[would not escheat to the lord, but yet the profits of them would be forfeited to the king for a year and a day, and so long after as the offender lived (y).

There was yet a farther consequence of the corruption and extinction of hereditary blood, which was this, that the person attainted would not only be incapable himself of inheriting, or transmitting his own property by heirship, but would also obstruct the descent of lands or tenements to his posterity, in all cases where they were obliged to derive their title through him from any remoter ancestor. The channel which conveyed the hereditary blood from his ancestors to him, was not only exhausted for the present, but totally dammed up and rendered impervious for the future. This was a refinement upon the ancient law of feuds, which allowed that the grandson might be heir to his grandfather, though the son in the intermediate generation was guilty of felony (z). But, by the law of England, a man's blood was so universally corrupted by attainder, that his sons could neither inherit to him nor to any other ancestors (a), at least on the part of their attainted father.

This corruption of blood could not be absolutely removed but by authority of parliament. The king might excuse the public punishment of an offender; but could not abolish the private right, which had accrued, or might accrue to individuals as a consequence of the criminal's attainder. He might remit a forfeiture, in which the interest of the crown is alone concerned; but he could not wipe away the corruption of blood; for therein a third person had an interest, the lord who claimed by escheat. If, therefore, a man had a son, and was attainted, and afterwards pardoned by the king, this son could never inherit to his father, or father's ancestors; because his paternal blood being once thoroughly corrupted by his father's attainder must continue so; but if the son had (y) 3 Inst. 47.

(z) Van Leeuwen, in Feud. 31.

(a) Co. Litt. 391 b.

[been born after the pardon, he might inherit; because by the pardon the father was made a new man, and might convey new inheritable blood to his after-born children(b).

Herein there was, however, a difference between aliens and persons attainted. Of aliens, who could never by any possibility be heirs, the law took no notice; and therefore we have seen, that an alien elder brother would not impede the descent to a natural-born younger brother. But in attainders it was otherwise; for if a man had issue a son, and was attainted, and afterwards pardoned, and then had issue a second son, and died; here the corruption of blood was not removed from the eldest, and therefore he could not be heir; neither could the youngest be heir, for he had an elder brother living, of whom the law took notice, as he once had a possibility of being heir; and therefore the younger brother would not inherit, but the land would escheat to the lord; though, had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he had no corruption of blood (c). So, if a man had issue two sons, and the elder in the life-time of the father had issue, and then was attainted and executed, and afterwards the father died, the lands of the father would not descend to the younger son; for the issue of the elder, which had once a possibility to inherit, would impede the descent to the younger, and the land would escheat to the lord (d).]

[Upon the whole it appears, that a person attainted was neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feudal property, was blotted out, corrupted, and extinguished for ever; the consequence of

(b) Co. Litt. 392 a.

(c) Ibid. 8 a.

(d) Dyer, 48 a.

.

[which is, that estates thus impeded in their descent, resulted back and escheated to the lord.]

But the doctrine of corruption of blood, arising as it did from feudal principles, and perhaps extending farther than even those principles would warrant, was in modern times always looked upon as a peculiar hardship, at least as regarded the family of the offender. [And therefore in most (if not all) of the new felonies created by parliament since the reign of Henry the Eighth, it was declared that they should not extend to any corruption of blood (e).] And now at length by the statutes 54 Geo. III. c. 145; 3 & 4 Will. IV. c. 106; and 4 & 5 Will. IV. c. 23, the same spirit has been infused (subject to some wholesome exceptions) into the general law of the realm; and whatever savoured of inhumanity or harshness under the ancient system, effectually removed. For by the first of these acts, it is provided that no attainder for felony, except for treason or murder, "shall extend to the disinheriting of any person, nor to the prejudice of the right or title of

66

any person or persons other than the right or title of "the offender, during his natural life only, and that it "shall be lawful to every person to whom the right or in"terest of any lands, tenements, or hereditaments after "the death of such offender, should or might have apper"tained if no such attainder had been, to enter into the "same." By the second, "that when the person, from "whom the descent of any land is to be traced, shall have “had any relation, who having been attainted shall have "died before such descent shall have taken place, then "such attainder shall not prevent any person from in"heriting such land who would have been capable of in"heriting the same, by tracing his descent through such relation, if he had not been attainted, unless such land

66

(e) By 7 Anne, c. 21, (the operation of which was postponed by 17 Geo. 2, c. 39,) it was enacted, that after the death of the Pretender and his sons,

no attainder for treason should operate to the prejudice of other than the offender himself; but both statutes are now repealed by 39 Geo. 3, c. 93.

"shall have escheated in consequence of such attainder "before 1st January, 1834." And by the last, "that no "land, chattels, or stock, vested in any person upon any "trust, or by way of mortgage, or any profits thereof, shall "escheat or be forfeited by reason of the attainder or con"viction, for any offence of such trustee, or mortgagee, but "shall remain in such trustee, or mortgagee, or survive to "his co-trustee, or descend or vest in his representative, "as if no such attainder or conviction had taken place.'

In conclusion of the chapter we may remark, that even where an escheat has actually taken place, its consequences are now frequently remitted, where the crown is the party entitled to take the benefit. For by modern acts of parliament, in all cases where a title has accrued to the crown by escheat for want of heirs, or by reason of any forfeiture, the sovereign is empowered, (notwithstanding the statute which has restrained the alienation of the royal demesnes in general to leases for thirty-one years(ƒ),) to make grants to any person or persons, for the purpose of restoring the land to the family of the former owner, or carrying into effect any grant, conveyance, or devise of it, that he may have intended to make(g).

(f) Vide 39 & 40 Geo. 3, c. 88, s. 12; 47 Geo. 3, sess. 2, c. 24; 59 Geo. 3, c. 94; 6 Geo. 4, c. 17.

(g) 1 Anne. stat. 1, c. 7, s. 5; 48 Geo. 3, c. 73, s. 3.

CHAPTER XIII.

OF TITLE BY OCCUPANCY.

[OCCUPANCY is the taking possession of those things which before belonged to nobody. This, as we have seen(a), is the true ground and foundation of all property, or of holding those things in severalty, which by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Rome (b), quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real property (for of personal chattels we do not in this place speak), hath been confined by the laws of England within a very narrow compass, and was extended only to a single instance; namely, where a man was tenant pur autre vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died] (without alienation) [during the life of cestui que vie, or him by whose life it was holden: in this case, he that could first enter on the land might lawfully retain the

(a) See p. 148.

(b) Ff. 41, i. 3.