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Library of Congress Cataloging-in-Publication Data

Blackstone, William Sir, 1723-1780.

Blackstone's commentaries: with notes of reference to the constitution and laws, of the federal government of the United States, and of the Commonwealth of Virginia: in five volumes, with an appendix to each volume, containing short tracts upon such subjects as appeared necessary to form a connected view of the laws of Virginia as a member of the federal union / by St. George Tucker; with an introduction by Paul Finkelman and David Cobin. p. cm.

Originally published: Philadelphia: William Young Birch, Abraham Small, 1803.

Includes bibliographical references.

ISBN 1-886363-15-3 (set: alk. paper)

1. Law -- Great Britain. 2. Law -- United States. 3. Law -- Virginia. I. Tucker, St. George, 1752-1828. II. title. KF385.B55 1996 349.73-dc20

[347.3] 96-12566

CIP

BLACKSTONE'S COMMENTARIES:

WITH

NOTES OF REFERENCE,

TO

THE CONSTITUTION AND LAWS,

OF THE

FEDERAL GOVERNMENT OF THE UNITED STATES;

AND OF THE

COMMONWEALTH OF VIRGINIA.

IN FIVE VOLUMES.

WITH AN APPENDIX TO EACH VOLUME,

CONTAINING

SHOUT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED

VIEW OF THE LAWS OF VIRGINIA,

AS A MEMBER OF THE FEDERAL UNION.

BY ST. GEORGE TUCKER,

PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARYLAND ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.

PHILADELPHIA:

PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,

NO. 17, SOUTH SECOND-STREET.

ROBERT CARR, PRINTER.

1803.

District of Pennsylvania: to wit.

BE it remembered, That on the ninth day of May, in the twenty-seventh Year of the Independence of the United States of America, William Young Birch, and Abraham Small, of the said District, have deposited in this Office the Title of a Book, the right whereof they claim as Proprietors, in the words following, to wit: "Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to each Volume, containing, Short Tracts upon such Subjects as appeared necessary to form a connected View of the Laws of Virginia, as a Member of the Federal Union, By St. George Tucker, Professor of Law, in the University of William and Mary, and one of the Judges of the General Court in Virginia." In Conformity to the Act of the Congress of the United States, intituled, "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies during the times therein mentioned," and also, to an Act entituled, "An Act supplementary to an Act, entituled, an Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned. And extending the Benefits thereof to the Arts of designing, engraving, and etching historical, and other Prints." (L. S.) D. CALDWELL,

Clerk of the District of Pennsylvania.

COMMENTARIES

ON THE

LAWS OF ENGLAND,

IN FOUR BOOKS.

BY SIR WILLIAM BLACKSTONE, knt.

ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF COMMON PLEAS.

WITH THE LAST CORRECTIONS OF THE AUTHOR,

ADVERTISEMENT.

The Editor having procured a copy of a late Edition of Blackstone's Commentaries, published in London, by Edward Christian, Esq. has made a selection of such of the Notes, contained in that Edition, as appeared to him most likely to be of use to an American Student .... .... In this Volume, the selection has been more copious than in any of the others: they are distinguished, by his name being subjoined to the end of each Note.

MAY 12, 1803.

TO THE READER.

Messrs. Pleasants and Pace, having, since this Edition of the Commentaries has been in the press, published a new collection of the laws of virginia, containing, not only, all the acts printed in the edition of 1794, but likewise, a very considerable number of acts passed since that period; the Editor avails himself of the opportunity, thereby afforded him, to assist the researches of the student, in consulting any act contained in that collection, which may be referred to in the notes, or appendices to this work. For this purpose, he has formed the following table, shewing, the correspondence between the edition of 1794, and subsequent sessions acts, and the chapters in the latter collection ; by means of which, any act contained in that collection, and referred to in the following notes, may readily be found.

TABLE.

* There is a small error in the numbering of these three chapters in Pleasant and Pace's Edition; they are here referred to as numbered.

DIRECTIONS TO THE BINDER.

Table of Consanguinity, to face page.. .... .... .... .... .... .... .... 203

Table of Descents, to face page. .... .... .... .... .... .... .... .... .... 24O

Table of Descents, according to the course of law established in Virginia, to face the blank page in the Appendix... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... 52

Table of Descents in Parcenary in Virginia, to follow immmediately after the former.

CONTENTS. OF BOOK SECOND. .... PART SECOND.

OF THE RIGHTS Of THINGS.

CHAP. I. TO. Of Property, in general . .... .... .... .... .... I

CHAP. II.

Of Real Property; and first, of Corporeal Hereditaments ... 16

CHAP. III. Of Incorporeal Hereditaments . .... .... .... . .... 20

CHAP. IV.

Of the Feodal System .. .... .... .... .... .... 44

CHAP. V.

Of the antient English Tenures . .... .... .... .... 59

CHAP. VI. Of the modern English Tenures ... .... .... . . .... 78

CHAP, VII. Of Freehold Estates, of Inheritance .. .... .... .... 103

CHAP. VIII. Of Freeholds, not of Inheritance .... .... .... .... 120

CHAP. IX.

Of Estates less than Freehold . .... .... .... .... 140

CHAP. x. Of Estates upon Condition ... .... .... .... .... 152

CHAP. XI.

Of Estates in Possession, Remainder, and Reversion . .... 163

CHAP. XII.

Of Estates in Severally, Joint-Tenancy, Coparcenary, and Common .. .... . .... .... .... .... .... 179

CHAP. XIII. FO. Of the Title to Things Real, in general .... .... .... 195

CHAP. XIV. Of Title by Descent .. .... .... .... .... .... 200

chap. xv. Of Title by Purchase ; and, first, by Escheat . .... .... 241

CHAP. XVI. Of Title by Occupancy . .... .... .... .... .... 258

CHAP. XVII.

Of Title by Prescription .... .... .... .... .... 263

CHAP. XVIII.

Of Title by Forfeiture . .... .... .... .... .... 267

CHAP. XIX.

Of Title by Alienation . .... .... .... .... .... 287

CHAP. XX.

Of Alienation by Deed . .... .... .... .... .... 295

CHAP. XXI. Of Alienation by matter of Record ... .... .... .... 344

CHAP. XXII. Of Alienation by Special Custom .... .... .... .... 365

CHAP. XXIII. Of Alienation by Devise .... .... .... .... .... 373

CHAP. XXIV.

Of Things Personal... .... .... .... .... .... 384

CHAP. XXV. Of Property in Things Personal .... .... .... .... 389

CHAP. XXVI.

Of Title to Things Personal, by Occupancy .. .... .... 400

CHAP. XXVII.

Of Title by Prerogative, and Forfeiture .... .... .... 408

CHAP. XXVIII.

Of Title by Custom ... .... .... .... .... .... 422

CHAP. XXIX.

Of Title by Succession, Marriage, and Judgment ... .... 430

chap. xxx. Of Title by Gift, Grant, and Contract .... .... .... . 440

CHAP. XXXI.

Of Title by Bankruptcy . .... .... .... .... .... 471

CHAP. XXXII.

Of Title by Testament, and Administration .. .... .... 489

APPENDIX.

FO.

No. I. Vetus Carta Feoffamenti . .... .... .... .... i

No. II. A modern Conveyance by Lease and Release.

