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CHAPTER THE FIFTEENTH.

OF TITLE BY PURCHASE, AND FIRST

BY ESCHEAT.

PURCHASE, perquifitio, taken in it's largeft and moft extenfive fenfe, is thus defined by Littleton^a; the poffeffion of lands and tenements, which a man hath by his own act or agreement; and not by defcent from any of his anceftors or kindred. In this fenfe it is contradiftinguifhed from acquifition by right of blood, and includes every other method of coming to an eftate, but merely that by inheritance; wherein the title is vefted in a perfon, not by his own act or agreement, but by the fingle operation of law^b.

PURCHASE, indeed, in it's vulgar and confined acceptation, is applied only to fuch acquifitions of land, as are obtained by way of bargain and fale, for money, or fome other valuable confideration. But this falls far fhort of the legal idea of purchafe: for, if I give land freely to another, he is in the eye of the law a purchafor^c; and falls within Littleton's definition, for he comes to the eftate by his own agreement, that is, he confents to the gift. A man who has his father's eftate fettled upon him in tail, before he is born, is alfo a purchafor; for he takes quite another eftate than the law of defcents would have given him. Nay even if the anceftor devifes his eftate to his heir at law by will, with other limitations or in any other fhape than the courfe of defcents would direct, fuch heir fhall take by purchafe^d. But if a man, feifed in fee, devifes his whole eftate to his heir at law, fo that the heir takes neither a greater nor a lefs eftate by the devife than

.{FS}
^a §. 12.
^b Co. Litt. 18.
^c Ibid.
^d Lord Raym. 728.
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he
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he would have done without it, he fhall be adjudged to take by defcent^e, even though it be charged with incumbrances^f; for the benefit of creditors, and others, who have demands on the eftate of the anceftor. If a remainder be limited to the heirs of Sempronius, here Sempronius himfelf takes nothing; but, if he dies during the continuance of the particular eftate, his heirs fhall take as purchafors^g. But, if an eftate be made to A for life, remainder to his right heirs in fee, his heirs fhall take by defcent: for it is an antient rule of law, that wherever the anceftor takes an eftate for life, the heir cannot by the fame conveyance take an eftate in fee by purchafe, but only by defcent^h. And, if A dies before entry, ftill his heir fhall take by defcent, and not by purchafe; for, where the heir takes any thing that might have vefted in the anceftor, he takes by way of defcentⁱ. The anceftor, during his life, beareth in himfelf all his heirs^k; and therefore, when once he is or might have been feifed of the land, the inheritance to limited to his heirs vefts in the anceftor himfelf: and the word “heirs” in this cafe is not efteemed a word of purchafe, but a word of limitation, enuring fo as to encreafe the eftate of the anceftor from a tenancy for life to a fee-fimple. And, had it been otherwife, had the heir (who is uncertain till the death of the anceftor) been allowed to take as a purchafors originally nominated in the deed, as muft have been the cafe if the remainder had been expreffly limited to Matthew or Thomas by name; then, in the times of ftrict feodal tenure, the lord would have been defrauded by fuch a limitation of the fruits of his figniory, arifing from a defcent to the heir.

WHAT we call purchafe, perquifitio, the feudifts call conqueft, conquaeftus, or conquifitio^l: both denoting any means of acquiring an eftate out of the common courfe of inheritance. And this is ftill the proper phrafe in the law of Scotland^m; as it was, among

.{FS}
^e I Roll. Abr. 626.
^f Salk. 241. Lord Raym. 728.
^g I Roll. Abr. 627.
^h I Rep. 104. 2 Lev. 60. Raym. 334.
^I I Rep. 98.
^k Co. Litt. 23.
^l Crag. l. I. t. 10. §. 18.
^m Dalrymple of feuds. 210.
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the
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the Norman jurifts, who ftiled the firft purchafor (that is, he who firft brought the eftate into the family which at prefent owns it ) the conqueror or conquereurⁿ. Which feems to be all that was meant by the appellation which was given to William the Norman, when his manner of afcending the throne of England was, in his own and his fucceffors' charters, and by the hiftorians of the times, entitled conquaeftus, and himfelf conquaeftor or conquifitor^o; fignifying, that he was the firft of his family who acquired the crown of England, and from whom therefore all future claims by defcent muft be derived: though now, from our difufe of the feodal fenfe of the word, together with the reflexion on his forcible method of acquifition, we are apt to annex the idea of victory to this name of conqueft or conquifition; a title which, however juft with regard to the crown, the conqueror never pretended with regard to the realm of England, nor, in fact, ever had^p.

