is claimable by this prescription, but fuch things as are incident, appendant, or appurtenant to lands; for it would be ab furd to claim any thing as the confequence, or appendix, of an eftate, with which the thing claimed has no connexion: but, if he preferibes in himself and his ancestors, he may prescribe for any thing whatfoever that lies in grant; not only things that are appurtenant, but alfo fuch as may be in grofs'. Therefore a man may preferibe, that he, and those whofe eftate he hath in the manor of Dale, have ufed to hold the advowson of Dale, as appendant to that manor: but, if the advowfon be a diftinct inheritance, and not appendant, then he can only prefcribe in his ancestors. So alfo a man may prescribe in a que eftate for a common appurtenant to a manor; but, if he would prefcribe for a common in grofs, he muft prefcribe in himself and his ancestors. 6. Lastly, we may obferve, that eftates gained by prefeription are not, of course, defcendible to the heirs general, like other purchased eftates, but are an exception to the rule. For, properly fpeaking, the prefcription is rather to be confidered as an evidence of a former acquifition, than as an acquifition de novo and therefore, if a man prefcribes for a right of way in himself and his ancestors, it will defcend only to the blood of that line of ancestors in whom he fo prefcribes; the prefcription in this cafe being indeed a fpecies of descent. But, if he prefcribes for it in a que eflate, it will follow the nature of that estate in which the prefcription is laid, and be inheritable in the fame manner, whether that were acquired by descent or purchafe; for every acceffory followeth the na ture of it's principal. List. § 183. Finch. L. 104. X 3 CHAPTER THE EIGHTEENTH. OF TITLE BY FORFEITURE. F ORFEITURE is a punishment annexed by law to fome illegal act, or negligence, in the owner of lands, tenements, or hereditaments: whereby he lofes all his intereft therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himfelf, hath fuftained. LANDS, tenements, and hereditaments, may be forfeited in various degrees and by various means: 1. By crimes and mifdemefnors. 2. By alienation contrary to law. 3. By non-prefentation to a benefice, when the forfeiture is denominated a lapfe. 4. By fimony. 5. By non-performance of conditions. 6. By wafte. 7. By breach of copyhold customs. 8. By bankruptcy. I. THE foundation and justice of forfeitures for crimes and misdemefnors, and the feveral degrees of those forfeitures, proportioned to the feveral offences, have been hinted at in the preceding volume ; but will be more properly confidered, and more at large, in the fourth book of these commentaries. At prefent I shall only obferve in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following fix: 1. Treafon. 2. Felony. 3. Mifprifion of treafon. 4. Praemunire. 5. Drawing a weapon on a judge, or ftriking any one in the prefence of a Vol. I. pag. 299. 1 the the king's principal courts of justice. 6. Popish recufancy, or non-observance of certain laws enacted in restraint of papifts. 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 morimain, alienation to an alien, or alienation by particular tenants; in the two former of which cafes the forfeiture arifes from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant. I. ALIENATION in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, fole or aggregate, ecclefiafticcl or temporal. But thefe purchases having been chiefly made by religious houses, in confequence whereof the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to fuch alienations, and the religious houses themselves to be principally confidered in forming the ftatutes of mortmain; in deducing the hiftory of which ftatutes, it will be matter of curiofity to obferve the great address and subtle contrivance of the ecclefiaftics in eluding from time to time the laws in being, and the zeal with which fucceffive parliaments have pursued them through all their fineffes: how new remedies were ftill the parents of new evafions; till the legislature at last, though with difficulty, hath obtained a decifive victory. By the common law any man might difpofe of his lands to any other private man at his own difcretion, efpecially when the feodal restraints of alienation were worn away. Yet in confequence of thefe it was always, and is ftill, neceffary, 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, un b See Vol. I. pag. 479•, X 4 CF. N. B. 121. lefs lefs by his own confent, to lofe his privilege of efcheats and other feodal profits, by the vefting of lands in tenants that can never be attainted or die. And fuch licences of mortmain seem to have been neceffary among the Saxons, above fixty years before the Norman conqueft . But, befides this general licence from the king, as lord paramount of the kingdom, it was also requifite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence alfo, (upon the fame feodal principles) for the alienation of the specific land. And if no fuch licence was obtained, the king or other lord might refpectively enter on the lands fo aliened in mortmain, as a forfeiture. The neceffity of this licence from the crown was acknowleged by the conftitutions of Clarendon, in refpect of advowfons, which the monks always greatly coveted, as being the groundwork of fubfequent appropriations. Yet fuch were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and moft confiderable dotations of religious houfes happened within less than two centuries after the conqueft. And (when a licence could not be obtained) their contrivance feems 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 houfe, and inftantly took them back again, to hold as tenant to the monaflery; which kind of instantaneous seifin was probably held not to occasion any forfeiture : and then, by pretext of fome other forfeiture, furrender, or efcheat, the fociety entered into thofe lands in right of fuch their newly acquired figniory, as immediate lords of the fee. But, when thefe dotations began to grow numerous, it was obferved that the feodal fervices, ordained for the defence of the kingdom, were every day vifibly withdrawn; that the circulation of landed property from man to man began to ftagnate; and that the lords were curtailed of the fruits of d Selden. Jan. Angl. 1. 2. § 45. Ecclefiae de feudo domini regis non poffunt in perpetuum dari, abfque affenfu et confenfione ipfius. c. 2. A. D. 1164. f See Vol. I. p. 384. their figniories, their efcheats, wardfhips, reliefs, and the like and therefore in order to prevent this, it was ordered by the second of king Henry III's great charter, and afterwards by that printed in our common statute-book, that all fuch attempts fhould 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 fole corporations were not included therein; and the aggregate ecclefiaftical bodies (who, fir Edward Coke obferves, 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 ftatute, by buying in lands that were bona fide holden of themfelves as lords of the fee, and thereby evading the forfeiture; or by taking long leafes for years, which first introduced those extenfive terms, for a thousand or more years, which are now fo frequent in conveyances. This produced the statute de religiofis, 7 Edw. I; which provided, that no perfon, religious or other whatsoever, fhould buy, or fell, or receive, under pretence of a gift, or term of years, or any other title whatsoever, nor fhould 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 feemed to be a fufficient fecurity against all alienations in mortmain: but as thefe ftatutes extended only to gifts and conveyances between the parties, the religious houfes now began to fet up a fictitious title to the land, which it was intended they fhould have, and to bring an BA. D. 1217. cap. 43. edit. Oxon. h Non licet alicui de caetero dare terram fuam alicui domui religiofac, ita quod illam refumat tenendam de eadem domo; nec liceat alicui domui religi fae te ramali. ujus fic accipere, quod tradat illum ei a quo ipjam recepit tenendam : fi quis autem de caetero terram fuam domui religi-fae fic 9 |