parti- 
 cularly taken notice of in the Claim of Rights, 
 as a Reproach to the Jultice of the Nation. 
 One Claufe in it, declaring him, and thofe 
 who had joined with him, incapable of 
 Mercy, and fuch as (hould interpofe for 
 their Reftoration, guilty of Treafon, was fo 
 much beyond the Example of former Times, 
 that it was repealed in the following Year, 
 by the very Parliament, which attainted him. 
 In 1 689. as foon as the Convention of Eftates 
 had been declared a Parliament, and the new 
 Government was eftabiifhed, his Attainder 
 was entirely revcrfedj and the Preamble to 
 the Ad of Reverfal recites that Part of the 
 Claim of Rights, which was applicable to 
 the Proceedings in his Cafe. The Reverfal 
 of AndreiK) Fletcher of Saltotms Attainder, 
 and the Reverfal of Sir "Patrick Hume's Ax- 
 taindcr, in 165)0. recite the fame in the 
 ftrongcfl Terms 5 and add, that all fuch 
 Foricicures are to be confidered, and the in- 
 jured i'artics rcdreilcd. The former had 
 been condemned on the Depolition of a 
 
 fmsle
 
 APPENDIX. 165 
 
 fmglc Witncfs, under the Terror of Death, 
 and Temptation of Pardon, as {iandiiiLi; 
 charged with, and Prifoner tb'-, tb.e aileJ.j.ed 
 Crimes. This is a genera! \^ie\v of the }• ads, 
 upon which the Dechu'ation in the Claim of 
 Righits was founded. And that Ilich Op- 
 prclTion might be prevented for the fiirarc, 
 * in thefc two Scllions of Parliament, two 
 different Acls were made in favour of VaflaJs, 
 Creditors, and Heirs of Entail, of Perfons 
 forfeited. By the latter of thofc Laws (the 
 Acl of 165)0.) the Right of the Crown to 
 the Confiieation of Eilates-Tail was limited, 
 and, in a great meafurc, releafed ; ^i\A '■'■ the 
 " Heir prejudged, only in io far, as the 
 *' Party forfeiting had Right to contract Debt, 
 " or affecl the Land, or others, by Q^iality 
 *' of the Right and Infeolfmeiir, and had 
 " not cxercifed his Right/' 
 
 Now it will not be improper to ohfcrvc, 
 that the Preanible to the Ad of \6r)z\ wiiieh 
 releafcs the Royal Right, inllcad of ground- 
 ing itlclf on the Fads jufl n^.entioneu, leems 
 to carry the thing too far, and to prorccd 
 upon Rcalbns of another kind tiian were 
 
 M 3 cxprcHed
 
 i66 APPENDIX. 
 
 exprcflcd two Years before, in the Claim of 
 Rights j or even that very Year, in the Re- 
 verfal of the Earl of Argyle's, Andrew 
 Fletcher's, and Sir Tatrick Humes Attain- 
 ders. No Principle is more juft and amiable, 
 than what is laid down in that Preamble, 
 that " every Man fhould fuffcr for his own 
 " Crime:" yet how to prevent (agreeably 
 to what is faid immediately after) " the In- 
 *' iiocent from being involved," in a great 
 meafure, and under fome Circumftances, 
 " with the Guilty," is a very hard Problem 
 In Politics, and human Life : for, in many 
 Cafes, the Nature of Things infeparably 
 blends their hitercft. And in all, where they 
 are blended by Policy of Law, and Civil So- 
 ciety, Natural Equity interpofcs lefs in fa- 
 vour of the Heir, than of any other. Let 
 that Equity be applied to Creditors and Vaf- 
 fals, Pcrfons who have paid a valuable Con- 
 fidcration for their Intcrcft; it not only ought 
 to be maintained to the utmoft, but is in no 
 fort impeached by the Law made, fubfequent 
 to the Union. But it carries not equal 
 Weight, when applied to Heirs of Entail, 
 whofc Intcren: was gratuitoufly conferred 5 is 
 liibicc'r, in n-iany Cafes, to be exLi!i!j,uinied 
 or dUiUnin^cd by voluntary Alienations, or 
 
 C'larecs
 
 APPENDIX ^.'■: 
 