THE difference in effect, between the acquifition of an eftate by defcent and by purchafe, confifts principally in thefe two points: I. That by purchafe the eftate acquires a new inheritable quality, and is defcendible to the owner's blood in general, and not the blood only of fome particular anceftor. For, when a man takes an eftate by purchafe, he takes it not ut feudem paternum or maternum, which would defcend only to the heirs by the father's or the mother's fide: but he takes it ut feudum antiquum, as a feud of indefinite antiquity; whereby it becomes inheritable to his heirs general, firft of the paternal, and then of the maternal line^q. 2. An eftate taken by purchafe will not make the heir anfwerable for the acts of the anceftor, as an eftate by defcent will. For, if the anceftor by any deed, obligation, covenant, or the like, bindeth himfelf and his heirs, and dieth; this deed, obligation, or covenant, fhall be binding upon the heir, fo far forth only as he had any eftate of inheritance vefted in him (or in fome other in truft for him^r) by defcent from that

.{FS}
ⁿ Gr. Couftum. Gloff. c.25. pag. 40.
^o Spelm. Gloff. 145.
^p See Book I. ch. 3.
^q See pag 236.
^r Stat. 29 Car. II. c. 3.
.{FE}
G g 2
anceftor,
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Anceftor, fufficient to anfwer the charge^s; whether he remains in poffeffion, or hath aliened it before action brought^t: which fufficient eftate is in law called affets; from the French word, affez, enouth^u. Therefore if a man covenants, for himfelf and his heirs, to keep my houfe in repair, I can then (and then only) compel his heir to perform this covenant, when he has an eftate fufficient for this purpofe, or affets, by defcent from the covenantor: for though the covenant defcends to the heir, whether he inherits any eftate or no, it lies dormant, and is not compulfory, until he has affets by defcent^v.

THIS is the legal fignification of the world perquifitio, or purchafe; and in this fenfe it includes the five following methods of acquiring a title to eftates: I. Efcheat. 2. Occupancy. 3. Prefcription. 4. Forfeiture. 5. Alienation. Of all thefe in their order.

I. ESCHEAT, we may remember^w, was one of the fruits and confequences of feodal tenure. The word itfelf is originally French or Norman^x, in which language it fignifies chance or accident; and with us denotes an obftruction of the eourfe of defcent, and a confequent determination of the tenure, by fome unforefeen contingency: in which cafe the land naturally refults back, by a kind of reverfion, to the original grantor or lord of the fee^y.

ESCHEAT therefore being a title frequently vefted in the lord by inheritance, as being the fruit of a figniory to which he was intitled by defcent, (for which reafon the lands efcheating fhall attend the figniory, and be inheritable by fuch only of his heirs as are capable of inheriting the other^z) it may feem in fuch cafes to fall more properly under the former general head of acquiring title to eftates, viz. by defcent, (being vefted in him by act of

