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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 the lessee or grantee is expired^{z I9}. A rent-charge, is where the owner of the rent hath no future interest, or reversion expectant in the land; as where a man by deed maketh over to others his tvhole estate in fee simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed: and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it^{a 20}. Rent-seek, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but withoutany clause of distress²¹.

z Litt. Sec. 215.

a Co. Litt. 143,

19. Before the statute of Quia emfitores he might have distreined, as of common right, although he had parted with the wholeyee simple, and consequently had no reversion in him. Litt. Sec. 216.

20. And this, says Littleton, is by force of the statute of Quia cmli 'arrs tcrrarum: for before that statute, if a man had made a feoffnicnt in fee simple, by deed, or without tleed, yielding to him and to hit- beirs a certain rent, this was a rent-service, and for this he might have distreined of common right...Sec. 216. But now at this day, he proceeds, if there be a clause of distress in the deed, it is a rent charge, and if there be no clause of distress it is a rent-seek, for which he cannot have any distress. Ibid, Sec. 217.

21. After what has been observed in the preceding notes, it may t>e doubted whether any rent in Virginia can be rent-seek, that is, without a remedy by distress incident thereto, as of common right, although there be neither a reversion in him to whom the rent is payable, nor any clause of distress in the deed, by which the land was granted, and the rent reserved; inasmuch as the statute of Quia rm/noren terranim stands repealed in Virginia, by the act of 1792. Kdi. 1794, _c. W.

There are'also other species of rents, which are reducible to these three²². Rents of assise are the certain established rents of the freeholders and ancient copyholders of a manor¹, which cannot be departed from or varied ²³. Those of the freeholders are frequently called chief rents, reditus caphales; and both sorts are indifferently denominated quit rents, quieti reditus; because thereby the tenant goes quit and free of all other services²⁴. When these payments were reserved in silver or white money, they were antiently called white-rents, or blanch farms, reditus albi^c; in contradistinction to rents reserved in work, grain, or

b 2 Inst. 19.

c In Scotland this kind of small payment is called blancb-hoUing, oirt•ditus albae Jinnae.

22. Some have divided rents into four kinds ; rent-service, rent-charge, rent distreinable of common right, and rent-seek. Co. Litt. 141. The first and third seem to be considered as the same, by Littleton, as well as by the author of the commentaries.

23. There are no copyholds in Virginia.

24. Under the regal government, a quit-rent of two shillings for every hundred acres of land granted in Virginia was reserved to the crown, and if not paid for three years together, the lands were forfeited. 1748, c. 1, but these quit-rents were abolished by the act of May, 1779, c. 13, Edi. 1785. The tenants of lands held under the proprietor of the Northern Neck, were also subject to a quit-rent of two shillings for every hundred acre*, reserved in the proprietor's grants, with a clause of forfeiture in case the rent should be, at any time, more than two years in arrear. Upon the death of lord Fairfax, duringthe revolutionary war, the quit-rents were sequestered in the ' hands of the tenants; October, 1782, c. 8, J. 24. The next year, all arrears due before the death of lord Fairfax, were restored to his executors, or, in other words, the sequestration as to them was taken off; May 1783, c. 38, and so the matter rested until the year 1785, when an act was passed, declaring that the landholders within the district of the Northern Neck shall be forever thereafter exonerated and discharged from composition, and quit-rents, any law, usage, or custom to the contrary notwithstanding. Sessions acts of 1785, c. 47, $. 7. How far this act may be a contravention of the treaty of peace •with Great-Britain, is a subject which has not (yet, I believe) been drawn in question. It may, however, be of very serious importance to the landholders in the Northern Neck.

baser money, which were called reditus nigr't or black mail*. Rack' rent is only a rent of the full value of the tenement or near it. A fee-farm rent is a rent-charge issuing out of an estate in fee; of at least one fourth of the value of the lands, at the time of it's reservation⁶ : for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee-simple instead of the usual methods for life or years.