 Charges of the iuuViCuiaro Poillilor ; .. . 
 rcccivinii; its Allowance Ironi tiie Law, as 
 well as its Exiitence tVom the Maker r.{ the 
 Tailzie, may, in all Cales, reafonabi) fla:id 
 fubjcd to be rePjiiuied by Contraveiuions 
 of Law, as well as of tl\e Settlement. An- 
 other thing laid down in tiie Preamble, as 
 a Ground of that Acl, is, the Principle al- 
 ready mentioned, " tliat nothing ouuht to 
 " be forfeited by Crime, which cannot be 
 *' alienated by Conlcnt/' And this is not: 
 fo much a new and diiFerent Princple, as a 
 Branch of the former, or a Cone'.unoii 
 deduced from it. It is in itfcif, and taken 
 abfolutcly, a rational and juft Concluilon 5 
 but when made the Mealure of j;ui_';!ng 
 on this Q^ieQion, as it concerns x\\c (Iricl 
 Tailzies, may be fairly fl^.ewn to be attended 
 with Danger; and, if purfued to its P ::!eiit, 
 indead of placing the two Parts of tliib mrited 
 Country upon equal Groiiiid, \\'ill confer 
 a kind of Privile:;e, or JiA'emption,, upon 
 one, 'for the Benelit of neither, i iii.^ wiil 
 be conudered more prorerly under ilic Se- 
 cond Mead of Argument, wlien the Lve\i\'al 
 of the Common Law of ScjtL.i^:!^ :s to 
 ihzic Tailzies, fr.all be vindicated. Let it 
 iUliice to fay iiere, that, upon the \-, lK;le, 
 
 M 4 this
 
 i68 APPENDIX. 
 
 this Preamble fcarce appears to have been 
 framed and confidered, as the Prefaces to 
 Laws ought to be : it aims to draw Argu- 
 ments for rcleafing the Right of Forfeiture 
 from vague, indiftind, and general Maxims > 
 and not from that particular Experience, 
 which fhou.d be the Inducement to every 
 Law, and which was the only Caufe of de- 
 claring that Right a Grievance. Befidcs, the 
 true Remedy for the Grievance did not lie in 
 advifing the Crown to releafe the Right of 
 Forfeiture, but in taking away that Defcrip- 
 tionof the Crime of Treafon, and thofc Me- 
 thods of Proceeding, which had been made 
 the Inftruments of applying it to Purpofes 
 of Oppreffion. x\nd this may be faid under 
 the Sanction of great Authority, fince the 
 Parliament oiGicat Britain fcemed to con- 
 fider the Matter in this Light, when, without 
 lidening to tlie general Maxims of Reafon 
 cited from the Preamble of the Ad of \ 6^0, 
 they applied thcmfelvcs to alter the Crime 
 and Procefs of Treafon in Scotland j to re- 
 gulate the Adminiftration of Jufiice in State- 
 Crimes, upon Principles much fafer for the 
 Subjcd, than were known there before j 
 and fo thought, that all probable Danger of 
 
 rcvLvins:
 
 APPENDIX. ibg 
 
 reviving the Grievance was removed by tiiat 
 very Statute, wliicli reliored the Rii^lit. 
 
 11. The next Qiicflion is, Hov/ far tlic 
 general Words ot the Acl for improving the 
 Union, paiTed 7 Amide., operate, to revive 
 this kind of Forfeiture: the Confideration 
 of which will prefent to View, 
 
 1. In what Cafes Eftates-Tailzie are favcd 
 from Forfeiture, notwithftanding the gene- 
 ral Words. 
 
 2. What Cafes of Forfeiture, arifing from 
 fuch Eftates, coincide with the Principle of 
 confifcating, by Crime, that Property, which, 
 may be alienated by Confent; and, nor having 
 been taken away by the Ad of 1690. fubfill 
 ftill by the Common Law of Scotland., with- 
 out receiving any Operation from the fame 
 general Words. 
 
 3. What Cafes of Tailzies are laid open 
 by thofe Words, to Forfeiture ; and do not 
 coincide with, nor are governed by, that 
 Principle. 
 
 I, Every
 
 lyo APPENDIX. 
 
 I. Every Cafe, which the Law o^ England 
 favours, and exempts from Forfeiture, is 
 faved in the Law of Scotland. Tailzies, 
 made in Confideration of Marriage, or upon 
 any other Confideration, are not affeded by 
 the Forfeiture of a Traitor, who is exprefly 
 dcfcribed in them as only Tenant for Life, 
 and has none of the Powers incident to the 
 Property of the Fee 5 fcvcral of which the 
 Tenants in Tail ftill enjoy, fo as to make 
 their Edatcs confidcred juftly in Law, as 
 Eftatcs of Inheritance, tho' they are tied up 
 in many Points, by the ftrid Claufcs, in their 
 refpectivc Settlement. Again, where there 
 are any Subftitutions or Remainders in a 
 Settlement, thcfe are not affeded by the 
 Forfeiture of the Tenant in Tail in PofTcf- 
 fion, agreeably to the Provifo in the Statute 
 33 Hen. 8. and it has been ufual for 
 the Grantee of the Forfeiture, to purchafe 
 cut the Intereft of the Subftitutes or Re- 
 mainder-men ; tho', by many particular Acls 
 of Parliament paiied upon extraordinary 
 Occaflons, a Day has been given to them, 
 againft which they wTre to come in, and 
 make their Claim 5 otherwife tlicir Riglit 
 and Intered were to be totally cxtinguifhed.
 
