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brothers.

afterward 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 [250] hereditary quality, which will be transmitted to his subsequent posterity. Yet if he had been naturalized by act of Parliament, such eldest son might then have inherited; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not.210

Sir Edward Cokea also holds, that if an alien cometh into Direct deEngland, and there hath issue two sons, who are thereby nat- tween ural-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 former, the one of them shall not be heir to the other. And this opinion of his seems founded upon solid principles of the ancient law; not only from the rule before cited,b that cestuy que doit inheriter al pere, doit inheriter 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 descent.d And reasonably enough, upon the whole ; for, as (in common purchases) the

a

: Co. Litt., 129.

Ibid., 8.
• See p. 223 and 239.

• 1 Ventr., 413. 1 Lev., 59. i Sid., 193.

d See page 226.

(19) Naturalization confers all the lands held by her husband during the rights of a natural-born subject, except coverture, but sold before her naturalithat of filling certain offices, and of zation. (Co. Litt., 31, b, n., 33, a; 5 Br., taking grants from the crown, &c. (12 P. C., 91; 2 Ves. Sen., 286.) Much, & 13 Will. III., c. 2; 1 Geo. I., st. 2, c. however, depends upon the words of 4, s. 2.) The retrospective effect attrib- the act, which sometimes extend only uted in the text to an act of naturaliza- to naturalize the party “from hencetion has been considered to extend to forth.” (2 Meriv., 431. See 3 Myl. & entitling an alien wife to dower out of K., 398.)*

In New York, it has been held that the naturalization of an alien wife has not a retrospective effect in relation to her right of dower out of lands held by her husband during coverture, but sold previous to her naturalization.—(Priest v. Cummings, 20 Wendell, 338. See, also, 1 Johns. Ch. R., 399; 1 M Cord's Ch. R., 370, and post, p 293, n. (12).) Vol. II.-T

289

21

Descent

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."** [251] It is also enacted, by the statute 11 & 12 W. III., c. 6,

that all persons, being natural-born subjects of the king, may through an inherit and make their titles by descent from any of their an

cestors, 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 afterward apprehended, in case persons should thereby gain a future capacity to inherit who did not exist at the death of the person last seized. 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 lands will descend to Oliver, the younger brother : now if afterward 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 seized : with an exception, however, to the case where lands shall descend to the daughter of an alien ; which descent shall be divested in favor of an after born brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual

ruled of descents by the common law.* Attainder. 7. By attainder, ** also, for treason or other felony, the blood

of the person attainted is so corrupted" as to be rendered no longer inheritable.

d See p. 208 and 214.

(20) Vide ante, p. 226, n. (36). (Spelm., Gloss., voce Attaintus.) So in

the stat. Gloster (6 Ed. I., c. 5), “at(21) Extended to Scotland by 16 tainted of waste." Geo. III., c. 52.

(24) “Various cases are laid down in (22) See 3 Myl. & K., 402.

the Assizes de Jérusalem, where the vas

sal forfeits his land for a year, for his (23) A person is attainted on whom life, or forever. But under rapacious sentence of death is passed; but the kings, such as the Norman line in Endeath of a person killed in open rebell. gland, absolute forfeitures came to preion, found and recorded by the chief vail, and a new doctrine was introduced, justice of the Queen's Bench, produces the corruption of blood, by which the the effect of an attainder.

heir was effectually excluded from de“Dicitur etiam aliquando de crimini. ducing his title at any distant time bus non felonicis, ut, attinctus perjurii, through an attainted ancestor.” (Halvel mutilationis membrorum alterius; lam, Mid. Ag., vol. i., p. 127.) et frequenter apud vett. pro convicto.

