5. BASTARDS are incapable of being heirs. Baftards, by our law, are fuch children as are not born either in lawful wedlock, or within a competent time after it's determination. Such are held to be nullius filii, the fons of nobody; for the maxim of law is, qui ex damnato coitu nafcuntur, inter liberos non computantur". Being thus the fons of nobody, they have no blood in them, at least no inheritable blood; confequently, none of the blood of the first purchafor: and therefore, if there be no other claimant than fuch illegitimate children, the land fhall efcheat to the lord ". The civil law differs from ours in this point, and allows a baftard to fuc ceed to an inheritance, if after it's birth the mother was mar ried to the father: and also, if the father had no lawful wife or child, then, even if the concubine was never married to the father, yet the and her bastard son were admitted each to one twelfth of the inheritance P and a baftard was likewife [248] capable of fucceeding to the whole of his mother's eftate, although the was never married; the mother being fufficiently certain, though the father is not. But our law, in favour of marriage, is much lefs indulgent to baftards. THERE is indeed one inftance, in which our law has fhewn them fome little regard; and that is ufually termed the cafe of bastard eignè and mulier puifnè. This happens when a man has a baftard fon, and afterwards marries the mother, and by her has a legitimate fon, who in the language of the law is called a mulier, or, as Glanvil expreffes it in his Latin, filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now here the eldeft fon is bastard, or bustard eignè and the younger fon is legitimate, or mulier puifnè. If then the father dies, and the baflard eignè enters upon his land, and enjoys it to his death, and dies feised thereof, whereby the inheritance defcends to his iffue; in this cafe the mulier puifnè, and all other heirs, (though minors, feme coverts, or under any incapacity what [2-19 ] foever) are totally barred of their rights. And this, 1. As a punishment on the mulier for his negligence, in not entering during the baftard's life, and evicting him. 2. Because the law will not fuffer a man to be baftardized after his death, who entered as heir and died feifed, and so paffed for legitimate in his lifetime. 3. Because the canon law (following the civil) did allow fuch baftard eignè to be legitimate, on the fubfequent 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 fuch a regard to a perfon thus peculiarly circumstanced, that, after the land had defcended to his iffue, they would not unravel the matter again, and fuffer his eftate to be shaken. But this indulgence was fhewn to no other kind of baftard; for, if the mother was never married to the father, fuch baftard could have no colourable title at all. As baftards cannot be heirs themfelves, fo neither can they have any heirs but those of their own bodies. For, as all collateral kindred confifts in being derived from the fame common ancestor, and as a baftard has no legal ancestors, he can have no collateral kindred; and, confequently, can have no legal heirs, but fuch as claim by a lineal defcent from himfelf. And therefore if a baftard purchases land and dies feifed thereof without iffue, and inteftate, the land fhall efcheat to the lord of the fee". 6. ALIENS alfo are incapable of taking by defcent, or inheriting 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 fuffered to fall into their hands who owe no allegiance to the crown of England, the defign of introducing our feuds, the defence of the kingdom, would have been defeated. Wherefore if a man leaves no other relations but aliens, his lands fhall efcheat to the lord. Litt. § 399. Co. Litt. 244, u Bract. 1. 2. c. 7. Co. Litt. 244. v See Book. I. ch. 10. As aliens cannot inherit, fo far they are on a level with baftards; but as they are alfo difabled to hold by purchase *, they are under still greater difabilities. And, as they can neither hold by purchase, nor by inheritance, it is almoft fuperfluous to fay that they can have no heirs, fince they can have nothing for an heir to inherit; but fo it is expressly holden, because they have not in them any inheritable blood. AND farther, if an alien be made a denizen by the king's letters patent, and then purchases lands, (which the law allows fuch a one to do) his fon, born before his denization, shall not (by the common law) inherit thofe lands; but a fon born afterwards, may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his cldeft fon; but by denization it acquires [ 250 1 an hereditary quality, which will be