.{FS}
^s I P. W^ms. 777.
^t Stat. 3 & 4 W. & M. c. 14.
^u Finch. law. 119.
^v Finch. Rep. 86.
^w See pag. 72.
^x Efebet or ecbet, formed from the verb efchoir or echoir, to happen.
^y I Feud. 86. Co. Litt. 13.
^z Co. Litt. 13.
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law
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law, and not by his own act or agreement) than under the prefent, by purchafe. But it muft be remembered that in order to complete this title by efcheat, it is neceffary that the lord perform an act of his own,by entering on the lands and tenements fo efcheated, or fuing out a writ of efcheat^a: on failure of which, or by doing any act that amounts to an implied waiver of his right, as by accepting homage or rent of a ftranger who ufurps the poffeffion, his title by efcheat is barred^b. It is therefore in fome refpect a title acquired by his own act, as well as by act of law. Indeed this may alfo be faid of defcents themfelves, in which an entry or other feifin is required, in order to make a complete title; and therefore this diftribution by our legal writers feems in this refpect rather inaccurate: for, as efcheats muft follow the nature of the figniory to which they belong, they may veft by either purchafe or defcent, according as the figniory is vefted. And, though fir Edward Coke confiders the lord by efcheat as in fome refpects the affignee of the laft tenant^c, and therefore taking by purchafe; yet, on the other hand, the lord is more frequently confidered as being ultimus haeres, and therefore taking by defcent in a kind of caducary fucceffion.

THE law of efcheats is founded upon this fingle principle, that the blood of the perfon laft feifed in fee-fimple is, by fome means or other, utterly extinct and gone: and, fince none can inherit his eftate but fuch as are of his blood and confanguinity, it follows as a regular confequence, that when fuch blood is extinct, the inheritance itfelf muft fail; the land muft become what the feodal writers denominate feudum apertum; and muft refult back again to the lord of the fee, by whom, or by thofe whofe eftate he hath, it was given.

ESCHEATS are frequently divided into thofe propter defectum fanguinis and thofe propter deliclum tenentis: the one fort, if the tenant dies without heirs; the other, if his blood be attainted^d.

.{FS}
^a Bro. Abr. tit. efcleat. 26.
^b Ibid. tit. acuptance. 25. Co. Litt. 268.
^c I Inft. 215.
^d Co. Litt. 13. 92.
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But both thefe fpecies may well be comprehended under the firft denomination only; for he that is attainted fuffers an extinction of his blood, as well as he that dies without relations. The inheritable quality is expunged in one inftance, and expires in the other; or, as the doctrine of efcheats is very fully expreffed in Fleta^e, “dominus capitalis feodi loco baeredis babetur, quoties pre defectum vel delictum extinguitur fanguis tenentis.”

ESCHEATS therefore arifing merely upon the deficiency of the blood, whereby the defcent is impeded, their doctrine will be better illuftrated by confidering the feveral cafes wherein hereditary blood may be deficient, than by any other method whatfoever.

I, 2, 3. THE firft three cafes, wherein inheritable blood is wanting, may be collected from the rules of defcent laid down and explained in the preceding chapter, and therefore will need very little illuftration or comment. Firft, when the tenant dies without any relations on the part of any of his anceftors: fecondly, when he dies without any relations on the part of thofe anceftors from whom his eftate defcended: thirdly, when he dies without any relations of the whole blood. In two of thefe cafes the blood of the firft purchafor is certainly, in the other it is probably, at an end; and therefore in all of them the law directs, that the land fhall efcheat to the lord of the fee: for the lord would be manifeftly prejudiced, if, contrary to the inherent condition tacitly annexed to all feuds, any perfon fhould be fuffered to fucceed to lands, who is not of the blood of the firft feudatory, to whom for his perfonal merit the eftate is fuppofed to have been granted.

4. A MONSTER, which hath not the fhape of mankind, but in any part evidently bears the refemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage: but, although it hath deformity

.{FS}
^e l. 6. c. I.
.{FE}
in
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in any part of it's body, yet if it hath human fhape, it may be heir^f. This is a very antient rule in the law of England^g; and it's reafon is too obvious, and too fhocking, to bear a minute difcuffion. The Roman law agrees with our own in excluding fuch births from fucceffions^h: yet accounts them, however, children in fome refpects, where the parents, or at leaft the father, could reap any advantage therebyⁱ; (as the jus trium liberorum, and the like) efteeming them the misfortune, rather than the fault, of that parent. But our law will not admit a birth of this king to be fuch an iffue, as fhall intitle the hufband to be tenant by the curtefy^k; becaufe it is not capable of inberiting. And therefore, if there appears no other heir than fuch a prodigious, birth, the land fhall efcheat to the lord.

