Note 287 — Book VII.

“The reason of this,” says Lord Littleton, “was a supposition, that the Lord, of whom the felon held, was in some degree culpable, for want of a proper care in the choice of his Tenant.” (2 Hist. Hen. 2. p. 118.) It is difficult to feel the force of this reasoning, from the moment fiefs ceased to be given for the life of the feudatory—for what choice, it may be asked, was left to the Lord, when fiefs were hereditary, as they clearly appear to have been when Glanville wrote, and for some time previously. Lord Coke ascribes the rule to another source, laying it down, that originally the King was to have no benefit from the attainder, but was to commit destruction to the property of the offender in detestation of the crime, ut pœna ad paucos, metus ad omnes perveniat. (2 Inst. 36.) But this is as far from being satisfactory, as the reason given by Lord Littleton. Because, as the property had ceased to belong to the offender, any waste committed on it redounded in the first place to the injury of the Lord, and through him to the public, who were both, laying all technical fictions aside, innocent. The punishment to the Tenant was the forfeiture, and not the waste subsequently committed. This cruel policy, or rather impolicy, was abrogated by the 22nd Chapter of Magna Carta. The Reader will consult Lord Coke’s comment on that Chapter, and then judge for himself, whether the year and a day came in lieu of the waste. That they were co-existent seems strongly corroborated by the Custumal of Kent—“The King shall have the year and the waste.” (Robinson on Gavelk. 284. See also Ibid c. 4.) The Mirror is here, as in many other instances, at variance with itself. But Britton appears to consider them as co-existent. (c. 18. s. 6.) and so does the Regiam Majestatem. (L. 2. c. 55.)

Lord Coke has with his usual industry, collected the authorities in favor of his position. Dr. Sullivan may be added to them. (Lectures p. 348.)