any grant, it shall not be good by prescription. (i) 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, felon's 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) (4) 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 [*266 ] lands; for it would be absurd to claim any thing as the consequence, or appendix of an estate, 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 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. (5)

(i) 1 Vent. 387.

(k) Co. Litt. 114.

(1) Litt. 183. Finch, L. 104.

(4) [The reason for this distinction is not very satisfactory; though the forfeiture must be matter of record, there seems no ground why the right to receive that forfeiture might not be claimed by prescription: at all events there is some inconsistency, for a man may prescribe for a court leet, which is a court of record, as well as for a county palatine, and by reason thereof to have the forfeitures in question. Co. Litt. 114, b.]

(5) The term "prescription" is in strictness applicable only to incorporeal hereditaments Ferris v. Brown, 3 Barb. 105; Caldwell v. Copeland, 37 Penn. St. 431. In order to raise the presumption of a grant, the user must have been peaceable and open, and it must have been adverse to the owner of the land. Sargent v. Ballard, 9 Pick. 251; Brace v. Yale, 10 Allen, 441; Watkins v. Peck, 13 N. H. 360; Corning v. Gould, 16 Wend. 531; Colvin v. Burnett, 17 id. 564; Trask v. Ford, 39 Me. 437; Perrin v. Garfield, 37 Vt. 310. It must also have been continuous for the whole period. Pollard v. Barnes, 2 Cush. 191; Branch . Doane, 18 Conn. 233; Pierre v. Fernald, 26 Me. 436; Rogers v. Sawin, 10 Gray, 376. And if the mode of user has been changed during the time, the party can claim only to the extent that he has continuously enjoyed the easement, or other right for the whole time. Monmouth, &c., Co. v. Harford, 1 Č. M. & R. 614; Dand v. Kingscote, 6 M. & W. 174. Stackpole v. Curtis, 32 Me. 383; Biglow v. Battle, 15 Mass. 313; Darlington v. Painter, 7 Penn. St. 473; Belknap v. Trimble, 3 Paige, 577. But although the extent of the right is to be measured and regulated by the enjoyment upon which the right is supported, the party is yet allowed freedom in the manner of exercising it. See Ang. on Watercourses, § 226, and cases cited. And on the general subject, see Bowman v. Wickliffe, 15 B. Monr. 84; Garrett v. Jackson, 20 Penn. St. 331; Tyler v. Wilkinson, 4 Mason, 397; Thomas v. Marshfield, 13 Pick. 248, Ricard v. Williams, 7 Wheat, 109; Morrison v. Chapin, 97 Mass. 72.

VOL. I.-64

505

CHAPTER 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-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.

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 book; (a) but it will be more properly con sidered, 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. [*268] 2. Felony. (1) 3. Misprision of treason. 4. Præmunire. *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. (3)

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 inherit 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 feudal restraints of alienation were worn away. Yet in consequence of these it was always and is still necessary, (c) for corporations to have a license in mortmain *from the crown, [*269] 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

(a) Book I, page 299.

(b) See Book I, page 479.

(c) F. N. B. 121.

(1) Now by statute 3 and 4 William IV, c. 106, the forfeiture, where it exists at all, is only for the life of the person attainted. See note, p. 254.

(2) These laws are since repealed. See note, p, 257.

(3) [Until the facts of the seisin and of the forfeiture are found by an inquisition on behalf of the crown, or as it is phrased, until "office found," the land remains in the offender, and may be conveyed by him, subject to being divested upon the recording of the inquisition. Seo 5 B. and Ad. 765.]

escheats, and other feudal profits, by the vesting of lands in tenants that can never be attainted or die. And such licenses of mortmain seem to have been necessary among the Saxons, about sixty years before the Norman conquest. (d) But, besides this general license 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 license also (upon the same feudal 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 license 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, 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 license 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 newlyacquired signiory, as immediate lords of the fee. But when these dotations began to grow numerous, it was observed that the feudal services, ordained for the defense of the kingdom, were every day visibly withdrawn; that the circulation of landed property from man to man began to *stagnate; and that the lords were curtailed of the fruits of their signiories, their escheats, [*270] wardships, reliefs, and the like; and therefore, in order to prevent this, it was ordered by the second of King Henry 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)

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 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 a 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, made no defence, and [*271] thereby judgment was given for the religious house, which then recovered the

(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, A. D. 1164.

(f) See book I, page 384.

(g) A. D. 1217. cap. 43, edit. Oxon.