These are the general divisions of rent; but the difference between them (in respect to the remedy for recovering them) is now totally abolished; and all persons may have the like remedy by distress for rents-seek, rents of assise, and chief-rents, as in case of rents reserved upon lease ^f2'.

Rent is regularly due and payable upon the.land from whence it issues, if no particular place is mentioned in the reservation * : but, in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country ^h. And, strictly, the rent is demandable and payable before the time of sun-set of the day whereon it is reserved'⁸⁶; though perhaps not absolutely due till midnight^k.

With regard to the original of rents, something will be said Jn the next chapter; and, as to distresses and other remedies for

d 2 Inst. 19.

e Co. Litt. 143.

f Stat. 4Geo. II. c.28.

g Co. Litt. 201.

h 4 Rep. 73.

i Co. Litt. 302. 1 Anders. 253.

kl Saund. 287. Free. Chanc. 555. Salk. 578.

25. The statute of 4 George II. c. 28, here referred to, was never in force in Virginia. The act of 1792,1 apprehend, does not extend to give the remedy by distress in any case, where a distress is not, either incident to the rent, as of common right, or reserved in the deed. But if the repeal of the state of Quia emfitores, should have the effect hinted at in a former note (ante note 21.) the remedy by distress would lie, as well in the case of a rent-seek, as of rent-service, vi. Edi. 1794, c. 89.

26. If the lessor dies before sun-set on the day upon which the rent is demandable, it is clearly settled that the rent unpaid is due to his heir, and not to his executor ; but if he dies after sun-set, and before midnight, it seems to be the better opinion that it shall go to the executor, and not to the heir. 1. P. Wms. 178.,..Christian.

their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redressed^ar.

27. The student may refer to the Edi. of 1794, c. 89, for the statutory remedies which the laws of Virginia afford, in cases of rent arrear : they will be more fully noticed in tjie notes on the third Vol. of the commentaries.

CHAPTER THE FOURTH.

OF THE FEODAL SYSTEM l.

IT is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate it's landed property, without some general acquaintance with the nature and doctrine of feuds, or the feodal law : a system so universally received throughout Europe upwards of twelve centuries ago, that Sir Henry Spelman^a does not scruple to call it the law of nations in our western world, a Of Parliaments, 57.

1. As many of the maxims and rules respecting landed property, to be found in the common law, are derived from the feudal system, it will be proper for the, student attentively to peruse this, and the two following chapters. ^vl£ was expected that every trace of that system would have, been abolished in this country when the republic was established. The act of May 1779, c. 13, has this remarkable passage in it. « And that the proprietors of lands within this commonwealth may no longer be subject to any servile, feudal, or precarious tenure ; and to prevent the danger to a free state from perpetual revenue, Be it enacted, that the reservation of royal mines, of quit-rents, and all other reservations and conditions in the patents or grants of land from the crown of England, or Great-Britain, under the former government, shall be, and are hereby declared null and void; and that all lands thereby respectively granted, shall be held in absolute and unconditional property to all intents and purposes whatsoever, in the same manner with the lands hereafter to be granted by the commonwealth by virtue of this act." Edi. 1785, p. 98. The act of 1785, c. 60, in the same republican spirit, abolished the right of primogeniture ; the preference to males, and every other trace of feudal policy, in the inheritance of real estates ; but subsequent legislatures have shewn a strong disposition to revive some of the maxims of the feudal system, of which we shall hereafter have occasion more fully to take notice.

This chapter will be therefore dedicated to this inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student willimagine his time misemployed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation, upon which what remains is erected ; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientifical manner, without having recourse to the antient. Nor will these researches be altogether void of rational entertainment as well as use: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the draughts of the same edifices, in their pristine proportion and splendor.