5. BASTARDS are incapable of being heirs. Baftards, by our law, are fuch children as are not born either in lawful wedlock, or within a competent time after it's determination^l. Such are held to be nullius filii, the fons of nobody; for the maxim of law is, qui ex damnato coitu nafcuntur, inter liberos non computantur^m. Being thus the fons of nobody, they have no blood in them, at leaft no inheritable blood; confequently, none of the blood of the firft purchafor: and therefore, if there be no other claimant than fuch illegitimate children, the land fhall efcheat to the lordⁿ. The civil law differs from ours in this point, and allows a baftard to fucceed to an inheritance, if after it's birth the mother was married to the father^o: and alfo, if the father had no lawful wife or child, then, even if the concubine was never married t6o the father, yet fhe and her baftard fon were admitted each to one twelfth of the inheritance^p, and a baftard was like-

.{FS}
^f Co. Litt. 7, 8.
^g Qui contra formam bumani generis converfo more procreantur, ut fi mulier monftrofum vel prodigiofum enixa fit, inter liberos non computentur. Partus tamen, cui natura aliquantulum addiderit vel diminueril, ut fi fex vel tantum quatuor digitos babuerit, bene debet inter liberos connumerari: et, fi member fint inutilia out tortuofa, non famen eft partus monftrofus. Bracton. l. I. c. 6. & l. 5. tr. 5. c. 30.
^h Ff. I. 5. 14.
ⁱFf. 50. 16. 135. Paul. 4 fent. 9. §. 63.
^k Co. Litt. 29.
^l See Book I. ch, 16.
^m Co. Litt. 8.
ⁿ Finch. law. 1147.
^o Nov. 89. c. 8.
^pIbid. c. 52.
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wife capable of fucceeding to the whole of his mother's eftate, although fhe was never married; the mother being fufficiently certain, though the father is not^q. But our law, in favour of marriage, is much lefs indulgent to baftards.

THERE is indeed one inftance, in which our law has fhewn them fome little regard; and that is ufually termed the cafe of baftard eigne and mulier puifue. This happens when a man has a baftard fon, and afterwards marries the mother, and by her has a legitimate fon, who in the language of the law is called a mulier, or as Glanvil^r expreffes it in his Latin, filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now here the eldeft fon is baftard, or baftard eigne; and the younger fon is legitimate, or mulier puifne. If then the father dies, and the baftard eigne enters upon his land, and enjoys it to his death, and dies feifed thereof, whereby the inheritance defcends to his iffue; in this cafe the mulier puifne, and all other heirs,(though minors, feme-coverts, or under any incapacity whatfoever) are totally barred of their right^s. And this, I. As a punifhment on the mulier for his negligence, in not entering during the baftard's life, and evicting him. 2. Becaufe the law will not fuffer a man to be baftardized after his death, who entered as heir and died feifed, and fo paffed for legitimate in his lifetime. 3. Becaufe the canon law (following the civil) did allow fuch baftard eigne to be legitimate, on the fubfequent marriage of his mother: and therefore the laws of England (though they would not admit either the civil or canon law to rule the inheritances of this kingodm, yet) paid fuch a regard to a perfon thus peculiarly circumftanced, that, after the land had defcended to his iffue, they would not unravel the matter again, and fuffer his eftate to be fhaken. But this indulgence was fhewn to no other king of baftard; for, if the mother was never married to the father, fuch baftard could have no colourable title at all^t.

.{FS}
^q Cod. 6. 57. 5.
^r l. 7. c. I.
^s Litt. §. 399. Co. Litt. 244.
^t Litt. §. 400.
.{FE}
As
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As baftards cannot be heirs themfelves, fo neither can they have any heirs but thofe of their own bodies. For, as all collateral kindred confifts in being derived from the fame common anceftor, and as a baftard has no legal anceftors, he can have no collateral kindred; and, confequently, can have no legal heirs, but fuch as claim by a lineal defcent from himfelf. And therefore if a baftard purchafes land, and dies feifed thereof without iffue, and inteftate, the land fhall efcheat to the lord of the fee^u.

