reasonably enough upon the whole; for, as (in common purchases) the whole of the supposed descent from indefinite ancestors is but fictitious, the law may as well suppose the requisite ancestor as suppose the requisite descent.

[251] It is also enacted, by the statute 11 & 12 W. III. c. 6. 12 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 allegi ance. 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 new-born 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 person last seised:-with an exception however to the case, where lands shall descend to the daughter of an alien; which descent shall be divested is favour of an after-born brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual rule (e) of descents by the common law.

7. By attainder also, for treason or other felony, the blood of the person attainted is so corrupted, as to be rendered no longer inheritable. 13

Great care must be taken to distinguish between forfeiture of lands to the king, 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 of

ten confounded together. Forfeiture of lands, and of whatever else [252] the offender possessed, was the doctrine of the old Saxon law, (e)

as a part of punishment for the offence; and does not at all relate to the feodal system, nor is the consequence of any signiory or lordship paramount: (f) but, being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures: a fruit and consequence of which, escheat must undoubtedly be reckoned. Escheat therefore operates in subordination to this more ancient and superior law of forfeiture.

The doctrine of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony (under which denomi

e See pag. 208, and 214.

e LL. Alfred, c. 4. LL. Canut. c. 54.

(12) Extended to Scotland by 16 Geo. III. c. 52.

f2 Inst. 64. Salk. 85.

(13) By the 54 Geo. III. c. 145. it is enacted that no attainder for felony after the passing of the act, save and except in cases of the crime of high treason, or of the crimes of petit treason, or murder, or of abetting, procuring, or counselling the same, shall extend to the disinheriting of any heir, nor to the prejudice of the right or title of any person or persons other than the right or title of the offender or offenders during his, her, or their natural lives only, and that it shall be lawful to every person or persons to whom the right or interest of any lands, tenements, or hereditaments, after the death of any such offender or offenders should or might have appertained, if no such attainder, to enter into the same. Before this statute those who were hanged by martial law as furore belli, forfeited no lands, not having been legally attainted, Co. Lit. 13. a. ; and copyhold of inheritance was not forfeited by conviction of felony without attainder, unless by particular custom. 5 B. & A. 510. Chitty.

nation all treasons were formerly comprised), (g) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vasal on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out for ever. In this situation the law of feodal escheat was brought into England at the conquest; and in general superadded to the ancient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in its passage: in case of treason, for ever; in case of other felony, for only a year and a day; after which time it goes to the lord in a regular course of escheat, (h) as it would have done to the heir of the felon in case the feodal tenures had never been introduced. And that this is the true operation and genuine history of escheats will most evidently appear from this incident 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. (i)

As a consequence of this doctrine of escheat, all lands of inherit. [253] ance immediately revesting in the lord, the wife of the felon was liable to lose her dower, till the statute 1 Edw. VI. c. 12. enacted, that albeit any person be attainted of misprision of treason, murder, or felony, yet his wife shall enjoy her dower. But she has not this indulgence where the ancient law of forfeiture operates, for it is expressly provided by the statute 5 & 6 Edw. VI. c. 11. that the wife of one attaint of high treason shall not be endowed at all. 14

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 stops; but the law of escheat pursues the matter still farther. For the blood of the tenant being utterly corrupted and extinguished, it follows not only that all that he now has shall escheat from him, but also that he shall be incapable of inheriting any thing for the future. This may farther illustrate the distinction between forfeiture and escheat. If therefore a father be seised in fee, and the son commits treason and is attainted, and then the father dies: here the lands shall escheat to the lord; because the son, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life but nothing shall be forfeited to the king, for the son never had any interest in the lands to forfeit. (k) In this case the escheat operates, and not the forfeiture; but in the following instance the forfeiture works, and not the escheat. As where a new felony is created by act of parliament, and it is provided (as is frequently the case) that it shall not extend to corruption of blood; here the lands of the felon shall not escheat to the lord, but yet the profits of them shall be forfeited to the king for a year and a day, and so long after as the offender lives. (1)

There is yet a farther consequence of the corruption and extinction of hereditary blood, which is this: that the person attainted shall not only be

g 3 Inst. 15. Stat. 25 Edw. III. c. 2. § 12.

h 2 Inst. $6.
k Co. Litt. 13.

i Somner. 53. Wright, Ten. 118.
13 Inst. 47.

(14) "Or of any other treasons whatsoever they be," s. 13.; the wife therefore is barred by the attainder of her husband for petit as well as high treason, but not for any murder or other felony. See Co. Litt. 37. a. Staundf. 195. b.

incapable himself of inheriting, or transmitting his own property by [254] heirship, but shall also obstruct the descent of lands or tenements to his posterity, in all cases where they are obliged to derive their title through him from any remoter ancestor. The channel which conveyed the hereditary blood from his ancestors to him, is not only exhausted for the present, but totally dammed up and rendered impervious for the future. This is 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. (m) But, by the law of England, a man's blood is so universally corrupted by attainder, that the sons can neither inherit to him nor to any other ancestors, (n) at least on the part of their attainted father.