 APPENDIX. 171 
 
 111 this InHancc, by m;.kin<j; the Law of 
 England the Rule ot Fonciturc in Scoi'ayid, 
 the Elfect of the Act of 1690. is (lih prc- 
 Icrvcd totlie Subtlitiitcs or Remainder men: 
 for at tb.e Coinmon Law, betore that Aci, 
 the Forfeiture ot the Tenant in Pofleirion 
 was the DeiU'dclion ot the whole Settle- 
 ment. Lallly, where any Man was ieifed 
 of an Ellate-Taiizic, attecled with prohi- 
 bitive, irritant, and refolutive ClaLifes, and 
 was married bclore the Act of tb.e Seventh 
 of Qiiecn AiUiC took place, hilie being 
 had, or Pollibility of Illue remaininir, he 
 was fccured in iike manner. Tins Cafe 
 was confidered in a particular Provilb of 
 the Act, out of Tendernels to (lich, as had 
 aduaily contracted m ALarriac.c ar ti-iUi- tisnc, 
 in Conhdenee, that Settlements Ic e(]ai)ii: "iicd 
 would, in reipect of the liliie ol tiie Mar- 
 riage, be excn'pt froni Forleiture, tho' not 
 intended to be lavoured, in refpccl ct any, 
 who, bcir.iz Ieifed under rliefe Uric: '-,'.•! r.e- 
 menrs, iriOuLi nv:a-ry, atfer Warii'iv.: :_,ivea 
 by Parliament, that the ConJiti.in Oi lor- 
 feiture was annexed to tb.em, lor ii:e luiin-e, 
 by Conhrucl ion. of Law.
 
 172 APPENDIX. 
 
 2. As to the Cafes, which fubfifl: by the 
 Common Law of Scotland (without having 
 been varied at any time by Statutes), and co- 
 incide with the Principle fo often mentioned, 
 they may be dated in this manner. Where 
 the Maker of a Tailzie, upon onerous Caufes, 
 or a valuable Confideration, referves an ex- 
 prcfs Power to alter or innovate during his 
 Life, by A6ls, which he does not fpecify to 
 be perfonally exerciled by himfelf, and after- 
 wards commits Treafon, he may be con- 
 ftrued to fortx:it. This is agreeable to Deter- 
 minations in England"^, that where the Con- 
 dition of Revocation in a Settlement, either 
 in refped of Tender or Deed, is not fo pcr- 
 fonal, but that another may perform it, there 
 the Crown may exercife the Power of re- 
 voking, upon a legal Forfeiture. Where 
 the Maker of a Tailzie, not depending on 
 any onerous preceding Caufe, is inclined to 
 revoke it. tho' he has not exprefly referved 
 a Power for that Purpofej yet it is implied 
 in the Settlement, as being donatio mortis 
 caiifa, and in the Nature of a Teftament, 
 which, till the Death of the Party, is am- 
 
 * lla!:i II r I.e. Vol. I. p.2</u 
 
 bulatorv.
 
 APPENDIX. 173 
 
 bulatory, and a revocable Ad. Here, like- 
 wife, the Principle does not intcrpofe to 
 prevent the Forfeiture. Where Tallies carry a 
 fimple Dellination of Succcllion, they may 
 be cxpofed to Forfeiture, confLlcntly with 
 this Principle; bccaufe tbiofc Settlements 
 provide only a particular Line of Succefiion, 
 vai-virig from the legal one ; and leave a 
 
 *mver to the Maker, or rcipcctive Members, 
 as they fucceed, to alter them. Where 
 Tallies are created with prohibitive Claufes, 
 Qi paBa de non alienando., there can be no 
 Ground of Complaint, if they are expofed 
 in like manner. For thofe Claufes operate 
 no further, than to prevent voluntary and 
 gratuitous Difpofitions oi the Land : it is ne- 
 verthelefs fubjecl to the Poileflbu's Debts, and 
 m.ay be difpofed of for a valuable ConH- 
 deration. Where Tallies are made in the 
 ftriclcrt manner, if a Power of raifing a Sum 
 of Money, or affeding the Land, by Debt, 
 to a particular \\i!ue, be rcferved to the 
 Member of the Settlement in Poffcf]ion, the 
 Heir m.ay be prejudiced by the Forfcif.;"r of 
 the Polfeilbr, Vo far as that Power extends, 
 agreeably to the Operation of the Principle, 
 and within the Intention of the Acl of 
 
 1690. 
 
