quality of his blood is extinguished and blotted out for ever. [253] As a confequence of this doctrine of efcheat, all lands of inheritance immediately revesting in the lord, the wife of the felon was liable to lose her dower, till the ftatute 1 Edw. VI. c. 12. enacted, that albeit any person be attainted of misprifion of treafon, murder, or felony, yet his wife fhall enjoy her dower. But fhe has not this indulgence where the antient law of forfeiture operates, for it is exprefsly provided by the ftatute 5 & 6 Edw. VI. c. 11. that the wife of one attaint of high treafon fhall not be endowed at all, HITHERTO we have only spoken of eftates vefted in the offender, at the time of his offence or attainder. And here the law of forfeiture ftops; but the law of efcheat purfues the matter ftill farther. For, the blood of the tenant being utterly corrupted and extinguished, it follows not only that all that he now has fhall efcheat from him, but also that he fhall be incapable of inheriting any thing for the future. This may farther illuftrate the diftinction between forfeiture and efcheat. If therefore a father be feifed in fee, and the fon commits treafon and is attainted, and then the father dics: here the land fhall efcheat to the lord; because the fon, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life: but nothing fhall be forfeited to the king, for the fon never had any interest in the lands to forfeit *. In this cafe the efcheat operates, and not the forfeiture; but in the following instance the forfeiture works, and not the efcheat. 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 fhall 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 lives1. THERE is yet a farther confequence of the corruption and extinction of hereditary blood, which is this: that the perfon attainted shall not only be incapable himself of inheriting, [254] · or tranfmitting his own property by heirship, but shall also obftruct the defcent of lands or tenements to his posterity, in all cafes 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 prefent, but totally dammed up and rendered impervious for the future. This is a refinement upon the antient law of feuds, which allowed that the grandfon might be heir to his grandfather, though the fon in the intermediate generation was guilty of felony ". But, by the law of England, a man's blood is fo univerfally corrupted by attainder, that his fons can neither inherit to him nor to any other ancestor", at least on the part of their attainted father. THIS corruption of blood cannot be abfolutely 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 confequence of the criminal's attainder. He may remit a forfeiture, in which the intereft of the crown is alone con k Co. Litt. 13. 3 Inft. 47. U 4 m Van Leeuwen in 2 Feud. 31. cerned: cerned but he cannot wipe away the corruption of blood; for therein a third perfon hath an intereft, the lord who claims by efcheat. If therefore a man hath a fon, and is attainted, and afterwards pardoned by the king; this fon can never inherit to his father, or father's ancestors; because his paternal blood, being once thoroughly corrupted by his father's attainder, muft continue fo: but if the fon had been born after the pardon, he might inherit; becaufe 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 possi❤ bility be heirs, the law takes no notice: and therefore we have [255] feen, that an alien elder brother fhall not impede the defcent to a natural-born younger brother. But in attainders it is otherwife: for if a man hath iffue a fon, and is attainted, and afterwards pardoned, and then hath iffue a fecond 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 fhall 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 poflibility to inherit, fhall impede the defcent to the younger, and the land shall efcheat to the lord 9. Sir Edward Coke in this cafe 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, becaufe in this cafe the blood was inheritable when imparted to them from the father: but • Co. Litt. 392. p Ibid. S. 9 Dyer. 48. r Co. Litt. 8. he he makes a doubt (upon the principles beforementioned, which are now overruled ) 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 tranfmit any inheritance to his iffue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is neceffary either to hold, to take, or to tranfmit any feodal property, is blotted out, corrupted, and extinguished for ever: the confequence of which is, that eftates thus impeded in their defcent, refult back and efcheat to the lord. THIS Corruption of blood, thus arifing from feodal princi- [ 256 ] ples, but perhaps extended farther than even thofe principles will warrant, has been long looked upon as a peculiar hardfhip: because the oppreffive parts of the feodal tenures being now in general abolished, it seems unreafonable to referve one of their most inequitable confequences; namely, that the children fhould not only be reduced to prefent poverty, (which, however fevere, is fufficiently juftified upon reafons of public policy) but alfo be laid under future diffi culties of inheritance, on account of the guilt of their ancestors. And therefore in most (if not all) of the new felonies created by parliament fince the reign of Henry the eighth, it is declared that they fhall not extend to any corruption of blood and by the ftatute 7 Ann. c. 21. (the operation of which is poftponed by the statute 17 Geo. II. c. 39.) it is enacted, that, after the death of the late pretender, and his fons, no attainder for treafon fhall 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 defcents, where the pedigree happens to be deduced through the blood of an attainted ancestor. [257] BOOK II. BEFORE I Conclude this head, of efcheat, I must mention one fingular inftance in which lands held in fee-fimple are not liable to efcheat 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 inftance 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 faileth. This is indeed founded upon the felf-fame 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 reftrained by the ftatute of quia emptores, 18 Edw. I. ft. 1. to which this very fingular instance still in fome degree remains an exception. THERE is one more incapacity of taking by defcent, which, not being productive of any efcheat, is not strictly 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. (3) that every papist who fhall not abjure the errors of his reli gion 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, fhall be incapable of inheriting, or taking, by descent, as well as purchase, any t Co. Litt. 13. (3) This act was repealed by the 18 Geo. III. c. 6. fo far as to permit fuch Roman catholics to inherit real property, as would take the oath of allegiance prefcribed in the ftatute; which is the fame oath that is directed to be taken by the 31 Geo. III. c. 32; which has repealed all the other odious reftrictions upon those who profefs the Roman catholic religion, real |