?. 1. Lease, or Bargain and Sale, for a Year . .... ii

?. 2. Deed of Release .... .... .... .... iii

No. III. An Obligation, or Bond, with Condition for the Payment of Money . .... .... .... .... .... .... xi

No. IV. A Fine of Lands, sur Cognizance de Droit, come ceo, &c.

§. 1. Writ of Covenant, or Praecipe .... .... xii

?. 2. The Licence to agree .... .... .... ibid.

?. 3. The Concord . .... .... .... .... ibid.

§. 4. The Note, or Abstract .... .... .... xiii

?. 5. The Foot,Chirograph,or Indentures of the Fine ibid. ?. 6. Proclamations, endorsed upon the Fine, according to the Statutes .. .... .... .... xiv

No. V. A common Recovery of Lands, with Double Voucher.

?. 1. Writ of Entry sur Disseisin in the Post; or

Praecipe ... .... .... .... .... xv

?. 2. Exemplification of the Recovery-Roll .... ibid.

THE EDITOR'S APPENDIX.

NOTE A.

Concerning the Tenure of Lands in Virginia, and the mode of acquiring them under the former and present Government .... .... .... .... .... .... .... 1

NOTE B.

Discourse concerning the Several Acts directing the Course of Descents, in Virginia ... .... .... .... .... 11

NOTE C.

Of the Right of Aliens to Purchase and hold Lands; with a View of the Laws concerning Escheats and Forfeitures from British Subjects, passed in Virginia, during the Revolutionary War .... .... .... .... .... .... .... 52

NOTE D.

The Manner of obtaining Grants of Land, under the Commonwealth of Virginia, and from the United States .. .... 66

note E. Of Slaves, considered as Property, in Virginia . .... .... 73

NOTE F.

Concerning Usury .... .... .... .... .... .... 98

COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE SECOND.

PART THE SECOND.

COMMENTARIES ON THE LAWS OF ENGLAND.

BOOK THE SECOND.

OF THE RIGHTS OF THINGS.

CHAPTER THE FIRST. OF PROPERTY, IN GENERAL.

THE former book of these commentaries haying treated at large of the jura personarum, or such rights and duties as are annexed to the persons of men, the objects of our inquiry in this second book will be the jura rerum, or those rights which a man may acquire in, and to, such external things as are unconnected with his person. These are what the writers on natural law stile the rights of dominion, or property, concerning the nature, and original of which I shall first premise a few observations, before I proceed to distribute and consider it's several objects.

There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property ; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best, we rest satisfied with the decision of the laws in our

favour, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner ; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature, or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so, before him; or why the occupier of a particular field, or of a jewel, when lying on his death-bed and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well, if the mass of mankind will obey the laws, when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered, not only as matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.

In the beginning of the world, we are informed by holy writ, the all-bountiful Creator, gave to man "dominion over all the earth : and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth ^a." This is the only true and solid foundation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose, that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required.

These general notions of property were then sufficient to answer all the purposes of human life ; and might, perhaps, still have answered them, had it been possible for mankind to have

a Gen. i. 28.

remained in a state of primeval simplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the antient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein "erant omnia communia et indivisa omnibus,veluti unum cunctus patrimonium esset ^b." Not that this communion of goods seems ever to have been applicable, even in the earliest ages, to ought but the substance of the thing ; nor could it be extended to the use of it. For. by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer ^c: or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force ; but the instant that he quitted the use or occupation of it, another might seise it without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to it's produce; and yet any private individual might gain the sole property of the fruit, which he had gathered for his own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own ^d.

But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a va-

b Justin. 1. 43, c. 1. c Barbeyr. Puff.1. 4, c. 4. d Quemadmodum theatrum, cum commune sit, recte tamen dici potest, ejus esse eum locum quem quisque occuparit. De Fin. l. 2. c. 20.

riety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gamed it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious, and agreeable ; as, habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted possession ; if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. In the case of habitations in particular, it was natural to observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwellings, especially for the protection of their young ; that the birds of the air had nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man's house and home-stall; which seem to have been originally mere temporary huts or moveable cabins, suited to the design of providence for more speedily peopling the earth, and suited to the wandering life of their owners, before any extensive property in the soil or ground was established. And there can be no doubt, but that moveables of every kind became sooner appropriated than the permanent substantial soil: partly because they were more susceptible of a long occupancy, which might be continued for months together without any sensible interruption, and at length by usage ripen into an established right; but principally because few of them could be fit for use, till improved and meliorated by the bodily labour of the occupant: which bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein.

The article of food was a more immediate call, and, therefore, a more early consideration. Such, as were not contented with the spontaneous product of the earth, sought for a more solid refreshment in the flesh of beasts, which they obtained by

hunting. But the frequent disappointments, incident to that method of provision, induced them to gather together such animals as were of a more tame and sequacious nature; and to establish a permanent property in their flocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of water also a very important point. And, therefore, the book of Genesis (the most venerable monument of antiquity, considered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells ; the exclusive property of which appears to have been established in the first digger or occupant, even in such places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security, "because he had digged that well ^c." And Isaac, about ninety years afterwards, reclaimed this his father's property; and, after much contention with the Philistines, was suffered to enjoy it in peace ^f.

All this while the soil and pasture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seise upon and occupy such other lands as would more easily supply their necessities. This practice is still retained among the wild and uncultivated nations that have never been formed into civil states, like the Tartars and others in the east; where the climate itself, and the boundless extent of their territory, conspire to retain them still in the same savage state of vagrant liberty, which was universal in the earliest ages; and which Tacitus informs us continued among the Germans till the decline of the Roman empire ^g. We have also a striking example of

e Gen. xxi. 30. f Gen. xxvi. 15, 18, &c. g Colunt discreti et diversi; ut fons, ut campus, ut nemus, placuit, De mor. Ger. 16.

the same kind in the history of Abraham and his nephew Lot ^h. When their joint substance became so great, that pasture and other conveniences grew scarce, the natural consequence was, that a strife arose between their servants; so that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compose : "let there be no strife, I pray thee, between thee and me. Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then I will go to the right; or if thou depart to the right hand, then I will go to the left." This plainly implies an acknowledged right, in either, to occupy whatever ground he pleased, that was not pre-occupied by other tribes. "And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered every where, even as the garden of the Lord. Then Lot chose him all the plain of Jordan, and journeyed east; and Abraham dwelt in the land of Canaan."

Upon the same principle was founded the right of migration, or sending colonies to find out new habitations, when the mother-country was over-charged with inhabitants ; which was practised as well by the Phoenicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, government, or in colour; how far such a conduct was consonant to nature, to reason, or to Christianity, deserved well to be considered by those, who have rendered their names . immortal by thus civilizing mankind.

As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants: and, by constantly occupying the same individual spot, the fruits of the earth were consumed, and it's spontaneous produce destroyed, without any provision for a future supply or succession. It therefore became necessary to

h Gen. c. xiii.

pursue some regular method of providing a constant subsistence; and this necessity produced, or at least promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connexion and consequence, introduced and established the idea of a more permanent property in the soil, than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in sufficient quantities, without the assistance of tillage: but who would be at the pains of tilling it, if another might watch an opportunity to seise upon and enjoy the product of his industry, art, and labour ? Had not, therefore, a separate property in lands, as well as moveables, been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey; which, according to some philosophers, is the genuine state of nature. Whereas now (so graciously has Providence interwoven our duty and our happiness together) the result of this very necessity has been the ennobling of the human species, by giving it opportunities of improving it's rational faculties, as well as of exerting it's natural. Necessity begat property: and, in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants ; states, governments, laws, punishments, and the public exercise of religious duties. Thus connected together, it was found that a part only of society was sufficient to provide, by their manual labour, for the necessary subsistence of all; and leisure was given to others to cultivate the human mind, to invent useful arts, and to lay the foundations of science.

