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 stricte 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).

ments on this

*It is also enacted, by the statute 11 & 12 W. III. c. 6, Statutory enactthat all persons being natural-born subjects of the king, subject. may inherit and make their titles by descent from any of [*251 ] 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

Of attainder.

Distinction between forfeiture of lands to the king, and escheat to the lord on attainder.

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-born 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.

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.

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 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 escheat upon attainder considered.

The doctrine of escheat upon attainder, taken singly, is this that the blood of the tenant, by the commission of any felony, (under which denomination all treasons were formerly comprised (g),) is corrupted and stained, and the

(d) See pag. 208 and 214.

(e) LL. Aelfred, c. 4; LL. Canut.

c. 54.

(f) 2 Inst. 64; Salk. 85.

(g) 3 Inst. 15; Stat. 25 Edw. III. c. 2, s. 12.

(20) See the statutes referred to ante, in the note to p. 72, and post, in the

original donation of the feud is 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 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 (21). 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 here-
ditary blood, the land of all felons would immediately revest
in the lord, but that the superior law of forfeiture inter-
venes, 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.
that this is the true operation and genuine history of es-
cheats 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 (22),
though they are liable to forfeiture for treason (i).

And

[253 ]

By 1 Edw. VI.

c. 12, the wife

of a felon is enbut not so the

titled to dower;

wife of one at

*As a consequence of this doctrine of escheat, all lands of inheritance 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 tainted of high 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.

treason.

effects of for

cheat.

Hitherto we have only spoken of estates vested in the The different offender, at the time of his offence or attainder. And here feiture and esthe law of forfeiture stops; but the law of escheat pursues the matter still farther. For, the blood of the tenant being

(h) 2 Inst. 36.

(21) But see the references given in the last note.

(i) Somner, 53; Wright Ten. 118.

(22) See ante, chapter 6, page 84.

The corruption of the hereditary

attainted former

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 (23); 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 (7).

There is yet a farther consequence of the corruption and blood of a person extinction of hereditary blood, which is this: that the perly extended to all son *attainted shall not only be incapable himself of inherithis posterity. ing, or transmitting his own property by heirship, but shall [ *254] also obstruct the descent of lands or tenements to his pos

terity, 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 (24) by attainder, that his sons (k) Co. Litt. 13. (1) 3 Inst. 47.

(m) Van Leeuwen in 2 Feud. 31.

(23) Our author, however, in page 249, states a case in which, even under the old law, a man's eldest son might be living, and yet not he, but his younger brother, be his father's

heir; and see post, p. 255.

(24) But see now the statutes of 54 Geo. III. c. 145, and of 3 & 4 Gul. IV. c. 106, before referred to, and in part cited, in the note to p. 256.

can neither inherit to him nor to any other ancestor (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 afterborn children (o).

tween aliens and

ed.

Herein there is, however, a difference between aliens and Difference bepersons attainted. Of aliens, who could never by any pos- persons attaintsibility be heirs, the law takes no notice: and therefore we have *seen, that an alien elder brother shall not impede the [255] 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 (p) Ibid. 8,

(n) Co. Litt. 391.

(2) Ibid. 392.