Sivut kuvina
PDF
ePub
[ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][merged small]

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 attain-
der, can inherit to each other, for they never had any in-

heritable blood in them.
Consequences of Upon the whole it appears, that a person attainted is
attainder.

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 him-
self 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 im-
peded in their descent, result back and escheat to the lord.

* This corruption of blood, thus arising from feodal prin-
corruption of the ciples, but perhaps extended farther than even those prin-
blood, by felony,
or attainder, re- ciples will warrant, has been long looked upon as a pecu-
qualified by cer-

liar hardship: because the oppressive parts of the feodal

tenures being now in general abolished, it seems unreason[ * 256 ] able to reserve one of their most inequitable consequences;

namely, that the children should not only be reduced to
present poverty, (which, however severe, is sufficiently jus-
tified 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 pre-
tender, and his sons, no attainder for treason shall extend
to the disinheriting any heir, nor the prejudice of any per-

The effect of

ciple only

strained and

tain statutes.

[merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors]

(s) 1 Hal. P. C. 357.

11

[ocr errors]

escheat.

son, other than the offender himself: which provisions have, indeed, carried the remedy farther (19) 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 In the case of a one singular instance in which lands held in fee-simple are be dissolved, the not liable to escheat to the lord, even when their owner is donor or his heirs

shall have the no more, and hath left no heirs to inherit them. And this land again, and is the case of a corporation; for if that comes by any acci- not the lord by dent 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 (t), doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant * faileth. This is, indeed, founded upon the self-same prin- [ * 257 ] ciple 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 (20) instance still, in some degree, remains an exception.

There is one more incapacity of taking by descent, which, formerly Pdnot being productive of any escheat, is not strictly redu- pists were inca

pable of inheritcible to this head, and yet must not be passed over in si- ing lands.

(t) Co. Litt. 13.

(19) The statute of 54 Geo. III. c. it be law, as intimated in 1 Roll's Ab. 145, has been still more liberal in tak- 816, pl. 6, that an advowson in gross ing away corruption of blood, in all will revert to the grantor for want of cases except the crimes of treason, pe- heirs of the grantee: or, if not to the tit treason, or murder.

grantor, yet the king will have it as (20) The instance mentioned in the supreme patron, and not as an escheat. text is not absolutely a singular one, if

257

OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT.

lence. It is enacted by the statute 11 & 12 Will. III. c. 4ť, 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 descent to others of his kindred. In like manner as, even in the times of popery, one who entered into 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 seculi 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.

[blocks in formation]

† Mr. Christian observes, “this act the other odious restrictions upon those was repealed by the 18 Geo. III. c. 6, who profess the Roman Catholic reso far as to permit such Roman Catho- ligion.” [Since Mr. Christian wrote, lics to inherit real property, as would liberality has been making further protake the oath of allegiance prescribed gress, and many restrictions, which Mr. in the statute; which is the same oath Christian did not consider odious, have that is directed to be taken by the 31 been removed.--Ed.] Geo. III. c. 32; which has repealed all

258

CHAPTER XVI.

OF TITLE BY OCCUPANCY.

OCCUPANCY is the taking possession of those things, which of title by occubefore belonged to nobody. This, as we have seen (a), is pancy. 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 (6), quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real pro- The original naperty, (for of personal chattels I am not in this place to ture of the right

of occupancy. 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). (a) Sec pag. 3 & 8.

(6) Ff. 41. 1. 3. (c) Co. Litt. 41.

executors or ad

Estates formerly This seems to have been recurring to first principles, and so held are now calling in the law of nature to ascertain the property of the (by statute) made to vest in land, when left without a legal owner. For it did not revert ministrators, as

to the grantor, though it formerly (d) was supposed so to chattel interests. 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 freehold. Belonging therefore to nobody, like the hæreditas jacens of the Romans, the law left it open to be seised and appropriated by the first person 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 the 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 hæreditas jacens, during the residue of the estate granted; though some have thought him so called with no very great propriety (f); 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 antient rule of

[blocks in formation]
« EdellinenJatka »