The only question remaining is, how this property became actually vested: or what it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to every body, but particularly to nobody. And, as we before observed, that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law, concerning the reason why occupancy should convey this right, and invest one

with this absolute property: Grotius and Puffendorf insisting, that this right of occupancy is founded on a tacit and implied assent of all mankind, that the first occupant should become the owner ; and Barbeyrac, Titius, Mr. Locke, and others, holding, that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy, alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title. A dispute that savours too much of nice and scholastic refinement ! However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seising to his own continued use, such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.

Property, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shews an intention to abandon it; for then it becomes, naturally speaking publici juris once more, and is liable to be again appropriated by the next occupant. So if one is possessed of a jewel, and casts it into the sea or a public highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will siese it to his own use. But if he hides it privately in the earth or other secret place, and it is discovered, the finder acquires no property therein ; for the owner hath not by this act declared any intention to abandon it, but rather the contrary; and if he loses or drops it by accident, it cannot be collected from thence, that he designed to quit the possession ; and, therefore in such a case, the property still remains in the loser, who may claim it again of the finder. And this, we may remember, is the doctrine of the law of England, with relation to treasure trove ⁱ.

But this method, of one man's abandoning his property, and another seising the vacant possession, however well founded in

i See Vol. I. p. 295.

theory, could not long subsist in fact. It was calculated merely for the rudiments of civil society, and necessarily ceased among the complicated interests and artificial refinements of polite and established governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and useful to another; who was ready to give in exchange for it some equivalent, that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant or conveyance : which may be considered either as a continuance of the original possession which the first occupant had; or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor. The voluntary dereliction of the owner, and delivering the possession to another individual, amount to a transfer of the property ; the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property: and Titius being the only or first man acquainted with such my intention, immediately steps in and seises the vacant possession: thus the consent, expressed by the conveyance, gives Titius a good right against me ; and possession, or occupancy, confirms that right against all the world besides.

The most universal and effectual way of abandoning property, is by the death of the occupant: when, both the actual possession and intention of keeping possession ceasing, the property which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him; which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for then, by the principles before established, the next immediate occupant would acquire a right in all that

10

the deceased possessed. But as, under civilized governments, which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir, of the deceased ; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion, which it's becoming again common would occasion^k. And farther, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances, to which no other title can be formed.

The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on it's side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil, right*. It is true, that the transmission of one's possessions to

k It is principally to prevent any vacancy of possession, that the civil law considers father and son as one person; so that upon the death of either, the inheritance does not so properly descend, as continue, in the hands of the survivor, Ff. 28. 2. 11.

* I cannot agree with the learned commentator, that the permanent right of property vested in the ancestor himself, (that is, for his life) is not a natural, but merely a civil right.

I have endeavoured to shew that the notion of property is universal, and is suggested to the mind of man by reason and nature, prior to all

posterity has an evident tendency to make a man a good citizen and a useful member of society: it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that it's immediate original arose not from speculations altogether so delicate and refined; and, if not from fortuitous circumstances, at least from a plainer and more simple principle .... A man's children or nearest relations are usually about him on his death-bed, and are the earliest witnesses of his decease .... They became, therefore, generally, the next immediate occupants, till at length, in process of time, this frequent usage ripened into general law. And, therefore, also in the earliest ages, on failure of children, a man's servants, born under his roof, were allowed to be his heirs; being immediately on the spot when he died. For we find the old patriarch Abraham ex-

sitive institutions and civilized refinements: (See also, Vol. IV. p. 9. n. 4.) If the laws of the land were suspended, we should be under the same moral and natural obligation to refrain from invading each other's property, as from attacking and assaulting each other's persons. And I am obliged to differ from the learned Judge, and all writers upon general law, who maintain, that children have no better claim by nature to succeed to the property of their deceased parents than strangers ; and that the preference given to them, originates solely in political establishments. (See the Editor's distinctions between natural and positive laws, Vol. I. p. 58. n. 7.) I know no other criterion by which we can determine any rule or obligation to be found in nature, than it's universality; and by inquiring whether it is not, and has not been, in all countries and ages, agreeable to the feelings, affections, and reason of mankind .... The affection of parents towards their children, is the most powerful and universal principle which nature has planted in the human breast; and it cannot be conceived, even in the most savage state, that any one is so destitute of that affection and of reason, who would not revolt at the position, that a stranger has as good a right as his children to the property of a deceased parent.

Heredas successoresque sui cuique liberi, seems not to have been confined to the woods of Germany, but to be one of the first laws in the code of nature; though positive institutions may have thought it prudent to leave the parent the full disposition of his property after his death, or to regulate the shares of the children, when the parent's will is unknown. .... Christian.

pressly declaring, that "since God had given him no seed, his steward Eliazer, one born in his house, was his heir."

While property continued only for life, testaments were useless and unknown; and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will. Till at length it was found, that so strict a rule of inheritance made heirs disobedient and head-strong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced, pretty generally, the right of disposing of one's property, or a part of it, by testament; that is, by/written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased; which we therefore emphatically stile his will. This was established in some countries much later than in others. With us in England, till modern times, a man could only dispose of one third of his moveables from his wife and children; and, in general, no will was permitted of lands till the reign of Henry the eighth; and then only for a certain portion: for it was not till after the restoration that the power of devising real property became so universal as at present.

Wills, therefore, and testaments, rights of inheritance and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid: neither does any thing vary, more than the right of inheritance under different national establishments. In England, particularly, this diversity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be, that has not it's foundation in the positive rules of the state. In personal estates the father may succeed to his children; in landed property he never can be their immediate heir, by any the remotest possibility: in general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance: in real estates males are preferred to females, and the

eldest male will usually exclude the rest; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.

This one consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice: while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the son had by nature a right to succeed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of such appointment, to go to some particular person, who from the result of certain local constitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed: and, where the necessary requisites are omitted, the right of the heir is equally strong and built upon as solid a foundation, as the right of the devisee, would have been, supposing such requisites were observed.

But after all, there are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had: and therefore they still belong to the first occupant, during the

time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniencies: such also are the generality of those animals which are said to be ferae naturae, or of a wild and untameable disposition: which any man may seise upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seise and enjoy them afterwards.

Again ; there are other things, in which a permanent property may subsist, not only as to the temporary use, but also the solid substance ; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands: such also are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of game. With regard to these and some others, as disturbances and quarrels would frequently arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissention, by vesting the things themselves in the sovereign of the state: or else in his representatives appointed and authorised by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.

CHAPTER THE SECOND.

OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS.

THE objects of dominion or property are things, as contradistinguished from persons: and things are by the law of England distributed into two kinds; things real, and things personal. Things real are such as are permanent, fixed, and immoveable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other moveables; which may attend the owner's person wherever he thinks proper to go.

In treating of things real, let us consider, first, their several sorts or kinds; secondly, the tenures by which they may be holden; thirdly, the estates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and losing it.

