tary blood from his ancestors to him, was not only exhausted for the present, but totally dammed up for the future. So that the person attainted was not only incapable himself of inheriting, or transmitting his own property by heirship, but also obstructed the descent of lands or tenements to his posterity, in all cases where they were obliged to derive their title through him from any remoter ancestor. But the law in this respect has been altered by statute, and the descendants of a person attainted may now trace their descent through him after his death.

This corruption of blood, I may add, has been long looked upon as a peculiar hardship: because the oppressive parts of the feudal tenures being abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty, 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 felonies created since the reign of Henry VIII., it is declared, that they shall not extend to any corruption of blood: and no attainder for felony, except in cases of high treason, or murder, or abetting, or counselling the same, now extends to the disinheriting of any heir, nor to the prejudice of the right or title of any person other than that of the offender during his life.

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 has 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.

CHAPTER XIII.

OF TITLE BY OCCUPANCY.

Special occupancy-Alluvion-Dereliction.

OCCUPANCY is the taking possession of those things, which before belonged to nobody; a right, however, which, so far as it concerns real property, has been confined by the laws of England within a very narrow compass. It extended only to a single instance: namely, where a man was tenant pur auter vie, or had an estate granted to himself only, without mentioning his heirs, for the life of another

man, and died during the life of cestuy que vie, or him by whose life it was holden: in this case, he that could first enter on the land might lawfully retain the possession, so long as cestuy que vie lived, by right of occupancy. This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might enter and hold possession, being called in law a special occupant. But the title of common occupancy is now reduced almost to nothing by two statutes, directing that the estate pur auter vie after payment of debts shall go in a course of distribution like a chattel interest. That of special occupancy, by the heir-at-law, continues to this day; such heir being held to succeed to the ancestor's estate, not by descent, but as an occupant specially appointed by the original grant. If no special occupant be named, when the estate pur auter vie is of a freehold or any other tenure, it shall go to the personal representative of the person that had the estate thereof by virtue of the grant, and be distributed in the same manner as the personal estate of the testator or intestate.

In some cases, where the laws of other nations give a right by occupancy, as in lands newly created, by the rising of an island in the sea or in a river, or by the alluvion or dereliction of the waters; in these instances the law of England assigns them an immediate owner. If an island arise in the middle of a river, it belongs in common to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore: which is agreeable to, and probably copied from, the civil law. In case a new island rise in the sea, though the civil law gives it to the first occupant, yet ours gives it to the crown. And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks back below the usual water-mark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. But, if the alluvion or dereliction be sudden and considerable, in this case it belongs to the crown; for, as the sovereign is lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable he should have the soil, when the water has left it dry. This law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law; from whence indeed those our determinations seem to have been drawn and adopted: but we ourselves, as islanders, have applied them to marine increases; and have given our sovereign the prerogative he enjoys, upon the general ground that whatever has no other owner is vested by law in the crown.

CHAPTER XIV.

OF TITLE BY PRESCRIPTION.

Prescription at common law-What may be prescribed for-Right of
common, &c.-Right of way, &c.-Light-Modus.

A THIRD method of acquiring real property by purchase is that by prescription; which means at common law when a man can show no other title to what he claims, than that he and those under whom he claims have immemorially used to enjoy it. This immemorial usage, or usage from time whereof the memory of man runneth not to the contrary, was formerly held to be when such usage had commenced not later than the beginning of the reign of Richard I. But as in most cases it was impossible to bring proof of the existence of any usage at this early date, the courts were wont to presume the fact, upon proof only of its existence for some reasonable time back, as for a period of twenty years or more; unless indeed the person contesting the usage were able to produce proof of its nonexistence, at some period subsequent to the beginning of the reign of Richard I., in which case the usage necessarily fell to the ground. The proof even of a shorter continuance than for twenty years was enough to raise the presumption, if other circumstances were brought in corroboration, indicating the existence of an ancient right. But the prescription was defeated by proof that the enjoyment, at any period within legal memory, took place by virtue of a grant or license from the party interested in opposing it, or that it was without his knowledge during the time that it was exercised. To remedy the inconvenience and injustice which sometimes resulted, the legislature interfered, and by the statute 2 & 3 Will. IV. c. 71, usually called the Prescription Act, provided for all the more usual cases where property may be claimed by prescription.

Under this head it is to be observed, then, in the first place, that nothing but incorporeal hereditaments can be claimed by prescription: as a right of way, a common, &c.; for no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had. A man cannot be said to prescribe that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporeal seisin and inheritance, which is more permanent, and therefore more capable of proof,

than that of prescription. But as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporeal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but usage.

Secondly, a prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only to supply the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus, the lord of a manor cannot prescribe to raise a tax or a toll upon strangers; for as such claim could never have been good by any grant, it shall not be good by prescription.

Thirdly, what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of felons' goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record.

Finally, by the statute I have referred to, no claim by custom, prescription, or grant to any right of common or other profit or benefit, with certain exceptions, shall, when such right shall have been enjoyed for thirty years, be defeated by showing only that such right was first enjoyed at any time prior to such period of thirty years. When the right shall have been enjoyed for sixty years, it is to be deemed indefeasible, unless it appear that it was enjoyed by some consent or agreement expressly made for the purpose by deed in writing. For claims to any way, or other easement, or to any watercourse, or the use of any water, the shorter terms of twenty and forty years are sufficient. And for claims to the use of light, an enjoyment of twenty years constitutes an indefeasible title; unless it appear that the right was enjoyed by agreement expressly made for that purpose by deed in writing.

With regard to claims to moduses in lieu of tithes, and prescriptions de non decimando, or total exemption from tithes, the statute 2 & 3 Will. IV. c. 100, has provided that the proof of a modus or exemption during a period of thirty years shall, except in some particular cases, be sufficient; while the proof of its existence for sixty years gives an indefeasible title, unless it be proved that the modus or exemption originated in some agreement expressly made for the purpose by deed or writing.

CHAPTER XV.

OF TITLE BY FORFEITURE.

For crime-By alienation in mortmain-Statutes of mortmain-By alienation to an alien-By disclaimer-By lapse-By simony-By breach of condition -By waste-By breach of custom-By bankruptcy.

FORFEITURE is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, has sustained.

Lands, tenements, and hereditaments may be forfeited in various degrees and by various means:-1. By crime. 2. By alienation contrary to law. 3. By disclaimer. 4. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 5. By simony. 6. By non-performance of conditions. 7. By waste. 8. By breach of copyhold customs. 9. By bankruptcy.

I. The foundation and justice of forfeitures for crime will be more properly considered in the fourth book of these commentaries.

II. Lands may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, or alienation to an alien; in both of which cases the forfeiture arises from the incapacity of the alienee to take.

1. Alienation in mortmain, in mortuá manu, is an alienation to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this has occasioned the general appellation of mortmain to be applied to such alienations, and the religious houses themselves to be principally considered in framing the statutes of mortmain: in deducing the history of which statutes, it will be curious to observe the great address of the ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses: how new remedies were still the parents of new evasions: till the legislature at last, though with difficulty, has obtained a decisive victory.

By the common law any man might dispose of his lands to any