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a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase ; for every accessory followeth the nature of its principal.
ing of prescription at the commencement of this chapter, as a method
of acquiring real property by purchase,
OF TITLE BY FORFEITURE.
grees and means
FORFEITURE is a punishment annexed by law to some illegal Forfeiture. 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 recompence for the wrong which either he alone, or the public together with himself, hath sustained.
Lands, tenements, and hereditaments, may be forfeited The various dein various degrees and by various means : 1. By crimes and of forfeiture. misdemesnors. 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 conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.
I. The foundation and justice of forfeitures for crimes and L. By crimes and misdemesnors, 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 (1) and tenements to the crown are principally the following six : 1. Treason. 2. Felony (2). 3. Misprision of treason. 4. Pre
(a) Vol. I. pag. 299.
(1) See ante, pp. 251—256, and the crimes of petit treason, or murder, or notes thereto.
of abetting, procuring, or counselling (2) By the statute of 54 Geo. III. the same, shall extend to the disinc. 145, it is enacted, that no attainder heriting of any heir, nor to the prejufor felony, save and except in cases of dice of the right or title of any person the crime of high treason, or of the or persons, other than the right or
II. By alienation.
1. Alienation in mortmain.
munire. 5. Drawing 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 (3). 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.
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 (4), 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 (b), 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 subtile 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
(6) See Vol. I. pag. 479.
To enable them to purchase
title of the offender or offenders, during published, the statute of 3&4 Gul. IV. his, her, or their natural lives only; c. 106, s. 10, has enacted, that after and that it shall be lawful to every the death of any person attainted, person or persons, to whom the right (without exception,) his descendants or interest of any lands, tenements, or
may inherit. hereditaments, after the death of any (3) The liberality, or rather the jussuch offender or offenders, should or tice, of modern times, has abolished might have appertained, if no such this ground of forfeiture. attainder had been, to enter into the (4) See Vol. IV. p. 108.
And since this note was first
to any other private man at his own discretion, especially lands, corporawhen the feodal restraints of alienation were worn away. licences of mortYet, in consequence of these it was always, and is still ne- crown. cessary(c), for corporations to have a licence in mortmain *from the crown, to enable them to purchase lands; for as [ * 269 ] 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 (5), by the vesting of lands in tenants that can never be attainted or die. And such licences of mortmain seem to have been necessary among the Saxons, above sixty years before the Norman conquest (d). 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 land so aliened in mortmain as a forfeiture. The necessity of this licence from the crown was acknowledged by the constitutions of Clarendon (e), in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations (f). Yet, such were the influence and ingenuity of the clergy, Evasion of this that (notwithstanding this fundamental principle) we find gy: 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
rule by the cler
(c) F. N. B. 121.
(e) Ecclesiæ de feudo domini regis non possunt in perpetuum dari, absque
assensu et consensione ipsius. C. 2, A.
(f) See Vol. I. p. 384.
(5) See the 5th chapter of this volume, pp. 59 and 72.
ances to reli
and the land forfeited.
the statute de
lands in right of such their newly-acquired signiory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feodal services, ordained for the defence of the kingdom, were every day
visibly withdrawn ; that the circulation of landed property [ *270 ] from man to man began to *stagnate; and that the lords
were curtailed of the fruits of their signiories, their escheats, to prevent
wardships, reliefs, and the like; and therefore, in order to which, convey
prevent this, it was ordained by the second of king Henry gious houses were made void, III.'s great charters (g), 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 (h).
But, as this prohibition extended only to religious houses, being also evaded, produced bishops and other sole corporations were not included therereligiosis, 7 in; and the aggregate ecclesiastical bodies, (who, Sir Ed
ward Coke observes (i), 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 (6), 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:
(9) A. D. 1217. cap. 43. edit. Oxon. pit tenendam : si quis autem de cætero
(h) Non licet alicui de cætero dare terram suam domui religiose sic deterram suam alicui domui religiose, derit, et super hoc convincatur, donum ita quod illam resumat tenedam de suum penitus cassetur, et terra illa eadem domo; nec liceat alicui domui domino suo illius feodi incurratur. religiosa terram alicujus sic accipere, Mag. Cart. 9 Hen. III. c. 36. quod tradat illam ei a quo ipsam rece- (i) 2 Inst. 75.
(6) These words, according to ordi. of 15 Rich. II. c. 5, that until the pasnary construction, seem sufficient to sing of the last named act, guilds and include all corporations, sole, aggre. fraternities, as well as mayors, bailiffs, gate, ecclesiastical, or temporal; and and commons of towns having a perso Lord Coke understood them. (i petual commonalty, and others having Inst. 2 b.) But, notwithstanding the offices perpetual, were not considered extensive terms of the statute of Edw. within the restrictions of mortmain. I., it may be inferred from the statute