First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things, of a permanent, substantial nature ; being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent, and though in it's vulgar acceptation is only applied to houses and other buildings, yet in it's original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other solid objects, but also to offices,

rents, commons, and the like ^a: and as lands and houses are tenements, so is an advowson, a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements ^b. But an hereditament, says sir Edward Coke ^c, is by much the largest and most comprehensive expression: for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed ¹. Thus an heir-loom, or implement of furniture which by custom descends to the heir together with an house, is neither land nor tenement but a mere moveable: yet, being inheritable, is comprized under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament ^d.

Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses ; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

Corporeal hereditaments consist wholly of substantial and permanent objects ; all which may be comprehended under the general denomination of land only. For land, says sir Edward Coke ^e, comprehendeth in it's legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth also all castles, houses, and other buildings: for they consist, saith he, of two things ; land, which is the foundation, and structure thereupon : so that, if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of sole-

a Co. Litt. 6. b Ibid. 19, 20, c 1. Inst. 6. d 3 Rep. 2. e 1 Inst. 4.

1. Villeins were hereditaments at the common law ; so also were slaves, in Virginia, under the acts of 1703, c. 3, and 1727, c. 4, Edi. 1769. But the act of 1792, declares that they shall hereafter be deemed personal estate. Edi. 1794, c. 103.

cism; but such is the language of the law : and, therefore, I cannot bring an action to recover possession of a pool or other piece of water, by the name of water only; either by calculating it's capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for that the land lies at the bottom, and must call it twenty acres of land covered with water ^f. For water is a moveable wandering thing, and must of necessity continue common by the law of nature ; so that I can only have a temporary, transient, usufructuary, property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed and immoveable: and, therefore, in this I may have a certain substantial property ; of which the law will take notice, and not of the other.

Land hath also, in it's legal signification, an indefinite extent, upwards as well as downwards. Cujas est solum, ejus est usque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another's land: and, downwards, whatever is in a direct line, between the surface of any land and the center of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it. And, therefore, if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing ^g: but the capital distinction is this; that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of ; but by the name of land, which is nomen generalissimum, every thing terrestrial will pass ^h.

f Brownl. 142.

g Co. Litt. 4.

h Ibid, 4, 5, 6.

CHAPTER THE THIRD.

OF INCORPOREAL HEREDITAMENTS.

AN incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisible within, the same ^a. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense : that casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor of being delivered into bodily possession.

a Co. litt. 19, 20.

Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.

I. Advowson is the right of presentation to a church, or ecclesiastical benefice ¹. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus, and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, (from whence, as was formerly mentioned ^b, arose the division of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron ^c.

This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and it's appendages; but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight, nor the touch ; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal possession be had of it. If the the patron takes corporal possession of the church, the church-b Vol. I. page 112.

c This original of jus patronatus, by building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 26. t. 13. c. 2. Nov. 118. c. 23.

1. Some churches were built in Virginia by private individuals, but, I believe, in no instance was the right of presentation vested in them. The vestries for a certain period, and (if they failed to present within that period) the governor of Virginia possessed the right of presentation, L. V. 1748, c. 28, Edi. 1769. Consequently the doctrine relating to advowson* may be regarded as obsolete in Virginia.

yard, the glebe, or the like, he intrudes on another man's property ; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral or written, which is a kind of invisible mental transfer: and being so vested, it lies dormant and unnoticed, till occasion calls it forth: when it produces a visible, corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter and receive bodily possession of the lands and tenements of the church.

Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches ^d, the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant ^e: and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words ^f. But where the property of the advowson has been once separated from the property of the manor by legal conveyance, it is called an advowson in gross, or at large, and never can be appendant any more; but is for the future annexed to the person of it's owner, and not to his manor and lands ^g.

Advowsons are also either presentative, collative, or donative ^h. An advowson presentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified: and this is the most usual advowson. An advowson collative is where the bishop and patron are one and the same person: in which case the bishop cannot present to himself; but he does, by the one act of collation, or conferring the benefice, the whole that is done in common cases, by both presentation and institution. An advowson donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordi-

d Co. Litt. 119. e Ib. 121. f Ib. 307. g Ib. 120. h Ib.

nary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction ⁱ. This is said to have been antiently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of archbishop Becket in the reign of Henry II ^k. And therefore though pope Alexander III ^l, in a letter to Becket, severely inveighs against the prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shews what was then the common usage. Others contend, that the claim of the bishops to institution is as old as the first planting of Christianity in this island; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the third, recorded by Matthew Paris ^m, which speaks of presentation to the bishop as a thing immemorial. The truth seems to he, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron ; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.

However this may be, if, as the law now stands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the advowson is now become for ever presentative, and shall never be donative any more ⁿ. For these exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will therefore reduce it to the standard of other ecclesiastical livings.

i Co. Litt. 344.

l Decretal. 1. 3. t. 7. c. 3.

n Co. Litt. 344. Cro. Jac. 63.

k Seld. tith. 12. §. 2. m A. D. 1239.

II. A second species of incorporeal hereditaments is that of tithes ; which are defined to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants ²: the first species being usually called predial, as of corn, grass, hops, and wood ^o; the second mixed, as of wool, milk, pigs, &c. ^p, consisting of natural products, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in gross; the third personal, as of manual occupations, trades, fisheries, and the like ; and of these only the tenth part of the clear gains and profits is due 1.

It is not to be expected from the nature of these general commentaries, that I should particularly specify, what things are titheable, and what not, the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to such authors as have treated the matter in detail: and shall only observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry and the like ; but not for any thing that is of the substance of the earth, or is not of annual increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or fer? natur?, as deer, hawks, &c. whose increase, so as to profit the owner, is not annual, but casual ^r. It will rather be our business to consider, 1. The original of the right of tithes. 2. In whom that right at present subsists. 3. Who may be discharged, either totally or in part, from paying them.

1. As to their original, I will not put the title of the clergy to tythes upon any divine right; though such a right certainly

o 1 Roll. Abr. 635. 2 Inst. 649. q 1 Roll. Abr. 6J6.

p Ibid.

r 2 Inst. 651.

2. The provision for the clergy in Virginia was always made by an assessment on the parishioners, generally in proportion to the number of males over sixteen, and of female slaves over the same age in every family ; these were called tytheables, V. L. 1661, c. 7. 1748, c. 28, 14. .... Tithes as a species of incorporeal hereditament never had existence in Virginia, and the whole doctrine respecting them may be regarded as obsolete.

commenced, and I believe as certainly ceased, with the Jewish theocracy. Yet an honourable and competent maintenance for the ministers of the gospel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For, besides the positive precepts of the new testament, natural reason will tell us, that an order of men, who are separated from the world, and excluded from other lucrative professions, for the sake of the rest of mankind, have a right to be furnished with the necessaries, conveniencies, and moderate enjoyments of life, at their expence, for whose benefit they forego the usual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national priests or clergy: ours, in particular, have established this of tithes, probably in imitation of the Jewish law; and, perhaps, considering the degenerate state of the world, in general, it may be more beneficial to the English clergy, to found their title on the law of the land, than upon any divine right, whatsoever, unacknowleged and unsupported by temporal sanctions.