6. ALIENS alfo are incapable of taking by defcent, or inheriting^w: for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reafons ftrictly feodal. Though, if lands had been fuffered to fall into their hands who owe no allegiance to the crown of England, the defign 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 fhall efcheat to the lord.

As aliens cannot inherit, fo far they are on a level with baftards; but, as they are alfo difabled to hold by purchafe^x, they are under ftill greater difabilities. And, as they can neither hold by purchafe, nor by inheritance, it is almoft fuperfluous to fay that they can have no heirs, fince they can have nothing for an heir to inherit: but fo it is expreffly holden^y, becaufe they have not in them any inheritable blood.

AND father, if an alien be made a denizen by the king's letters patent, and them purchafes lands, (which the law allows fuch a one to fo ) his fon, born before his denization, fhall not (by the common law) inherit thofe lands; but a fon born afterwards may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate

.{FS}
^u Bract. l. 2. c. 7. Co. Litt. 244.
^w Co. Litt. 8.
^x Ibid. 2.
^y Ibid. I. Lev. 59.
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to his eldeft fon; but by denization it acquires an hereditary quality, which will be tranfmitted to his fubfequent pofterity. Yet, if he had been naturalized by act of parliament, fuch edleft fon might then have inherited; for that cancels all defects, and is allowed to have a retrofpective energy, which fimple denization has not^z.

SIR Edward Coke^a alfo holds, that if an alien cometh into England, and there hath iffue two fons, who are thereby natural born fubjects; and one of them purchafes land, and dies; yet neither of thefe brethren can be heir to the other. For the commune vinculum, or common ftock of their confanguinity, is the father; and, as he had no inheritable blood in him, he could communicate none to his fons; and, when the fons can by no poffibility be heirs to the father, the one ofthem fhall not be heir to the other. And this opinion of his feems founded upon folid principles of the antient law; not only from the rule before cited^b, that ceftuy, que doit inberiter al pere, doit inheriter al fits; but alfo becaufe we have feen that the only feodal foundation upon which newly purchafed land can poffibly defcend to a brother, is the fuppofition and fiction of law, that it defcended from fome one of his anceftors: but in this cafe as the immediate anceftor was an alien, from whom it could by no poffibility defcend, this fhould deftroy the fuppofition, and impede the defcent, and the land fhould be inherited ut feudum ftricte novum; that is, by none but the lineal defcendants of the purchafing brother; and, on failure of them, fhould efcheat to the lord of the fee. But this opinion hath been fince overruled^c: and it is now held for law, that the fons of an alien, born here, may inherit to each other. And reafonably enough upon the whole: for, as (in common purchafes) the whole of the fuppofed defcent from indefinite anceftors is but fictitious, the law may as well fuppofe the requifite anceftor as fuppofe the requifite defcent.

.{FS}
^z Co. Litt. 129.
^a I Inft. 8.
^b See pag. 223 and 239.
^cI Ventr. 473. I Lev. 59. I Sid. 193.
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IT
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IT is alfo enacted, by the ftatute II & 12 W III. c. 6. that all perfons, being natural-born fubjects of the king, may inherit and make their titles by defcent from any of their anceftors lineal or collateral; although their father, or mother, or other anceftor, by, from, through, or under whom they derive their pedigrees, were born out of the king's allegiance. But inconveniences were afterwards apprehended, in cafe perfons fhould thereby gain a future capacity to inherit, who did not exift at the death of the perfon laft feifed. As, if Francis the elder brother of John Stiles be an alien, and Oliver the younger be a natural-born fubject, upon John's death without iffue his lands will defcend to Oliver the younger brother: now, if afterwards Francis hath a child, it was feared that, under the ftatute of king William, this newborn child might defeat the eftate of his uncle Oliver. Wherefore it is provided, by the ftatute 25 Geo. II. c. 39. that no right of inheritance fhall accrue by virtue of the former ftatute to any perfons whatfoever, unlefs they are in being and capable to take as heirs at the death of the perfon laft feifed: --- with an exception however to the cafe, where lands fhall defcend to the daughter of an alien; which daughter fhall refign fuch inheritance to her after-born brother, or divide it with her after-born fifters, according to the ufual rule^d of defcents by the common law.