 1. It
 
 174 APPENDIX. 
 
 ^. It m-ail now be acknowlci^cd, that 
 there is a Cafe taken away by the Ad of 
 1690. and revived by the Statute of the 
 ^th of tb.c .iuecn, which can hardly be re- 
 conciled with this Principle ; in which an 
 Heir of Tailzie, taking Right of Saccelllon 
 by a Settlement, having in itClaufes irritant 
 and reiolutivc, a", well as prohibitive, may 
 forfeit on the Commillion of Treafon, not 
 only for himfclf, but for the Heirs of his 
 Body; tho' the Law has not given him a 
 legal Method of Conveyance, by which he 
 can bar the Right belonging to his own. 
 Iftlic, under the Settlement. But tho' the 
 Law has not exprefly provided fuch a Me- 
 thod, yet it has left one open, in Confe- 
 quence of the Ad of 1 68 5. concerning Tail- 
 zies. By that Ad, if the Provifions and 
 Claufes, irritant and refolutive, are not re- 
 peated in the Pvcturn of the Inqueft, and in 
 all the Indruments of Sz\^\n. and Convey- 
 ances ( which are ncceflary in Scotlayid, to 
 put the Heirs of Tailzie in Poffeflion), the 
 Omiliion fliall import a Contravention 
 agamft the Perfon, who omitted to infert 
 them, but not againfl: Creditors bona fide : 
 and thus an Heir, who rcfolves to break the 
 Tailzie, may take Advantage to fell, from 
 
 3 the
 
 APPENDIX. 175 
 
 the Omiflioii of thclc Claufcs j in whicli 
 Cafe, he will get his Price, the Buyer be 
 fecure, and the next Heir of Tailzie be de- 
 feated. Had this been forefecn, when that 
 Law was made, it would have been pre- 
 vented: but, whilft the Poiribility of it lub- 
 fifts, it fofrcns the Hardfhip, and affords, in 
 fome Degree, a Plea for the Forfeiture, even 
 upon the Principle of Alienation by Confcnt, 
 For the Law, being a Stranger to thofe re- 
 fined Notions of Honour, which diftract fomc 
 Minds, wid not prefume, that he would 
 fcorn to alienate the Eilate of his Family by- 
 Fraud, who expofcs it to Forfeiture for 
 Treafon committed in Violation of his x\lle- 
 giance, and folemn Oaths. 
 
 Admitting, however, that this Cafe does 
 not purfuc the Principle infilled on, it fhali 
 now be argued ( with all Refped to the 
 Memory of that Parliament, who fi-amed 
 the Acl of 1 65)0.), that the Cafe ought not to 
 purfue it. For it leads to Confcquences 
 widely different, in the Laws of England 
 and Scotland'^ and tho', wlien applied to 
 both, it founds the fame thing in Words, it 
 is by no means the fame in Reality. \i\ 
 order to prove this, it will be important, to 
 
 llatc
 
 176 APPENDIX. 
 
 ftate the general Notions of Law in the two 
 Countries, as to the Power allowed over In- 
 heritances. The antient Feudal Policy was 
 very ftrid upon this Subjed, and gave the 
 Tenant in Fee no other Privileges, than fuch 
 as arolc from his Polfellion of the imme- 
 diate Profits and hnprovements of the Eftate. 
 The Courfe of Succellion was uniform ; 
 and every Man, who claimed under a Feudal 
 Gift made to one and his Heirs, was to de- 
 rive his Defcent from the Blood of the firft 
 Feudatary, or Purchafer. So that when once 
 the Gift had been made by the King, or 
 Lord, the Law feemed to take the future 
 primary Direction of it into its own Hands. 
 By degrees, the Stridnefs of this Policy 
 wore out in Rnglandy and the Law, in a 
 Courfe of Ages, has adopted new Principles, 
 and allowed fuch a Latitude of Alienation 
 to the Tenant in Fee, that at preient it 
 feems only to ad a Secondary Part, either to 
 come in Aid of his Litention, when he has 
 declared it, or to fupply the Defed of not 
 declaring it, by general Rules of Defcent 
 and Diftribution, which take place in Failure 
 of aDifpofition made by himfelf. It is upon 
 thefe Principles, that feveral Methods of 
 Conveyance have been cftablifhed, by which 
 
