[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 newborn 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 as to the case, where lands shall descend to the daughter of an alien (q): 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 of descents by the common law (r).] Such is the state of the law with respect to escheats propter defectum sanguinis; as to which we shall only further observe, that by a recent Act (s), another case, besides that which we have already noticed, is withdrawn from the operation of escheat,-viz., where the land was held by the party deceased, under a trust or mortgage,—it being provided by this (as in substance by former statutes) for the protection of the party beneficially interested, that where a trustee or mortgagee dies intestate without an heir (or his heir or devisee is not known), the Court of Chancery shall have power to make an order vesting the lands in such person and in such manner as the court shall direct (t). II. We now arrive at the consideration of escheats propter delictum tenentis; those, namely, where by attainder, the blood of the person attainted is so corrupted as to be rendered no longer inheritable. (q) See Co. Litt. by Harg. 8 a, (n.); Christian's Blackst. 374, n. (r) Vide sup. p. 392. (s) 13 & 14 Vict. c. 60 (amended by 15 & 16 Vict. c. 55). This statute (the "Trustee Act, 1850") repeals 11 Geo. 4 & 1 Will. 4, c. 60; 4 & 5 Will. 4, c. 23; and 1 & 2 Vict. c. 69, by which provisions of the same kind were made. (t) 13 & 14 Vict. c. 60, ss. 14, 15. Attainder imports that extinction of civil rights and capacities which takes place whenever a person who has committed treason or felony, receives judgment of death or outlawry for his crime (u); and (besides other consequences) it involves in certain cases the corruption of blood, so as to prevent the descent of land (which depends, as we have seen, on blood or consanguinity) to the offender or his heirs. The antient law with respect to corruption of blood upon attainder, and the consequent escheat of the offender's lands and tenements to the lord of the fee, has been so much narrowed in its application by the recent enactments, to which we shall presently refer, as to have lost much of its former importance. As the greater part of its doctrines, however, are still capable of being occasionally called into action, they continue to deserve our attention; and we shall here proceed to examine them. By the law, then, as it stood prior to the late alterations, [the blood of the tenant by the commission of any felony, under which denomination all treasons were formerly comprised (v), was corrupted and stained, and the original donation of the feud was 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 feudal covenant and mutual bond of fealty were held to be broken, the estate instantly fell back from the offender to the lord of the fee, and the inheritable quality of his blood was extinguished and blotted out for ever.] Here, however, [great care must be taken to distinguish between forfeiture of lands to the crown 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.] For, in (u) See further as to attainder, post, bk. vI. c. XXIII. (v) 3 Inst. 15; stat. 25 Edw. 3, st. 5, c. 2, s. 12. dependently of any escheat (x), all lands and tenements, to which the convicted felon had an existing title, were, by force of the attainder, immediately forfeited to the crown in the case of treason, for ever; in other felonies for a year and a day (y). And so strict was this forfeiture, that by 5 & 6 Edw. VI. c. 11, s. 13, the wife of one attainted of treason was even excluded of her dower (2). Escheat to the lord, therefore, operated in subordination to forfeiture to the crown; which latter incident intervened in the case of treason, to intercept the escheat altogether; and in the case of other felony, to intercept it for the limited period that has been stated: though, after that period, the land still escheated, in the case last mentioned, to the lord of the fee (a). Indeed, the law of forfeiture was (in the case of treason at least) of older date in this country than that of escheat; for the former doctrine prevailed in the old Saxon times (b), while the latter appears to have been the result of the introduction of the Norman tenures (c). And in illustration of this, we may refer to an incident already noticed as attaching 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 (d).] [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 stopped; sued the matter still further. (x) 2 Inst. 64; 1 Salk. 85. (y) See 3 Inst. 47; 2 Inst. 37; Abbrev. Placit. 317 a; stat. 17 Edw. 2, st. 1, c. 16; Bullock v. Dodds, 2 Barn. & Ald. 258; Doe v. Pritchard, 5 B. & Adol. 765; Rex v. Bridger, 1 Mee. & W. 145; Symonds v. Blake, 4 Dowl. 263. And as to forfeiture in treason and felony, see further, post, bk. vI. c. xxIII. (z) It was otherwise, however, on but the law of escheat purFor the blood of the tenant attainder for other felony. (1 Edw. 6, c. 12, s. 17.) As to dower, vide sup. p. 272. (a) Wright's Ten. 120; 2 Bl. Com. 252; 4 Bl. Com. 386. (b) Wilkins's Leges Anglo-Sax. Ll. Alfred, c. 4; Ll. Canut. 54. (c) 2 Bl. Com. 252. (d) See stat. 17 Edw. 4, stat. 1, c. 16. [being utterly corrupted and extinguished, it followed,] not only that all that he then had should escheat from him, [but also that he should be incapable of inheriting any thing for the future. This may further illustrate the distinction between forfeiture and escheat. If, therefore, a father were seised in fee, and the son committed treason and was attainted, and then the father died, here the land would escheat to the lord; because the son, by the corruption of his blood, was incapable to be heir, and there could be no other heir during his life; but nothing would be forfeited to the king, for the son never had any interest in the lands to forfeit (e). In this case the escheat operated, and not the forfeiture; but in the following instance the forfeiture worked, and not the escheat. As where a new felony was created by act of parliament, and it was provided (as was frequently the case) that it should not extend to corruption of blood; here the lands of the felon would not escheat to the lord, but yet the profits of them would be forfeited to the king for a year and a day and so long after as the offender lived (ƒ). There was yet a further consequence of the corruption and extinction of hereditary blood, which was this, that the person attainted would not only be incapable himself of inheriting, or transmitting his own property by heirship; but would also obstruct the descent of lands or tenements to his posterity, in all cases where they were obliged to derive their title through him from any remoter ancestor. The channel which conveyed the hereditary blood from his ancestors to him, was not only exhausted for the present, but totally dammed up and rendered impervious for the future. This was a refinement upon the antient 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 (g). But by the law of England, a man's blood was so universally corrupted by attainder, (e) Co. Litt. 13 a. (ƒ) 3 Inst. 47. (g) Van Leeuven, in 2 Feud. 31. [that his sons I could neither inherit to him nor to any other ancestors, at least on the part of their attainted father (h). This corruption of blood could not be absolutely removed but by authority of parliament. The king might excuse the public punishment of an offender; but could not abolish the private right, which had accrued, or might accrue, to individuals as a consequence of the criminal's attainder. He might remit a forfeiture, in which the interest of the crown is alone concerned; but he could not wipe away the corruption of blood; for therein a third person had an interest, the lord who claimed by escheat. If, therefore, a man had a son, and was attainted, and afterwards pardoned by the king, this son could 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 was made a new man, and might convey new inheritable blood to his after-born children (i). Herein there was, however, a difference between aliens and persons attainted. Of aliens, who could never by any possibility be heirs, the law took no notice; and therefore we have seen, that an alien elder brother would not impede the descent to a natural-born younger brother. But in attainders it was otherwise; for if a man had issue a son, and was attainted, and afterwards pardoned, and then had issue a second son, and died; here the corruption of blood was not removed from the eldest, and therefore he could not be heir; neither could the youngest be heir, for he had an elder brother living, of whom the law took notice, as he once had a possibility of being heir; and therefore the younger brother would not inherit, but the land would 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 had no cor (h) Co. Litt. 391 b. VOL. I. (i) Co. Litt. 392 a. |