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 re mit 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 con tinue 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 after-born children (o).

Herein there is however a difference between aliens and persons attainted. Of aliens, who could never by any possibility be heirs, the law takes no notice and therefore we have seen, that an [*255] alien elder brother shall not impede the 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 lescent to the younger, and the land shall escheat to the lord (q). Sir Edward Coke in this case allows (r), that if the ancestor be attainted, his sons born before the attainder may be heirs to each other; and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father; but he makes a . doubt (upon the principles before mentioned, which are now over-ruled) (s) whether sons, 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 person attainted is neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished for ever: the consequence of which is, that estates thus impeded in their descent, result back and escheat to the lord.

*This corruption of blood, thus arising from feodal principles,. [256] but perhaps extended farther than even those principles will warrant, has been long looked upon as a peculiar hardship because the oporessive part of the feodal tenures being now in general abolished, it seems

fo) Co. Litt. 392.

(p) 'bid. 8.

(@) Dyer, 49

(r) Co. Litt. 8.
(a) 1 Hal. P. C. 357.

unreasonable to reserve one of their most inequitable consequences; name. lý, that the childrer should not only be reduced to present poverty (which, however severe, is sufficiently justified upon reasons of public policy), but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And therefore in most (if not all) of the new felonies created by parliament since the reign of Henry the Eighth, it is declared, that they shall not. extend to any corruption of blood: and by the statute 7 Ann. c. 21. (the operation of which is postponed by the statute 17 Geo. II. c. 39.) it is enacted, that after the death of the late pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, not the prejudice of any person, other than the offender himself: which provi sions have indeed carried the remedy farther than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.

Before I conclude this head of escheat, I must mention one singular instance in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit (them. And this is the case of a corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat; which is perhaps the only instance where a reversion can be expectant on a grant in fee-simple absolute. †But the law, we are told (4), doth tacitly annex a condition to every such gift

or grant, that if the corporation be dissolved, the donor or grantor [*257] shall re-enter; for the cause of the gift or grant "faileth. > This is

indeed founded upon the self-same principle as the law of escheat; the heirs of the donor being only substituted instead of the chief lord of the fee which was formerly very frequently the case in subinfeudations, or alienations of lands by a vassal to be holden as of himself, till that practice was restrained by the statute of quia emptores, 18 Edw. I. st. 1. to which this very singular instance still in some degree remains an exception.

There is one more incapacity of taking by descent, which, not being productive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 & 12 Will. III. c. 4.(17) that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent as well as purchase, any real estates whatsoever; and his next of kin, being a protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descents to others of his kindred. In like manner as, even in the times of popery, one who entered in

(1) Co. Litt. 13.

(17) Mr. Christian observes, "this act was repealed by the 18 Geo. III. c. 6, so far as to permit such Roman Catholics to inherit real property, as would take the oath of allegiance prescribed in the statute; which is the same oath that is directed to be taken by the 31 Geo. III. c. 32; which has repealed all the (33) See Hov. n. (33) at the end of the Vol. B II. † See n. as to law of N. Y., B. I. p. 484., n (69) Hov

other odious restrictions upon those who pro fess the Roman Catholic religion." [Since Mr. Christian wrote, liberality has been mak ing further progress, and many restrictions, which Mr. Chistian did not consider odious, have been removed.]

to religion, and became a monk professed, was incapable of inheriting lands, both in our own (u) and the feodal law; eo quod desiit esse miles se euli qui factus est miles Christi : nec beneficium pertinet ad eum qui non debet gerere officium (w). But yet he was accounted only civiliter mortuus; he did not impede the descent to others, but the next heir was entitled to his or his ancestor's estate.

These are the several deficiencies of hereditary blood, recognized by the law of England; which, so often as they happen, occasion lands to escheat to the original proprietary or lord.

CHAPTER XVI.

II. OF TITLE BY OCCUPANCY.

OCCUPANCY is the taking possession of those things which before be longed to nobody. This, as we have seen (a), is the true ground and foundation of all property, or of holding those things in severalty, which by the law of nature, unqualified by that of society, were common to all 'mankind. But when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Rome (b), quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real property (for of personal chattels I am not in this place to speak), hath been confined by the laws of England within a very narrow compass; and was extended only to a single instance: namely, where a man was tenant pur auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was holden; in this case he that could first enter on the land might lawfully retain the possession, so long as cestuy que vie lived, by right of occupancy (c).

This seems to have been recurring to first principles, and call- [*259] ing in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly (d) was supposed so to do; for he had parted with all his interest, so long as cestuy que vie lived: it did not escheat to the lord of the fee, for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it; much less of so minute a remnant as this it did not belong to the grantee; for he was dead: it did not descend to his heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freenold. Belonging therefore to nobody, like the haereditas jacens of the Romans, the law left it open to be seised and appropriated by the first person

tu. Co. Litt. 132.

(to) 2 Feud. 21.

(a) See pag. 3&8

b) Ff.4 1.3.

(c) Co. Litt. 41.

(d) Bract. 1. 2, c. 9. 1. 4, tr. 3, 944. Flet. e. 12, § 6, l. 5, c. 5, § 15.

that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had he reversion of the lands for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occurrit regi (e). And, even in the case of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant: as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety (ƒ); and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one 29 Car. II. c. 3. which enacts (according to the ancient rule of law) (g) that

where there is no special occupant, in whom the estate may vest, [*260] the tenant pur auter vie may devise it by will, or it shall go to the executors or administrators, and be assets in their hand for payment of debts (1): the other, that of 14 Geo. II. c. 20. which enacts,

(e) Co Litt. 41. (f) Vaugh. 201.

