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shall entitle the husband to be tenant by the curtesy (A); because it is not capable of inheriting. And therefore, if there appears no other heir than such a prodigious birth, the land shall escheat to the lord. 5. Bastards are 5. Bastards are incapable of being heirs. Bastards, by
incapable of be- J = •»•»«••
inghein. our law, are such children as are not born either in lawful
wedlock, or within a competent time after its determination (l). Such are held to be nullius jilii, the sons of nobody; for the maxim of law is, qui ex damnato coitu nascuntur, inter liberos non computantur (m). Being thus the sons of nobody, they have no blood in them, at least no inheritable blood (15); consequently, none of the blood of the first purchaser : and therefore, if there be no other claimant than such illegitimate children, the land shall escheat to the lord (n). The civil law differs from ours in this point, and allows a bastard to succeed to an inheritance, if after its birth the mother was married to the father (o): and also, if the father had no lawful wife or child, then, even if the concubine was never married to the father, yet she and her bastard son were admitted each to one-twelfth of the inherit[ * 248 ] ance (p): and a bastard was likewise *capable of succeeding to the whole of his mother's estate, although she was never married; the mother being sufficiently certain, though the father is not (q). But our law, in favour of marriage, is much less indulgent to bastards.
Excepted case. There is, indeed, one instance, in which our law has shewn them some little regard; and that is usually termed the case of bastard eigne and mulier puisne. This happens when a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who, in the language of the law, is called a mulier, or as Glanvil (r) expresses it in his Latin filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now here the eldest son is bastard, or bastard eight ; and the younger son is legitimate, or mulier puisni. If then the father dies, and the bastard eigni enters upon his land, and enjoys it
(*) Co. Litt. 29. (o) Nov. 89, c. 8.
(0 See Book I. c. 16. (p) Ibid. c. 12.
(m) Co. Litt. 8. (j) Cod. 6, 57, 5.
(n) Finch, Law, 117. (r) L. 7, c. 1.
(15) See ante, the note top. 222.
to his death, and dies seised thereof, whereby the inheritance descends to his issue; in this case the mulier puisni and all other heirs, (though minors, feme-coverts, or under any incapacity whatsoever,) are totally barred of their right (s). And this, 1. As a punishment on the mulier for his negligence, in not entering during the bastard's life, and evicting him. 2. Because the law will not suffer a man to be bastardized after his death, who entered as heir and died seised, and so passed for legitimate in his lifetime. 3. Because the canon law (following the civil) did allow such bastard eigni to be legitimate on the subsequent 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 kingdom, yet) paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shewn to no other kind of bastard; for, if the mother was never married to the father, such bastard could have no colourable title at all (t).
*As bastards cannot be heirs themselves, so neither can [ * 249 ] they have any heirs but those of their own bodies. For, as ?°. they m
J * .... have no collate*
all collateral kindred consists in being derived from the ral kindred, same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred (16); and, consequently, can have no legal heirs, but such as claim by a lineal descent from himself. And therefore, if a bastard purchases land, and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee (u).
6. Aliens (v), also, are incapable of taking by descent, 6. Aliens. or inheriting (w): for they are not allowed to have any inheritable (17) blood in them: rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal.
(*) Litt. s. 399; Co. Litt. 244. (t>) See Book I. c. 10.
(0 Litt. s. 400. (it) Co. Litt. 8.
(«) Bract. 1. 2, c. 7; Co. Litt. 244.
(16) See ante, the notes to pp. 222 though an ancestor through whom he and 246. must derive his pedigree was an alien.
(17) But, a natural born subject (See the statutes of 11 & 12 Will. III. may inherit and make title by descent c. 6, and 25 Geo. II. c. 39, cited in from ancestors, lineal or collateral, al- the next page.)
An Alien made a denizen by letters patent, may purchase lands; but his son born before his denization, cannot inherit them.
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. who can neither As aliens cannot inherit, so fat they are on a level with
hold by purchase J
norbirinhm- bastards; but as they are also disabled to hold by purchase (x), 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 (y), because they have not in them any inheritable blood.
And farther, if an alien be made a denizen by the king's letters patent, 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 [ * 250 ] denization it acquires *an hereditary quality, which will be
If the father be transmitted to his subsequent posterity. Yet if he had
naturalized by ~ .
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 (z). Though formerly Sir Edward Coke (a) also holds, that if an alien cometh
held otherwise, •-T-»ii ii 1 .1 • i i
it is now settled, into England, and there hath issue two sons, who are therean alien, born in by natural-born subjects; and one of them purchases land, may'inherit to and dies; yet neither of these brethren 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 this opinion of his seems founded upon solid principles of the ancient law; not only from the rule before cited (6), that cestui/ que doll inheritor al jjere, doit inhe
act of pari in ment, the son may inherit.
riter al fits; but also because we have seen that the only feodal foundation, upon which newly purchased land can possibly descend to a brother, is the supposition and fiction of law, that it descended from some one of his ancestors; but, in this case, as the immediate ancestor was an alien, from whom it could by no possibility descend, this should destroy the supposition, and impede the descent, and the land should be inherited ut feudum stride novum; that is, by none but the lineal descendants of the purchasing brother; and on failure of them, should escheat to the lord of the fee. But this opinion hath been since overruled (c): and it is now held for law, that the sons of an alien born here, may inherit to each other; the descent from one brother to another being an immediate (18) descent (d). And 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 (19).
'It is also enacted, by the statute 11 & 12 W. III. c. 6, statutory enact
'J 'ments on this
that all persons being natural-born subjects of the king, subject. may inherit and make their titles by descent from any of [ *251 J 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 naturalborn subject, upon John's death without issue his lands will descend to Oliver the younger brother: now, if after
(e) 1 Ventr. 413; 1 Lev. 59 ; 1 Sid. 193. (d) See pag. 226.
(18) See ante, p. 208, note (9) to be " reasonable enough," is another chapter 14. question. See ante, p. 222.
(19) It is very true, that, in common Since this note was first published, purchases, the whole supposition of it has been enacted by the statute of descent from indefinite ancestors is 3 & 4 Gul. IV. c. 106, that, in every fictitious; and also, that the law may case of descent, the person last entias well suppose the requisite ancestor, tied to the land shall be considered to as suppose the requisite descent: but, have been the purchaser thereof, unwhether either of these suppositions less the contrary be proved.
VOL. II. C C
wards 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 in favour of an after-bom brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual rule (d) of descents by the common law. or attainder. 7. By attainder (20) also, for treason or other felony, the
blood of the person attainted is so corrupted, as to be rendered no longer inheritable. Distinction be- Great care must be taken to distinguish between forfeiture oTianVto'the" of lands to the king, and this species of escheat to the lord; to"tii[-aiordon"" 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. Forfeiture of lands, and of whatever else the offender possessed, was the doctrine of the old [ * 252 ] 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 The doctrine of escheat upon attainder, taken singly, is attainder To"- this: that the blood of the tenant, by the commission of any felony, (under which denomination all treasons were formerly comprised O),) is corrupted and stained, and the
(rf) See ]iag. 208 and 214. (/) 2 Inst. <M ; Salk. 85.
(e) LL. Aelfred, c. 4; LL. Canut. (f) 3 Inst. 15; Stat. 25 Edw. III.
c. 54. c. 2, s. 12.
(20) See the statutes referred to antf, in the note top. 72, and pott, in the note to p. 25(i.