 the
 
 A'P'P EN D I X. 177 
 
 the Courfeof Succcflion may be new- mould- 
 ed ; that Statutes have been made, at different 
 Times, enabling to alienate, to charge Lands 
 with Debt, and to devife them by Tcllamcnt. 
 Hence the Court of Cliancery has gradually 
 extended a fuperior Relief, or Equity, to the 
 Devifee, or H^res jacins, in preference to 
 the Heir at Law, or H teres natns. And it 
 is out of regard to thefe Principles and Sta- 
 tutes, that he, who difpofcs, is rcfi rained 
 only from doing it in fuch a manner, as to 
 take awayj from all others, that Power of 
 Alienation, which the Law permits to him- 
 felf \n Scotland, the fame, or fimilar Pow- 
 ers, have been admitted in a Trad of Time: 
 lor, tho' the Confent of the Superior be ne- 
 ceflary, yet, on Adjudication had, the Su- 
 perior may be forced to admit the Perfoii 
 infeoffed by the Vallal: And tho' there be 
 no Teftamentary Powers allowed in their 
 Law, yet Settlements Mortis caiifa are fre- 
 quent j the.general Courfe of legal Dcfcent 
 is interrupted v and the Powers over the Eflate 
 limited and modelled, often, indeed, much 
 drifter, in refped of him who is to take it, 
 than they are in England, ye' nuich more 
 according to the Maker's Fancy. But how 
 rauch foevcr the Intention of the Maker of 
 
 N
 
 178 AVP EN D IX. 
 
 a Settlement may be favoured in both Coutt- 
 trics, fo as that the Law has been brought to 
 fay, in Prejudice to itfelf, Modus O' Conven- 
 tio %incunt Legem, ftill the Law governs and 
 retrains, in Matters, which concern the Com- 
 mon Policy, nor fufFers that Intention to de- 
 feat the Ends of it. The Intention is favoured, 
 where it may, confidently with thofe Ends 5 
 and, in different Countries, the Regard fhewn 
 to it will differ, and be either reftrained or ex- 
 tended, according to the varying Reafonings 
 of various Syftems of Law, and Decifions of 
 Courts of Judicature. Yet let the Regard 
 fhewn to it in Scotland be as great as pollible 
 (which fhall now, for Argument- fake, be 
 allowed to (land upon the befl Foundation), 
 certainly it would be a dangerous Confe- 
 quence, in Reafon of Law, becaufe the In- 
 tention of the Party is fo far favoured, as 
 that Settlements in Tail may be made much 
 drifter in that Country, than they are in 
 England, that therefore the Forfeiture of 
 Eftates-Tail fhould be proportionably re- 
 ftrained : Since, in Procefs of Time, as 
 thofe Settlements prevailed, the Policy of 
 the Law of Forfeiture would be intirely 
 evaded (a Cafe which can never happen in 
 
 England, 
 3
 
 ATT ENDIX. 179 
 
 England, as will be (hewn hereafter, when 
 the Diflindion fhall be accurately dated bc- 
 rwcen the two Kinds of Settlement). It is 
 plain, in point of Fad, that this Confe- 
 quencc was not admitted in the old Feudal 
 Law, by which, notwithftanding the arid 
 Regard had to the Intention of the Donor, 
 and in confequencc of it, the Tenant's In- 
 ability to aliene from his Heirs, the Land was 
 forfeited to the Lord in many Inftances. It 
 was plainly not admitted in Scotland at the 
 Time of the Refolution in Lord Starmonfs 
 Cafe; for otherwifc the Lords of Sellion 
 would have declared the Eftate-Tail exempt- 
 ed from Forfeiture, when they declared the 
 Tenant reftrained from Alienation by Grant 
 or Sale. It was plainly not admitted by the 
 Scotch Parliament, at the Time of making 
 the Declaratory Ad of 1685. i^i Support of 
 Eftates-Tail, when this Right of the Crown 
 was referved in the mod ample manner. It 
 was plainly not thought of in 1688. by the 
 Convention of Edatcs at the Revolution 
 who, in declaring the Forfeiture a Grievance 
 proceeded upon the unjuft and extraordinary 
 Application of it, in the Courfe of the pre- 
 ceding Reign, without giving the Icaft h\. 
 ^ 2 timation
 
 i8o AT 9 EN D IX. 
 
 timation, that, of itfelf, it was inconfiftent 
 with Natural Juftice, or the Reafon of the 
 Common Law. If, therefore, it be fhewn. 
 That the Coiifequencc would be dangerous, 
 in point of Reafon, and, till the Year i6po. 
 was not, in Fad, admitted by the Parlia- 
 ment j we may conclude, till then, that the 
 Fad was grounded upon the Reafon ; and 
 the LegiHature of Scotland thought, that 
 tho' the Principle of making Alienation by 
 Crime, and by Confent, run pari pajfu, 
 might, in general, be juft 5 yet, if it were 
 indulged to its full Extent, in their Country, 
 it might endanger the Subverfion of all 
 Juftice. 
 