The constitution of feuds ^b had its original from the military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina gentium, as Crag very justly entitles it^c, poured themselves in vast quantities into all the regions" of Europe, at the declension of the Roman empire. It was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure their new acquisitions: and, to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and most deserving soldiers ^d. These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern languages ^e signifies a conditional stipend or reward ^f. Rewards or stipends they evidently

b See Spelman of feuds, and Wright of tenures, per tot. c De jurefeott. 19, 20. d Wright, 7. e Spelm. Gl. 216 f Pontoppidan in his history of Norway, (page 290) observes, that in the •northern languages odh signifies proprietor and all totuin. Hence he derives 'the odhal right in those countries; and thence too perhaps is derived the tidal right in Finland, &c. (See Mac Doual Inst. part. 2.) Now the transposition of these northern syllables, allodji, will give us the true etymology of the allodium, or absolute property of the feudists: as, by a similar combination of the latter syllable with the word fee (which signifies, we have seen, a conditional reward or stipend) feeodii orjcodum will denote stipendiary property.

were : and the condition annexed to them was, that the possessor should do service faithfully, both at home and in the wars, to him by whom they were given; for which purpose he took thejuramentumjidelitatis, or oath of fealty *: and in case of the breach of this condition and oath, by not performing the stipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them^h.

Allotments, thus acquired, naturally engaged such as accepted them to defend them: and, as they all sprang from the same right of conquest, no part could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each others possessions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpose subordination, was necessary. Every receiver of lands, or feudatory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewise subordinate to, and under the command of, his immediate benefactor or superior; and so upwards to the prince or general himself: and the several lords were also reciprocally bound, in their respective gradations, to protect the possessions they had given. Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutually prepared to muster, not only in defence of each man's own several property, but also in defence of the whole, and of every part of this their newly acquired country*; the prudence of which constitution was soon sufficiently visible in the strength and spirit, with which they maintained their conquests.

The universality and early use of this feodal plan, among all those nations, which in complaisance to the Romans we still call barbarous,' may appear from what is recorded ^k of the Cimbri and Teutones, nations of the same northern original as those whom we have been describing, at their first irruption into Italy

g See this oath explained at large in Feud. I. 2 t. 7. h Feud. I. 2. t. 24. i Wright, a k L. Fiona, I. 3. c. 3.

about a century before the Christian sera. Theydemanded of the Romans, " ut martins populus dllquid sibi terras darct, quasi stipendium: caeterum, ut vellet, manibus atque annis suis uteretur.^ The' sense of which may be thus rendered; they desired stipendiary lands (that is, feuds) to be allowed them, to be held by military and other personal services, whenever their lords should call upon them. This was evidently the same constitution, that displayed itself more fully about seven hundred years afterwards: when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths on Spain, and the Lombards upon Italy; and introduced with themselves this northern plan of polity, serving at once to distribute and to protect the territories they had newly gained. And from hence too it is probable that the emperor Alexander Severus' took the hint, of dividing lands conquered from the enemy among his generals and victorious soldiery, duly stocked with cattle and bondmen, on condition of receiving military service from them and their heirs for ever.

Scarce had these northern conquerors, established themselves in their new dominions, when the wisdom of their constitutions, as well as their personal valour, alarmed all the princes of Europe ; that is, of those countries which had formerly been Roman provinces, but had revolted, or were deserted by their old masters, in the general wreck of the empire. Wherefore, most, if not all, of them thought it necessary to enter into the same or a similar plan of policy. For whereas, before, th« possessions of their subjects were perfectly allodial, (that is wholly independent, and held of no superior at all²) now they par-

1" Sola,quae de hostibus capta sunt, limitaneis ducibus & rniiitibiu donmit i ita ut eoruin ita essent, si haeredes illorum militarent, nee vnquam ad privates pertinerent; dice/is attentita illos militaturos, si eiiam sua nira defcn'krent. Addidit sane bis et animalia et servos, ut possent colere quod acceperant; neper, inopiam. bomimim vel per senectutem desererentur nira memo barbariae, quod turpissinwm tile dacebat." (~Ae\. Lamprid. in vita Alex. Sever!,

2. Lands in Virginia, by the act of May 1779, c. 13, abovementioned, are rendered perfectly allodial .... See note 1. p. 44. Yet there remains one incident to lands in Virginia, which was move peculiarly incidental to feudal tenures, viz. that they arc still liable to be escheated to the commonwealth. C. V. Art. 20, L. V.1794, c. 82. Forfeitures, another incident to feudal tenures have been entirely abolished. Edi. 1794, c. 74.

