[of descent. For if an alien came into England, and there had issue two sons, and one of them purchased land and died, his brother could not be his heir (d), even though the father were dead. For the commune vinculum, namely, the father, having no inheritable blood in him, could communicate none to his sons. This rule, however, was effectually altered by a statute of the year 1700 (e), which enacted that all persons, natural-born subjects of the king, might inherit and make their title by descent from any of their ancestors, although such ancestors, by, from, through, or under whom they derived their pedigrees, were born out of the king's allegiance.] And such is still the law as to tracing descent in cases to which the Naturalization Act, 1870, is inapplicable. But the matter is now of small importance; for, by the second section of that Act, it has been provided, with regard to all titles accruing after the 14th May, 1870, that real property of every description may be taken, acquired, held and disposed of by an alien, in the same manner in all respects. as by a natural-born British subject, and that a title thereto may be derived through, from, or in succession to an alien, as if he had been a natural-born British subject (f). II. Escheats propter delictum tenentis. This happened where, by attainder, the blood of the person attainted became, in the eye of the law, so corrupted as to be no longer inheritable. The old law with respect to corruption of blood upon attainder, and the consequent escheat of the lands and tenements of the offender to the lord of the fee, is now of little practical importance; and its history may be very briefly summarised. (d) Co. Litt. 8 a. (e) 11 Will. 3, c. 6. (f) 33 & 34 Vict. c. 14, s. 2. (Presumably, in cases not falling under the Act of 1870, the alien ancestor would still himself be barred, notwithstanding the rules of the Inheritance Act, 1833.-E. J.) [According to that law, by the commission of treason or other felony, the blood of the tenant was corrupted and stained, and the original donation of the feud was thereby determined. And, accordingly, upon the thorough demonstration of the tenant's guilt by legal attainder, the feudal covenant and mutual bond of fealty were held to be broken, the estate instantly fell back from the offender to the lord of the fee, and the inheritable quality of the tenant's blood was extinguished and blotted out for ever. This escheat to the lord by reason of his tenant's attainder, must be distinguished from forfeiture to the Crown. For, independently of any escheat, the felon's lands and tenements (to the extent of his interest therein) were, by force of the attainder, immediately forfeited to the Crown. But, after a severe struggle between the Crown and the mesne lords, it was agreed that, in the case of ordinary felons, the Crown's right of forfeiture should operate only for a year and a day; after which the lord's right of escheat prevailed (g). In the case of a traitor, however, the Crown made good its claim to permanent forfeiture. Forfeiture, moreover, extended only to estates which were vested in the offender at the time of his attainder; but escheat pursued the matter further. For, the blood of the tenant being, by the attainder, utterly corrupted and extinguished, it followed, not only that all that he then had should escheat from him, but also that he should be incapable of inheriting anything for the future. For example, if a father was seised in fee, and the son committed treason and was attainted, and then the father died, here the land would escheat to the lord; because the son, by the corruption of his blood, was incapable to be heir, and there could be no other heir during his life. But nothing would in such a case be forfeited to the king, for the son never had any interest in the land to forfeit (h). (h) Co. Litt. 13 a. (g) Magna Carta, (1225) c. 22. [On the other hand, where a new felony was created by Act of Parliament, and the Act provided (as was frequently the case) that the offence should not extend to corruption of blood, the lands of the felon would not escheat to his lord, though the profits of them would be forfeited to the king for a year and a day. The consequences of corruption of blood could not be removed but by authority of Parliament. For, although the king might excuse the punishment of the offender, even the king could not defeat or abrogate the private right accrued by the attainder. He might remit the forfeiture, in which the interest of the Crown alone was concerned; but he could not wipe away the corruption of blood, so as to affect the right of escheat to the lord. If, therefore, a man had a son, and was attainted, and afterwards pardoned by the king, this son could never inherit to his father, or to his father's ancestors, because his paternal blood, being once corrupted by his father's attainder, must continue so. But if the son had been born after the pardon, he might have inherited; because (by the pardon) the father was made a new man, and might convey new inheritable blood to his after-born children (i). The doctrine of corruption of blood on attainder, arising as it did from feudal principles, and perhaps extending further even than those principles warranted, gradually came to be regarded as a peculiar hardship; and therefore in most (if not in all) of the new felonies from time to time created by Act of Parliament since the reign of Henry the Eighth, it has been usual to declare, that they should not extend to any corruption of blood. During the last century, moreover, many statutes were passed with the object of mitigating the hardships of the doctrine.] These, however, were all practically superseded by the Forfeiture Act, 1870, which provides that no confession, verdict, inquest, conviction, or judgment for any (i) Ibid., 392 a. treason or felony or felo de se, after the 4th day of July, 1870, is to cause any attainder or corruption of blood or any forfeiture or escheat (k). The Act provides that the property of a convict shall vest in an administrator to be appointed by the Crown. But in the case of a trustee or mortgagee becoming a convict within the meaning of the Act, it has now been provided by the Trustee Act, 1893 (1), that the legal estate shall remain in such convict, or survive to his co-trustee or co-trustees, or descend to his representative, as if he had not become a convict. In cases where (under the former law) an escheat or forfeiture of the beneficial interest in lands actually took place, its consequences were often remitted, when the Crown was the party entitled to take the benefit; for the Crown was, by modern Acts of Parliament, frequently empowered to make grants for the purpose of restoring the lands to the family of the former beneficial owner (m). And now, by the Intestates Estates Act, 1884 (n), s. 6, this power in the Crown has been declared generally; and the mode of application to the Crown for a waiver of the forfeiture or escheat is also thereby prescribed. (k) The Act preserves in statu quo the law of forfeiture consequent on outlawry; but inasmuch as outlawry in all civil proceedings has been abolished by the Civil Procedure Acts Repeal Act, 1879, the exception of outlawry can now only refer to criminal proceedings. (m) 39 & 40 Geo. 3, c. 88, s. 12; 47 Geo. 3, st. 2, c. 24; 59 Geo. 3, c. 94; 6 Geo. 4, c. 17. (n) 47 & 48 Vict. c. 71. CHAPTER XIII. OF TITLE BY OCCUPANCY. [OCCUPANCY is the taking of possession of things which belong to nobody. Quod nullius est, id ratione naturali occupanti conceditur (0). But title by occupancy, so far as it concerns real property (for of personal chattels we do not in this place speak), hath been confined by the laws of England within a very narrow compass, applying only to the single instance where a man was tenant pur auter vie, that is, had an estate granted to himself only (without mentioning his heirs), and died during the life of cestui que vie. In this case, he that could first enter on the land might, by right of common occupancy, have lawfully retained the possession so long as cestui que vie lived. This seems to have been a recurrence to first principles, and a calling in of the Law of Nature to ascertain the property of the land, thus left without a legal owner. For land granted to A. during the life of B., did not, on A.'s death during B.'s life, revert to the grantor; for the grantor had parted with all his interest so long as cestui que vie lived. And the land 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. Neither did the land descend to the heirs of the grantee; for there were no words of inheritance in the grant. Nor did it vest in the executors of the grantee; for an estate of freehold could not pass to personal representatives. Belonging therefore to nobody, the law left it open to be seized and appropriated, under the name of an occupancy, by the first person that could (0) Dig. 41, 1, 3. |