Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
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, has sustained.
Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: i. 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, preceding volume;1 but 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 offenses which induce a forfeiture of lands and tenements to the crown are principally the following six; 1. Treason. 2. Felony. 3. Misprision of treason. 4. Praemunire. 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. 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, in consequence whereof the lands became perpetually inherent in one dead hand, this has occasioned the general appellation of mortmain to be applied to such alienations,2 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, has 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,3 for corporations to have a license of 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 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, above sixty years before the Norman conquest.4 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 lands so aliened in mortmain, as a forfeiture. The necessity of this license from the crown was acknowledged by the constitutions of Clarendon,5 in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations.6 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 seizin 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 seigniory, 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 seigniories, their escheats, wardships, reliefs, and the like: and therefore, in order to prevent this, it was ordained by the second of king Henry III’s great charters,7 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.8
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,9 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 held 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 [of religious persons], 7 Edw. I; which provided, that no person, religious or other whatsoever, should buy, or sell, or receive, under pretense 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 defense, 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 honor 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 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 seizin; 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,10 in case the tenants set up crosses upon their lands (the badges of knights templars and hospitallers [knights of Malta]) in order to protect them from the feudal demands of their lords, by virtue of the privileges of those religious and military orders. And so careful 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 held of the next immediate lord,11 a proviso was inserted12 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 [at what loss] was marked out, by the statute 27 Edw. I. St. 2. it was farther provided by statute 34 Edw. I. St. 3. that no such license 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 distinguishing between the possession and the use, and receiving the actual profits, while the seizin 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 practitioners 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 amortized 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 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 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,13 since the king had no power to dispense with the statutes of mortmain by a clause of non obstante,14 which was the usual course, though it seems to have been unnecessary;15 and as, by the gradual declension of mesne seigniories 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 & 8 W. 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 held.
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 & 2 P. & 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 100£ per annum may be augmented by the purchase of lands, without license of mortmain in either case: and the like provision has been since made, in favor of the governors of queen anne’s bounty.16 It has also been held,17 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 deathbeds 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, 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. The two universities, their colleges, and the scholars upon the foundation of the colleges of Eaton, 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.
2. Secondly, alienation to an alien is also a cause of forfeiture to the crown of the lands so alienated, not only on account of his incapacity to hold them, which occasions him to be passed by in descents of land,18 but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding volume.19
3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and divest the remainder or reversion,20 are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee; these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate to him in remainder or reversion.21 For which there seem to be two reasons. First, because such alienation amounts to a renunciation of the feudal connection and dependence; it implies a refusal to perform the due renders and services to the lord of the fee, of which fealty is constantly one; and it ends in its consequences to defeat and divest the remainder or reversion expectant: as therefore that is put in jeopardy, by such act of the particular tenant, it is but just that, upon discovery, the particular estate should be forfeited and taken from him, who has shown so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire and to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law, which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold, or of chattel interests; but if tenant in tail alienes in fee, this is no immediate forfeiture to the remainder-man, but a mere discontinuance (as it is called22) of the estate-tail, which he issue may afterwards avoid by due course of law:23 for he in remainder or reversion has only a very remote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law.24 For the law will not hurt an innocent lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it, and defeat the interest which he himself has created.
Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; as where a tenant, who holds of any lord, neglects to render him the due services, and upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord,25 upon reasons most apparently feudal. And so likewise, if in any court of record the particular tenant does any act which amounts to a virtual disclaimer; if he claims any greater estate than was granted him at the first infeudation, or takes upon himself those rights which belong only to tenants of a superior class;26 if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like;27 such behavior amounts to a forfeiture of his particular estate.
