Sivut kuvina
PDF
ePub

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.m 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," 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, therefore, 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 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."

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. Į to a natural-born younger brother. But in attainders it is otherwise; 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 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. 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

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 s. 10, allows the descendants of a person him after his death.*

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

[256]

shall not descend to the younger son; for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord. Sir Edward Coke, in this case, allows 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 overruleds) 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 forever: 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, but perhaps extended further than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive parts of the feodal tenures being now, in general, abolished, it seems unreasonable 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 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 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, nor the prejudice of any person, other than the offender himself: which provisions have, indeed, carried the remedy further 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."

9 Dyer, 48.

29

r Co. Litt., 8.

(28) These provisions in the 7 Ann., c. 21, and 17 Geo. II., c. 39, are repealed by the 39 Geo. III., c. 93.

(29) A more general remedy has been provided by the stat. 54 Geo. III., c.

1 Hal., P. C., 357.

145, which enacts, that no attainder for felony, after the passing of the act, except in cases of high treason, petit trea son (since abolished), or murder, or abetting or counseling the same, shall extend to the disinheriting of any heir

a

of escheat in

Before I conclude this head of escheat, I must mention one Exception singular instance in which lands held in fee-simple are not liable to the rule to escheat to the lord, even when their owner is no more and the case of a hath left no heirs to inherit them. And this is the case of corporation 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,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- [257] 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.

30

There is one more incapacity of taking by descent, which, Papistry. 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," 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

t Co. Litt., 13.

nor to the prejudice of the right or title of any person other than that of the offender during his life.

As to the effect of attainder for treason on a title or dignity, see The Braye Peerage Case, 8 Scott, 108.

Copyholds are not forfeited to the crown even for treason. (1 Sid., 435; 2 Vent., 38.) But in some places, by special custom, the lands escheat to the lord on conviction of felony, without attainder. (3 B. & Al., 511.)

(30) The authorities do not agree on this point. (See Harg., Co. Litt., 13, b, n.) And see, as to an advowson in gross, 1 Roll. Abr., 116, pl. 6.

(31) By the 18 Geo. III., c. 60; 31 Geo. III., c. 32, and 43 Geo. III., c. 30, so much of the 11 & 12 Will. III., c 4,

as disabled papists to inherit by descent,
&c., any real estate, &c., or to purchase
manors, lands, &c., was repealed, pro-
vided they took the oath of allegiance,
and made the declaration prescribed by
31 Geo. III., c. 32. And by the latter
statute, the 1 Geo. I., st. 2, c. 55, and 3
Geo. I., c. 18, requiring papists to regis-
ter their names and real estates, were
repealed, and all deeds and wills of pa-
pists declared to be as valid without en-
rollment as if the said recited acts had
never been made.

The Roman Catholic Relief Act (10
Geo. IV., c. 7, s. 23) enacted, that no
oath should be required to be taken by
Roman Catholic subjects for enabling
them to hold or enjoy any real or per-
sonal property, other than such as by
law might be required to be taken by
other subjects.

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" 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. 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.

W

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]

CHAPTER XVI.

OF TITLE BY OCCUPANCY.

OCCUPANCY is the taking possession of those things which before belonged 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 reasons 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.

common, of

autre vie.

This right of occupancy, so far as it concerns real property Occupancy, (for of personal chattels I am not in this place to speak), hath special and been confined by the laws of England within a very narrow estate pour compass, and was extended only to a single instance: namely, where a man was tenant pour autre 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 restuy que vie lived, by right of occupancy.c*

This seems to have been recurring to first principles, and [259] calling 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 formerlyd 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

a See pages 3 and 8.
b Ff., 41, 1, 3.

c Co. Litt., 41.

d Bract., 1. 2, c. 9; 1. 4, tr. 3, c. 9,
4. Flet., 1. 3, c. 12, § 6; 1. 5, c. 5,

$ 15.

* In New York, the right of occupancy is not limited to the single instance put in the text, but exists whenever a person in the possession or occupation of land under a claim of right is intruded upon. Such person may maintain an action for such intrusion against any one but the true owner.-(Jackson v. Harder, 4 Johns. R., 202. See, also, 2 Johns. R., 25; 7 Cowen, 637; 9 Wendell, 223.)

« EdellinenJatka »