We cannot precisely ascertain the time when tithes were first introduced into this country. Possibly they were contemporary with the planting of Christianity among the Saxons, by Augustin the monk, about the end of the sixth century. But the first mention of them, which I have met with in any written English law, is in a constitutional decree, made in a synod held A.D, 786 ^s, wherein the payment of tithes in general is strongly enjoined. This canon, or decree, which, at first bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their parliamentary conventions of estates, respectively, consisting of the kings of Mercia, and Northumberland, the bishops, dukes, senators, and people. Which was a few years later than the time that Charlemagne established the payment of them in France % and made that famous division of them into four parts; one to maintain the edifice of the church, the second to support the poor, the third the bishop, and the fourth the parochial clergy ^u.

s Selden, c. 8. §. 2. t A.D. 778.

u Book I, c. 11, Selden, c. 6, §. 7, Sp. of Laws, b. 31, c. 12.

The next authentic mention of them is in the foedus Edwardi et Guthruni; or the laws agreed upon between king Guthrun the Dane, and Alfred and his son Edward the elder, successive kings of England, about the year 900. This was a kind of treaty, between those monarchs, which may be found at large in the Anglo-Saxon laws ^w : wherein it was necessary, as Guthrun was a pagan, to provide for the subsistence of the Christian clergy under his dominion; and, accordingly, we find ^x the payment of tithes not only enjoined, but a penalty added upon non-observance ; which law is seconded by the laws of Athelstan ^y, about the year 930. And this is, as much as can certainly be traced out, with regard to their legal original.

2. We are next to consider the persons to whom they are due. And upon their first introduction, (as hath formerly been observed ^z) though every man was obliged to pay tithes, in general, yet he might give them to what priests he pleased ^a; which were called arbitrary consecrations of tithes: or he might pay them into the hands of the bishop, who distributed among his diocesan clergy the revenues of the church, which were then in common ^b. But, when dioceses were divided into parishes, the tithes of each parish were allotted to it's own particular minister; first by common consent, or the appointments of lords of manors, and afterwards by the written law of the land ^c.

However, arbitrary consecrations of tithes took place again afterwards, and became in general use till the time of king John ^d. Which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under arch-bishop Dunstan and his successors; who endeavoured to wean the people from paying their dues to the secular or parochial clergy, (a much more valuable set of men than themselves), and were then in hopes to have drawn, by sanctimonious pretences to extraordinary purity of life, all ecclesiastical profits to the coffers of their own societies. And this will naturally enough account for the number and riches of the mo-

w Wilkins, p. 51. x cap. 6.

y cap. 1. z Book I, Introd. §. 4.

a 2 Inst. 646. Hob. 296. b Selden, c. 9, §. 4.

c L.L. Edgar. c. 1 and 2, Canut. c. 11. d Selden, c. 11.

nasteries and religious houses, which were founded in those days, and which were frequently endowed with tithes. For a layman, who was obliged to pay his tithes, somewhere, might think it good policy to erect an abbey, and there pay them to his own monks; or grant them to some abbey already erected : since, for this dotation, which really cost the patron little or nothing, he might, according to the superstition of the times, have masses for ever sung for his soul. But, in process of years, the income of the poor laborious parish-priests being scandalously reduced by these arbitrary consecrations of tithes, it was remedied by pope Innocent the third ^e, about the year 1200, in a decretal epistle, sent to the arch-bishop of Canterbury, and dated from the palace of Lateran: which has occasioned Sir Henry Hobart and others to mistake it for a decree of the council of Lateran held A.D. 1179, which only prohibited what was called the infeodation of tithes, or their being granted to mere laymen ^f, whereas this letter of pope Innocent to the arch-bishop enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited, agreeable to what was afterwards directed by the same pope in other countries ^g. This epistle, says Sir Edward Coke ^h, bound not the lay subjects of this realm; but, being reasonable and just, (and, he might have added, being correspondent to the antient law) it was allowed of, and so became lex terrae. This put an effectual stop to all the arbitrary consecrations of tithes; except some foot-steps which still continue in those portions of tithes, which the parson of one parish hath, though rarely, a right to claim in another: for it is now universally held ⁱ, that tithes are due, of common right, to the parson of the parish, unless there be a special exemption. .... This parson of the parish, we have formerly seen ^k, may be either the actual incumbent, or else the appropriator of the benefice : appropriations being a method of endowing monasteries, which seems to have been devised by the regular clergy, by way of substitution to arbitrary consecrations of tithes ^l.

e Opera Innocent, III, tom. 2, p. 452. f Decretal. l. 3, t. 30, c. 19. g Ibid. c. 26. h 2 Inst. 641. i Regist. 46. Hob. 296. k Book I, p. 385.

1 In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See Book I, p. 113, 284.

3. We observed, that tithes are due to the parson of common right, unless by special exemption; let us, therefore, see, thirdly, who may be exempted from the payment of tithes, and how lands, and their occupiers, may be exempted or discharged from the payment of tithes, either in part or totally, first, by a real composition; or secondly, by custom or prescription.

First, a real composition is when an agreement is made between the owner of the lands, and the parson or vicar, with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment of tithes, by reason of some land or other real recompense given to the parson, in lieu and satisfaction thereof ^m. This was permitted by law, because it was supposed that the clergy would be no losers by such composition ; since the consent of the ordinary, whose duty it is to take care of the church in general, and of the patron, whose interest it is to protect that particular church, were both made necessary to render the composition effectual: and hence have arisen all such compositions as exist at this day by force of the common law. But, experience shewing that even this caution was ineffectual, and the possessions of the church being, by this and other means, every day diminished, the disabling statute 13 Eliz. c. 10, was made: which prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their churches, other than for three lives or twenty one years. So that now, by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives, or twenty-one years, though made by consent of the patron and ordinary: which has indeed effectualy demolished this kind of traffic; such compositions being now rarely heard of, unless by authority of parliament.

Secondly, a discharge by custom or prescription, is where time out of mind such persons or such lands have been, either partialy or totally, discharged from the payment of tithes. And this immemorial usage is binding upon all parties; as it is in it's nature an evidence of universal consent and acquiescence, and with reason supposes a real composition to have been for-

m 2 Inst. 490. Regist. 38, 13 Rep. 40.

merly made. This custom or prescription is either de modo decimandi, or de non decimando.

A modus decimandi, commonly called by the simple name of a modus only, is where there is by custom a particular manner of tithing allowed, different from the general law of taking tithes in kind, which are the actual tenth part of the annual increase. This is sometimes a pecuniary compensation, as twopence an acre for the tithe of land: sometimes it is a compensation in work and labour, as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner's making it for him: sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall have a less quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs; and the like. Any means, in short, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or special manner of tithing.