III. Lapse is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary by neglect of the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For it being for the interest of religion, and the good of the public, that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken the patron; who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority28) of the council of Lateran,29 which was in the reign of our Henry the second, when the bishops first began to exercise universally the right of institution to churches.30 And therefore, where there is no right of institution, there is no right of lapse: so that no donative can lapse to the ordinary,31 unless it has been augmented by the queen’s bounty.32 But no right of lapse can accrue, when the original presentation is in the crown.33
The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar months;34 (following in this case the computation of the church, and not the usual one of the common law) and this exclusive of the day of the avoidance.35 But, if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in;36 for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also, if the bishop does not collate his own clerk immediately to the living, and the patron presents, though after the six months are lapsed, yet his presentation is good, and the bishop is bound to institute the patron’s clerk.37 For as the law only gives the bishop this title by lapse, to punish the patron’s negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the presentation to lapse to the metropolitan, the patron also has the same advantage if he presents before the arch-bishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the arch-bishop.38 For he had no permanent right and interest in the advowson, as the patron has, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But if the presentation lapses to the king, prerogative here intervenes and makes a difference; and the patron shall never recover his right, till the king has satisfied his turn by presentation: for nullum tempus occurrit regi [no time runs against the king].39 And therefore it may seem, as if the church might continue void for ever, unless the king shall be pleased to present; and a patron thereby be absolutely defeated of his advowson. But to prevent this inconvenience, the law has lodged a power in the patron’s hands, of as it were compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron’s clerk; but if he does not, and the patron’s clerk dies incumbent, or is canonically deprived, the king has lost his right, which was only to the next or first presentation.40
In case the benefice becomes void by death, or cession through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is perfumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can take no advantage by way of lapse.41 Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the arch-bishop or the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months, and has exceeded his time: for the first step or beginning fails, et quod non habet principium, non habet finem [and that which has no beginning has no end].42 If the bishop refuse or neglect to examine and admit the patron’s clerk, without good reason assigned or notice given, he is styled a disturber by the law, and shall not have any title to present by lapse; for no man shall taken advantage of his own wrong.43 Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided.44
IV. BY simony, the right of presentation to a living is forfeited, and vested pro hac vice [for this time] in the crown. Simony is the corrupt presentation of any one to an ecclesiastical benefice for money, gift, or reward. It is so called from the resemblance it is said to bear to the sin of Simon Magus, though the purchasing of holy orders seems to approach nearer to his offense. It was by the canon law a very grievous crime: and is so much the more odious, because, as Sir Edward Coke observes,45 it is ever accompanied with perjury; for the presentee is sworn to have committed no simony. However it is not an offense punishable in a criminal way at the common law;46 it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect the simoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, diverse acts of parliament have been made to restrain it by means of civil forfeitures; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, because they divest the corrupt patron of the right of presentation, and vest a new right in the crown.
BY the statute 31 Eliz. c. 6. it is for avoiding of simony enacted, that if any patron for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclesiastical benefice or dignity; such presentation shall be void, and the presentee be rendered incapable of ever enjoying the same benefice: and the crown shall present to it for that turn only.47 Also by the statute 12 Ann. stat. 2. c. 12. if any person for money or profit shall procure, in his own name or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, this is declared to be a simoniacal contract; and the party is subjected to all the ecclesiastical penalties of simony, is disabled from holding the benefice, and the presentation devolves to the crown.
UPON these statutes many questions have arisen, with regard to what is, and what is not simony. And, among others, these points seem to be clearly settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious simony;48 this being expressly in the face of the statute. 2. That for a clerk to bargain for the next presentation, the incumbent being sick and about to die, was simony, even before the statute of queen Anne:49 and now, by that statute, to purchase, either in his own name or another’s, the next presentation, and be thereupon presented at any future time to the living, is direct and palpable simony. But, 3. It is held that for a father to purchase such a presentation, in order to provide for his son, is not simony: for the son is not concerned in the bargain, and the father is by nature bound to make a provision for him.50 4. That if a simoniacal contract be made with the patron, the clerk not being privy thereto, the presentation for that turn shall indeed devolve to the crown, as a punishment of the guilty patron; but the clerk, who is innocent, does not incur any disability or forfeiture.51 5. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal,52 provided the patron or his relations be not benefitted thereby;53 for this is no corrupt consideration, moving to the patron. 6. That bonds of resignation, in case of non-residence or taking any other living, are not simoniacal.;54 there being no corrupt consideration herein, but such only as is for the good of the public. So also bonds to resign, when the patron’s son comes to canonical age, are legal; upon the reason before given, that the father is bound to provide for this son.55 7. Lastly, general bonds to resign at the patron’s request are held to be legal:56 for they may possibly be given for one of the legal considerations before-mentioned; and where there is a possibility that a transaction may be fair, the law will not suppose it iniquitous without proof. But, if the party can prove the contract to have been a corrupt one, such proof will be admitted, in order to show the bond simoniacal, and therefore void. Neither will the patron be suffered to make an ill use of such a general bond of resignation; as by extorting a composition for tithes, procuring an annuity for his relation, or by demanding a resignation wantonly and without good cause, such as is approved by the law; as, for the benefit of his own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbent.57
V. THE next kind of forfeitures are those by breach or nonperformance of a condition annexed to the estate, either expressly by deed at its original creation, or impliedly by law from a principle of natural reason. Both which we considered at large in a former chapter.58
VI. I THEREFORE now proceed to another species of forfeiture, viz. by waste. Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison [disinheritance] of him that has the remainder or reversion in fee-simple or fee-tail.59
WASTE is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance is waste.60 Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is waste.61 If a house be destroyed by tempest, lightening, or the like, which is the act of providence, it is no waste: but otherwise, if the house be burnt by the statute 6 Ann. c. 3. no action will lie against a tenant for an accident of this kind, lest misfortune be added to misfortune. Waste may also be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance.62 Timber also is part of the inheritance.63 Such are oak, ash, and elm in all places: and in some particular countries, by local custom, where other trees are generally used for building, they are thereupon considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste.64 But underwood the tenant may cut down at any seasonable time that he pleases;65 and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions.66 The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture into woodland; or to turn arable or woodland into meadow or pasture; are all of them waste.67 For, as Sir Edward Coke observes,68 it not only changes the course of husbandry, but the evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable, and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value.69 To open the land to search for mines of metal, coal, a, is waste; for that is a detriment to the inheritance:70 but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use;71 for it is now become the mere annual profit of the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever tends to the destruction, or depreciating the value, of the inheritance, is considered by the law as waste.