 That the Argument may be carried fur- 
 ther, let Craig's Obfervation be refumed. 
 That the Creation of thefe Eftatcs-Tail was 
 injurious to the antient Courfe of Defcents, 
 and to the Rights of Wardfhip, and Marriage 
 of Females, fo beneficial to the King and 
 Lords. Let it be fuppofcd, when the King 
 originally gave way to the Creation of them, 
 that he addrefled himfelf to the firft Makers 
 of them, in this manner : " Since you think 
 " thcie Settlements will tend to prefcrve and 
 
 " perpc-
 
 APPENDIX. i8i 
 
 '* perpetuate theWcaltli and Dignity of your 
 " Families, I am ready to confcnt, tlio' in 
 " Confequcncc it will deprive me of Rights, 
 " which have been cfteemed the faireft 
 *' Flowers of the Prerogative. But fome 
 " of thefe, being merely private and perfonal 
 " Advantages to myfelf, fhall not be placed 
 *' in Competition with the Dclires of my 
 " People. One Right belongs to the Crown, 
 " that of Forfeiture for Treafon, in its Na- 
 " ture and EfFeds of too much Concern- 
 *' ment to yourfclves and the Kingdom, as 
 *' the great Sanction of Law, and Cement 
 " of Society, to be furrcndered by me. 
 *' Eftablifh thefe Tailzies as ftrongly as you 
 ** may : Try all the Precautions, which ei- 
 '' ther the Wifdom of the Common Law, 
 ^' or the Parliament, will allow, to protect 
 *' your Settlements from thofc, who, by 
 " the ordinary Methods of alienating, Ihall 
 " endeavour to contravene them. But let it 
 " be underftood for ever by you, and your 
 *' Heirs, that you may take care to culti- 
 *' vatc the beft Inclinations, both in your- 
 ** fclvcs and others, when the fundamental 
 " Policy of the Law itfclf is contravened 
 " by any of you, that Public Settlement, 
 
 '• from
 
 i82 APPETSIDIX. 
 
 " from which Government derives Peace 
 
 *' and good Order, every Individual the 
 
 " fafc and regular Enjoyment of his Pro- 
 
 '* perry, I will referve my fuperior Right, 
 
 " agreeably to your antient Cuftoms, and 
 
 ^ the Conftitution of the Realm." 
 
 It is true, that the Scotch Nation, and its 
 j^reat Deliverer at the Revolution, reafoned 
 in another manner, not looking forward 
 with inlarged Views to future contingent 
 Dangers from the abdicated Family, but 
 attentive only to that dark Scene, which 
 had been juft clofed with fuch wonderful 
 Circumftanccs of Felicity in both Kingdoms. 
 Wiien the Union was completed, a very 
 formidable Invafion was attempted from 
 France, which turned the Minds of Men 
 upon this Subjed. They faw the Work of 
 much Time, Induftry, andWifdom, in Dan- 
 ger of being utterly deftroyed, at the very 
 Inftant it was finifhed 5 and, as foon as the 
 Danger was removed, thought it no longer 
 fitting, that Scotland fhould want that legal 
 Sanation, which is a main Pillar of the 
 Engli(h Monarchy. They faw a Neceflity, 
 whilft Pretcnflons to the Ci'own fubfifted 
 
 (efpecially
 
 APPENDIX. 1^3 
 
 (cfpccially when the Treaty of Union ha<i 
 been formed on Principles cflentially con- 
 trary to thofe Pretenfions), that not only the 
 People, but the Law, as an Expreflion of 
 the Senfc of the People, fhould oppofe the 
 Terror of its fcvcreft Panifhments againft 
 any, who might dare to fupport them. The 
 wifeft among us had long wifhed, that the 
 fame Syftem of Laws, and private Rights, 
 as well as the fame Adminiftration of Go- 
 vernment, fhould prevail over this IQand ; 
 and knew that the Reformation of whatever 
 relates to Treafon, that is, to the public 
 Policy of the Kingdom, contributed in a 
 great Degree to that End. When the Crime 
 and Proceedings had been made uniform in 
 both Countries, the Forfeiture came to be 
 confidered. That of entailed Inheritances 
 was attended with Difficulties; the Cafes 
 faved from it, and thofe which are liable to 
 it, conilftently with the Principle fo much 
 infilled on, have been already ftated. Some 
 Arguments have likev/ife been otfcrcd to 
 mitigate, if not juflify, tlie feeming Rigor 
 of that Cafe, which it is faid can hardly be 
 reconciled with this Principle : And perhaps 
 a Lawyer and Statciman, rcafonini: upon it 
 
 v,':h
 
 1 84 APPENDIX. 
 
