Escheat in United Kingdom
History of Escheat
Escheat, it has been said, “signifies the return of an estate to a lord, either on failure of issue from the tenant or upon account of such tenant’s felony.” (R. Thomson, Magna Charta, p. 236). This lucid description conveys a good general conception of escheat; but it is inaccurate in at least two respects. It does not exhaust the occasions on which escheat occurs, and it errs in speaking of “the return” of an estate to a lord, when more accurately, that estate had always remained his property, subject only to a burden, which was now removed.
In theory, the feudal grant of lands was always conditional: when the condition was broken, the grant fell, and the lord found himself, automatically as it were, once more the absolute proprietor, as he had been before the grant was made. Thereafter, he held the land in demesne, unless he chose to make a new grant to another tenant. The word “escheat” was applied indifferently to the lord’s right to such reversions, and to the actual lands which had reverted. In warlike times the right was valuable, for whole families might become rapidly extinct. Further, when a landholder was convicted of felony, his blood became, in the phrase of a later day, attainted, and no one could succeed to any estate through him.
If a man failed in the ordeal of water provided by the Assize of Clarendon in 1166 for those accused of heinous crimes, his estates escheated to his lord. A complication arose when treason was the crime of which the tenant had been convicted; for the king, as the injured party, had prior rights which excluded those of the lord: the lands of traitors were forfeited to the Crown. Even over the lands of ordinary felons the king had rights during a period which was defined by Magna Carta.
Felony and failure of issue were two main grounds of escheat, but not the only ones; the goods of fugitives from justice and of those who had been formally outlawed also escheated, and Glanvill adds another case, namely, female wards guilty of unchastity (an offence which spoiled the king’s market). Failure to obey the royal summons in time of war or to pay scutage in lieu thereof might also be a ground of forfeiture.(Pollock and Maitland, I. 247 and 250, citing Hist. Abingdon, II. 128).
Escheat was thus a valuable right both to the Crown and to mesne lords. Its effect was simply this: one link in the chain was struck out, and the links on either side were fitted together. If the defaulter was a Crown tenant, all his former sub–tenants, whether freeholders or villeins, moved up one rung in the feudal ladder and held henceforward directly of the king, who took over the entire complexus of legal rights previously enjoyed by the defaulter: rents, crops, timber, casual profits, and advowsons of churches falling vacant; jurisdictions and their profits; services of villeins; reliefs, wardships, and marriages of freeholders, as these became exigible.
The Crown, however, while taking everything the defaulter might have taken before default, must take nothing more—so Magna Carta1 provides. The rights and status of innocent sub–tenants must not be prejudiced by the misdeeds of defaulting lords.
Source: Part II. Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
History of Magna Carta
English Court System
Civil Justice under Henry II
Criminal Justice under Henry II
Royal Justice in the Feudal Period
English Law: ESCHEAT, title to lands in the Past
According to the English law, escheat shows an obstruction of the course of descent and a consequent determination of the tenure, by some unforeseen contingency; in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee.. 2 Bl. Com. 244.
All escheats, under the English law, are declared to be strictly feudal and to import the extinction of tenure. Wright on Ten. 115 to 117; 1 Wm. Bl. R. 123.
But as the feudal tenures do not exist in the United States of America, there are no private people who succeed to the inheritance by escheat. The state steps in, in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. 4 Kent, Com. 420. It seems to be the universal rule of civilized society, that when the-deceased owner has left no heirs, it should vest in the public and be at the disposal of the government. Code, 10, 10, 1; Domat, Droit Pub. liv. 1, t. 6, s. 3, n. 1. Vide 10 Vin. Ab. 139; 1 Bro. Civ. Law, 250; 1 Swift’s Dig. 156; 2 Tuck. Blacks. 244, 245, n.; 5 Binn. R. 375; 3 Dane’s Ab. 140, sect. 24; Jones on Land Office Titles in Penna. 5, 6, 93. For the rules of the Roman Civil Law, see Code Justinian, book 10. [rtbs name=”history-of-english-law”]
Notes and References
- Partialy, this information about escheat is based on the Bouvier´s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier´s Law Dictionary, including escheat.
Concept of Escheat
Traditional meaning of escheat  in the English common law history: 1. The falling back of land into the hands of the lord on failure of the blood of the tenant; which may be propter defectum sanguinis (for failure of blood, as if the tenant died without heirs) or propter delictum tenentis (for fault of the tenant) if he be attainted. 2. The lands so escheating. 3. Things falling; falling to the ground. Escheat was a consequence of tenure, and happened on account of the failure of the tenant to perform services to his lord, who might or might not be the King, thus differing from forfeiture (see this last concept in this legal reference), [rtbs name=”history-of-english-law”]
Notes and References
- Based on A concise law dictionary of words, phrases and maxims, “Escheat”, Boston: Little, Brown, and Company, 1911, United States. This term and/or definition may be absolete. It is also called the Stimson’s Law dictionary, based on a glossary of terms, included Escheat.