LET us next see, who are liable to be punished for committing waste. And by the feudal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; “si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur” [“if a vassal shall have wasted the fee, or lessened its value by any notorious injury, he shall be deprived of it”].72 But in our ancient common law the rule was by no means so large; for not only he that was seized of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the curtesy;73 and not in tenant for life or years.74 And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them: but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. But, in favor of the owners of the inheritance, the statutes of Marlbridge75 and Gloucester76 provided, that the writ of waste shall not only lie against tenants by the law of England (or curtesy) and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants for life or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him, for waste committed.
THE punishment for waste committed was, by common law and the statute of Marlbridge, only single damages;77 except in the case of a guardian, who also forfeited his wardship78 by the provisions of the great charter:79 but the statute of Gloucester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages, to him that has the inheritance. The expression of the statute is, “he shall “forfeit the thing which he has wasted;” and it has been determined, that under these words the place is also included.80 And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a house, the whole house shall be forfeited;81 because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood (or perhaps in one room of a house) if that can be conveniently separated from the rest, that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner.82
VII. A SEVENTH species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste; whereupon the lord may seize them without any presentment by the homage;83 but also to peculiar forfeitures, annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. and we may observe that, as these tenements were originally held by the lowest and most abject vassals, the marks of feudal dominion continue much the strongest upon this mode of property. Most of the offenses, which occasioned a resumption of the fief by the feudal law, and were denominated feloniae, per quas vasallus amitteret feudum [felonies, by which the vassal would lose his fee],84 still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service;85 si dominum deservire noluerit:86 by disclaiming to hold of the lord, or swearing himself not his copyholder;87 si dominum ejuravit, i.e. negavit se a domino feudum habere:88 by neglect to be admitted tenant within a year and a day;89 si per annum et diem cessaverit in petenda investitura:90 by contumacy in not appearing in court after three proclamatons;91 si a domino ter citatus non comparuerit:92 or by refusing, when sworn of the homage, to present the truth according to his oath;93 si pares veritatem noverint, et dicant se nescire, cum sciant.94 In these, and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offenses are presented by the homage, or jury of the lord’s court baron;95 per laudamentum parium suorum:96 or, as it is more fully expressed in another place,97 nemo miles adimatur de possessione sui beneficii, nisi convicta culpa, quae sit laudanda98 per judicium parium suorum [no soldier shall be removed from the possession of his benefice, unless convicted of some offence, which must be declared by the judgment of his peers].
VIII. THE eighth and last method, whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined; a trader, who secretes himself, or does certain other acts, tending to defraud his creditors.
WHO shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter; when we shall endeavor more fully to explain its nature, as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements are transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.
BY the statute 13 Eliz. c. 7. the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as he may lawfully part with) or purchased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and enrolled, or divide them proportionably among the creditors. The statute expressly includes not only free, but copyhold, lands: but did not extend to estates tail, farther than for the bankrupt’s life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I. c. 19. enacts, that the commissioners shall be empowered to sell or convey, by deed indented and enrolled, any lands or tenements of the bankrupt, wherein he shall be seized of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remaindermen, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means: and that all equities of redemption upon mortgaged estates, shall be at the disposal of the commissioners; for they shall have power to redeem the same, as the bankrupt himself might have done, and after redemption to sell them. And also, by this and a former act,99 all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchaser bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptcy committed.
BY virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred by his commissioners to their assignees, without his participation or consent.
1. Vol. I. pag. 289.
2. See Vol. 1. pag. 467.
3. F. N. B. 121.
4. Selden. Jan. Angl. l. 2. § 45.
5. Ecclesiae de feudo domini regis non possunt in perpetuum dari, absque assensu et consensione ipsius. [Advowsons, of which the king has the fee, cannot be given in perpetuity without his consent and approval.] c. 2. A. D. 1164.