 with the Prejudices of the Law, and Confti-' 
 tutioii of England, about him, might pur- 
 fue his Argument ftill farther. He would 
 recoiled in what manner Attempts to add 
 irritant and refolutive Claufes to Gifts in 
 Tail, have been treated in Weftminfter-HzW, 
 Even b.fore the folemn Judgment in Ed- 
 ward the Fourth's Reign, th- nant in 
 Tail by common Recc ir not 
 only his own IlTue, but . < and 
 Reverfions expedant upo. the 
 Law was held to be againft h- 
 (landing the Exprellion in tt. 
 2. de T)o7iiSy " that the Will v 
 " be obferved." Two Judges, 
 as in the Time of Richard IL and 
 caufed Settlements of their Land to 
 with fuch Claufes inferted; but L> 
 and Coke, and all the Courts, have fa. 
 Judgment, that they are not to be alio 
 as full of Imperfedion and Danger, and^ *- 
 fending againft many Rules and Reafon^ of 
 the Common Law. He would then ob- 
 ferve the Difference between the llrict En- 
 tails of the two Countries. The ftrideft 
 Settlement which can be made in England, 
 may be overturned, as foon as made, by the 
 
 joint
 
 APPENDIX. 185 
 
 joint Ad of thofc who have the immediate 
 Pofleflioa and Seiiln, and the Irieir in Tail 
 next dcfcribcd in it ; whole Eiiatc, when it 
 comes at any time into PoiTellion, enables 
 him to aliene or forfeit the Whole by his 
 ilnglc Ad. In Scotland., there is no fucli 
 Power lodged in any one or more Members 
 of the Tailzie, cither by the Terms of the 
 Settlement, or the Conflraclion of Law upon 
 it. So that the Entails of that Country arc, 
 in a Word, complete Perpetuities. As a 
 Lawyer, he would recite, with what Ap- 
 plaufe the Methods taken both by the Par- 
 liament and judges, to refcind or evade the 
 Statute de ^onts, have been received in all 
 Times : With what Indignation Attempts to 
 re\ive the Force of it have been rcjedtcd: 
 And he would enumerate the old Sayings, 
 grave Sentences, and vv'ife Dccifions, aj^Jnil 
 Perpetuities, with wliic'n the copious Wai- 
 ters of the Law furniih ifn-:!. As a Srarcf- 
 man, he would rciicci; cu the mar.y Incou- 
 venicncics arifin2; fron". iw^ni to tfic Crov. n, 
 the Public, to Fam-lics rliemfelvcs : their 
 Repugnancy to tlic fiariuating Ci-nius of 
 Property and Convr.cr:,:, to trie ru':d:,'.":ieiital 
 Maxims of intant oi-llo:"r;'hing St^.tc?. And 
 
 O ^ he
 
 i86 APPENDIX. 
 
 he would draw this Concluiton from the 
 Whole 5 That as far as England and Scotland 
 agree in the Principle of creating or alien- 
 ating Eftates of Inheritance, fo far they ftand 
 upon equal Terms as to the Forfeiture ; but 
 for all beyond, he muft think it fomewhat 
 ftrange, firit to ground Eftates upon Prin- 
 cipks contradiding the genera) ^ ilicy of 
 Law, and then to complair ley are 
 
 not favoured in every '' 'hich 
 
 thofc Principles will lead l 
 
 But, not to infifl: upon Rea \ 
 
 may feeni derived from Prcjt 
 certain, th. t the Scotch Nation ii 
 been a Gainer by the new Law. 
 the Rule laid down in the 1 8th A 
 Union, either as a Matter of public i. 
 ment, or private Right (for it is a 
 Qucftion of both), it is evidently for 
 greater Utility of the Subjeds within t. 
 Country. The Certainty, the Juftice, the 
 Lenity of the Law of England, in fhort, 
 every Security againft the Abufe of For- 
 feiture, which was known to one Half of 
 the People, is extended to the other in its 
 full Strength. As therefore that Syftem of 
 
