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Under the Civil Law. The civil law differs from ours, and allows a bastard to succeed to an inheritance, if after his birth, his father and mother intermarry. Also if the father had no lawful wife or child, then even if the concubine was never married to the father, yet she and her bastard son were admitted each to onetwelfth of his estate, and a bastard could succeed to the whole of his mother's estate, although she was never married. But our law, in favor of marriage, is much less indulgent to bastards.
Exceptional Case. It shows some little regard for them, however, in ope instance, where the parents of a bastard subsequently marry and have a legitimate son. If such latter son neglect to seize the inheritance on his father's death, and the bastard enters upon the lands, and enjoys them until his death, whereby they descend to his issue, the legitimate son and his heirs are totally barred of their right, for the law will not suffer a man to be bastardized after death, who died seised of the estate.
Heirs of Bastards. Bastards can have no heirs, but those of their own bodies. For as all collateral kindred consists in being derived from a common ancestor, and a bastard has no legal ancestor, he can have no collateral kindred. Hence if a bastard purchase land and dies seised thereof, without issue, and intestate, the land shall escheat to the lord of the fee.
6. Aliens. Aliens also are incapable of taking by descent, or inheriting, as they have no inheritable blood, rather indeed upon a principle of civil policy, than upon reasons strictly feudal. Though if lands had been suffered to fall into the hands of those owing no allegiance to the English crown, the design of introducing 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. Cannot hold by Purchase or Inheritance.
Aliens are under still greater disabilities than bastards, for they are also unable to hold by purchase. Hence they can have no heirs' because they can have nothing for an heir to inherit; they have no inheritable blood.
Effect of Naturalization. If an alien be made a denizen by the king's letters patent, and then purchases land, his son born before his denization shall not, under the common law, inherit, but a son born afterwards may do so. But if the father had been naturalized by act of parliament, such elder son might then inherit, for the act has a retrospective effect.
1 So also under the Scottish law, if there has been no intermediate marriage of either with a third party.
Sons of an Alien. Coke holds, that if an alien comes into England, and there has issue two sons, who are thereby natural born subjects, and one of them purchases land and dies, the other brother cannot be his heir, because the common stock, the commune vinculum, is the father, who having no inheritable blood in him, could communicate none to his sons, and as the sons could not be heirs to the father, neither son could be heir to the other. But this opinion has been overruled, and it is now held, that sons of an alien, born here, may inherit from each other, the descent from a brother being an immediate one.
By later Statutes. By statute of William III, it is also enacted, that all persons, being natural born subjects, may inherit, and take title by descent from any of their ancestors, lineal or collateral, although their parents or other ancestors were born out of the king's allegiance. By statute of George II, no such right of inheritance shall accrue, unless to persons in being, and capable of taking as heirs at the death of the person last seised, excepting where lands descend to the daughter of an alien, which estate shall be divested in favor of an after-born brother.
7. Attainder. By attainder, also for treason or other felony, the blood of the person attainted is so corrupted, as to be rendered no longer inheritable. Care must be taken to distinguish between forfeiture of lands to the king, and this species of escheat to the lord. Forfeiture of all property was the doctrine of the old Saxon law, as a part of punishment for the offence, and does not relate to the feudal system, nor was altered by the Norman tenures, a consequence of which was escheat Escheat therefore operates in subordination to the ancient law of forfeiture.
Bearing of Escheat upon Attainder. The doctrine of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony, is corrupted and stained, and the original donation of the feud is thereby determined. Upon proof of guilt by legal attainder, the bond of fealty was held to broken, the inheritable quality of the offender's blood extinguished, and the estate reverted to the lord of the fee.
Effect of the Law of Escheat on Forfeiture. The law of
feudal escheat was brought into England at the conquest, and was added to the ancient law of forfeiture. By attainder, the land of all felons would revert to the lord, but the superior law of forfeiture intervenes and intercepts it, in treasons forever, in other felonies for a year and a day, after which time it goes to to the lord in a regular course of escheat, as it would have done to the heir of the felon, if the feudal tenure had not been introduced. Gavelkind lands are in no case subject to escheat for felony, though liable to forfeiture for treason.
Right of Dower. As a result of this doctrine of escheat, all lands of inheritance immediately revesting in the lord, the wife of the felon was liable to lose her dower, until the statute of Edward VI, which restored the right to her, unless her husband had been attainted of high treason.
