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expense and exertion, both of the Clergy and Laity, that Church was restored. Had it been in the minds of the Clergy and Laity for a course of years past, that the woods of Bishops, and more especially of Deans and Chapters, including Prebendaries, were a solid, permanent, and increasing fund of real property, devolved to them for the sustentation of the Cathedrals, the palaces, and houses of the Church, probably that venerable edifice might never have fallen into such ruin, or might have been restored with much less difficulty. I am afraid that the state of some other noble monuments of the finest Gothic architecture in this kingdom is not very consoling; that they are mouldering and crumbling into ruins. I have heard it observed with grave and serious regret, that no funds have been appropriated for the preservation of them: perhaps a time will come when that which I take to be an error will be corrected, and when it will be found that all the property of the Church is a fund for the sustentation of those fabrics; but that the woods in particular are a specific fund so to be employed, no man can doubt. I repeat my opinion that the consequences of this discussion may be highly beneficial to the public; and though I must now say that this rule must be discharged, perhaps hereafter the public will be disposed to acknowledge that the promoter of this application was a friend to the Church of England.
Mr. Justice Rooke observed:
I consider the Bishop as having to certain purposes a fee-simple in his bishopric, But he is seised to a special intent as a public officer for public trusts. If before the restraining statute he had alienated the property of the See, he would have been guilty of a gross breach of trust; and I conceive there was a remedy at common law. As a general principle, it is waste to destroy woods. But these great officers have duties annexed to their station; as the repairs of the palaces, bridges, and mansion houses of the See; and they would not exceed their duty if they applied the woods to the repair of their Cathedrals.
The statute (13 Eliz. c. 10) which restrains alienation by such persons (i. e. Deans and Chapters) on the ground of dilapidation, although it refers in express words only to the ruin and decay of buildings, is by parity of reason to be extended to timber or any thing else which constitutes part of the inheritance.*
Now, if this position be correct, the statute protects timber on College estates also; for it includes Colleges and Deans and Chapters in the same provisions. It may indeed be contended, that the cutting of timber is restrained not by the words but by construction of the statute; and that a College, not being an ecclesiastical corporation, differs essentially from a Dean & C. and therefore is not necessarily concluded by the same rule. We must therefore first investigate the nature of a College corporation, before we can decide that the same rule of construction is applicable to it as to a Dean and Chapter.
The design of an ecclesiastical corporation is stated by Sir W. Blackstone to be "the furtherance of religion, and perpetuating the rights of the Church."+ "Colleges (he says) are founded for two purposes;-1. For the promotion of piety and learning by proper regulations and ordinances. 2. For imparting assistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and assiduity." These eleemosynary corporations, he observes,
are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons, and although they in some things partake of the nature, privileges, and restrictions of ecclesiastical bodies." Sir Edward Coke says, Master and Fellows are seised to them and their successors for ever in jure Collegi pro bono publico, and to pious and charitable uses.
Although, then, Colleges (we speak of those in Oxford and Cambridge) are called lay-corporations, because their object is partly temporal (the advancement of learning) and, though they promote religion, the rights and ordinances of the Church are not their chief concern, still they partake of the
nature of ecclesiastical bodies. institution, whether of a Church, or a College corporation, is pro bono publico; the objects are somewhat different, but the nature is the same. They are alike designed to be a constant and perpetual benefit: hence it is equally incumbent upon the possessors of their property to transmit it perfect and undiminished to their successors, that the intention of the founder may be ever effectually fulfilled.
But the Church soon perceived that ecclesiastics, unmindful that they were but trustees and seeking only their own profit, left dilapidated residences and wasted estates for their successors; an evil which became the frequent cause of censure and deprivation. Nor was either the wrong or the punishment confined to Churchmen. It was clearly Sir Edw. Coke's opinion, that a Master of a College might be deprived for dilapidation or waste, and he gives "a notable record" in 19 Ed. III., "Rex amovit custodem hospitalis de suo patronatu, quia male dispendit proficua domus, &c."" because," he adds, “it is against their office and duty to waste the possessions of their houses, which are committed to them pro bono publico. It would seem indeed, from many expressions by the same high authority, that Master and Fellows of a College might, by the common law, be equally restrained from committing waste as a Bishop, Prior, Dean and Chapter, Parson or Vicar.