This corruption of blood cannot be absolutely removed but by authority of parliament. The king may excuse the public punishment of an offender; but cannot abolish the private right, which has accrued or may accrue to individuals as a consequence of the criminal's attainder. He may remit a forfeiture, in which the interest of the crown is alone concerned; but he cannot wipe away the corruption of blood; for therein a third person hath an interest, the lord who claims by escheat. If therefore a man hath a son, and is attainted, and afterwards pardoned by the king; this son can 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 been born after the pardon, he might inherit: because by the pardon the father is made a new man, and may convey new inheritable blood to his after-born children. (0)

Herein there is however a difference between aliens and persons attainted. Of aliens, who could never by any possibility be heirs, the law [255] takes no notice: and therefore we have seen, that an alien elder brother shall not impede the descent to a natural-born younger brother. But in attainders it is otherwise: for if a man hath issue a son, and is attainted, and afterwards pardoned, and then hath issue a second son, and dies; here the corruption of blood is not removed from the eldest, and therefore he cannot be heir; neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a possibility of being heir: and therefore the younger brother shall not inherit, but the land shall 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 hath no corruption of blood. (p) So if a man hath issue two sons, and the elder in the lifetime of the father hath issue, and then is attainted and executed, and afterwards the father dies, the lands of the father shall not descend to the younger son: for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord. (9) Sir Edward Coke in this case allows, (r) that if the ancestor be attainted, his sons born before the attainder may be heirs to each other; and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father; but he makes a doubt (upon the principles before mentioned, which are now over-ruled) (s) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in them.

o Co. Litt. 392.

m Van Leeuwen in 2 Feud. $1. r Co. Litt. 8.

p Ibid. 8.

n Co. Litt. 391.
q Dyer, 48.

s1 Hal. P. C. S57,

Upon the whole it appears, that a person attainted is 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 feodal property, is blotted out, corrupted, and extinguished for ever: the consequence of which is, that estates thus impeded in their descent, result back and escheat to the lord.

This corruption of blood, thus arising from feodal principles, but [256] perhaps extended farther than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive part of the feodal tenures being now in general abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty (which, however severe, is sufficiently justified upon reasons of public policy), but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And therefore in most (if not all) of the new felonies created by parliament since the reign of Henry the Eighth, it is declared, that they shall not extend to any corruption of blood: 15 and by the statute 7 Ann. c. 21. (the operation of which is postponed by the statute 17 Geo. II. c. 39.) it is enacted, that after the death of the late pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself: which provisions have indeed carried the remedy farther than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.

16

Before I conclude this head of escheat, I must mention one singular instance in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the case of a corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat; which is perhaps the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law, we are told, (t) doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantee shall re-enter; for the cause of the gift or grant faileth. This is indeed founded upon the self-same principle as the law of escheat; the [257] heirs of the donor being only substituted instead of the chief lord of the fee which was formerly very frequently the case in subinfeudations, or alienations of lands by a vasal to be holden as of himself, till that practice was restrained by the statute of quia emptores, 18 Edw. I. st. 1., to which this very singular instance still in some degree remains an exception. There is one more incapacity of taking by descent, which, not being productive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 & 12 Will. III. c. 4. " that every papist who shall not abjure the errors of his

t Co. Litt. 13.

(15) See repealing act, 54 Geo. III. c. 145. ante 251. note 13.

(16) These provisions in the 7 Ann. c. 21. & 17 Geo. II. c. 59. are repealed by the 39 Geo. III. c. 93.

(17) By the 18 Geo. III. c. 60. & 43 Geo. III. c. 30. so much of the 11 & 12 Will. III. c. 4. as disables papists to inherit by descent, &c. any real estate, &c., as also so much of the same sta

religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent as well as purchase, any real estates whatsoever; and his next of kin, being a protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descents to others of his kindred. In like manner as, even in the times of popery, one who entered into religion, and became a monk professed, was incapable of inheriting lands, both in our own (u) and the feodal law; eo quod desiit esse miles seculi qui factus est miles Christi : nec beneficium pertinet ad eum qui non debet gerere officium. (w) But yet he was accounted only civiliter mortuus; he did not impede the descent to others, but the next heir was entitled to his or his ancestor's estate.

These are the several deficiencies of hereditary blood, recognized by the law of England; which, so often as they happen, occasion lands to escheat to the original proprietary or lord.

CHAP. XVI.

II. 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 I am not in this place to 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 auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose

tute as disables them to purchase manors, lands, &c. was repealed, provided they take the oath of allegiance, and make the declaration prescribed by 31 Geo. III. c. 32. And the 1 Geo. J. st. 2. c. 55. & 3 Geo. I. c. 18. requiring papists to register their names and real estates are repealed, and all deeds and wills of papists are as valid as if the said recited acts had never been made. Christian. (1) This is the second mode of acquiring a title by purchase. See Division, ante 244. As to title by occupancy in general, Com. Dig. Estates, F. Bac. Ab. Estates for Life and Occupancy, B. 1 Cru. Díg. 90. 3. ib. 336. Vin. Ab. Occupant. 6 T. R. 291.