7. BY attainder alfo, for treafon or other felony, the blood of the perfon attainted is fo corrupted, as to be rendered no longer inheritable.

GREAT care muft be taken to diftinguifh between forfeiture of lands to the king, and this fpecies of efcheat to the lord; which, by reafon of their fimilitude in fome circumftances, and becaufe the crown is very frequently the immediate lord of the fee and thereford entitled to both, have been often confounded together. Forfeiture of lands, and of whatever elfe the offender poffeffed, was the doctrine of the old Saxon law^e, as a part of

.{FS}
^d See pag. 208 and 214.
^e LL. Aelfred. c. 4. LL. Canut. C. 54.
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punifhment for the offence; and does not at all relate to the feodal fyftem, nor is the confequence of any figniory or lordfhip paramount^f: but, being a prerogative vefted in the crown, was neither fuperfeded nor diminifhed by the introduction if the Norman tenures; a fruit and confequence of which efcheat muft undoubtedly be reckoned. Efcheat therefore operates in fubordination to this more antient and fuperior law of forfeiture.

THE doctrine of efcheat upon attainder, taken fingly, is this: that the blood of the tenant, by the commiffion of any felony, (under which denomination all treafons were formerly comprized^g) is corrupted and ftained, and the original donation of the feud is thereby determined, it being always granted to the vafal on the implied condition of dum bene fe gefferit. Upon the thorough demonftration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the eftate inftantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguifhed and blotted out for ever. In this fituation the law of feodal efcheat was brought into England at the conqueft; and in general fuperadded to the antient law of forfeiture. In confequence of which corruption and extinction of hereditary blood, the land of all felons would immediately reveft in the lord, but that the fuperior law of forfeiture intervenes, and intercepts it in it's paffage; in cafe of treafon, for ever; in cafe of other felony, for only a year and a day, after which time it goes to the lord in a regular courfe of efcheat^h, as it would have done to the heir of the felon in cafe the feodal tenures had never been introduced. And that this is the true operation and genuine hiftory of efcheats will moft evidently appear from this incident to gavelkind lands, (which feem to be the old Saxon tenure) that they are in no cafe fubject to efcheat for felony, though they are liable to forfeiture for treafonⁱ.

.{FS}
^f 2 Inft. 64. Salk. 85.
^g 3 Inft. 15. Stat. 25 Edw. III. c. 2. §. 12.
^h 2 Inft. 36.
ⁱSomner. 53. Wright. Ten. 118.
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As a confequence of this doctrine of efcheat, all lands of inheritance immediately revefting in the lord, the wife of the felon was liable to lofe her dower, till the ftatute I Edw. VI. c. 12. enacted, that albeit any perfon be attainted of mifprifion of treafon, murder, or felony, yet his wife fhall enjoy her dower. But fhe has not this indulgence where the antient law of forfeiture operates, for it is expreffly provided by the ftatute 5 & 6 Edw. VI. c. II. that the wife of one attaint of high treafon fhall not be endowed at all.

HITHERTO we have only fpoken of eftates vefted in the offender, at the time of his offence, or attainder. And here the law of forfeiture ftops; but the law of efcheat purfues the matter ftill farther. For, the blood of the tenant being utterly corrupted and extinguifhed, it follows, not only that all he now has fhould efcheat from him, but alfo that he fhould be incapable of inheriting any thing for the future. This may farther illuftrate the diftinction between forfeiture and efcheat. If therefore a father be feifed in fee, and the fon commits treafon and is attainted, and then the father dies: here the land fhall efcheat to the lord; becaufe the fon, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life: but nothing fhall be forfeited to the king, for the fon never had any intereft in the lands to forfeit^k. In this cafe the efcheat operates, and not the forfeiture; but in the following inftance the forfeiture works, and not the efcheat. As where a new felony is created by act of parliament, and it is provided (as is frequently the cafe) that it fhall not extend to corruption of blood: here the lands of the felon fhall not efcheat to the lord, but yet the profits of them fhall be forfeited to the king fo long as the offender lives^l.