celled out their royal territories, or persuaded their subjects to surrender up and retake their own landed property, under the like feodal obligations of military fealty ^m. And thus, in the compass of a very few years, the feodal constitution, or the doctrine of tenure, extended itself over all the western world. Which alteration of landed property, in so very material a point, necessarily drew after it an alteration of laws and customs; so that the feodal laws soon drove out the Roman, which had hitherto universally obtained, but now became for many centuries lost and forgotten; and Italy itself (as some of the civilians, with more spleen than judgment, have expressed it) belluinas, atqueferinas, immanesque Longobardorum leges accepit".

But this feodal polity, which was thus by degrees established over all the continent of Europe, seems not to have been received in this part of our island, at least not universally and as a part of the national constitution, till the reign of William the Norman °. Not but that it is reasonable to believe, from abundant traces in our history and laws, that even in the times of the Saxons, who were a swarm from what sir William Temple calls the same northern hive, something similar to this was in use: yet not so extensively, nor attended with all the rigour that was afterwards imported by the Normans. For the Saxons were firmly settled in this island, at least as early as the year 600: and it was not till two centuries after, that feuds arrived to their full vigour and maturity, even on the continent of Europe p.

This introduction however of the feodal tenures into England, by king William, does not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the conqueror; but to have been gradually established by the Norman barons, and others, in such forfeited lands as they received from the gift of the conqueror, and afterwards universally consented to by the great council of the nation long after his title was established. Indeed from the prodigious slaughter of the English nobility at the battle of Hastings, and

m Wright, 10. n Gravin. Oiig. I. 1. Sec. 139. o Spelra. Gloss. 218. Bract. /. 2. c. 16. Sec. 7, p Crag. 1.1. t. 4.

the fruitless insurrections of those who survived, such numerous forfeitures had accrued, that he was able to reward his Norman followers with very large and extensive possessions: which gave a handle to the monkish historians, and such as have 'implicitly followed them, to represent him as having by right of the sword seised on all the lands of England, and dealt them out again to his own favourites. A supposition, grounded upon a mistaken sense of the word conquest; which, in its feodal acceptation, signifies no more than acquisition: and this has led many hasty writers into a strange historical mistake, and one which upon the slightest examination will be found to be most untrue. However, certain it is, that the Normans now began to gain very large possessions in England; and their regard for the feodal law, under which they had long lived, together with the king's recommendation of this policy to the English, as the best way to put them on a military footing, and thereby to prevent any future attempts from the continent, were probably the reasons that prevailed to effect it's establishment here by law. And, though the time of this great revolution in our landed property cannot be ascertained with exactness, yet there are some circumstances that may lead us to a probable conjecture concerning it. For we learn from the Saxon chronicle*, that in ihe nineteenth year of king William's reign an invasion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in it's stead, the kingdom was wholly defenceless: which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrances, and the better incline the nobility to listen to his proposals for putting them in a posture of defence. For, as soon as the danger was over, the king held a great council to inquire into the state of the nation ^r ; the immediate consequence of which was the compiling of the great survey called domesday-book, which was finished in the next year: and in the latter end of that very year, the king was attended by all his

q A. D. 1085.

r Sex ttnttit magnum concilium, ft grams sermones babuit cum mis proceribus <fc i>ac terra ; quo modo iiicoleretur, et a quibus bominibus. Cbrm. Sax. ibid.

nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king's vasals, and did homage and fealty to his person^!. This may possibly have been the aera of formally introducing the feodal tenures by law; and perhaps the very law, thus made at the council of Sarum, is that which is still extant^f, and couched in these remarkable words: " statuimus, ut omnes llberi homines foedere et sacramento ajfirment, quod intra et extra universum regnum Angliae Wilhelmo regi domino suo jideks esse volunt ; terras et honores illius omni jidelitate ubique servare cum eo, et contra inimicos et alienigenas defendere.ⁿ The terms of this law (as sir Martin Wright has observed ^u) are plainly feodal: for, first, it requires the oath of fealty, which made in the sense of the feudists every man that took it a tenant or vasal: and, secondly, the tenants obliged themselves to defend their lord's territories and titles against all enemies foreign and domestic. But what clearly evinces the legal establishment of this system, is another law of the same collection^w, which exacts the performance of the military feodal services, as ordained by the general council. " Omnes comites, et barones, et milites, et servientes, et universi llberi homines totius regni nostri praedicti, habeant et teneant se semper bene in armis et in equis, ut decet et oportet: et sint semper promptl_f et bene farati, ad servitium suum integrum nobis explendum et peragendum, cum opusfuerit; secundum quod nobis debent defoedis et tenementis suis de jure facer e, et sicut illis statuimus per commune concilium totius regni nostri praedicti"

This new polity, therefore, seems not to have been imposed by the conqueror, but nationally and freely adopted by the general assembly of the whole realm, in the same manneras other nations of Europe had before adopted it, upon the same principle of self-security. And, in particular, they had the recent example of the French nation before their eyes ; which had gradually sur-

s Omnes praedia tenentes, r/uotquot essent notae aielioru per totam Angliam, ejus hominesfacti sunt, ft otnncs se ill! subdidere, ejusquejacti sunt vasalli, ac ei Jidelitatis jttrainfnta praestiterunt, se contra alias quoscunque illi Jidosjuturos. \ Cbron. Sax. A. D. 1086.

t Cap. 52. Wilk. 228- * Tenures, 66.

w Gap- 58. Wilk. 288.

rendered up all it's allodial or free lands into the king's hands, who restored them to the owners as a benefcium or feud, to be held to them and such of their heirs as they previously nominated to the king: and thus by degrees all the allodial estates in France were converted into feuds, and the freemen became the vasals of the crown*. The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually, by the consent of private persons; the latter was done at once, all over England, by the common consent of the nation?.

In consequence of this change, it became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures; "-that the king is the universal lord and original proprietor of all the lands in his kingdom²; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal services." For, this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise. And, indeed, by thus consenting to the introduction of feodal tenures, our English ancestors probably meant no more than to put the kingdom in a state of defence by establishing a military system; and to oblige themselves (in respect of their lands) to maintain the king's title and territories, with equal vigour and fealty, as if they had received their lands from his bounty upon these express conditions, as pure, proper, beneficiary .feudatories. But whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feodal constitutions, and well understanding the import and extent of the feodal terms, gave a very different construction to this proceeding : and thereupon took a handle to introduce not only the rigorous doctrines which prevailed in the duchy of Normandy, but also such fruits and dependencies, such hardships and services,

x Montesq. Sp. L. b. SI, c. 8.

y Pfearaoh thus acquired the dominion of all the lands in Egypt, and granted them out to the Egyptians, reserving an annual render of the fifth •part of their value- (Gen. c. xlvii.)

z foutfuit inlity, et vient de Iny a! cotnmencement, (M, 24JiVra, Z//.65.)

as were never known to other nations*; as if the English had, in fact as well as theory, owed every thing they had to the bounty of their sovereign lord.

Our ancestors, therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from the crown, as the basis of a military discipline, with reason looked upon these deductions as grievous impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truth^b. However, this king, and his son William Rufus, kept up with a high hand all the rigours of the feodal doctrines: but their successor, Henry I. found it expedient, when he set up his pretensions to the crown, to promise a restitution of the laws of king Edward the confessor, or antient Saxon system; and accordingly, in the first year of his reign, granted a charter⁰, whereby he gave up the greater grievances, but still reserved the fiction of feodal tenure, for the same military purposes which engaged his father to introduce it. But this charter was gradually broken through, and the former grievances were revived and aggravated, by himself and succeeding princes; till in the reign of king John they became so intolerable, that they occasioned his barons, or principal feudatories, to rise up in arms against him: which at length produced the famous great charter at Runing-mead, which, with some alterations, was confirmed by his son Henry III. And, though it's immunities (especially as altered on it's last edition by his son^d) are very greatly short of those granted by Henry I, it was justly esteemed at the time a vast acquisition to English liberty. Indeed, by the farther alteration of tenures that has since happened, many of these immunities may now appear, to a common observer, of much less consequence than they really were when granted: but this properly considered, will shew, not that the acquisitions under John were small, but that those under Charles were greater. And from hence also arises another inference ; that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king's prerogative, extorted from our princes by taking advantage of their weakness; but a restoration of that antient

