laid in him that is tenant of the fee. A tenant for life, for
years, at will, or a copyholder, cannot prescribe, by reafon
of the imbecility of their eftates ". For, as prefcription is
ufage beyond time of memory, it is abfurd that they should
pretend to prescribe for any thing, whofe eftates commenced
within the remembrance of man. And therefore the copyholder
must prescribe under cover of his lord's eftate, and the te-
nant for life under cover of the tenant in fee-simple. As,
if tenant for life of a manor would prescribe for a right of
common as appurtenant to the fame, he must prescribe under
cover of the tenant in fee-fimple; and muft plead that John
Stiles and his ancestors had immemorially used to have this
right of common, appurtenant to the faid manor,and that John
Stiles demifed the faid manor, with it's appurtenances, to him
the faid tenant for life. 3. A prescription cannot be for a
thing which cannot be raised by grant. For the law allows
prescription only in supply of the loss of a grant, and there-
fore
every prescription prefuppofes a grant to have existed.
Thus the lord of a manor cannot prescribe to raise a tax or toll
upon ftrangers; for, as fuch claim could never have been
good by any grant, it fhall not be good by prefcription.
4. A fourth rule is, that what is to arise by matter of record
cannot be prescribed for, but must be claimed by grant, en-
tered 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 arife is found by the
inquifition of a jury, and so made a matter of record, the for-
feiture itself cannot be claimed by any inferior title. But the
franchises of treasure-trove, waifs, cftrays, and the like, may
be claimed by prescription; for they arise from private con-
tingencies, and not from any matter of record *. 5. Among
things incorporeal, which may be claimed by prefcription, a
diftinction must be made with regard to the manner of pre-
scribing; that is, whether a man shall prescribe in a que eftate,
orin himself and his ancestors. For, if a man prefcribes in a que
eftate, (that is, in himself and those whofe eftate he holds) nothing
Co. Litt. 114.

h 4 Rep. 31, 32,

Ventr. 387.

is

is claimable by this prefcription, but fuch things as are incident, appendant, or appurtenant to lands; for it would be abfurd to claim any thing as the confequence, or apper tix, of an eftate, with which the thing claimed has no connexion: but, if he prefcribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also fuch as may be in grofs. Therefore a man may prescribe, that he, and those whofe eftate 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 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 must prescribe in himself and his ancestors. 6. Laftly, we may obferve, that estates gained by prescription are not, of course, defcendible to the heirs general, like other purchased eftates, but are an exception to the rule. For, properly fpeaking, the prescription is rather to be confidered as an evidence of a former acquifition, than as an acquifition de novo and therefore, if a man prescribes 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 so prescribes ; the prescription in this cafe being indeed a fpecies of descent. But, if he prescribes for it in a que eftate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the fame manner, whether that were acquired by descent or purchase: for every acceffory followeth the nature of it's principal.

Litt. §. 183. Finch. L. 104.

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 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 mifdemefnors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapfe. 4. By fimony.

of conditions. 6. By waste. customs. 8. By bankruptcy.

5. By non-performance 7. By breach of copyhold

I. THE foundation and justice of forfeitures for crimes and mifdemefnors, and the feveral degrees of those forfeitures, proportioned to the several 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 present I fhall 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. Misprifion of treason. 4. Praemunire. 5. Drawing

a Vol. I. pag. 299.

a weapon

a weapon on a judge, or striking any one in the presence of the king's principal courts of justice. 6. Popish recufancy, or non-obfervance 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 referved 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 alie. nation by particular tenants; in the two former of which cafes 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 mortui manu, is an alienation of lands or tenements to any corporation, fole or aggregate, ecclefiaftical or temporal. But thefe purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this hath occafioned the general appellation of mortmain to be applied to fuch alienations, and the religious houses themselves to be principally confidered in forming the statutes of mortmain; in deducing the history of which ftatutes, it will be matter of curiofity to observe the great addrefs and fubtle 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 laft, though with difficulty, hath obtained a decisive victory.

By the common law any man might difpofe of his lands to any other private man at his own discretion, especially 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

See Vol. I. pag. 479.

c F. N. B. 121,

from

from the crown, to enable them to purchase lands: for as the king is the ultimate lord of every fee, he ought not, unlefs by his own confent, to lose his privilege of efcheats and other feodal profits, by the vesting of lands in tenants that can never be attainted or die. And fuch licences of mortmain feem 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 alfo requifite, whenever there was a mefne 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 respectively enter on the lands fo aliened in mortmain, as a forfeiture. The neceility 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 subsequent 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 lefs than two centuries after the conqueft. (when a licence could not be obtained) ther contrivance seems to have been this: that, as the forfeiture or fuch alienations accrued in the first place to the immediat lord of the fee, the tenant who meant to alienate first conveyed his lands to the religious houfe, and inftantly took them bck again, to hold as tenant to the monaftery; which kind of nftantaneous feifin was probably held not to occafion any foreiture: and then, by pretext of fome other forfeiture, furrener, or efcheat, the fociety entered into those lands in right ofuch their newly acquired figniory, as immediate lords of the ee. But, when these dotations began to grow numerous, it s obferved that the feodal fervices, ordained for the defence the kingdom, were every day vifibly withdrawn; that the circulation of landed property from man to man began to

d Selden. Jan. Angl. 1. 2. §. 45. Ecclefiae de feudo domini regis non poffunt in perpetuum dari, abfque affenfu

And