To make a good and sufficient modus, the following rules must be observed. 1. It must be certain and invariable ⁿ, for payment of different sums will prove it to be no modus, that is, no original real composition; because that must have been one and the same, from it's first original to the present time. 2. The thing given, in lieu of tithes, must be beneficial to the parson, and not for the emolument of third persons only °: thus a modus, to repair the church in lieu of tithes, is not good, because that is an advantage to the parish only ; but to repair the chancel is a good modus, for that is an advantage to the parson. 3. It must be something different from the thing compounded for ^p : one load of hay, in lieu of all tithe hay, is no good modus: for no parson would bona fide make a composition to receive less than his due in the same species of tithe: and therefore the law will not suppose it possible for such composition to have existed. 4. One cannot be discharged from payment of one species of tithe, by paying a modus for another 1. Thus a modus of 1d. for every milch cow will discharge the tithe of milch kine, but

n 1 Keb. 602. p 1 Lev. 179.

o 1 Roll. Abr. 649.

q Cro. Eliz. 446. Salk. 65r.

not of barren cattle: for tithe is, of common right, due for both; and therefore a modus for one, shall never be a discharge for the other. 5. The recompense must be in it's nature as durable as the tithes discharged by it; that is, an inheritance certain ^r: and therefore a modus that every inhabitant of a house shall pay 4d. a year, in lieu of the owner's tithes, is no good modus; for possibly the house may not be inhabited, and then the recompence will be lost. 6. The modus must not be too large, which is called a rank modus: as if the real value of the tithes be 60l. per annum, and a modus is suggested of 40l. this modus will not be established; though one of 40s. might have been valid ^s. Indeed, properly speaking, the doctrine of rankness in a modus, is a mere rule of evidence, drawn from the improbability of the fact, and not a rule of law ^t. For, in these cases of prescriptive or customary modus's, it is supposed that an original real composition was antiently made; which being lost by length of time, the immemorial usage is admitted as evidence to shew that it once did exist, and that from thence such usage was derived. Now, time of memory hath been long ago ascertained by the law to commence from the beginning of the reign of Richard the first ^tt; and any custom may be destroyed by evidence of it's non-existence in any part of the long period from that time to the present ²; wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value

r 2 P. Wms. 462. s 11 Mod. 60.

t Pyke v. Doling. Hil, 19 Geo. III, C. B.

tt 2 Inst. 238, 239. This rule was adopted, when by the statute of Westm. 1. (5 Edw. I, c. 39,) the reign of Richard I, was made the time of limitation in a writ of right. But, since by the statute 32 Hen. VIII, c. 2, this period (in a writ of right) hath been very rationally reduced to sixty years, it seems unaccountable, that the date of legal prescription or memory, should still continue to be reckoned from an aera so very antiquated. See Litt. §. 170. 34 Hen. VI, 37. 2 Roll. Abr. 269. pl. 16.

2. From hence it appears, that there can be no legal custom in Virginia, the first settlement of which by our ancestors was near four hundred years posterior to the epoch here mentioned.

of the tithes in the time of Richard the first, this modus is (in point of evidence) felo de se and destroys itself. For, as it would be destroyed by any direct evidence to prove it's non-existence at any time since that aera, so also it is destroyed by carrying in itself this internal evidence of a much later original.

A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them. Thus the king by his prerogative is discharged of all tithes ^u .... So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesi? ^v. But these personal privileges (not arising from or being annexed to the land) are personally confined to both the king and the clergy: for their tenant or lessee shall pay tithes, though in their own occupation their lands are not generally titheable ^w. And, generally speaking, it is an established rule, that, in lay hands, modus de non decimando non valet ^x. But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes, by various ways ^y; as, 1. By real composition : 2. By the pope's bull of exemption: 3. By unity of possession; as when the rectory of a parish, and lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this unity of possession: 4. By prescription; having never been liable to tithes, by being always in spiritual hands: 5. By virtue of their order; as the knights templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes ^z. Though upon the dissolution of abbeys by Henry VIII, most of these exemptions from tithes would have fallen with them, and the lands become titheable again : had they not been supported and upheld by the statute 31 Hen. VIII. c. 13, which enacts, that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys themselves had formerly held them. And from this ori-

u Cro. Eliz. 511. v Cro. Eliz. 479. 511. Sav. 3. Moor 910.

w Ibid. 479. x Ibid. 511.

y Hob. 309. Cro. Jac. 308. z 2 Rep. 44. Seld. tith. c. 13 ?. 2.

ginal have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free: tor, if a man can shew his lands to have been such abbey lands, and also immemorially discharged of tithes by any of the means before-mentioned, this is now a good prescription de non decimando. But he must shew both these requisites: for abbey lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimanao avail in total discharge of tithes, unless it relates to such abbey lands.

III. Common or right of common, appears from it's very definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like »³. And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers.

1. Common of pasture is a right of feeding one's beasts on another's land: for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross^b.

Common appendant is a right, belonging to the owners or occupiers of arable land, to put commonable beasts upon the

a Finch, law. 157.

b Co. Litt. 122.

3. The right of common in the lands of another, except common of estovers, of which hereafter, I believ e does not exist in Virginia ; if it does, it can only be in a few cases, and must depend upon contract or grant. The act of 1779, c. 12, after reciting that several families, for their greater safety, have settled themselves in villages, or townships, under some agreement of laying off the same into town lots, to be divided among them, declares, that six hundred and forty acres of land whereon such villages and towns are situate, and to which no other person hath a previous legal claim, shall be reserved for the use and benefit of the said inhabitants, until a true representation of their case can be made to the general assembly. .... How far this law may lay the foundation of a future right of common in such villages, it is impossible at present to foresee.

lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough, or such as manure the ground. This is a matter of most universal right: and it was originally permitted⁶, not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of lands to tenants, for services either done or to be done, these tenants could not plough or manure the land without beasts ; these beasts could not be sustained without pasture ; and pasture could not be had but in the lord's wastes, and on the uninclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common, as inseparably incident, to the grant of the lands; and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in England"¹. Common oppurtenant ariseth from no connexion of tenure, nor from any absolute necessity: but may be annexed to lands in other lorc'bhips% or extend to other beasts, besides such as ai e generally commonable ; as hogs, goats, or the like, which neither plough nor manure the ground. This not arising from any natural propriety or necessity, like common appendant, is therefore not of general right; but can only be claimed by immemorial usage and prescription^ which the law esteems sufficient proof of a spcci 4 grant or agreement for this purpose. Common because ofvkinage,or neighbourhood, is where the inhabitants of two townships which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one otraying mutually into the other's fields, without any molestation from either. This is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits: and, therefore, either township may enclose and bar out the other, though they have intercomraoned time out of mind. Neither hath any person of one town a right to put his beasts originally into the other's commons: but if they escape, and stray thither of themselves, the law winks at the trespass*. Common in gross, or at large, is such as is neither appendant nor nppur-

c 2 Inst. 86.

e Cro. Car. 482. 1 Jon. 397.

g Co. Litt. 122.

d Stiernh. dejurc Suemutfi, 1.2. c. 0. f Co. Litt. 121, 122.

tenant to land, but is annexed to a man's person; being granted to him and his heirs by deed; or it may be claimed by prescrip, tive right, as by a parson of a church, or the like corporation sole. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor.

All these species, of pasturable common, maybe, and usually are, limited as to number and time; but there are also commons without stint, and which last all the year. By the statute of Merton, however, and other subsequent statutes¹¹, the lord of a manor may enclose so much pf the waste as he pleases, for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto* This inclosure, when justifiable, is called in law " approving:" an ancient expression signifying the same as "improving¹." The lord hath the sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring actions for damage done, either against strangers or each other; the lord for the public injury, and each commoner for his private damage^k.

2,3. Common of piscary is a liberty of fishing in another man's water ; as common of turbary is a liberty of digging turf upon another's ground¹. There is also a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects; though in one point they go much farther ; common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and those aforementioned, are a right of carrying away the very soil itself.