From the foregoing considerations, we may perhaps safely conclude that a College, though not an ecclesiastical body, is with respect to its property on the same footing and partakes of the same restrictions; and consequently, if it be true that a Dean and Chapter are restrained from cutting timber by an equitable construction of the statute of Elizabeth, there is no reason why a College should be excepted. But we will now state and consider the provisions of the statute.
The introductory part of the 3d sec. states the evil consequences of "unreasonable leases,"-dilapidations, decay of all spiritual livings and hospitality,
and the impoverishing of successors; but if an improper lease were injurious, à fortiori an absolute alienation of any part of the inheritance would be so: hence, the words of the enacting part are general and comprehensive. It is enacted,
That all leases, gifts, grants, feoffments, conveyances, or estates made, had, done, or suffered by any Master and Fellows of any College, Dean and Chapter of any Cathedral or Collegiate Church, Master or Guardian of any hospital, Parson, Vicar, or any other having any spiritual or ecclesiastical living, or [of] any houses, lands, tithes, tenements, or other hereditaments, being any parcel of the possessions of any such College, Cathedral Church, Chapter, Hospital, Parsonage, Vicarage or other spiritual promotion, or any ways appertaining or belonging to the same or any of them, to any person or persons other than for the term of twenty-one years or three lives from the time as any such lease or grant shall be made or granted, whereupon the accustomed yearly rent or more shall be reserved and payable yearly during the said term, shall be utterly void
and of none effect.
We have a guide to the construction of this act in Sir Edward Coke's elaborate though diffuse exposition of it in the case of the Master and Fellows of Magdalen College, Cambridge; he gives the following as amongst the resolutions of the Court:+
1. It was to suppress wrong: for dilapidations and diminution of spiritual livings, &c. are wrongs, and such wrongs as are quodam modo punished by the law.
2. This act is actus remedialis, and was necessary and profitable to provide such remedy for the public good of the whole ecclesiastical estate, &c.
3. This act is an act of preservation, sc. to preserve the possessions of Colleges, Deans and Chapters, Hospitals, &c.
Again it is observed,
In the case at bar, the intent of the Founder of the said College was for the maintenance of divines, the advancement of liberal arts and sciences, and to educate poor young persons in virtue and learning, which God forbid should not be performed.
That the law will never make an interpretation to advance a private and to destroy the public, but always to advance the public,
and to prevent every private which is odious in law in such cases. Therefore the office of judges is always to make such construction as to suppress the mischief and advance the remedy; and to suppress subtle inventions and evasions for the continuance of the mischief, et pro privato commodo, and to add force and life to the cure and remedy according to the true intention of the makers of the act pro bono publico.*
That the said act has been always construed beneficially to prevent all inventions and evasions against the true intention of the same.t
In the 24 Eliz. the Dean and Chapter of Worcester made a lease under which the tenant might have cut timber; it was resolved that such lease was on that account void, though not by the words, yet by the intention and equity of the statute.‡
Here it may be asked, if by this contruction of the 13 Eliz. c. 10, the persons therein named cannot empower their tenants to convert the timber to their own use, must not the same restriction in reason be applied to themselves? Let it not be objected, that tenants in tail are restrained by the 32 Hen. VIII. c. 28, from making leases so as to give the property of the timber to the lessees, though an estate tail gives an absolute right to all the timber; for that statute only prevents a tenant in tail making such a lease to bind the heirs in tail: he may give his lessees power to cut timber during his (the lessor's) own life.
Thus much may be fairly urged to shew that the committing of waste, the cutting of timber, is within the intention of the act of Elizabeth.
But we are not prepared to assert that the very words of the act do not extend to the case in question. It is enacted, that the gift, grant, or conveyance, by any Master and Fellows of any College, of any parcel of the possessions of the College, shall be void; are not their woods parcel of
their possessions? It seems, indeed, to have been considered in a case before Lord Chancellor Parker in 1718*, that a bishop, before the restraining statutes of Eliz.t, could empower his lessees to cut timber; but the point was not discussed either by the bar or the court, and it was taken for granted that a lease, without impeachment of waste, made by Bishop Bonner, temp. Edw.VI. was good. This, then, is an authority, though not a satisfactory one, that those statutes imposed the restriction upon Bishops, and therefore conclude Ĉolleges and all other bodies therein mentioned.
