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. tions obtained main from the 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 (c) F. N. B. 121. (d) Selden, Jan. Angl. 1. 2, s. 45. (e) Ecclesia de feudo domini regis 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 being also evaded, produced the statute de religiosis, 7 Ed. I. 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 religiosæ 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. mon recoveries. Westminster 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 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 (7). But The statute of upon this the statute of Westminster the second, 13 Edw. I. 2nd. 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 (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 (7), a proviso was inserted (m) that this should not extend to authorise 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 (8), by the statute 27 Edw. I. st. 2, it was (k) Cap. 33. (1) 2 Inst. 501. (m) Cap. 3. (7) See post, chapter 21, sect. 4, p. 357, and the appendix to this volume, No. 5. Since this note was first published, common recoveries have been abolish- (8) It is, perhaps, not quite accu New method of conveyance devised by the clergy to nominal feoffees to the use of the 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. Yet still it was found difficult to set bounds to ecclesiastical ingenuity; for when they were driven out of all their former holds, they devised a new method of conveyance, by religious houses. which the lands were granted, not to themselves directly, But the statute 15 Ric. II. c. 5, made uses sub ject to the statutes of mortmain. 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 remained 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 and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device; for the statute 15 Ric. II. c. 5, enacts, that the lands which had been so purchased to uses should be amortised by licence from the crown, or else be sold to private persons; and that, for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to churches, and conse crating them by the name of church-yards, such subtile imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those salutary laws. And, lastly, as during the times of popery lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in rate to say, that the statute 27 Edw. I. where the writ in question is spoken of as an usual one: though the statute just named enacted, that such writ should not, thenceforward, be granted, unless upon petition presented in full parliament. This last provision, however, is abrogated by the act of 7 & 8 Will. III. c. 3, stated post, in page 273. |