Distinction between Escheat and Forfeiture. The law of forfeiture stops with the estate of the offender at the time of his offence or attainder, but the law of escheat pursues the matter still further. For the blood of the tenant being extinguished, he is incapable of inheriting lands in the future. This illustrates the distinction between forfeiture and escheat.
Example of such Distinction. If therefore a father be seised in fee, and the son commits treason and is attainted, and then the father dies, the lands escheat to the lord, because the son is incapable of being heir, and there can be no other heir during his life, but nothing shall be forfeited to the king, for the son never had an interest in the land. In this case the escheat operates, but not the forfeiture. But where a new felony is created, which does not extend to corruption of the blood, here the lands of the felon shall not escheat to the lord, but the profits shall be forfeited to the king for a year and a day, and so long after as the offender lives.
Breaks the Course of Descent. A further consequence of this corruption of blood, is, that the person attainted is not only incapable of inheriting or transmitting his property by heirship, but he also obstructs the descent of lands to his posterity, in cases where they derive their title through him from a more remote ancestor. The ancient law of feuds allowed the grandson to be heir to his grandfather, though the son was guilty of felony.
Power of the Crown to Pardon. Parliament alone can remove corruption of blood. The king may excuse the public punishment, but cannot abolish the private right of individuals, as a result 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 has an interest, viz., the lord who claims by escheat.
Distinction between Aliens and Attainted Persons. A difference exists between aliens and persons attainted. Of aliens, who could by no possibility be heirs, the law takes no notice, and 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 has issue a son and is attainted, and afterwards pardoned, and then has issue a second son and dies, the corruption of blood is not removed from the elder, and therefore he cannot be heir, neither can the younger be heir, for he has an elder brother living, who once had a possibility of being heir. The land shall escheat to the lord, though, had the elder died without issue during the life of the father, the younger son, born after the pardon, might have inherited. Sons born before a father is attainted may be heirs to each other, which differs from the case of the sons of an alien.
A Great Hardship. On the whole, a person attainted is neither allowed to retain his former estate, nor to inherit a future one, nor even to transmit an inheritance to his issue. This corruption of blood has been looked upon as a great hardship, because other oppressive features of the feudal tenures have been abolished.
Corporation Property. One instance exists, where lands held in fee-simple do not escheat to the lord, and this is the case of a corporation; for if it be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat. The law tacitly annexes a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter. The heirs of the donor are substituted for the lord of the fee, which, in case of subinfeudations, was formerly allowed of a vassal, until restrained by the statute of quia emptores.
1 And now corruption of blood is almost entirely abolished, for by statute of George III, it was abolished in all cases, except for treason and murder.
CHAPTER XVI.-TITLE BY OCCUPANCY.
Defined. Occupancy is the taking possession of those things, which before belonged to nobody. This is the foundation of all property, or of holding those things in severalty, which by the law of nature, were common to all mankind. But when it was agreed, that everything capable of ownership should have an owner, reason suggested, that he who first declared his intention of appropriating a thing to his own use, and actually took it into possession, should gain an absolute property in it.
Tenancy pur Autre Vie. In England the right of occupancy to lands extends only to the case, where a man w tenant pur autre vie, and died during the life of cestui que vie, or him by whose life it was held; in this case, he who could first enter on the land, might lawfully retain possession, so long as cestui que vie lived, by right of occupancy. It did not revert to the grantor, for he had parted with his interest, so long as cestui que vie lived; it did not escheat to the lord of the fee, for all estates must be of the absolute entire fee, and not of any particular estate carved out of it, much less such a remnant as this. It did not belong to the grantee, for he was dead; it did not descend to his heirs, for there were no words of inheritance in the grant; nor could it vest in the executors, for they could not succeed to a freehold. Belonging therefore to nobody, it could be appropriated during the life of the cestui que vie by the first occupant.
Special Occupancy by Heir. But there was no right of occupancy, where the king had the reversion of the lands; as against him there could be no prior occupant, because nullum tempus occurrit regi. And even in the case of a subject, had the estate pur autre vie been granted to a man and his heirs during the life of cestui que vie, there the heir may enter and hold possession, and is called in law a special occupant. This latter title still exists, but the title of common occupancy is now utterly extinct. Such heir is held to succeed to the ancestor's estate, not by descent, but as an occupant, specially appointed by the original grant.
Incorporeal Hereditaments. There can be no common occupancy of incorporeal hereditaments, as of rents, commons and the like, because there could be no actual entry made, or corporal seisin had, and hence by the death of the grantee pur autre vie, a grant of such hereditaments was entirely determined.