* The law in New York is now the same as stated in the text and notes; it was not so until the revision of 1830. (See Jackson v. Green, 7 Wendell, 333; Jackson v. Fitz-Simmons, 10 lb., 9.) + In New York, escheat for treason and forfeiture for treason may be considered

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 Saxon law,e as a part of punishment for the offense ; and does not at all [ 252 ] relate to the feodal system, nor is the consequence of any seigniory 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, taken singly, is this: that the blood of the tenant, by the commission of any felony (under which denomination all treasons were formerly comprisede), is corrupted and stained, and 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 forever. 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 hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in its passage: in case of treason, forever; 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. And that this is the true operation • LL. Aelfred., c. 4. LL. Canut., c. & 3 Inst., 15. Stat. 25 Edw. III., c.

2, Ø 12. I 2 Inst., 64. Salk., 85.

h 2 Inst., 36.

54.

(25) See infra, vol. iv., p. 386.

identical. An outlawry upon a conviction for treason produces to the state a forfeiture of the freehold estate of which the convict was seized in his own right at the time of the committing of the treason, or at any time thereafter, and of all his goods and chattels. The forfeiture of the real estate is not absolute, but continues only during the lifetime of the convict. A conviction of no other offense works a forfeiture of goods or lands.—(2 R. S., 701, $ 22.). Nor does an attaint of treason extend to corrupt the blood of the offender. This was expressly enacted in 1 R. S., 147, Ø 10, and is virtually re-enacted by the abolition of feudal tenures and their incidents, corruption of blood being one of those incidents.-(1 R. S., 718, Ø 34. See, also, 4 Kent's Comm., 426, and references there.)

Dower.

of blood

and genuine history of escheats 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

ior felony, though they are liable to forfeiture for treason. [253] 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 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 attainted of

high treason shall not be endowed at all.ae Corruption Hitherto we have only spoken of estates vested in the offender

at the time of his offense or attainder. And here the law of
forfeiture stops; but the law of escheat pursues the matter still
further; for, the blood of the tenant being 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 further illustrate
the distinction between forfeiture and escheat. If, therefore, a
father be seized in fee, and the son commits treason and is at-
tainted, and then the father dies; here the land 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 ; but nothing shall be forfeited to the king, for the son never
had
any

interest in the lands to forfeit. 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. 1

There is yet a further consequence of the corruption and

extinction of hereditary blood, which is this : that the person ( 254 ) attainted shall not only be incapable himself of inheriting, or

transmitting his own property by heirship, but shall also obstruct the descent of lands or tenements to his posterity, 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 ex

i Somner, 53. Wright, Ten., 118. Co. Litt., 13. 1 3 Inst., 47.

(26) “Or of any other treasons what- (See Co. Litt., 37, a; Staundf., 195, b.) soever they be” (s. 13); the wife, there. But the crime of petit treason has since fore, was barred by the attainder of her been abolished. *(Stat. 9 Geo. IV., c. husband for petit as well as high treason, 31, s. 2.) but not for any murder or other felony.

27*

hausted 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. But, by the law of England, a man's blood is so universally corrupted by attainder, that his sons can neither inherit to him nor to any other ancestor,n at least on the part of their attainted father."

This corruption of blood can not be absolutely removed but by authority of Parliament. The king may excuse the public punishment of an offender; but can not 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 can not wipe away the corruption of blood ; for therein a third person hath an interest, the lord who claims by escheat. If, herefore, a man hath a son, and is attainted, and afterward 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 80; 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.

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 alien elder brother shall not impede the descent [255] to a natural-born younger brother. But in attainders it is otlierwise ; for if a man hath issue a son, and is attainted, and afterward pardoned, and then hath issue a second son, and dies; here the corruption of blood is not removed from the eldest, and therefore he can not be heir ; neither can the youn

eir, 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 have issue, and then is attainted and executed, and afterward the father dies, the lands of the father

gest be

in Van Leeuwen, in 2 Feud., 31.

Co. Litt., 391.

• Ibid., 392.
p Ibid., 8.

(27) The stat. 3 & 4 Will. IV., c. 106, attainted to trace their descent through 8. 10, allows the descendants of a person him after his death.*

* See ante, p. 251, n. t.

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