faileth. This is indeed founded upon the ſelf-ſame principle as the law of eſcheat; the heirs of the donor being only ſubſtituted inſtead of the chief lord of the fee: which was formerly very frequently the caſe in ſubinfeudations, or alienations of lands by a vaſal to be holden as of himſelf; till that practice was reſtrained by the ſtatute of quia emptores, 18 Edw. I. ſt. 1. to which this very ſingular inſtance ſtill in ſome degree remains an exception.
There is one more incapacity of taking by deſcent, which, not being productive of any eſcheat, is not properly reducible to this head, and yet muſt not be paſſed over in ſilence. It is enacted by the ſtatute 11 & 12 Will. III. c. 4. that every papiſt who ſhall not abjure the errors of his religion by taking the oaths to the government, and making the declaration againſt tranſubſtantiation, within ſix months after he has attained the age of eighteen years, ſhall be incapable of inheriting, or taking, by deſcent as well as purchaſe, any real eſtates whatſoever; and his next of kin, being a proteſtant, ſhall hold them to his own uſe till ſuch time as he complies with the terms impoſed by the act. This incapacity is merely perſonal; it affects himſelf only, and does not deſtroy the inheritable quality of his blood, ſo as to impede the deſcent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion and became a monk profeſſed was incapable of inheriting lands, both in our own[1] and the feodal law; eo quod deſiit eſſe miles ſeculi qui factus eſt miles Chriſti; nec beneficium pertinet ad eum qui non debet gerere officium[2]. But yet he was accounted only civiliter mortuus; he did not impede the deſcent to others, but the next heir was entitled to his or his anceſtor's eſtate.
These are the ſeveral deficiencies of hereditary blood, recognized by the law of England; which, ſo often as they happen, occaſion lands to eſcheat to the original proprietary or lord.
