"Though the beast of game The privilege of chase may claim, The prowling fox was trapped or slain ?" To instruct the jury under such circumstances that they might presume a (lost) grant of the easement, instead of the defeated title by prescription, was the truest equity. The chancellor, who was not bound by statutes of limitation, had already disregarded the time of legal memory without needing a fiction to do it. It must be remembered that this limitation from 1 Ric. I. is as truly of positive origin as any time of limitation fixed by a statute of modern days. An arbitrary division, indeed, has separated the statutes proper from the provisions and assizes and orders de consilio curiæ that preceded them, and treated the latter as common law. But the order which abrogated previous limitations, and fixed the period within which a writ of right or other like remedy could be obtained at 1 Ric. I., was in fact of statutory origin, as opposed to the "natural law," and might properly be disregarded as such by the chancellor. The first example is said to have occurred in 1707, in the case of Guernsey v. Rodbridge, Gil. Eq. Ca. 4, or Finch v. Resbridger, 2 Vern. 390. It was not taken up by the law courts till 1761. (Darwin v. Upton, 2 Wms. Saund. 175; Cowp. 102; 6 East, 214; 1 Bos. & P. 400; Digby, Hist. of Common Law of Real Property, p. 329; Best on Evidence, ? 376, et seq.; Wallace v. Fletcher, 30 N. H. 434.) It is instructive to trace the steps by which the pseudo principle was departed from by the text-writer, or a least a few of them, even before its falsity was clearly seen. Cruise (Digest, tit. 31, ch. 2; and see ch. 1,2 5, 6) ventured to include corporeal hereditaments, acquired by the effect of limitation, under the rubric of prescription, as if perceiving the unity of principle in the two cases. Mr. Wharton (Treatise on Conveyancing, tract. 4, ch. 2. pp. 537, 538) boldly made prescription include both, while still paying tribute to the prejudice, by terming the effect of limitation "negative prescription," and the other, "positive prescription." But the text-writers generally did not venture to show the error of the doctrine, until the courts had decided that a prescriptive title to land was as good in an ejectment as any other. (See notes 50-52, ante, on this subject.) 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; 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. b 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. c 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,e 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, †it 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. |