But although the statutes of Eliz. might be deemed quite sufficient to qualify the right of the persons they comprise with respect to the timber on their estates, we are disposed to take much higher ground, and to assert that by the common law, Bishops and other ecclesiastical persons, and Colleges by parity of reasoning, never could rightfully convert their timber to their own use. This position we are aware is opposed by an almost unaccountable silence in the ancient reports and treatises for a long series of years, and, indeed, by some dicta to the contrary: thus Thirning, Chief Justice in the reign of Hen. IV., asserted that the common law afforded no remedy against a Bishop, Archdeacon, ou un auter de tiel sort, committing waste. These objections, however, are deprived of some of their force when we reflect that the ecclesiastical courts having always undoubted jurisdiction in this matter, it might easily be considered as belonging to them exclusively, especially when the law was much under the control of the Church; and it may be granted that originally, though at a very remote period, the temporal courts usurped or assumed their concurrent jurisdiction. It is clear, however, that this right, whether inherent or usurped, was not exercised for some centuries.
In the reign of James the First of England, Sir Edward Coke, then Chief
Bp. of London v. Webb, 1 P. W. 527. See also the Bp. of Winton's case, cited 2 Freem. 55; and 1 P. W. 407.
Bishops are restrained by 1 Eliz. c. 19, which is similar to that of 13 Eliz. c. 10. 2 H. IV. 3b.
Justice, asserted that ecclesiastics might be restrained by the King's temporal courts from committing waste, and cited in proof a case in 35 Edw. I. in which the Bishop of Durham ("this was Anthony Beak, of that state and greatnesse as never any Bishop was, Wolsey except") was restrained per breve de Cancellaria from wasting the woods and possessions of his See. The position of the learned Chief Justice is confirmed by a record in the same reign (3 Edw. I.) which is applicable to the case of a College. The following writ of prohibition was issued: "Rex vicecomiti salutem: Cum ad nos providere pertineat ut eleemosina que de patronatu nostrorum predecessorum et nostro fuit, in statu debito absque vasto venditione vel destructione inde facienda conservetur, tibi præcipimus quod non permittas quod Abbas de G. &c. sui vastum venditionem vel destructionem faciant de boscis, domibus, hominibus pertinentibus ad prioratum sive cellam de L. quod est de Patronatu nostro".... and under this process the Abbot was brought into the King's Bench to answer for his defaults.
Coke, approving of this procedure, declared he would revive itf; but unfortunately the law again slumbered, and, with a few trifling exceptions, its voice was not heard again till 1797: nor is this surprising; for the person who can alone invoke its power with success is the patron or the ecclesiastical superior, neither of whom is peculiarly watchful. Thus, for instance, a Bishop might, probably, in perfect security pocket the woods of his estates without alarming the Metropolitan, or drawing down the vengeance of his Majesty's Attorney General; nay, even without a hint from his Chapter §. And
* 1 Bos. & Pul. 124. 2 Bulst. 279. See Bp. of Winton v. Wolgar, A. D. 1629; 3 Swanst. 493. In this case it was said, "if the Bishop should commit any excessive waste or spoil of woods, the same ought to be prohibited and restrained by the law."
Since writing the above we have learned that a Bishop lately deceased, in ignorance of the law no doubt, received to his own use 50001. per annum for two or three years, from the sale of timber!Should his executors be allowed to retain such profits?
in 1797 when Shute Barrington, who with respect to the possessions of his See was one of the most righteous of men, agreed with a tenant to cut down wood and divide the produce, and then to grub up above one hundred acreswho was the instigator of the proceedings? The Crown or its officers? No.The Metropolitan? No.-The Dean and Chapter? No." One Jefferson ;”who, whatever might be his motives, derived from the spoliation neither profit nor loss. Hence we may sufficiently explain the fact, why so few instances are found in the books of ecclesiastical persons being restrained from appropriating timber to their private emolument: and with respect to Colleges, we apprehend the Crown, as the guardian of all eleemosynary corporations, the founder, and perhaps the visitor, could alone obtain an injunction in the Court of Chancery.