 the
 
 APPENDIX. 187 
 
 the Law of Trcafon, from which Confifca- 
 tions received all their Bitternefs, was abo- 
 lifhed by the Ad for improving the Union ; 
 and both then, and fince, unhappy Commo- 
 tions, dangerous to the Liberty of each King- 
 dom, have arifen in North-Britain^ thofe 
 who in fome Degree reftorcd the Forfeiture 
 of the Eftates-Tail defcribed in that Ad 
 (which had been taken away but a few 
 Years), proceeded on the very Principles, 
 which animated thofe who declared it a 
 Grievance. It would be difhonourable to 
 fuppofe, that the fame Wifdom of that Na- 
 tion, which adopted the Revolution, the 
 Union, and Protcftant SuccefTion, would not 
 intirely have approved it, when the general 
 Benefits of the Alteration were attended to, 
 and the particular NecelTity of ftrengthening 
 this mighty Fabric, formed and cemented of 
 fuch ineftimable Materials, againft the Incen- 
 diaries of Fadion, and the reftlefs Tools of 
 Slavery. 
 
 But whatever the Situation of Affairs 
 might be in any former Time, furely it is 
 modefl: to affirm, that every Argument 
 which could be ufed for the Continuance or 
 
 Vindi-
 
 i88 APPENDIX. 
 
 Vindication of the Law in Qticftion, ftrikcs 
 with redoubled Force in this unexampled 
 Crifis of Foreign and Domeftic Dangers. 
 Every Topic, which can be laboured to clear 
 Difficulties, and footh Mens Tlioughts, ap- 
 pears to generous Minds in «■'' oft amiable 
 Light. What one P- uld have 
 
 unfettled, both when id Suc- 
 
 ccfllon took place, anoi uher's 
 
 Name, with that Boldnci oair, 
 
 and not Hope, fuggefts, ^ to 
 
 fubvert. Have then thefe I ^f 
 
 King James a Right to compi 
 PuniOimcnt of an Anceftor is 
 their Detriment, who now ftana 
 for their own Fault, in prefumptuc 
 feditioufly affronting the unbiased S 
 Parliaments for more than half a Cei 
 and traiteroully fctting up a Title to 
 Crown, contrary to the Duty of that Al 
 glance, which the Pretender owes as an Eng- 
 lijlo Subject, inconfiftent with the fol'^mn 
 Oaths of the People, and repugnant to the 
 legal Maxims of a free Conftitution ? Shall 
 that Family, who have thrown a Dif^'iace 
 upon the Law of Forfeiture for Trcafou, by 
 the intolerable Grievances, which once arofe 
 
 from
 
 ylPPElsDIX. 189 
 
 from it, thro' their Means, when r!ic Caufcs 
 of Grievance arc removed, both by a Change 
 of Perlbns, and the Reformation of Laws, 
 gain Indemnity to their rafli Followers, by 
 the Abohtion of it ? 
 
 To fiim up the Whole of tlic Argument 
 in a few Words : If we confidcr this Law 
 with a partial View to temporary Conve- 
 nience andNecclliry, it may be faid, that as, 
 in the miUtary Art, it is held dangerous to 
 vary the Order of Battle^ Yv'IuKl the Enemy is 
 in Sight 5 i^o, in Civil Prudence, to take away 
 Conftitutional Safeguards, when tlie Evil to 
 be prevented advances with large Steps, and. 
 is at hand. If wx confidcr it with a general 
 View to the cvcrlafiing Rules of Truth and 
 lufticc (v/hich differ in Name, rather than 
 Reality, the one being in Speculation what 
 the other is in Practice), it feems confonant 
 to all our natural and beft-grounded Notions. 
 If we confidcr it with a general View to 
 Policy and Freedom, we find it fo limited in 
 Great Britdin, as that, for the future, nei- 
 ther a weak Prince can exert it vv'antonly, 
 nor a bafe one opprcHively 5 at the fame 
 time that it has all the Force, which either a 
 
 wife
 
 igo APPENDIX. 
 
 wife Monarch can make ufe of, or a virtuous 
 can defire. In a Word, it is peculiarly fitted 
 to the Brittjh Conftitution, and to this Pe- 
 riod of its Duration : it is without Intricacy, 
 or Cruelty : not formed on flavifh or exotic 
 Models, but on Truth, JuiUce, Policy, and 
 Freedom j thofe facred Principles, which 
 infpirc Moral Condud j plan, adminifter, 
 preferve Civil Government ; and, being 
 ted, are the Wifdom, the Power, and 
 Majefly, of all Ages. 
 
 FINIS. 
 
 «5X>»
 
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