1. [A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance 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 in any part of its body, yet if it hath human shape, it may be heir (o). This is a very antient rule in the law of England (p), and its reason is too obvious and too shocking to bear a minute discussion. The Roman law agrees with our own in excluding such births from successions (q); yet accounts them, however, children in some respects, where the parents, or at least the father, could reap any advantage thereby (r), (as the jus trium liberorum, and the like); esteeming them the misfortune, rather than the fault of that parent. But our law will not admit a birth of this kind to be such an issue as shall entitle the husband to be tenant by the curtsey (s); 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.] 2. [Bastards are incapable of being heirs.] Bastards, by our law, are such children as are not born of lawful wedlock (t). [Such are held to be nullius filii, the sons of nobody; for the maxim of the law is, "Qui ex damnato coitu nascuntur, inter liberos non computantur (u).” Being thus the sons of nobody, they have no blood in them, at [least no inheritable blood; 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 (x). 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 (y): 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 inheritance (z); 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 (a). But our law, in favour of marriage, is much less indulgent to bastards. There is indeed one instance in which our law has shown them some little regard; and that is usually termed the case of bastard eigné and mulier puisné. 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 (b), 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 eigné; and the younger son is legitimate, or mulier puisné. If then the father dies, and the bastard eigné enters upon his land, and enjoys it to his death, and dies seised thereof, whereby the inheritance descends to his issue; in this case the mulier puisné and all other heirs (though minors, married women, or under any incapacity whatsoever) are totally barred of their right (c). And this, 1. As a punishment on the mulier for his negligence, in not entering during the bastard's life, (x) Finch, Law, 117. (y) Nov. 89, c. 8. (z) Ibid. c. 112. (a) Cod. 6, 57, 5. (b) L. 7, c. 1. (c) Litt. s. 399. The rule also applies if a man has two daughters, the elder a bastard, and they both enter peaceably as co-parceners; Co. Litt. 244 a. [and evicting him. 2. Because the canon law (following the civil) did allow such bastard eigné 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 shown 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 (d). As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred; 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 (e).] But though the descent from a bastard is necessarily confined to his issue, yet he is capable of holding land in fee simple, in such sense at least that he may make an unlimited alienation of it, and that his alienee will take an estate to his heirs general (ƒ). 3. [Aliens also are incapable of taking by descent (g), or [inheriting (h); for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feudal. 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. As aliens cannot inherit, so far they are on a level with bastards; but as they are also disabled to hold] real estate [by purchase (i), 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 (k), because they have not in them any inheritable blood.] Therefore, if an alien be made a British subject, or denizen (as he is in that case more properly called), by letters patent from the crown, [and then purchases lands, (which the law allows such a one to do,) his son, born before his denization, shall not (according to the rule of 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 denization it acquires an hereditary quality, which will be transmitted to his subsequent posterity. Yet, if he had been naturalized by act of parliament (1), such eldest son might then have inherited for (h) Co. Litt. 8 a. By a late enactment, (7 & 8 Vict. c. 66, s. 3), a person born out of her majesty's dominions, of a mother being a natural born subject, may now inherit land, or take it by devise or purchase. This statute, however, does not make him in other respects a natural born subject; though previous statutes have admitted to that condition a person born out of the queen's dominions, whose father or grandfather on the father's side were natural-born subjects. Vide post, bk. 1v. pt. 1. C. II. (i) Co. Litt. 2 b. See the last note. (k) Ibid.; 1 Lev. 59. (1) An alien may now also be naturalized for most purposes by the certificate of a secretary of state (7 & 8 Vict. c. 66, s. 6); vide post, bk. IV. pt. 1. c. 11. [naturalization cancels all defects, and is allowed to have a retrospective energy, which simple denization has not (m).] At common law, too, aliens could not be the channels of descent, for [Sir Edward Coke (n) holds, that if an alien cometh into England, and there hath issue two sons, who are thereby natural born subjects, and one of them purchases land, 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 though this opinion of his was afterwards overruled (o), it was only on the ground that the descent from one brother to the other might be considered as immediate, and without regard to the commune vinculum: an exception from the general law of inheritance, which we have before shown to have formerly obtained (p); but which has been lately abolished by the Inheritance Act 3 & 4 Will. IV. c. 106. The subject, however, of tracing descent through an alien, has been regulated since the time of Lord Coke by act of parliament. For [it is enacted by the statute 11 & 12 Will. 3, c. 6, 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 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 natural-born subject, upon John's death, without issue, his (m) Co. Litt. 129 a. (n) Ibid. 8 a. (0) Collingwood v. Pace, 1 Vent. 415; 1 Lev. 59; 1 Sid. 193. |