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 Another rule may be added, viz., that a person ought not to prescribe for that which is of common right, and which the law gives. Willes R. 268. Bac. Abr. Common. A.-CHITTY. Immemorial usage, or usage from time whereof the memory of man runneth not to the contrary, was formerly held to be when such usage had commenced not later than the beginning of the reign of Richard I. But as in most cases it was impossible to bring proof of the existence of any usage at this early date, the courts were wont to presume the fact upon proof only of its existence for some reasonable time back, as for a period of twenty years or more, unless indeed the person contesting the usage were able to produce proof of its non-existence at some period subsequent to the beginning of the reign of Richard I., in which case the usage necessarily fell to the ground. The proof even of a shorter continuance than for twenty years was enough to raise the presumption, if other circumstances were brought in corroboration, indicating the existence of an ancient right. But the prescription was defeated by proof that the enjoyment, whether for twenty years or any other period within time of legal memory, took place by virtue of a grant or license from the party interested in opposing it, or that it was without the knowledge of him or his agents during the whole time that it was exercised. Bright vs. Walker, 4 Tyr. 509. To remedy the inconvenience and injustice which sometimes followed from this state of the law, the prescription act, 2 & 3 W. IV. c. 71, was passed, which is entitled "an act for shortening the time of prescription in certain cases. "The first section enacts that no claim which may be lawfully made, at the common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken or enjoyed from or upon any land of the sovereign or parcel of the duchies of Lancaster and Cornwall, or of any ecclesiastical or lay person, (excepting certain matters to be referred to immediately,) and except tithes, rents, and services, shall, when such right shall have been enjoyed without intermission for thirty years, be defeated or destroyed by showing only that such right was first enjoyed at any time prior to such period of thirty years; but such claim may be defeated in any other way by which it is now liable to be defeated: and when such right shall have been enjoyed for sixty years, it shall be deemed indefeasible, unless it appear that it was enjoyed by some consent or agreement expressly made for the purpose by deed in writing. The matters excepted in the first section are,-1. Claims to any way or other easement, or to any water-course, or the use of any water, for which a precisely similar enactment is made, except that, instead of the terms of thirty and sixty years, the shorter terms of twenty and forty years are made sufficient to support such claim; and, 2. Claims to the use of light, for which an enjoyment of twenty years constitutes an indefeasible title, unless it appear that the right was enjoyed by agreement expressly made for that purpose by deed in writing. It is also enacted by section 5 that, where formerly it would have been necessary in pleading to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment as of right during the periods mentioned in the act as applicable to the case, and without claiming in the name or right of the owner of the fee, as formerly was, and still is usually, done.-KERR. 597 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 misdemesnors. 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 condition. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy. I. The foundation and justice of forfeitures for crimes and misdemesnors, 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 considered, 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: *268] 1. Treason. 2. Felony. 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. 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.2 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 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 feodal restraints of alienation were worn away. Yet, in consequence of these it was always, and is still 1 But the statutes of recusancy are now repealed by 31 Geo. III. c. 32, provided papists take the oath prescribed therein.-CHITTY. 2 "No attainder of treason against the United States shall work corruption of blood or forfeiture, except during the life of the person attainted." Const. U. S. art. 3. And when Congress undertook to declare the punishment of treason, and to pass an act for the punishment of crimes against the United States, in which act treason, murder, manslaughter, piracy, larceny, and some other crimes, when committed within the jurisdiction of the United States, were comprehended, they subjoined a clause to the act, declaring that no conviction or judgment for any of the offences therein mentioned shall work corruption of blood or any forfeiture of estate. L. U. S. 1 Cong. 2 sess. c. 9, § 24. 1 Story's Laws U. S. 88.-SHARSWOOD. [*269 necessary, (c) for corporations to have a license 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, unless by his own consent, to lose his privilege of escheats, and other feodal 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.(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 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 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 feodal services, ordained for the defence of the kingdom, were every day visibly withdrawn; that the circulation of landed property from man to man began to *stagnate; and that [*270 the lords were curtailed of the fruits of their signiories, their escheats, wardships, reliefs, and the like; and therefore, in order to prevent this, it was ordered by the second of King Henry III.'s great charter,(g) and afterwards by that printed in our common statute-book, 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 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 religiosa, ita quod illam resumat tenendam de eadem domo: nec liceat alicui domui religiosæ terram alicujus sic accipere, quod tradat illum ei a quo ipsam recepit tenendum: si quis autem de cætero terram suam domui religiosa sic dederit, ut super hoc convincatur, donum suum penitus cassetur, ut terra illa domino suo illius feodi incurratur. Mag. Cart. 9 Hen. III. c. 36. (2 Inst. 75. 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. 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 templars and hospitallers) in order to protect them from the feodal demands of their lords, by virtue of the privileges of those religious and military orders. 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(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 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 *272] 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 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 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 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 *power to dispense with the statutes of mortmain by a clause of non *273] obstante,(o) which was the usual course, though it seems to have been 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 & 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 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 & 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, a 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, [*274 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.3 (°) Stat. 1 W. and M. st. 2, c. 2. (9) Stat. 2 & 3 Anne, c. 11. 3 A bequest of money to be employed in building upon, or otherwise improving, land already in mortmain, is not considered a violation of the statute. Attorney-General vs. Parsons, 8 Ves. 191. Attorney-General vs. Munby, 1 Meriv. 345. Corbyn vs. French, 4 Ves. 428. And where a testator has pointed out such a mode of applying his bequest in favour of a charity as the policy of the law will not admit, still, if he has left it entirely optional to his executors or trustees to adopt that mode, or to select some other not liable to the same objections, the bequest may be legally carried into effect. Grimmet vs. Grimmet, Ambl. 212. S. C. 1 Dick. 251. Kirkbank vs. Hudson, 7 Price, 217. Curtis vs. Hutton, 14 Ves. 539. Attorney-General vs. Goddard, 1 Turn. & Russ. 350. But, where the testator has used the words of request or recommendation, (not expressly leaving the matter to the discretion of his executors,) those words of request are held to be mandatory, (Taylor vs. George, 2 Ves. & Bea. 378. Paul vs. Compton, 8 Ves. 380. Parsons vs. Baker, 18 Ves. 476;) and if they point to an appropriation of the legacy contrary to the policy of the law, the legacy must fail. Grieves vs. Case, 1 Ves. Jr. 550. In the Attorney-General vs. Davies (9 Ves. 543) it was justly termed an absurd distinction to say that a testator shall not give land to a charity, yet that he may give money conditionally, in consideration of another's giving land for a charity. And it is now perfectly well settled, notwithstanding some earlier decisions of lord Hardwicke to the contrary, that, if a testator give personal property "to erect and endow" a school or hospital, it must be considered, unless it be otherwise declared in his will, that it was the testator's intention land should be acquired, as a necessary part of his purpose, (Chapman vs. Brown, 6 Ves. 408. Attorney-General vs. Davies, 9 Ves. 544;) but, where the testator has expressly directed that no part of the money bequeathed shall be employed in the purchase of land, it being his expectation that other persons will, at their expense, purchase lands and buildings for the purposes intended, there the statute has been held not to apply. Henshaw vs. Atkinson, 3 Mad. 313. So, where a testator's directions can be sufficiently answered by hiring land or buildings for the purposes of a charity, |