(1) The statute seems inaccurately stated in this sentence. The 12th section enacts, "That estates par auter vie shall be devisable by will in writing, signed by the devisor, or by his agent, in presence of three witnesses; and if no such devise be made, the same shall be chargeable in hands of heir, if it shall come to him by reason of special occupancy, as assets by descent; and in case there be no special occupant, it shall go to the executor or administrator of the party who had the estate thereof by virtue of the grant, and shall be assets in his hands." Mr. Christian observes, "The meaning of the statute seems to be this, that every estate pur auter vie, whether there is a special occupant or not, may be devised like other estates in land, by a will attested by three witnesses. If not devised, and there is a special occupant, then it is assets by descent in the hands of the heir; if there is no special occupant, then it passes like personal property to executors and administrators, and shall be assets in their hands." Lord Kenyon in 6 Term Rep. 291. observed, "These questions on estates pur auter vie do not frequently arise. Such estates certainly are not estates of inheritance: they have been sometimes called, though im properly, descendible freeholds; strictly speaking, they are not descendible freeholds, be cause the heir at law does not take by descent. If an action at common law had been brought agains: the heir on the bond of his ancestor, he might have pleaded riens per descent, for these estates were not liable to the debts of the ancestor before the statute of frauds. That act made them chargeable in the hands of the heir, as assets by descent, if he took Dy reasor of a special occupancy; and if here be no special occupant, it directs that

(g) Bract. ibid. Flet. ibid.

they shall go to the executors, subject to the debts of the testator; and the statute 14 Geo, II. c. 20. renders them distributable as person. alty. An estate pur auter vie therefore par takes somewhat of the nature of a personal estate, though it is not a chattel interest, it still remains a freehold interest for many pur poses; such as giving a qualification to vote for members of parliament, and to kill game, and some others; a will to dispose of it must also be attested by three witnesses under the statute of frauds. If such an estate be given to A. and the heirs of his body, the heirs of the body will take as special occupants, if no disposition be made of it by the first taker; but it is absolutely in his power to make what disposition of it he pleases, 1 Atk. 524. 3 P. W. 266. n. E. and Grey v. Mannock."

It has been that there can be no general oc cupancy of a copyhold, because the freehold is always in the lord; and the statutes 29 Car. II. c. 3. s. 12. and 14 Geo. II. c. 20. s. 9. appropriating estate pur auter vie, where there is no special occupant, do not extend to copy. holds. And one who was admitted tenant upon a claim as administrator de bonis non to the grantee of a copyhold pur auter vie, having no title in such character, cannot recover in ejectment by virtue of such admission as upon a new and substantive grant of the lord, 7 East, 186.

If an estate pur auter vie be limited to a man, his heirs, executors, administrators, and assigns, and be not devised, it descends to his heir as special occupant, and is only liable for specialty debts. 4 Term R. 229. If it be limited to a person and his executors, adminis trators, and assigns, the executors take it subject to the same debts as personalty. 4T R. 224. 229.

that the surplus of such estate pur auter vie, after payment of debts, shal go in a course of distribution like a chattel interest (2).

By these two statutes the title of common occupancy is utterly extinct, and abolished; though that of special occupancy by the heir at law continues to this day; such heir being held to succeed to the ancestor's estate, not by descent, for then he must take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant, But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like (4), (because, with respect to them, there could be no actual entry made, or corporal seisin had; and therefore by the death of the grantee pur auter vie a grant of such hereditaments was entirely determined.) so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor vest in the executors, nor go in a course of distribution. For these statutes must not be construed so as to create any new estate, or keep that alive which by the common law was determined, and thereby to defer the grantor's reversion; but merely to dispose of an interest in being, to which by law there was no owner, and which therefore was left open to the first occupant (3). When there is a residue left, the statutes give it to the executors and administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either (i). They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform; this being the only instance wherein a title to a real estate could ever be acquired by occupancy (4), (5).

This, I say, was the only instance; for I think there can be [261] no other case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is a legal, potential, ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to

(h) Co Litt. 41. Vaugh. 201.

(i) But see now the statute 5 Geo. III. c. 17, which makes leases for one, two, or three lives, by ecclesiastical persons or any eleemosynary cor

(2) In New-York, (1 R. S. 722, 6, and 2 id. 82, 6.) this estate, whether limited to heirs or not, is a freehold only during the life of the grantee or devisee, but after his death is a chattel real.

(3) Lord-keeper Harcourt has declared, there is no difference since the 29 Car. II. c. 3. between a grant of corporeal and incorpo. real hereditaments pur auter vie; for by that statute every estate pur auter vie is made devisa ble, and if not devised, it shall be assets in the hands of the heir, if limited to the heir; if not limited to the heir, it shall go to the executors or administrators of the grantee, and be assets in their hands; and the statute, in the case of rents and other incorporeal hereditaments, does not enlarge, but only pre serves the estate of the grantee. 3 P. Wms.

264. n.

(4) In page 113. ante, it is said, that an es

poration, of tithes or other incorporeal hereditaments, as good and effectual to all intents and purposes as leases of corporeal possessions..

tete pur auter vie cannot be entailed; yet if such an estate be limited to A, in tail, with remainder to B., these limitations are designations of the persons who shall take as special occupants; but any alienation of the quasi tenant in tail will bar the interest of him in remainder. See 3 Cox, P. Wms. 266. and 6 T. R. 293, where it appears to have been the opinion of lord Northington and lord Kenyon that the tenant in tail of an estate pur auter vie may bar the remainders over by his will alone. See also 1 Atk. 524. 2 Vern. 225. 3 Cox, P. Wms. 10. n. 1. 1 Bro. Par. Ca. 457.

(5) In the mining districts of Derbyshire and Cornwall, by the laws of the Stannaries, an estate in mines might, and it is believed still may, be gained by occupancy. (Geary▾ Barcroft, 1 Sid. 347).