There is, indeed, one instance, in which our law has shown them some little regard; and that is usually termed the case of bastard eignè and mulier puisnè. This happens when a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who, in the language of the law, is called a mulier, or, as Glanvil(r) expresses it in his Latin, filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now, here the eldest son is bastard, or bastard eignè; and the younger son is legitimate, or mulier puisnè. If then the father dies, and the bastard eignè enters upon his land, and enjoys it to his death, and dies seised thereof,' whereby the inheritance descends to his issue; in this case the mulier puisnè, and all other heirs, (though minors, feme-coverts, or under any incapacity whatsoever,) are totally barred of their right. (s) And this, 1. As a punishment on the mulier for his negligence, in not entering during the bastard's life, and evicting him. 2. Because the law will not suffer a man to be bastardized after his death who entered as heir and died seised, and so passed for legitimate in his lifetime. 3. Because the canon law (following the civil) did allow such bastard eignè to be legitimate on the subsequent marriage of his mother; and therefore the laws of England (though they would not admit either the civil or canon law to rule the inheritances of this kingdom, yet) paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shown to no other kind of bastard; for, if the mother was never married to the father, such bastard could have no colourable title at all.(t)o *As bastards cannot be heirs themselves, so neither can they have any [*249 heirs but those of their own bodies. For, as all collateral kindred consists in being derived from the same common ancestor, and a bastard has no legal ancestors, he can have no collateral kindred; and, consequently, can have no legal heirs but such as claim by a lineal descent from himself. And therefore if a bastard purchase land and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee.(u) 6. Aliens,(v) also, are incapable of taking by descent, or inheriting:(w) for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defence of the kingdom, would have been defeated. Wherefore if a man leaves no other relations but aliens, his land shall escheat to the lord.10 As aliens cannot inherit, so far they are on a level with bastards; but as they (T) L. 7, c. 1. (*) Litt. 399. Co. Litt. 244. (*) Bract. 1. 2, c. 7. Co. Litt. 244. 'There must not only be a dying seised, but a descent to his issue. Co. Litt. 244, a. And if the bastard dieth seised, his wife enceint with a son, the mulier enter, the son is born, the issue of the bastard is barred. Ibid. Broke, tit. Descent, 41. Plowd. 57, a., 372, a.-CHITTY. The rule holds in this one case only of bastard eigne and mulier puisnè; for where a bastard is such by reason of his mother having a husband living at the time of her marriage with his father, he cannot take advantage of the rule, the marriage under which he claims being void without any divorce. Pride vs. Earls of Bath and Montague, 1 Salk. 120.-CHITTY. It would seem that this privilege of the bastard eignè no longer exists, in consequence of statute 3 & 4 W. IV. c. 27 having enacted (s. 39) that no descent cast shall defeat any right of entry.-KERR. 10 There is one exception to the general law against aliens, founded on the treaty of 1794 between this country and the United States of America, by the 9th article of which reaty it was stipulated that British subjects who then held lands in the United States, or American subjects who then held lands in Great Britain, "might grant, sell, or devise the same to those whom they should please, in like manner as if they were natives, and that neither they, nor their heirs nor assigns, should, so far as might respect the said lands and the legal remedies thereto, be regarded as aliens ;" and this stipulation was confirmed by the statute 39 Geo. III. c. 97, s. 24. See 1 Russ. & M. 663-SWEET. are also disabled to hold by purchase,(x)" they are under still greater disabilities. And, as they can neither hold by purchase nor by inheritance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heir to inherit; but so it is expressly holden,(y) because they have not in them any inheritable blood. And further, if an alien be made a denizen by the king's letters-patent, and then purchases land, (which the law allows such a one to do,) his son, born before his denization, shall not (by the common law) inherit those lands; but a son born afterwards may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his eldest son; *250] but by denization it acquires *an 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.(z)12 Sir Edward Coke(a) also holds, that if an alien cometh into England and there hath issue two sons, who are thereby natural-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 father, 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 père, doit inheriter al fils: 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 intermediate 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 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. . *It is also enacted, by the statute 11 & 12 W. III. c. 6, that all per*251] sons, being natural-born subjects of the king, may inherit and make their titles by descent from any of their ancestors 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 afterwards apprehended, in case persons should thereby gain a future capacity to inherit, who did not exist at the death of the person last seised. 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 afterwards 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. (*) Co. Litt. 2. (V) Co. Litt. 2. 1 Lev. 59. (*) See pages 223 and 239. "If the purchase be made with the king's license, it seems that he may hold. See 14 Hen. IV. 20. Harg. Co. Litt. 2, b., n. 2.-CHITTY. 12 Letters of denization are now rarely, if ever, obtained; the statute 7 & 8 Vict. c. 66 having provided a simple and inexpensive mode by which aliens may obtain all the pri vileges of natural-born subjects except those of sitting in the legislature or being sorr af the privy council.-KERR. 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 seised: with an exception however to the case, where lands shall descend to the daughter of an alien; which descent shall be divested in favour of an after-born brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual rule(e) of descents by the common law. 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. 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,(ƒ) as a part of punishment for the offence; *and does not at all relate to the feodal system, nor is the [*252 consequence of any signiory or lordship paramount :(g) 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 antient 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 comprised,)(h) 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 antient 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,(?) 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 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 for felony, though they are liable to forfeiture for treason.(j) *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 [*253 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 antient law of forfeiture operates, for it is expressly provided by the statute 5 & 6 Edw. VI. c. 11 that the wife of one attaint of high treason shall not be endowed at all.13 Hitherto we have only spoken of estates vested in the offender at the time of his offence 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 () See pages 208 and 214. (f) LL. E fred. c. 4. LL. Canut. c. 54. (@) 2 Inst. 64. Salk. 85. (*) 3 Inst. 15. Stat. 25 Edw. III. c. 2, § 12. (5) Somner. 53. Wright, Ten. 118. 13 "Or of any other treasons whatsoever they be." s. 13: the wife therefore is barred by the attainder of her husband for petit as well as high treason, but not for any murder or other felony. See Co. Litt. 37, a. Staundf. 195, b.-CHITTY. 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 seised in fee, and the son commits treason and is attainted, and then the father dies: here the lands 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.(k) 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 heredi*254] tary blood, which is this: that the person *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 exhausted for the present, but totally dammed up and rendered impervious for the future. This is a refinement upon the antient 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 ancestors,(n) at least on the part of their attainted father. 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 remit 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 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.(0) 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 *255] and therefore we have 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 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 descent 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 overruled)(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 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 per[*256 haps extended further than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive part of the fodal 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 the statute 7 Anne, 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.14 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,(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 principle as the law of escheat; the heirs of the donor being only substituted instead of the [*257 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. 4,15 14 And now corruption of blood is almost entirely abolished; for by the statute 54 Geo. III. c. 145, corruption of blood was abolished in all cases except the crimes of treason or murder; and by the 3 & 4 W. IV. c. 106, s. 10, it is enacted that when any person from whom the descent of any land is to be traced shall have had any relation who, having been attainted, shall have died before such descent shall have taken place, then such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same by tracing his descent through such relation if he had not been attainted, unless such lands shall have escheated in consequence of such attainder before the 1st of January, 1834.-STEWART. 15 This act was repealed by the 18 Geo. III. c. 6, so far as to permit such Roman atholics to inherit real property as would take the oath of allegiance prescribed in the |