THERE is yet a farther confequence of the corruption and extinction of hereditary blood, which is this: that the perfon

.{FS}
^k Co. Litt. 13.
^l3 Inft. 47.
.{FE}
attainted
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Ch. 15.
attainted fhall not only be incapable himfelf of inheriting, or tranfmitting his own property by heirfhip, but fhall alfo obftruct the difcent of lands or tenements to his pofterity, in all cafes where they are obliged to derive their title through him from any remoter anceftor. The chanel, which conveyed the hereditary blood from his anceftors to him, is not only exhaufted for the prefent, but totally dammed up and rendered impervious for the future. This is a refinement upon the antient law of feuds, which allowed that the grandfon might be heir to his grandfather, though the fon in the intermediate generation was guilty of felony^m. But, by the law of England, a man's blood is fo univerfally corrupted by attainder, that his fons can neither inherit to him nor to any other anceftorⁿ, at leaft on the part of their attainted father.

THIS corruption of blood cannot be abfolutely removed but by authority of parliament. The king may excufe the public punifhment of an offender; but cannot abolifh the private right, which has accrued or may accrue to individuals as a confequence of the criminal's attainder. He may remit a forfeiture, in which the intereft of the crown is alone concerned: but he cannot wipe away the corruption of blood; for therein a third perfon hath an intereft, the lord who claims by efcheat. If therefore a man hath a fon, and is attainted, and afterwards pardoned by the king; this fon can never inherit to his father, or father's anceftors; becaufe his paternal blood, being once throughly corrupted by his father's attainder, muft continue fo: but if the fon had been born after the pardon, he might inherit; becaufe by the pardon the father is made a new man, and may convey new inheritable blood to his after-born children^o.

HEREIN there is however a difference between aliens and perfons attainted. Of aliens, who could never by any poffibility be heirs, the law takes no notice: and therefore we have feen,

.{FS}
^m Van Leeuwen in 2 Feud. 31.
ⁿ Co. Litt. 391.
^o Ibid. 392.
.{FE}
that
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Ch. 15.
that an alien elder brother fhall not impede the defcent to a natural-born younger brother. But in attainders it is otherwife: for if a man hath iffue a fon, and is attainted, and afterwards pardoned, and then hath iffue a fecond fon, and dies; here the corruption of blood is not removed from the eldeft, and therefore he cannot be heir: neither can the youngeft be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a poffibility of being heir; and therefore the younger brother fhall not inherit, but the land fhall efcheat to the lord: though, had the elder died without iffue in the life of the father, the younger fon born after the pardon might well have inherited, for he hath no corruption of blood^p. So if a man hath iffue two fons, and the elder in the lifetime of the father hath iffue, and then is attainted and executed, and afterwards the father dies, the lands of the father fhall not defcend to the younger fon: for the iffue of the elder, which had once a poffibility to inherit, fhall impede the defcent to the younger, and the land fhall efcheat to the lord^q. Sir Edward Coke in this cafe allows^r, that if the anceftor be attainted, his fons born before the attainder may be heirs to each other: and diftinguifhes it from the cafe of the fons of an alien, becaufe in this cafe the blood was inheritable when imparted to them from the father: but he makes a doubt (upon the fame principles, which are now overruled^s) whether fons, born after the attainder, can inherit to each other; for they never had any inheritable blood in them.

