Cheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feudal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defence of the kingdom would have been defeated. Wherefore, if a man leaves no other relations but aliens, his land shall escheat to the lord.

As aliens cannot inherit, so far they are on a level with bastards; but as they are also disabled to hold by purchase (d), they are under still greater disabilities. And, as they can neither hold by purchase, nor by inheritance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heir to inherit; but so it is expressly holden (e), because they have not in them any inheritable blood.]

Therefore, if an alien be made a British subject or denizen (as he is in that case called) [by the king's letterspatent, and then purchases lands, (which the law allows such a one to do) his son, born before his denization, shall not (by the common law) inherit those lands; but a son born afterwards may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his eldest son; but by denization it acquires an hereditary quality, which will be transmitted to his subsequent posterity. Yet, if he had been naturalized by act of parliament, such eldest son might then have inherited; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not (f).]

At common law, too, aliens could not be the channels of descent, for [Sir Edward Coke (g) holds, that if an alien cometh into England, and there hath issue two sons, who are thereby natural-born subjects, and one of them purchases land, and dies; yet neither of these brethren

(d) Co. Litt. 2 b.
(e) Ibid.; 1 Lev. 59.

(f) Co. Litt. 129 a.
(g) Co. Litt. 8 a.

[can be heir to the other. For the commune vinculum, or common stock of their consanguinity, is the father; and as he had no inheritable blood in him, he could communicate none to his sons; and, when the sons can by no possibility be heirs to the father, the one of them shall not be heir to the other.] And though this opinion of his was afterwards overruled (i), it was only on the ground that the descent from one brother to the other might be considered as immediate, and without regard to the commune vinculum; an exception from the general law of inheritance, which we have before shown to have formerly obtained (h), but which has been lately abolished by the statute 3 & 4 Will. IV. c. 106.

The subject, however, of tracing descent through an alien, has been regulated since the time of Lord Coke by act of parliament. For [it is enacted by the statute 11 & 12 W. III. c. 6, that all persons, being natural-born subjects of the king, may inherit and make their titles by descent from any of their ancestors, lineal or collateral, although their father or mother, or other ancestor, by, from, through, or under whom they derive their pedigrees, were born out of the king's allegiance. But inconveniences were afterwards apprehended, in case persons should thereby gain a future capacity to inherit, who did not exist at the death of the person last seised. As if Francis, the elder brother of John Stiles, be an alien, and Oliver the younger be a natural-born subject, upon John's death, without issue, his lands will descend to Oliver the younger brother; now, if afterwards Francis has a child born in England, it was feared that, under the statute of King William, this newborn child might defeat the estate of his uncle Oliver. Wherefore it is provided, by the statute 25 Geo. II. c. 39, that no right of inheritance shall accrue by virtue of the former statute to any persons whatsoever, unless they are in being, and capable to take as heirs at the death of the (h) Sup. p. 386.

(i) Collingwood v. Pace, 1 Vent. 415; 1 Lev, 59; 1 Sid. 193.

[person last seised; with an exception however as to the case, where lands shall descend to the daughter of an alien; which descent shall be divested in favour of an after-born brother, or the inheritance shall be divided with an afterborn sister or sisters, according to the usual rule(k) of descents by the common law.]

Such is the state of the law with respect to escheats propter defectum sanguinis; as to which we shall only further observe that by recent statutes (1) an exception has been made from the general law, in the case where the land was held by the party deceased, under a trust or mortgage, it being provided for the protection of the party beneficially interested, that where a trustee or mortgagee dies without an heir (or his heir is not known), the Court of Chancery shall have power to direct a proper conveyance to be made, which shall be as effectual as if executed by his heir.

We now arrive at the consideration of escheats propter delictum tenentis; those, namely, where by attainder, the blood of the person attainted is so corrupted as to be rendered no longer inheritable.