4. Common of estovers or estouvters, that is, necessaries (from estoffer, to furnish) is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another's estate. The Saxon word lote, is used by us as synonymous to

h 20 Hen. HI. c. 4.29 Geo. II. c. 36. arid 31 Geo. II. c. 41. i 2 Inst. 474. 1 Co- Litt. 122.

k 9 Rep. 113.

the French estovers: and therefore house-bote is a sufficient allowance of wood, to repair, or to burn in, the house; which latter is sometimes called fire-bote; plough-bote and cart-bote₍ are wood to be employed in making and repairing all instruments of husbandry : and hay-bote or hedge-bote is wood for repairing of hays, hedges, or fences. These botes or estovers must be reasonable ones; and such any tenant or lessee may take off the land let or demised to him.; without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the cpntrary^{m 4}.

These several species of commons do all originally result from the same necessity as common of pasture j viz. for the maintenance and carrying on of husbandry: common of piscary being given for the sustenance of the tenant's family ; common of turbary and fire-bote for his fuel; and house-bote, plough-bote, cart-bote,, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds.

IV. A fourth species of incorporeal hereditaments is that of ways: or the right of going over another man's ground. I Apeak not here of the king's highways, which lead from town to town⁵; nor yet of common ways, leading from a village into the fields; but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil .... This may be grounded on a special permission ; as when the pwner of the land grants to another a liberty of passing over his grounds, to go to church, to market, or the like : in which case the gift or grant is particular, and confined to the grantee alone; it dies with the person; and, if the grantee leaves the country, he cannot assign over his right to any other; nor can he justify

m Co. Litt. 41

4. Common of estovers, being such as any tenant or lessee may take off the land demised to him, remains in Virginia as set the cornJaw, and seems to be the only right of common, known to our laws,

5. See L. V. Edi. 1794, c. 19.

taking another person in his company"⁶. A way may be also by prescription; as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground, for such a particular purpose : for this immemorial usage supposes an original grant, whereby a right of way thus appurtenanant to land or houses may clearly be created⁷. A right of way may also arise by act and operation of law: ^rv.', if a man grants me a piece of ground in the middle of his held, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass⁰''. For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the samei". By the law of the twelve tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman¹).

V. Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments: whether public as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him

n Finch, law 31.

o Finch, law. 63.

p Co. Litt. 56.

q Lord Kaym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.

6. Such a right of way as is before described, probably does not exist in Virginia.

7. As prescription means any usage beyond the time of memory, and as that time of memory, in legal acceptation, hath been ascertained to commence from the beginning of the reign of Richard the first (ante, p. 31), and any custom may be destroyed by the evidence of it's non-existence in any part of the period from that time to the present; and as prescription stands upon the same footing, it would seem that there can be neither custom nor prescription in Virginia, which was settled near four hundred years after the epoch above mentioned.

8. Herein the common law remains unaltered in Virginia.

and his heirs⁹, or for life, or for a term of years, or during pleasure only: save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators^r. Neither can any judicial office be granted in reversion ; because though the grantee may be able to perform it at the time of the grant, yet befoi e the office falls he may become unable and insufficient: but ministerial offices may be so granted"; for those may be executed by deputy. Also, by statute 5 & 6 Edw. VI. c. 16, no public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it¹⁰. For the law presumes that he, who buys an office, will by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public.

VI. Dignities bear a near relation to offices¹¹. Of the nature of these we treated at large in the former book': it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate.

VII. Franchises .are a seventh species. Franchise and liberty are used as synonymous terms : and their diffinition is^u, a royal privilege, or branch of the king's prerogative, subsisting in

r 9 Rep. 97.

t See book I. c. 12.

s 11 Rep. 4. u Finch. L. 164.

9. No man can have an estate of inheritance in any public office in Virginia. Bill of rights, Art. 4. But all public officers, the tenure of whose office is during good behaviour, have freeholds in their offices. 1. Shower, 520, 523,525,531,557.

10. Herewith agree the laws of Virginia, Edi. 1794, c. 60. If two offices are incompatible, the acceptance of the latter vacates the former, even though a superior office. 2 Term. Rep. 81.

11. No man or setof men are entitled to exclusive or separate privileges from the community, but in consideration of public .servivices. Bill of rights, Art. 4. No title of nobility shall be granted by congress, or by any state, C. U. S. Art. 1. $. 9, 10.

the hands of a subject¹³. Being therefore derived from the crown, they must arise from the king's grant; or, in some cases, may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various, and almost infinite: I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic ; in one man, or in many: but the same identical franchise, that has before been granted to'one, cannot be bestowed en another, for that would prejudice the former grant^w.

To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession and do other corporate acts : and each individual member of such corporation is also said to to have a franchise or freedom. Other franchises are, to hold a court leet: to have a manor or lordship; or, at least, to have waifs, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands: to have a court of one's own, or liberty of holding pleas; and trying causes: -to-have the cognizance of pleas; and trying causes: to have the cognizance of pleas; which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction: to have a bailiwick, or liberty exempt from the sheriff of the county; wherein the grantee only, and his officers, are to execute all process : to have a fair or market; with the right of taking toll, either there or at any other public places, as at bridges, wharfs, or the like; which tolls must have a reasonable cause-of commencement, (as in consideration of repairs, or the like,) else the franchise is illegal and void": or, lastly, to have a forest, chase,

w2Koll. Abr.I91. Keilw. 196.

x 2 Inst. 220,

12. The proprietors of the northern neck had many considerable franchises granted them, for which see the laws of Virginia, 1736, c. 3. Edi. 1794, c. 3. Such of them as might be deemed branches of the king's prerogative, I presume were abolished at the revolution. Bill of rights (ut sujiraj Art. 4.

park, warren, or fishery, endowed with privileges of royalty ; which species of franchise may require a more minute discussion.

As to a forest: this, in the hands of a subject, is properly the same thing with a chase; being subject to the common law, and not to the forest laws^. But a chase differs from a park, in that it is not inclosed, and also in that a man may have a chase in another man's ground as well as in his own ;, being indeed the liberty of keeping beasts of chase or royal game therein, protected even from the owner of the land with a power of hunting them thereon. A park is an inclosed chase, extending only over a man's own grounds. The word park indeed properly signifies an enclosure; but yet it is not every field or common, ivhich a gentleman pleases to surround with a wall or paling, andv stock with a herd of deer, that is thereby constituted a legal park: for the king's grant, or «t least immemorial prescription, is necessary to make it so". Though now the difference between a real park, and such enclosed grounds, is in many ^espects, not very material: only that it is unlawful at common law for any person to kill any beasts of park or chase*, except such as possess these franchises of forest, chase, or park. Free-warren is a similar franchise, erected for preservation or custody (which the word signifies) of beasts and fowls of warren^b; which, being ferae naturae, every one had a natural right to kill as he could: but upon the introduction of the forest laws, at the Norman conquest, as will be shewn hereafter, these animals being looked upon as royal game and the sole property of our savage monarchs, this franchise of free-warren was invented to protect them ; by giving the grantee a sole and exclusive power of killing such game so far as his warren extended, on condition of his preventing other persons. A man therefore that has the franchise of

y 4 Inst. 314.

z Co. Litt. 233. 2 Inst. 199.11 Rep. 85.

a These are properly buck, Joe, fox, martin and roe ; but in a common and legal sense extended likewise to all the beasts of the forest. which besides the other, are reckoned to be the hart, hind, hare, boar, and wolf, and in a word, all wild beascs of venary or hunting. (Co. Litt. 233.)