tranfmitted to his fubsequent pofterity. Yet, if he had been naturalized by act of parliament, fuch eldeft fon might then have inherited; for that cancels all defects, and is allowed to have a retrofpective energy, which fimple denization has not. a SIR Edward Coke alfo holds, that if an alien cometh into England, and there hath iffue two fons, who are thereby natural-born fubjects; 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 confanguinity, is the father; and as he had no inheritable blood in him, he could communicate none to his fons; and, when the fons can by no poffibility be heirs to the father, the one of them fhall not be heir to the other. And this opinion of his feems founded upon folid principles of the antient law; not only from the rule before cited", that cefluy, que doit inheriter al pere, doit inheriter al fits; but also because we have feen that the only feodal foundation, upon which newly purchafed land can poffibly defcend to a brother, is the fuppofition and fiction of law, x Co. Litt. 2. z Co. Litt. 129. a i Inft. 8. b See pag 223 and 239. U 2 that [251] that it defcended from fome one of his ancestors: but in this cafe as the immediate ancestor was an alien, from whom it could by no poflibility defcend, this fhould deftroy the fuppofition, and impede the defcent, and the land should be inherited ut feudum ftricte novum; that is, by none but the lineal defcendants of the purchafing brother; and on failure of them, fhould efcheat to the lord of the fee. But this opinion hath been fince overruled and it is now held for law, that the fons of an alien born here, may inherit to each other; the defcent from one brother to another being an immediate defcent. And reasonably enough upon the whole; for, as (in common purchases) the whole of the suppofed defcent from indefinite ancestors is but fictitious, the law may as well fuppofe the requifite anceftor as fuppofe the requifite defcent. IT is also enacted, by the ftatute 11 & 12 W. III. c. 6. that all perfons, being natural-born fubjects of the king, may inherit and make their titles by defcent from any of their anceftors 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 perfons fhould thereby gain a future capacity to inherit, who did not exist at the death of the perfon last seised. As, if Francis the elder brother of John Stiles be an alien, and Oliver the younger be a natural-born fubject, upon John's death without iffue his lands will defcend 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. Wherefore it is provided, by the statute '25 Geo. II. c. 39. that no right of inheritance fhall accrue by virtue of the former ftatute to any perfons whatsoever, unless they are in being and capable to take as heirs at the death of the perfon last seifed :—with an exception however ci Ventr. 473. 1 Lev. 59. 1 Sid. 193. d See pag. 226. to to the cafe, where lands fhall defcend to the daughter of an alien; which defcent fhall be divefted in favour of an afterborn brother, or the inheritance fhall be divided with an after-born fifter or fifters, according to the ufual rule of descents by the common law. 7. By attainder alfo, for treafon or other felony, the blood of the perfon attainted is fo corrupted, as to be rendered no longer inheritable. GREAT care must be taken to diftinguish between forfeiture of lands to the king, and this species of escheat to the lord; which, by reafon of their fimilitude in fome circumstances, and because the crown is very frequently the immediate lord of the fee and therefore entitled to both, have been often confounded together. Forfeituee of lands, and of whatever else the offender poffeffed, was the doctrine of the [252] old Saxon law, as a part of punishment for the offence; and does not at all relate to the feodal system, nor is the confequence of any figniory or lordship paramount : but, being a prerogative vested in the crown, was neither fuperfeded nor diminished by the introduction of the Norman tenures; a fruit and confequence of which, efcheat muft undoubtedly be reckoned. Efcheat therefore operates in fubordination to this more antient and fuperior law of forfeiture. THE doctrine of efcheat upon attainder, taken fingly, is this: that the blood of the tenant, by the commiffion of any felony, (under which denomination all treafons were formerly comprized) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vafal on the implied condition of dum bene fe gefferit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal-covenant and mutual bond of fealty are held to be broken, the eftate inftantly falls back from the offender to the lord of the fee, and the inheritable |