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.

By Alienation.

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.

Alienation in Mortmain.

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, and the religious houses themselves to be principally considered in forming the statutes of mortmain.

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 always, and is still necessary, for corporations to have a license in mortmain from the crown to enable them to purchase lands. 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 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 religious houses resorted to the following contrivance when a license could not be obtained: The tenant who meant to alienate, first conveyed his lands to the religious houses and instantly took them back again to hold as tenant to the monastery, which sort of instantaneous seisin was probably held not to occasion any forfeiture. Then, by pretext of some other forfeiture, surrender or escheat, the society entered into the land in right of the newly acquired signiory, as immediate lords of the fee.

In the reign of Henry III., all such attempts were declared void, and the land became forfeited to the lord of the fee.

This extended only to religious houses, sole corporations not being included in the statute. Ecclesiastical bodies, however, found means to creep out of this statute, one of which was by taking long leases for years.

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 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.

Common Recoveries.

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 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 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.

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 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 mesne or intermediate lords. Origin of Uses and Trusts.

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 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 cestui 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 churchyards, 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 statute of 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.

Alienation to an Alien.

2. Secondly, alienation to an alien is also a cause of forfeiture to the crown of the land so alienated: not only on account of his incapacity to hold them, which occasions him to be passed by in descents of land, but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property. Alienation by Particular Tenants.

3. Lastly, alienation by particular tenants, when they are greater than the law entitles them to make, and devest the remainder or reversion, are also forfeitures to him whose right is attacked thereby.

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, upon reasons most apparently feodal.

By Lapse.

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.

By Simony.

IV. By simony, the right of presentation to a living is forfeited, and vested pro hac vice 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.

By Breach of Condition.

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.

By Waste.

VI. Another species of forfeiture is waste. Waste, vastum, is a spoil of destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail.

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. Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is waste. If a house be destroyed by tempest, lightning, or the like, which is the act of Providence, it is no waste: but otherwise, if the house be burned by the carelessness or negligence of the lessee, though now, by the statute 6 Anne, c. 31, no action will lie against a tenant for an accident of this kind. 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. Timber also is part of the inheritance. Such are oak, ash, and elm in all places; and in some particular counties, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste. But underwood the tenant may cut down at any seasonable time that he pleases; and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions. 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. 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. To open the land to search for mines of metal, coal, etc., is waste, for that is a detriment to the inheritance; but if the pits or mines were open. before it is no waste for the tenant to continue digging them for his own use; 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 else tends to the destruction, or depreciating the value of the inheritance, is considered by the law as waste.

Who May Commit Waste.

In our ancient common law waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the curtesy; and not in tenant for life or years. And the reason for 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 fault.

But tenant in tail after possibility of issue extinct is not impeachable for waste, because his estate was at its creation an estate of inheritance, and so not within the statutes. Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account: but it seems reasonable that it should lie for the reversioner, expectant on the determination of the debtor's own estate, or of these estates derived from the debtor.

The Punishment.

The punishment for waste committed was, by common law and by statute of Marlbridge, only single damages; except in the case of a guardian, who also forfeited his wardship by the provisions of the great charter; but the statute of Gloucester directs that the other four species of tenant shall lose and forfeit the place wherein the waste is committed, and also treble damages to him that hath the inheritance.

By Breach of the Customs.

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 forfeiture as those which are held in socage, for treason, felony, alienation and waste: whereupon the