6. See Vol. I. pag. 373.
7. A.D. 1217. cap. 43. edit. Oxon.
8. 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 illam ei a quo ipsum 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. [It is not lawful for any one to give his land to a religious house for the purpose of taking it again to hold of that house; neither is it lawful for any religious house thus to receive land in order to restore it to its original owner to hold of that house: but if any one shall have so given his land, and can be convicted of the fact, his gift shall be utterly void, and the land escheat to the lord of the fee.] Mag. Cart. 9 Hen. III. c. 36.
9. 2 Inst. 75.
10. capt. 33.
11. 2 Inst. 501.
12. cap. 3.
13. 2 Hawk. P. C. 391.
14. Stat. 1. W. & M. St. 2. c. 2.
15. Co. Litt. 99.
16. Stat. 2 & 3 Ann. c. 11.
17. 1 Rep. 24.
18. See pag. 249. 250.
19. Book I. ch. 10.
20. Co. Litt. 251.,
21. Litt. § 415.
22. See Book III.
23. Litt. § 595, 6, 7.
24. Co. Litt. 233.
25. Finch. 270, 271.
26. Co. Litt. 252.
27. Ibid. 253.
28. 2 Roll. Abr. 336. pl. 10.
29. Bracton. l. 4. tr. 2. c. 3.
30. See pag. 23.
31. Bro. Abr. tit. 2uar. Imped. 131. Cro. Ja c. 518.
32. Stat. 1 Geo. I. St. 2. c. 10.
33. stat. 17 Edw. II. c. 8. 2 Inst. 273.
34. 6 Rep. 62. Registr. 42.
35. 2 Inst. 361.
36. Gibf. Cod. 769.
37. 2 Inst. 273.
38. 2 Roll. Abr. 368.
39. Dr. & St. d. 2. c. 36. Cro. Car. 355.
40. 7 Rep. 28. Cro. Eliz. 44.
41. 4 Rep. 75. 2 Inst. 632.
42. Co. Litt. 344. 345.
43. 2 Roll. Abr. 369.
44. Co. Litt. 344.
45. 3 Inst. 156.
46. Moor. 564.
47. For other penalties inflicted by this statute, see Book IV.
48. Cro. Eliz. 788. Moor. 914.
49. Hob. 165.
50. Cro Eliz. 686. Moor. 916.
51. 3 Inst. 154. Cro. Jac. 385.
52. Noy 142.
53. Star. 534.
54. Cro. Car. 180.
55. Cro. Jac. 248. 274.
56. Cro. Car. 180. Star. 227.
57. 1 Vern. 411. 1 Equ. Cas. abr. 86, 87. Stra. 534.
58. See chap. 10. pag. 152.
59. Co. Litt. 53.
60. Hetl. 35.,
61. 4 Rep. 64.
62. Co. Litt. 53.
63. 4 Rep. 62.
64. Co. Litt. 53.
65. 2 Roll. Abr. 817.
66. Co.Litt. 41.
67. Hob. 296.
68. 1 Inst. 53.
69. 1 Lev. 309.
70. 5 Rep. 12.
71. Hob. 295.
72. Wright. 44.
73. It was however a doubt whether waste was punishable at the common law in tenant by the curtesy. Regist. 72. Bro. Abr. tit. waste. 88. 2 Inst. 301.
74. 2 Inst. 299.
75. 52 Hen. III. c. 24.
76. 6 Edw. I. c. 5.
77. 2 Inst. 146.
78. Ibid. 300.
79. 9 Hen. III. c. 4.
80. 2. Inst. 303.
81. Co. Litt. 51.
82. 2 Inst. 304.
83. 2 Ventr. 38. Cro. Eliz. 499.
84. Feud. l. 2. t. 26. in cale.
85. 3 Leon. 108. Dyer. 211.
86. Feud. l. 1. t. 21.
87. Co. Copyh.§ 57.
88. Feud. l. 2. t. 34. & t. 26. § 3.
89. Plowd. 372.
90. Feud. l. 2. t. 24.
91. 8 Rep. 99. Co. Copyh. § 57.
92. Feud. l. 2. t. 22.
93. Co. Copyh. § 57.
94. Feud. l. 2. t. 58.
95. Co. Copyh. § 58.
96. Feud. l. 1. t. 21.
97. Ibid. t. 22.
98. i.e. arbitranda, definienda [to be judged, to be declared]. Du Fresne. IV. 79.
99. 1 Jac. 1. c. 15.