raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription. (i) 4. A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands, felons' goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by an inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record. (k) 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate (that is, in himself and those whose estate he holds), nothing is claimable by this prescription, but such things as are

incident, appendant, or appurtenant to lands; for it would be ab[266] surd to claim any thing as the consequence, or appendix of an es

tate, with which the thing claimed has no connexion; but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross. (1) Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor; but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common

i 1 Vent. 387.

k Co. Litt. 114.

1 Litt. 183. Finch. L. 104.

of he was so seised. 1 Saund. 346. This is termed prescribing in a que estate, from the words in italic. Id. note 2. 4 T. R. 718, 9. Cro. Car. 599. If the party claims the easement as a mem ber of a corporation, he must then prescribe under the corporation, stating that the same have immemorially been entitled to have for themselves and their burgesses common of pasture, and then aver that he was a burgess. 1 Saund. 340. b. Where a copyholder claims common or other profit in the lord's soil, he cannot prescribe for it in his own name, on account of the base. ness and weakness of his estate, which in consideration of law, is only a tenancy at will; neither can he prescribe in the lord's name, for he cannot prescribe for common or other profit in his own soil, therefore of necessity the copyholder must entitle himself to it by way of custom within the Inanor. But where a copyholder claims common or other profit in the soil of a stranger, which is not parcel of the manor, he must prescribe in the name of the lord; namely, that the lord of the manor and his ancestor, and all those whose estate he has, have had common, &c. in such a place for himself and his customary tenants, &c. and then state the grant of the customary tenement; for the lord has the fee of all the copyholds of his manor. 4 Rep. 31. b. 6 Rep. 60. 6 Hob. 86. Cro. Eliz. 390 Moore, 461. 1 Saund. 349.

(4) The general rule with regard to prescriptive claims is, that every such claim is good if by possibility it might have had a legal commencement, 1 Term R. 667. ante 31. note (12) and 35. note (25); and from upwards of twenty years' enjoyment of an easement or profit a prendre, grants, or as lord Kenyon said, even a hundred grants will be presumed, even against the crown, if by possibility they could legally have been made. 11 East, 284. 495. Thus a fair or market may be claimed by prescription, which presumes a grant from the king, which by length of time is supposed to be lost or worn out, Gilb. Dist. 22.; but if such a grant would be contrary to an express act of parliament it would be otherwise. 11 East, 495. But an exception to the general rule is the claim of toll thorough, where it is necessary to shew expressly for what consideration it was granted, though such proof is not necessary in respect of toll traverse. 1 T. R. 667. 1 B. & C. 223. An ancient grant without date does not necessarily destroy a prescriptive right, for it may be either prior to time of legal memory or in confirmation of such prescriptive right, which is matter to be left to a jury. 2 Bla. R. 989. Nor will a prescriptive right be destroyed by impli ation merely in an act of parliament. S B. & A. 193. Chitty

:

5

in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo and therefore, if 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. "

CHAP. XVIII.

IV. OF TITLE BY FORFEITURE.'

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-representation 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.

2

I. The foundation and justice of forfeitures for 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 it 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 3. Misprision of treason. Praemunire. 5. Drawing a weapon on a judge, or striking any one in the presence of the king's principal courts of justice. 6. Po- [268] pish recusancy, or non-observance of certain laws enacted in re

(5) 1 Saund. 346. supra. note.

a Book I. pag. 299.

4.

(6) Another rule may be added (viz.) that a person ought not to prescribe for that which is of common right, and which the law gives. Willes R. 268. Bac. Ab. Common, A.

(7) As to the extinguishment of prescription by unity of seisin, and when to claim an easement by grant, see ante 35. note 25.

(1) See in general Com. Dig. Forfeiture; Bac. Ab. ib.; Vin. Ab. Forfeiture; Cruise Dig. index, Forfeiture.

(2) Post 4 vol. 381, &c.

(3) See the alteration in the law as to forfeiture for felony, by 54 Geo. III. c. 145. ante 251. note 13.

4

straint 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."

II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortnain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alie nee 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, (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 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 al[269] ways, and is still, necessary, (c) for corporations to have a licence

in mortmain 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 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 license 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. () 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

b See Book I. p. 479.

c F. N. B. 121. d Selden, Jan. Angl. 1. 2. § 45. e Ecclesiae de feudo domini regis non possunt in perpetuum dari, absque assensu et consensione ipsius, c. 2. See Book I. p. 384.

A. D. 1164.

(4) But the statutes of recusancy are now repealed by 31 Geo. III. c. 32. provided papists take the oath prescribed therein. ante 257. n. 17.

(5) See post, 4 vol. 381. and notes.

(6) See in general, Bac. Ab. Charitable Uses and Mortmain: Com. Dig. Capacity, B. 2. ; Uses, N. 1.; 3 Mirehouse on Advowsons, 78.: Cruise, title, 32.; 4 vol. 23. title, 37.; 6 vol. 17. and title, 38.; 6 vol. 149.; and Highmore on Mortmain.

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 every day visibly withdrawn; that the circulation of landed property from man to man began to stagnate; and that the [270] 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 ordered by the second of King Henry III's great charter, (g) and afterwards by that printed in our common-statute book, that all such attempts should be void, and the land forfeited to the lord of the fee. (h)

But, as this application 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 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, 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: 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 alienations 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 collusion, [271] 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. But upon this the statute of Westminster the second, 13 Ed. I. 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

g 4. D. 1217, cap. 43. edit. Oxon.

h Non licet alicui de caetero dare terram suam alicui domui religiosae, ita quod illam resumat tenendam de eadem domo ; nec liceat alicui domui religiosae terram alicujus sic accipere, quod tradat illum ei a quo ipsam recepit tenendam : si quis autem de caetero terram suam domui religiosae sic dederit, ut super hoc convincatur, donum suum penitus cassetur, ut terra illa domino suo illius feodi incurratur. Mag. Cart. 9 Hen, III. c. 26, k cap. $3.

12 last. 75.

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 subinfeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord, (/) 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, by the statute 27 Ed. I. st. 2., it was farther provided by statute 34 Ed. 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 which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus dis

tinguishing between the possession and the use, and receiving the ac[272] tual profits, while the seisin of the land 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 consecrating 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 the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore, at the dawn of the Reformation, the statue 23 Hen. VIII. c. 10. declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.

But, during all this time, it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, so far as related to its own rights; and to enable any spiritual or other corporation to purchase and hold any lands or tenements in perpetuity; which prerogative is declared and confirmed by the statute 18 Edw. III. st. 3. c. 3. But, as doubts were conceived at the time of the Revolution how far such licence was valid, (n)

since the kings had no power to dispense with the statutes of mort[273] main by a clause of non obstante, (o) which was the usual course, though it seems to have been unnecessary: (p) and as, by the gradual declension of mesne signiories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a

12 Inst. 501.

n 2 Hawk. P. C. 391.

o Stat. 1 W. & M. st. 2, c. 2.

m cap. 3.

p Co. Litt. 99.