Chapter 35
Chapter 18, Part 2 of the Commentaries on the Laws of England, Book 2, by William Blackstone. For more information or to volunteer, please visit LibriVox.org. Recording by Roy Haynes. Of Title by Forfeiture, Part 2. three laps 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 authority of the council of lateran which was in the reign of our henry the second when the bishops first began to exercise universally the right of institution to churches and therefore where there is no right of institution there is no right of lapse so that no donative can lapse to the ordinary unless it hath been augmented by a queen's bounty but no right of lapse can accrue when the original presentation is in the crown the term in which the title to present by lapse accrues from one to the other successively is six calendar months following in this case the computation of the church and not of the usual one of the common law and this exclusive of the day of avoidance
but if the bishop be both patron and ordinary he shall not have a double time allowed to him to collate in for the forfeiture accrues by law whenever the negligence has continued six months in the same person and also if the bishop doth 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 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 patron should be deprived of his turn if the bishop suffer the presentation to lapse to the metropolitan the patron also has the same advantage if he presents before the archbishop 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 archbishop for he had no permanent right and interest in the advowsing as the patron hath 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 occurret regi 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 advowsing 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 the clerk is instituted, the king, indeed, by presenting another, may turn out the patron's clerk. but if he does not, the patron's clerk dies incumbent, or is canonically deprived, the king
hath lost his right, which was only to the next or first presentation. In case the benefice becomes void by death, the secession 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 presumed 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. Neither shall any lapse thereby accrue to the metropolitan or to the King, for it is universally true, that neither the Archbishop or the King shall ever present by lapse, but where the immediate ordinary might have collated by lapse within the six months, and hath exceeded his time, for the first step or beginning faileth.
Et quode non abet principium, non abet finem. 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 take advantage of his own wrong. Also, if the rite of presentation be litigious or contested, and an action be brought against
the bishop to try the title, no lapse shall incur until the question of right be decided. 4. By simony, the right of presentation to a living is forfeited and vested pro hoc vice in the crown. Simony is the corrupt presentation of anyone to an ecclesiastical benefits 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, loss, as Sir Edward Coke observes, it is ever accompanied with perjury, for the presentee is sworn to have committed no simony. However, it is not an offence punishable in a criminal way at the common law, it being thought sufficient to leave the clerk to ecclesiastical censures.
But as these did not affect the simonical 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 Elizabeth 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 benefits, and the crown shall present to it for that turn only. Also, by the statute 12 and
FT2 C12, 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 simonical 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, 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, 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 three 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 4. That if a simonical 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.
5. That bonds given to pay money to charitable uses on receiving a presentation to a living are not simonical, provided the patron or his relations be not benefited thereby, for this is no corrupt consideration moving to the patron. 6. That bonds of resignation, in case of non-residents or taking any other living, are not simonical, 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 his son. 7. Lastly, general bonds to resign at the patron's request are held to be legal, 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 Simonical 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. 5. The next kind of forfeitures are those by breach or non-performance 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 of which we considered at large in a former chapter. 6. 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 disherition of him that hath the remainder or reversion in fee simple or fee tale. 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 tempests, lightning, or the like, this is an act of providence and is no waste. But otherwise, if the house be burnt by the carelessness or negligence of the lessee, though now, by the Statute 6 and C.31, no action will lie against a tenant for an accident of this kind. Waste may also be committed in ponds, dove housings, warrens, and the like.
by so reducing the number of creatures therein that there will not be sufficient for the reversioner when he comes to the inheritance. Timber is also part of the inheritance. 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. But under wood the tenant may cut down at any seasonable time that he pleases, and may take sufficient distovers of common right for houseboat and cartboat, 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. For as Sir Edward Coke observes, 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 a 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.
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 opened before, it is no waste for the tenant to continue digging them for his own use, for it has 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 vassalis fiudum disi peberit, aut insigniae detramento, diteries feceret privibitor.
But in our ancient common law the rule was by no means so large, for not only he that was seized them in a state of inheritance might do as he pleased with it, but also waste was not punishable in any tenant save only three persons, guardian in chivalry, tenant in dower, and tenant by the courtesy, and not in tenant for life or years. And the reason for their diversity was that the estate of the three former was created
by the act of 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 by his own default. But, in favour of the owners of the inheritance,
the statutes of Marlbridge and Gloucester provided, that the writ of waste shall not only lie against tenants by the law of England, or courtesy, and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above 500 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, 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 tenants shall lose and forfeit the place wherein the
waste is committed, and also treble damages to him that hath the inheritance. The expression of the statute is, he shall forfeit the thing which he hath wasted, and it hath been determined that under these words the place is also included. And if the waste be done sparsim, or here or 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, because it is impractical for the reversioner to enjoy
only the identical places wasted when lying interspersed with each other. But if the 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 vastus, or thing wasted, and that only shall be forfeited to the reversioner. 7. A seventh species of forfeiture is that of copy-hold estates by breach of the customs of the manor. Copyholder estates are not only liable to the same forfeitures as those which are held in
sockage for treason, felony, alienation, and waste, whereupon the Lord may seize them without any presentment by the hamet, but also to particular forfeitures annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds or the particular local customs of certain particular manners. and we may observe that as these tenements were originally holden by the lowest and most abject vassals the marks of feudal dominion continue much the strongest upon this mode of property
most of the offences which occasioned a resumption of the fife by the feudal law and were denominated felonii per quas vasales ameteret feudum still continue to be causes of forfeiture in many of our modern copyholds as by subtraction of suit and service se dominum disavire nalueret by disclaiming the hold of the lord or swearing himself not as copyholder se dominum adjuravet i e negavet se ad domino fiudum abere by neglect to be admitted tenant within a year and a day si per annum et idiem cesiveret en petenta investitura by contumacy in not appearing in court after three proclamations si a domino ter ciattus non or by refusing when sworn of the homage to present the truth according to his oath si pares veritatem ne verrent ete dicant se ne scire cum 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 offences are presented by the homage or jury of the lord's court baron
per laudamentum parium suorum, or, as it is more fully expressed in another place, nemo males adematur de possessione sui beneficii, nisi convicta culpa, quae sitiludanda per judicium parum suorum. 8. 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 traitor who
secrets himself, or does certain other acts, tending to defraud his creditors. Who shall be such a traitor, 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 endeavour 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 Elizabeth 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 the 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, to divide them proportionally among the creditors. The statute expressly includes not only free but copyhold lands, but did not extend to a state's tale farther than for the bankrupt's life, nor to equities of redemption on a mortgaged estate where the bankrupt has no legal interest but only an equitable reversion. whereupon the statute 21 jacobus 1 c 19 enacts that the commissioner 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 tale 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 entail 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 after the redemption fell to them. And also, by this and a former act, 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 effected 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. End of Chapter 18 Part 2
