1911 Encyclopædia Britannica/Forfeiture

FORFEITURE (from “forfeit,” originally an offence, and hence a fine exacted as a penalty for such; derived through the O. Fr. forfait, from the late Lat. foris factum, a trespass, that which is done foris, outside), in English law, the term applied (1) to loss or liability to the loss of property in consequence of an offence or breach of contract; (2) to the property of which the party is deprived.

Under the common law, conviction and attainder on indictment for treason or felony was followed not only by forfeiture of the life of the offender, but also by forfeiture of his lands and goods. In the case of treason all the traitor’s lands of whomsoever holden were forfeited to the king; in the case of felony (including felo-de-se, or suicide), the felon’s lands escheated (exceciderunt) to his immediate lord, subject to the king’s right to waste them for a year and a day. This rule did not apply to lands held in gavelkind in the county of Kent. The goods of traitors and felons were forfeited to the king. The desire of the king and his officers to realize the profits of these forfeitures was one of the chief motives for instituting the circuits of the king’s justices throughout England; and from time to time conflicts arose from attempts by these justices to extend the law of treason—under which the king levied all the forfeitures—at the expense of felony, in which the lord of the felon benefited by the escheats. As regards theft, the king’s rights overrode those of the owner of the stolen property, until, in the reign of Henry VIII., provision was made for restitution of the goods to the owner if he prosecuted the thief to conviction. In Pepys’s Diary, 21st of January 1667–1668, will be found an illustration of the working of the old law. We find that on the suicide of his brother-in-law, Pepys at once applied to the king personally and obtained a grant of the brother-in-law’s estate in favour of his widow and children should the inquest find a verdict of felo-de-se. It was common practice for persons anticipating conviction for treason or felony to assign all their property to others to avoid the forfeiture; and in some instances the accused refused to plead to the indictment and endured the peine forte et dure, until death supervened, to avoid these consequences of conviction. The royal rights to forfeitures arising within particular areas were frequently granted by charter to corporations or individuals. In 1897 the courts had to interpret such charters granted to the town of Nottingham in 1399 and 1448. All forfeitures and escheats with respect to conviction and attainder for treason and felony were abolished as from the 4th of July 1870, except forfeitures consequent upon the now disused process of outlawry, and the forfeitures included in the penalties of praemunire.

The term “forfeit” is also applied to penalties imposed by statute for acts or omissions which are neither treasonable nor felonious. In such statutes the forfeiture enures in favour of the crown unless the statute indicates another destination; and unless a particular method of enforcing the forfeiture is indicated it is enforceable as a debt to the crown and has priority as such. The words “forfeit and pay” are often used in imposing a pecuniary penalty for a petty misdemeanour, and where they are used the court dealing with the case must not only convict the offender but adjudicate as to the forfeiture.

Statutory forfeitures in some cases extend to specific chattels, e.g. of a British merchant-ship when her character as such is fraudulently dissimulated (Merch. Shipp. Act 1894, ss. 70, 76), or of goods smuggled in contravention of the customs acts or books introduced in violation of the copyright acts. Recognisances are said to be forfeited when the conditions are broken and an order of court is made for their enforcement as a crown debt against the persons bound by them.

The term “forfeiture” is now most commonly used with reference to real property, i.e. with reference to the rights of lords of the manor or lessors to determine the estate or interest of a copyholder or lessee for breach of the customary or contractual terms of tenure. It is also applied to express the deprivation of a limited owner of settled property, real or personal, for breach of the conditions by which his rights are limited; e.g. by becoming bankrupt or attempting to charge or alienate his interest. As a general rule, the courts “lean against forfeitures” of this kind; and are astute to defeat the claim of the superior landlord or other person seeking to enforce them. By legislation of 1881 and 1892 there is jurisdiction to grant relief upon terms against the forfeiture of a lease for breach of certain classes of covenant, e.g. to pay rent or to insure.