(h) Non licet alicui de cætero dare terram suam alicui domui religiosa, ita quod illam resumat tenendam do eadem domo; nec liceat alicui domui religiosæ terram alicujus sic accipere,quod tradat illum ei a quo ipsam recepit tenendam : si quis autem de cætero terram suam domui religiosæ sic de deret, et super hoc convincatur, donum suum penitus cassetur, ut terra illa domino suo illius feodi in curratur. Mag. Cart. 9 Hen. III, c. 36. (i) 2 Iust. 75.

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 recov eries. But upon this the statute of Westminster the second, 13 Edw. 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 knights teniplars and hospitallers), in order to protect them from the feudal demands of their lords, by virtue of the privileges of those religions and military orders. So careful indeed was this provident prince to prevent any future evasion, 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, (2) 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 license by writ of ad quod damnum was marked out by the statute 27 Edw. I, st. 2, it was further provided by statute 34 Edw. I, st. 3, that no such license should be effectual, without the consent of the mense 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, for which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and receiving the actual profits, [*272] 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 license 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 subtle 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 devisces 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 statute 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 license 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 license was valid, (n) since the kings had no [ *273] *power to dispense with the statutes of mortmain by a clause of non obstante, (o) which was the usual course, though it seems to have been (1) 2 Inst. 501. (m) Cap. 3. (n) 2 Hawk. P. C. 391. (0) Stat. 1 W. & M. st. 2, c. 2.

(k) Cap. 33.

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 very small compass; it was therefore provided by the statute 7 and 8 Wm. III, c. 37, that the crown for the future at its own discretion may grant licenses to aliene or take in mortmain, of whomsoever the tenements may be holden.

After the dissolution of monasteries under Henry VIII, though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years by the statute 1 and 2 P. and M. c. 8, and during that time, any lands or tenements were allowed to be granted to any spiritual corporation without any license whatsoever. And, long afterwards, for a much better purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II, c. 3, that appropriators may annex the great tithes to the vicarages; and that all benefices under 100l. per annum may be augmented by the purchase of lands, without license of mortmain in either case; and the like provision hath been since made, in favour of the governors of Queen Anne's bounty. (q) It hath also been held, (r) that the statute 23 Hen. VIII, before mentioned, did not extend to any thing but superstitious uses; and that therefore a man may give lands for the maintenance of a school, an hospital, or any other charitable uses. But as it was apprehended from recent experience, that persons on their death-beds might make large and improvident dispositions even for these good purposes, and defeat the political ends of the statutes of mortmain; it is therefore enacted by the statute 9 Geo, II, c. 36, that no lands or tenements, or money to be laid out thereon, shall be given for or charged with any charitable uses whatsoever, unless by deed indented, [*274]

executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after its execution (except stocks in the public funds, which may be transferred within six months previous to the donor's death), and unless such gift be made to take effect immediately, and be without power of revocation: and that all other gifts shall be void. (4) The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons, than are equal in number to one moiety of the fellows or students, upon the respective foundations. (5)

2. Secondly, alienation to an alien (6) is also a cause of forfeiture to the crown of the land so alienated; not only on account of his incapacity to hold them,

(p) Co. Litt. 99.

(q) Stat. 2 and 3 Anne, c. 11.

(r) 1 Rep. 24.

(4) The statutes of mortmain are in force in Pennsylvania so far as they prohibit the dedication of property to superstitious uses, or grants to corporations without statutory license. 3 Binn. App. 626; Methodist Church v. Remington, 1 Watts, 218; 2 Kent, 282. They have not been adopted in the law of the other states, and corporations may hold property so far as not restricted by their charters, or as it may not be foreign to the purposes of their creation. And even in Pennsylvania a corporation created in another state, with capacity to take property for its corporate purposes, may hold lands subject only to forfeiture to the state. Runyan v. Coster's Lessee, 14 Pet. 122. See further as to conveyances in mortmain, Ang. and A. on Corp. § 149; Grant on Corp. 98, et seq.

(5) The statute 45 Geo. III, c. 101, repealed the restriction imposed by this act on colleges, as to the number of their advowsons, so that now they may hold them without restriction. Mr. Justice Coleridge says he believes it to be understood, however, that neither the statute 9 Geo. II, nor 45 Geo. III, at all affected the restraints of the mortmain laws, and that a license from the crown is still necessary when a college purchases an advowson. Many colleges are provided with a prospective license to purchase in mortmain to a certain extent; and such a license has in practice been considered sufficient,

(6) [An alien may be grantee in a deed, though he cannot hold it; for on "office found" the king shall have it by his prerogative. Co. Litt. 2 b.; 5 Co. 52; 1 Leon. 47; 1 Chitty's Com. L. 162, As to copyhold, see 1 Mod. 17; All, 14.]