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II. By alienation.
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 (2). 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, 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 (6), 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
1. Alienation in mortmain.
(6) See Vol. I. pag. 479.
of petit treason, or murder, or of abet- whom the right or interest of any lands,
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 enable them to any other private man at his own discretion, especially tandes, corporawhen the feodal restraints of alienation were worn away. tions obtained Yet, in consequence of these it was always, and is still ne- main from the cessary (c), for corporations to have a licence in mortmain crown. *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 (3), 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 (s). Yet, such were the influence and ingenuity of the clergy, Evasion of this that (notwithstanding this fundamental principle) we find rule by the clerthat the largest and most considerable dotations of religious gy: 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 forfei
(c) F. N. B. 121.
(e) Ecclesia de feudo domini regis non possunt in perpetuum dari, absque as
sensu et consensione ipsius. C. 2. A. D.
(f) See Vol. I. p. 384.
(3) See the 5th chapter of this volume, pp. 59 and 72.
ances to reli
and the land forfeited.
ture 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 every day visibly with
drawn; that the circulation of landed property from man [ *270 ] 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, to prevent which, convey- it was ordained by the second of king Henry III.'s great gious houses charters (g), and afterwards by that printed in our common were made void, 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, This ordinance being also evad- bishops and other sole corporations were not included thereed, produced the statute de
in; and the aggregate ecclesiastical bodies, (who, Sir Edreligiosis, 7 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,
(g) A. D. 1217. cap. 43, edit. Oxon. dam : si quis autem de cætero terram
(h) Non licet alicui de cætero dare suam domui religiose sic dederit, et terram suam alicui domui religiosa, ita super hoc convincatur, donum suum pequod illam resumat tenendam de eadem nitus cassetur, et terra illa domino suo domo ; nec liceat alicui domui religiose illius feodi incurratur. Mag. Cart. 9 terram alicujus sic accipere, quod tradat illam ci a quo ipsam recepit tenen- . (i) 2 Inst. 75.
Hen. III. c. 36.
religious or other whatsoever (4), 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, appro. priate tohimself, 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.
This seemed to be a sufficient security against all alien- Origin of comations in mortmain: but as these statutes extended only to mon recoveries. 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 *action to recover it against the tenant; who, by fraud and [ * 271 ] 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 (5). But the statute of upon this the statute of Westminster the second, 13 Edw. I. Westminster 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 (k), in case the tenants set up crosses upon their lands
(k) Cap. 33.
(4) These words, according to ordi- last named act, guilds and fraternities, nary construction, seem sufficient to as well as mayors, bailiffs, and cominclude all corporations, sole, aggregate, mons of towns having a perpetual comecclesiastical, or temporal; and so Lord monalty, and others having offices perCoke understood them. (1 Inst. 2 b). petual, were not considered within the But, notwithstanding the extensive restrictions of mortmain. terms of the statute of Edw. I., it may (5) See post, chapter 21, sect. 4, p. be inferred from the statute of 15 Rich. 357, and the appendix to this volume, II. c. 5, that until the passing of the No. 5.
(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. So careful indeed was this provident prince to prevent any future evasions, that when the statute of quia emptores, 18 Edw. I., abolished all sub-infeudations, 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 alienation in mortmain. And when afterwards the method of obtaining the King's licence by writ of ad quod damnum was marked out (6), by the statute 27 Edw. I. st. 2, it was farther provided by statute 34 Edw. I. st. 3, that no such licence should be effectual, without the consent of the mesne
or intermediate lords. New method of Yet still it was found difficult to set bounds to ecclesiasconveyance devised by the
tical ingenuity; for when they were driven out of all their clergy to nomi- former holds, they devised a new method of conveyance, by nal feoffees to the use of the
which the lands were granted, not to themselves directly, religious houses. but to nominal feoffees to the use of the religious houses;
thus distinguishing between the possession and the use, and [ *272 ] receiving *the actual profits, while the seisin of the lands re
mained in the nominal feoffee; who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it is to these inventions that our practisers are indebted for the introduction of uses
(6) It is, perhaps, not quite accurate in their times,') where the writ in to say, that the statute of 27 Edw. I. question is spoken of as an usual one: marked out the proceeding noticed in the though the statute just named enacted, text; for, it is therein mentioned as a that such writ should not, thenceforthing " accustomed.” And see the stat. ward, be granted, unless upon petition of 20 Edw. I., entitled statutum de brevi presented in full parliament. This last de inquisitionibus concedendis de terris provision, however, is abrogated by the ad manum morinam ponendis, (which is act of 7 & 8 Will. 3, c. 3, stated post, printed among the "statutes uncertain in page 273.