Attainder imports that extinction of civil rights and capacities which takes place whenever a person who has committed treason or felony, receives sentence of death for his crime; and (besides other consequences) it involves in certain cases the corruption of blood, so as to prevent the descent of land (which depends, as we have seen, on blood or consanguinity) to the offender or his heirs.

The ancient law with respect to corruption of blood upon attainder, and the consequent escheat of the offender's lands and tenements to the lord of the fee, has been so much narrowed in its application by the recent enactments, to which we shall presently refer, as to have lost much of its former importance. As the greater part of its doctrines, however, are still capable of being occasionally

(k) See

P. 358. (1) Vide 11 Geo. 4 and 1 Will. 4,

c. 60; 4 & 5 Will. 4, c. 23; 1 & 2 Vict. c. 69.

called into action, they continue to deserve our attention; and we shall here proceed to examine them.

By the law, then, as it stood prior to the late alterations, [the blood of the tenant by the commission of any felony (under which denomination all treasons were formerly comprised (n),) was corrupted and stained, and the original donation of the feud was thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesserit, upon the thorough demonstration of which guilt by legal attainder, the feudal covenant and mutual bond of fealty were held to be broken, the estate instantly fell back from the offender to the lord of the fee, and the inheritable quality of his blood was extinguished and blotted out for ever.]

[Here, however, great care must be taken to distinguish between forfeiture of lands to the crown and this species of escheat to the lord, which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee, and therefore entitled to both, have been often confounded together. For, independently of any escheat (o), all lands and tenements to which the offender had an existing title, were, by force of the attainder, immediately forfeited to the crown, in the case of treason, for ever, in other felonies for a year and a day(p). And so strict was this forfeiture, that by 5 & 6 Edw. VI. c. 11, s. 13, the wife of one attainted of treason was even excluded of. her dower (q).

Escheat, therefore, operated in subordination to forfeiture; which latter incident intervened in the case of treason, to intercept the escheat altogether, and in the case of other felony, to intercept it for the limited period that has

(n) 3 Inst. 15; stat. 25 Edw. 3, st.

5, c. 2, s. 12.

(0) 2 Inst. 64; 1 Salk. 85.

(p) 3 Inst. 47; 2 Inst. 37; Stat. 17 Edw. 2, st. 1, c. 16.

(4) It was otherwise, however, on attainder for other felony, 1 Edw. 6, c. 12, s. 17.

been stated; though after that period the land still escheated in the case last mentioned, to the lord of the fee (r). Indeed, the law of forfeiture was (in the case of treason at least) of older date in this country than that of escheat; for the former doctrine prevailed in the old Saxon times (s), while the latter appears to have been the result of the introduction of the Norman tenures (t). And in illustration of this, we may refer to an incident already noticed as attaching to [gavelkind lands (which seems to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason (u).]

[Hitherto we have only spoken of estates vested in the offender, at the time of his offence or attainder. And here the law of forfeiture stopped; but the law of escheat pursued the matter still farther. For the blood of the tenant being utterly corrupted and extinguished, it followed, not only that all that he then had should [escheat from him, but also that he should be incapable of inheriting any thing for the future. This may farther illustrate the distinction between forfeiture and escheat. If, therefore, a father were seised in fee, and the son committed treason and was attainted, and then the father died, here the land would escheat to the lord; because the son, by the corruption of his blood, was incapable to be heir, and there could be no other heir during his life; but nothing would be forfeited to the king, for the son never had any interest in the lands to forfeit (x). In this case the escheat operated, and not the forfeiture; but in the following instance the forfeiture worked, and not the escheat. As where a new felony was created by act of parliament, and it was provided (as was frequently the case) that it should not extend to corruption of blood; here the lands of the felon

(r) Wright's Ten. 120; 2 Bl. Com. 252; 4 Bl. Com. 386.

(s) Ll. Alfred, c. 4; Ll. Canut. 54. (t) 2 Bl. Com. 252.

(u) See stat. 17 Edw. 4, stat. 1, c. 16.

(r) Co. Litt. 13 a.