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. 267 CHAPTER XVIII. OF TITLE BY FORFEITURE. 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. grees and means 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. misdemeanors. I. The foundation and justice of forfeitures for crimes and I. 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. Præ (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 the same, shall extend to the disinheriting of any heir, nor to the prejudice of the right or title of any person or persons, other than the right or (2) By the statute of 54 Geo. III. c. 145, it is enacted, that no attainder for felony, save and except in cases of the crime of high treason, or of the II. By alienation. 1. Alienation in mortmain. To enable them to purchase 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 (b) See Vol. I. pag. 479. title of the offender or offenders, during same. published, the statute of 3 & 4 Gul. IV. c. 106, s. 10, has enacted, that after the death of any person attainted, (without exception,) his descendants may inherit. (3) The liberality, or rather the justice, of modern times, has abolished this ground of forfeiture. (4) See Vol. IV. p. 108. to tions obtained main from the 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 (ƒ). 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 (c) F. N. B. 121. (d) Selden, Jan. Angl. 1. 2, s. 45. non possunt in perpetuum dari, absque assensu et consensione ipsius. C. 2, A. (f) See Vol. I. p. 384. rule by the cler (5) See the 5th chapter of this volume, pp. 59 and 72. 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, wardships, reliefs, and the like; and therefore, in order to prevent this, it was ordained by the second of king Henry 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). to prevent which, conveyances to religious houses and the land for feited. This ordinance 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 (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 bonâ 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: (g) A. D. 1217. cap. 43. edit. Oxon. (h) Non licet alicui de cætero dare terram suam alicui domui religiosa, ita quod illam resumat tenedam de eadem domo; nec liceat alicui domui religiosa terram alicujus sic accipere, quod tradat illam ei a quo ipsam rece (6) These words, according to ordinary construction, seem sufficient to include all corporations, sole, aggregate, ecclesiastical, or temporal; and so Lord Coke understood them. (1 Inst. 2 b.) But, notwithstanding the extensive terms of the statute of Edw. I., it may be inferred from the statute pit tenendam: si quis autem de cætero of 15 Rich. II. c. 5, that until the passing of the last named act, guilds and fraternities, as well as mayors, bailiffs, and commons of towns having a perpetual commonalty, and others having offices perpetual, were not considered within the restrictions of mortmain. |