Sir Edward Coke, though he states broadly and decidedly that ecclesiastical bodies could not by the common law cut timber, except for building, reparations, fuel, and other necessary occasions, does not, it is observable, allude to the statutes of Elizabeth, which were then recent, as adding to or enforcing the same doctrine: it is true indeed that he thought the old law quite sufficient, and he seems to have been too proud of having brought it to light, to admit of its needing any assistance. Neither were these statutes adverted to in the case of Jefferson v. Bishop of Durham either by the Bar or the Court, although the right of Bishops to cut timber was most fully discussed; nor by Lord Chancellor Eldon when the point was before him.
We would remark that Colleges in the Universities, as observed by Sir W. Blackstone*, were considered by the popish Clergy (whether with the concurrence of the common law may be doubted) as ecclesiastical, or, at least as clerical corporations; and were therefore visited by the Ordinary. Now, at all periods of our history it has been most clearly held that the commission of waste, the cutting of timber, except for "necessary occasions," is punishable by deprivation in the ecclesiastical courts; hence, then, the Master of a
* 1 Com. 482.
College might have been deprived by his Ordinary on this ground. Can it be contended, because the jurisdiction is changed, that the powers of a Master and Fellows over their property are enlarged?
These are our reasons for thinking that even before the restraining statutes the tenants of estates, holden for the benefit of the Church, or for the promotion of religion and the liberal arts, had not the right to cut timber and appropriate the produce to themselves. It is true, and it is an anomaly, that such persons might then have alienated in fee-simple, the whole or any part of their possessions; but it is also true that such alienation, as well as destruction or waste, was a cause of deprivation in the ecclesiastical courts*; and though we do not find that the temporal courts had any process to prevent such a breach of trust, it does not appear they sanctioned it; and when the state of the Court of Chancery of that day is considered, it will not be a matter of surprise that we perceive not even the dawn of that potent equity which might now render such a sale nugatory, by decreeing a purchaser with notice, a particeps criminis, to reconveyt. This case may, in one respect, be illustrated by what occurs in modern practice; if an estate be settled upon a father for life with remainder to his unborn children, in tail, with remainder to a stranger in fee, the father and the stranger may, before the birth of a child, effectually convey away the estate; and yet the law views this act "in the light of a wrong or a tort which it is anxious to prevent, and consequently seizes every occasion and makes every possible stretch for extending its protection against it:"‡ should, therefore, the father only agree to convey and then refuse, a court of equity would not, as in ordinary cases, interfere at the suit of the purchaser, to enforce the fulfilment of the con
* See 20 H. VI. 46a & 9 Ed. IV. 34a.
Mr. Justice Rooke, however said, "if before the restraining statute, a Bishop had alienated the property of the see, he would. have been guilty of a gross breach of trust, and I conceive there was a remedy at common law." 1 Bos. & P. 132. Fearne, C. R. 337.
tract. But if the father and stranger agreed to cut timber they could not be restrained; and though a child were afterwards born and became entitled to the estate, he could not recover the value of the timber so cut.*
Perhaps the simplicity of antient times, generally content with one remedy, deemed deprivation alone quite sufficient to prevent alienation and waste. The temporal courts, however, knowing their own infirmity, and perceiving the rapid progress of the evil, that the Church, as Sir Edward Coke observed, was more likely to lose than to gain, sought the aid of divers restraining statutes: and truly with a scandalous perverseness, they who held estates in fact but for life and upon trust, exerted as much ingenuity to evade each act of the Legislature as is said was wont to prompt and secure the gifts of the endowers of our ecclesiastical and charitable institutions.
Although the law protects timber on the estates of ecclesiastical and eleemosynary corporations equally with the rest of the inheritance, it is not guilty of the absurdity of saying that such timber shall therefore rot and become useless, but declares that when cut down, it or its produce should be employed for the benefit of the inheritance; in fact, that it is a fund for the reparation of the buildings and the improvement of the estate, that the corpus may be ever preserved.
To conclude:-Timber is part of the inheritance; if then the inheritance be held jure collegii, and dedicated to a special purpose pro bono publico, it seems that individuals should not be allowed to cut down the timber for their private advantage, and so benefit themselves at the expense of the inheritance. Such timber, when at maturity, should be cut down and may be sold; but it or the produce should be wholly applied in the improvement of the College possessions; in restoring or repairing its various buildings, in affording additional or better accommodation for its members, or in some other object to promote the intention of the Founder.
1 Dick. 190. This is only true when no estate is vested in trustees to preserve the inheritance for the unborn children.