b The beasts are hares, coni;s, and roes: the fowls are either campestrcs, as partridges, rails, and quails; or syiixstrcs, as woodcocks and pheasants; or atjuatitef, as mallards and herons (Ibid).

warren, is 'in reality no more than a royal game-keeper: but no man, not even a lord of a manor, could by common law justify sporting on another's soil, or even on his own, unless he had the liberty of free-warren^c. This franchise is almost fallen into disregard, since the new statutes for preserving the game; the name being now chiefly preserved in grounds that are set apart for breeding hares and rabbits. There are many instances of keen sportsmen in antient times, who have sold their estates, and reserved the free-warren, or right of killing game, to themselves ; by which means it comes to pass that a man and his heirs have sometimes free-warren over another's ground*. A free fishery, or exclusive right of fishing in a public river^ is also a royal franchise; and is considered as such in all countries where the feodal polity has prevailed*: though the making such grants, and by that means appropriating what seems to be unnatural to restrain, the use of running water, was prohibited for the future by king John's great charter; and the rivers that were fenced in his time were directed to be laid open, as well as the forests to be disafforested^f. This opening was extended by the seconds and third^h charters of Henry III, to those also that were fenced under Richard I^l3; so that a franchise of free fishery ought now to be at least as old as the reign of Henry II. This differs from a several fishery; because he that has a several fishery must also be (or at least derive his right from) the owner of

c Salk. 637. d Brol Abr. tit. Warren. 3.

e Seld. Mar. Clauf. I. 24. Dufresne. V. 503. Crag, de yur.feod. II. 8, IS.

f cap. 47. edit. Oxon. g cap. 20. h 9 Hen. III. c. 16.

13. The act of 1784, c. 23, Edi. 1769, prohibited the making of hedges, or stone stops in any river, creek, or run, except where the person making them should possess the land on both sides of the' creek to the head, and no public landing were thereon established above the hedge or stops. And by the act of 1785, c. 82, the like prohibition is made general, except where leave is given for the working of some machine or engine useful to the public, in which cases, the same proceedings may be had as are directed in the case of water grist mills, and the court shall lay the party applying under such conditions for preventing the obstruction offish of passage and ordinary navigation, as to them shall seem right. Edi. 1794, c. 105.

the soil'¹⁴, which in a free fishery is not requisite. It differs also from a common of piscary before-mentioned, in that die free fishery is an exclusive right, the common of piscary is not so: and therefore, in a free fishery, a man has a property in the fish before they are caught; in a common of piscary not till afterwards¹. Some indeed have considered a free fishery not as a royal franchise, but merely as a private grant of a liberty to fish in the several fisher}' of the grantor¹. But to consider such right as originally a flower of the prerogative, till restrained by magna carta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, and to distinguish it (as we have done) from a several and a common of fishery, may remove some difficulties in respect to this matter, with which our books are embarrassed. For it must be acknowledged, that the rights and distinctions of the three species of fishery are very much confounded in our law-books; and that there are not wanting respectable authorities¹¹¹ which maintain, that a several fishery may exist distinct from the property of the soil, and that a free fishery implies no exclusive right, but is synonymous with common of piscary.

VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance". In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted⁰ .... And these maybe reckoned another species of incorporeal hereditaments ; though not chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect of such his inheritance'⁵. To these may be added,

iM. 17 Edw. IV. 6. P. 18 Edw- IV. 4. f. 10 Hen. K//.24, 26. Salk. 637.

k F. N. B. 88. Salk. 637. 1 2 Sid. 8.

m See them well digested in Margrave's notes on Co. Litt. 122.

n Finch. L. 162. o See book I. c. 8.

14. In order to constitute a several fishery in Virginia, the person claiming the same must possess the soil on both sides of a creek. See V. L. 1748, c. 1. Edi. 1794, c. 88.

15. Corodies were never known in Virginia. See Vol. I. p. 283.

IX. Annuities, which are much of the same nature; only that these arise from temporal, as the former from spiritual) persons. An annuity is a thing very distinct from a rent-charge, with which it is frequently confounded: a rent-charge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor⁰. Therefore, if a man by deed grant to another the sum of 20/. per annum, without expressing out of what lands it shall issue, no land at all shall be charged with it; but it is a mere personal annuity: which is of so little account in the law, that, if granted to an eleemosynary corporation, it is not within the statutes of mortmain!"; and yet a man may have a real estate in it, though his security is merely personal¹⁶.

X. Rents are the last species of incorporeal hereditaments. The word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgement given for the possession of some corporeal inheritance¹). It is defined to be a certain profit issuing yearly out of lands and tenements cor-, poreal. It must be aprojit; yet there is no occasion for it to be, as it usually is, a sum of money: for spurs, capons, horses, corn, and other matters maybe rendered, and frequently are rendered by way of rent^r. It may also consist in services or manual operations ; as, to plough so many acres of ground, to attend the king or the lord to the wars, and the like; which services in the eye of the law are profits. This profit must also be certain ; or that which may be reduced to a certainty by either party. It must also issue yearly; though there is no occasion for it to issue every successive year; but it may be reserved every second, third, or fourth year¹: yet, as it is to be produced out of the profits of lunds and tenements, as a recompense for being permitted to hold or enjoy them, it ought to be reserved yearly, because

o Co. Litt. 144. r Co. Litt. 142.

p Ibid. 2. s Ibid. 47.

q Hid. 144.

16. Few cases on the subject of annuities occur in Virginia, I believe: our laws have not noticed them; they therefore remain as tit the common law;

those profits do annually arise and a> ; annually renewed. It must issue out of the thing granted, and not be a part of the land or thing itself; wherein it differs from an exception in the grant, which is always of part of the thing granted'. It must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrain. Therefore, a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like^u. But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt^w : though it doth not affect the inheritance, and is no legal rent in contemplation of law.

There are at common law" three manner of rents, rent-service, rent-charge, and rent-seek^l7. Rent-service is so called because it hath some corporal service incident to it, as, at the least, fealty or the feodal oath of fidelity?¹⁸. For, if a tenant holds his land by fealty, and ten shillings rent; or by the service of ploughing the lord's land, and five shillings rent; these pecuniary rents,

t Plowd. 13. 8 Rep. 71 x Litt. Sec. 213.

u Co. Litt. 144. y Co. Litt. 142.

w Ibid. 47.

17. This appears to be an error, for it would seem that at common law all rents were distreinable of common right, and that the distinctionbetween rent-service,rent-charge, and rent-seek, was introduced by the statute of Quia etnfitorcti terrarum, 18 Edi. 1, c. 1, as Littleton expressly tells us,' Sec. 216.

18. As, by thecommon law, fealty was due from every tenant (except tenant at will) to his lord, which fealty carried with it some corporal service, as the taking the oath of fealty at least, for non-performance of which the lord might distrein of common right, when by the statute of Quia cm/itores, a distinction arose between rents to which distress was incident, and others, the former seem to have obtained the general name of rent-service, because to all these the corporal service of fealty, except in the case of a tenant at will, as before mentioned, was inseparably incident. But since the abolition of feudal tenures this notion of corporal service is become obsolete; and indeed seems to have been so,longbefore ; for if aman had leased lands for life, &c. rendering sixpence, in lieu of all manner of services, this was still called a rent-service. See Co. Litt. Rents.

being connected with personal services, are therefore called rent-service. And for these, in case they be behind, or arrere, at the day appointed, the lord may distrein of common right, without reserving any special power of distress ; provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of th