CHAPTER THE EIGHTEENTH.

OF TITLE BY FORFEITURE. [See note 54, page 451.]

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, hath sustained.

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

I. The foundation and justice of forfeitures for crimes and misdemeanors, and the several degrees of those forfeitures, proportioned to the several offences, have been hinted at in the preceding volume; a but will be more properly considered, and more at large in the fourth book of these commentaries. At present I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following six: 1. Treason. 2. Felony. 3. Misprision of treason. 4. Præmunire. 5. Drawing [268] a weapon on a judge, or striking any one in the presence of the king's principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists. But at what time they severally commence, how far they extend, and how long they endure, will with greater propriety be reserved as the object of our future inquiries.

a Vol. I. pag. 299.

*Cited, 5 Call, 208; 1 Munf. 619.

II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law.* This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.

1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements 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 hath occasioned the general appellation of mortmain to be applied to such alienations, and the religious houses themselves to be principally considered in forming the statutes of mortmain: in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance 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, hath obtained a decisive victory.

By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feodal restraints of alienation were worn away. Yet in consequence of these it was always, and is still, necessary, for corporations to have a licence in mortmain [269] from the crown, to enable them to purchase lands: for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feodal profits, by the vesting of lands in tenants that can never be at*Cited, 55 Ga. 534.

b See Vol. I. pag. 479.

e F. N. B. 121.

tainted or die. And such licences of mortmain seem to have been necessary among the Saxons, above sixty years before the Norman conquest. But, besides this general licence from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence also (upon the same feodal principles) for the alienation of the specific land. And if no such licence was obtained, the king or other lord might respectively enter on the lands so aliened in mortmain, as a forfeiture.* The necessity of this licence from the crown was acknowleged by the constitutions of Clarendon, in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations. Yet such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a licence could not be obtained) their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands to the religious house, and instantly took them back again, to hold as tenant to the monastery; which kind of instantaneous seisin was probably held not to occasion any forfeiture: and then, by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newly acquired signiory, as immediate lords of the fee. But, when these dotations began to grow numerous, fit was observed that the feodal services, ordained for the defence of the kingdom, were d Selden. Jan. Angl. 1. 2. ? 45.

e Ecclesiæ de feudo domini regis non possunt in perpetuum dari, absque assensu et consensione ipsius. c. 2. A. D. 1164.

f See Vol. I. p. 384.

*Cited, 7 Serg. & R. 320.

every day visibly withdrawn; that the circulation of landed property from man to man began to [270] stagnate; and that the lords were curtailed of the fruits of their signiories, their escheats, wardships, reliefs, and the like:* and therefore, in order to prevent this, it was ordained by the second of king Henry III's great charters, and afterwards by that printed in our common statute-books, that all such attempts should be void, and the land forfeited to the lord of the fee.1‡

But, as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, sir Edward Coke observes,1 in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bona fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edw. I.; which provided, that no person, religious or other whatsoever, should buy, or sell, or receive, under pretence of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself, any lands or tenements in mortmain; upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and, in default of all of them, the king, might enter thereon as a forfeiture.

g A. D. 1217. cap. 43. edit. Oxon.

h

Non licet alicui de cætero dare terram suam alicui domui religiosæ, ita quod illam resumat tenendam de eadem domo; nec liceat alicui domui religiosa terram alicujus sic accipere, quod tradat illam ei a quo ipsom recepit tenendam: si quis autem de cætero terram suam domui religiosa sic dederit, et super hoc convincatur, donum suum penitus cassetur, et terra illa domino suo illius feodi incurratur. Mag. Cart. 9 Hen. III. c. 36.

1 2 Inst. 75.

+-* Quoted, 3 Jones Eq. 266.

‡ Cited, 6 Call, 134.

This seemed to be a sufficient security against all alienations in mortmain: but as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to bring an [271] action to recover it against the tenant; who, by fraud and collusion made no defence, and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right, which are since become the great assurance of the kingdom, under the name of common recoveries.* But upon this the statute of Westminster the second, 13 Edw. I. c. 32. enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land, and if the religious house or corporation be found to have it, they shall still recover seisin; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lord's default. And the like provision was made by the succeeding chapter, in case the tenants set up crosses upon their lands (the badges of knights templars and hospitallers) in order to protect them from the feodal demands of their lords, by virtue of the privileges of those religious and military orders. 9 And so careful was this provident prince to prevent any future evasions, that when the statute of quia emptores, 18 Edw. I. abolished all subinfeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord,1 a proviso was inserted m that this should not extend to authorize any kind of k cap. 33.

1 2 Inst. 501.

m cap. 3.

9 Ninth edition reads, "So careful indeed."

5 Previously, "the."

**Quoted, 63 N. H. 326.

2 BLACKST.-37.