UPON the whole it appears, that a perfon attainted is neither allowed to retain his former eftate, nor to inherit any future one, nor to tranfmit any inheritance to his iffue, either immediately from himfelf, or mediately through himfelf from any remoter anceftor; for his inheritable blood, which is neceffary either to hold, to take, or to tranfmit any feodal property, is blotted out, corrupted, and extinguifhed for ever: the confequence of which is, that eftates, thus impeded in their defcent, refult back and efcheat to the lord.

.{FS}
^p Co. Litt. 8.
^q Dyer. 48.
^r Co. Litt. 8.
^s I Hal. P. C. 357.
.{FE}
THIS
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Ch. 15.
THIS corruption of blood, thus arifing from feodal principles, but perhaps extended farther than even thofe principles will warrant, has been long looked upon as a peculiar hardfhip: becaufe, the oppreffive parts of the feodal tenures being now in general abolifhed, it feems unreafonable to referve one of their moft inequitable confequences; namely, that the children fhould not only be reduced to prefent poverty, (which, however fevere, is fufficiently juftified upon reafons of public policy) but alfo be laid under future difficulties of inheritance, on account of the guilt of their anceftors. And therefore in moft (if not all) of the new felonies, created by parliament fince the reign of Henry the eighth, it is declared that they fhall not extend to any corruption of blood: and by the ftatute 7 Ann. c. 21. (the operation of which is poftponed by the ftatute 17 Geo. II. c. 39.) it is enacted, that, after the death of the pretender, and his fons, no attainder for treafon fhall extend to the difinheriting any heir, nor the prejudice of any perfon, other than the offender himfelf: which provifions have indeed carried the remedy farther, than was required by the hardfhip above complained of; which is only the future obftruction of defcents, where the pedigree happens to be deduced through the blood of an attainted anceftor.

BEFORE I conclude this head, of efcheat, I muft mention one fingular inftance in which lands held in fee-fimple are not liable to efcheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the cafe of a corporation: for if that comes by any accident to be diffolved, the donor or his heirs fhall have the land again in reverfion, and not the lord by efcheat: which is perhaps the only inftance where a reverfion can be expectant on a grant in fee-fimple abfolute. But the law, we are told^t, doth tacitly annex a condition to every fuch gift or grant, that if the corporation be diffolved, the donor or grantor fhall re-enter; for the caufe of the gift or grant

.{FS}
^t Co. Litt. 13.
.{FE}
faileth.
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Ch. 15.
faileth. This is indeed founded upon the felf-fame principle as the law of efcheat; the heirs of the donor being only fubftituted inftead of the chief lord of the fee: which was formerly very frequently the cafe in fubinfeudations, or alienations of lands by a vafal to be holden as of himfelf; till that practice was reftrained by the ftatute of quia emptores, 18 Edw. I. ft. I. to which this very fingular inftance ftill in fome degree remains an exception.

THERE is one more incapacity of taking by defcent, which, not being productive of any efcheat, is not properly reducible to this head, and yet muft not be paffed over in filence. It is enacted by the ftatute II & 12 Will. III. c. 4. that every papift who fhall not abjure the errors of his religion by taking the oaths to the government, and making the declaration againft tranfubftantiation, within fix months after he has attained the age of eighteen years, fhall be incapable of inheriting, or taking, by defcent as well as purchafe, any real eftates whatfoever;and his next of kin, being a proteftant, fhall hold them to his own ufe till fuch time as he complies with the terms impofed by the act. This incapacity is merely perfonal; it affects himfelf only, and does not deftroy the inheritable quality of his blood, fo as to impede the defcent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion and became a monk profeffed was incapable of inheriting lands, both in our own^u and the feodal law; eo quod defiit effe miles feculi qui factus eft miles chrifti; nec beneficium pertinet ad eum qui non debet gerere officium^w. But yet he was accounted only civiliter mortuus; he did not impede the defcent to others, but the next heir was entitled to his or his anceftor's eftate.

THESE are the feveral deficiencies of hereditary blood, recognized by the law of England; which, fo often as they happen, occafion lands to efcheat to the original proprietary or lord.

.{FS}
^u Co. Litt. 132.
^w 2 Feud. 21.
.{FE}

VOL. II.

I i