seen, that an 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 iffue a fon, and is attainted, and afterwards pardoned, and then hath iffue a second son, and dies; here the corruption of blood is not removed from the eldeft, 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 poffibility of being heir; and therefore the younger brother shall not inherit, but the land fhall efcheat to the lord: though had the elder died without iffue in the life of the father, the younger fon born after the pardon might well have inherited, for he hath no corruption of blood P. So if a man hath iffue two fons, and the elder in the lifetime of the father hath iffue, and then is attainted and executed, and afterwards the father dies, the lands of the father fhall not defcend to the younger fon: for the iffue of the elder, which had once a poffibility to inherit, shall impede the descent to the younger, and the land fhall escheat to the lord 9. Sir Edward Coke in this case allows', that if the ancestor be attainted, his fons born before the attainder may be heirs to each other, and diftinguishes it from the cafe of the fons 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 fame principles, which are now overruled 3) whether fons, 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 perfon attainted is neither allowed to retain his former eftate, nor to inherit any future one, nor to transmit any inheritance to his iffue, 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 tranfmit any feodal property, is blotted out, corrupted, and extinguished for ever the consequence of which is, that estates, thus impeded in their descent, refult back and efcheat to the lord. P Co. Litt. 8. • Dyer 48. r Co. Litt. 8. THIS Corruption of blood, thus arifing from feodal principles, but perhaps extended farther than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppreffive parts of the feodal tenures being now in general abolished, it seems unreasonable to reserve one of their most inequitable confequences; namely, that the children should not only be reduced to present poverty, (which, however severe, is fufficiently juftified 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 moft (if not all) of the new felonies, created by parliament fince the reign of Henry the eighth, it is declared that they shall not extend to any corruption of blood and by the ftatute 7 Ann. c. 21. (the operation of which is poftponed by the ftatute 17 Geo. II. c. 39.) it is enacted, that, after the death of the late pretender, and his fons, no attainder for treason shall extend to the difinheriting any heir, nor the prejudice of any perfon, other than the offender himself: which provifions have indeed carried the remedy farther, than was required by the hardship above complained of; which is only the future obftruction of descents, where the pedigree happens to be deduced through the blood of an attainted anceftor. BEFORE I Conclude this head, of escheat, I must mention one fingular instance in which lands held in fee-fimple 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 cafe of a corporation; for if that comes, by any accident to be diffolved, the donor or his heirs fhall have the land again in reverfion, and not the lord by efcheat; which is perhaps the only instance where a reverfion can be expectant on a grant in fee-fimple abfolute. But the law, we are told, doth tacitly annex a condition to every such gift or grant, that if the corporation be diffolved, the donor or grantor fhall re-enter; for the cause of the gift or grant t Co. Litt. 13. faileth, . faileth. This is indeed founded upon the self-same principle as the law of efcheat; the heirs of the donor being only fubftituted instead of the chief lord of the fee: which was formerly very frequently the cafe in fubinfeudations, or alienations of lands by a vafal to be holden as of himself; till that practice was restrained by the statute of quia emptores, 18 Edw. I. ft. 1. to which this very fingular inftance ftill in in fome degree remains an exception. fuch time as he This incapacity THERE is one more incapacity of taking by descent, which, not being productive of any efcheat, is not properly reducible to this head, and yet muft not be paffed over in filence. It is enacted by the ftatute 11 & 12 Will. III. c. 4. that every papift who fhall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within fix 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 proteftant, fhall hold them to his own ufe till complies with the terms impofed by the act. 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 profeffed was incapable of inheriting lands, both in our own" and the feodal law; eo quod defuit esse miles feculi qui factus eft miles Chrifti; nec beneficium pertinet ad eum qui non debet gerere officium". But yet he was accounted only civiliter mortuus; he did not impede the defcent to others, but the next heir was entitled to his or his ancestor's eftate. THESE are the feveral deficiencies of hereditary blood, recognized by the law of England; which, fo often as they happen, occafion lands to efcheat to the original proprietary or lord. ■ Co. Litt. 132. VOL. II. w 2 Feud. 21. R OCCUPANCY is the taking poffeffion of those things, which before belonged to nobody. This, as we have feen, 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 fuggefted, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of fuch intention, actually took it into poffeffion, should thereby gain the abfolute property of it; according to that rule of the law of nations, recognized by the laws of Rome", quod nullius eft, id ratione naturali occupanti conceditur. THIS right of occupancy, fo far as it concerns real property, (for of perfonal chattels I am not in this place to fpeak) hath been confined by the laws of England within a very narrow compafs; and was extended only to a fingle inftance: namely, where a man was tenant per auter vie, or had an eftate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of ceftuy que vie, or him by whofe life it was holden: in this cafe he, that could first enter on the land, might lawfully retain the poffeffion so long as ceftuy que vie lived, by right of occupancy £. a See pag. 3 & 8. Ff. 41. I. 3. Le Co. Litt, 416 THIS THIS seems to have been recurring to first principles, and 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; who had parted with all his intereft, fo long 'as ceftuy que vie lived: it did not efcheat to the lord of the fee; for all efcheats must be of the abfolute entite fee, and not of any particular eftate carved out of it; much lefs of fo minute a remnant as this: it did not belong to the grantee; for he was dead: it did not defcend to his heirs for there were no words of inheritance in the grant: nof could it vest in his executors; for no executors could fucceed. to a freehold. Belonging therefore to nobody, like the haes reditas 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 ceftuy que vie, under the name of an occu pant. But there was no right of oecupancy allowed, where the king had the reverfion of the lands; for the reversioner hath an equal right with any other man to enter upon the va cant poffeffion, and where the king's title and a subject's con cur, the king's fhall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occurrit regid. And, even in the cafe of a fubject, had the estate pur auter vie been granted to a man and his heirs during the life of ceftuy que vie, there the heir might, and ftill may, enter and hold poffeffion, and is called in law a Special occupant; as having a special exclufive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the refidue of the eftate granted: though fome have thought him fo called with no very great propriety; and that fuch eftate is rather a defcendible freehold. But the title of common occupancy is now reduced almost to nothing by two ftatutes; the one, 29 Car. II. c. 3. which enacts, that where there is no fpecial occupant, in whom the estate may veft, the tenant pur auter vie may devife it by will, or it shall go to the executors or administrators and be affets in their hands for payment of debts: the other that of 14 Geo. II. c. 20. which enacts, that the furplus of • Vaugh. 201. • Ibidy R 2 fuch |