a Spelm. of feuds, c. 23. c L L. Hen. I- c, 1.

b Wright, 81. d 9 Hen. IU.

constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Norman arms.

Having given this short history of their rise and progress we will next consider the nature, doctrine, and principal laws of feuds; wherein we shall evidently trace the ground-work of many parts of our public polity, and also the original of such of our own tenures, as were either abolished in the last century, or still remain in force.

The grand and fundamental maxim of all feodal tenure is this; that all lands were originally granted out by the sovereign, and are, therefore, holden, either mediately or immediately, of the crown. The grantor was called the proprietor, or lord; being he who retained the dominion or ultimate property of the feud or fee: and the grantee, who had the use and possession, according to the terms of the grant, was stiled the feudatory or vasal, which was only another name for the tenant or holder of the lands; though, on account of the prejudices which we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vasal opprobriously, as synonomous to slave or bondman. The manner of the grant was by words of gratuitous and pure donation, dedi et concessi; which are still the operative words in our modern infeodations or deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vasals; which perpetuated among them the aera of the new acquisition, at a time when the art of writing was very little known: and, therefore, the evidence of property was reposed in the memory of the neighbourhood; who, in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowledge.

Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vasal or tenant upon investiture did usually homage to his lord; openly and

humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sate before him; and there professing that " he did become his man, from " that day forth, of life and limb and earthly honour:" and then: he received a kiss from his lord⁶. Which ceremony was denominated homagium, or manhood, by the feudists, from the stated • form of words, devenio vaster homo^{.

When the tenant had thus professed himself to be the man of his superior or lord, the next consideration was concerning the service, which, as such, he was bound to render, in recompense for the land that he held. This, in pure, proper, and original feuds, was only twofold; to follow, or do suit to, the lord in his courts in time of peace ; and in his armies or warlike retinue, when necessity called him to the field. The lord was, in early times, the legislator and judge over all his feudatories: and, therefore, the vasals of the inferior lords were bound by their fealty to attend their domestic courts baron^, (which were instituted in every manor or barony, for doing speedy and effectual justice to all the tenants) in order as well to answer such complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellow tenants: and upon this account, in all the feodal institutions both here and on the continent, they are distinguished by the appellation of the peers of the court; fares curtis, or fares ciiriae. In like manner the barons themselves, or lords of inferior districts, were denominated peers of the king's court, and were bound to attend him upon summons, to hear causes of greater consequence in the king's presence and under the direction of his grand justiciary; till in many countries the power of that officer was broken and distributed into other courts of judicature, the peers of the king's court still reserving

e Lit. Sec. 85.

f It was an observation of Dr. Arbuthnot, that tradition was no where preserved so pure and incorrupt as among children, whose games and plays are delivered down invariably from one generation to another. (Warburton'j notes on Pope, vi. 131,8vo.) It will not, I hope, bethought puerile to remark (in confirmation of this observation) that in one of our antient juvenile pastimes (the ting lam. or basilinda of Julius Pollux, Onomattic, I. 9, c. 7,) the ceremonies and language of feodal homage are preserved with great exactness.

g Feud. I. 2, t. 55.

to themselves (in almost every feodal government) the right of appeal from those subordinate courts in the last resort. The military branch of service consisted in attending the lord to the wars, if called upon, with such a retinue, and for such a number of days, as were stipulated at the first denation, in proportion to ' the quantity of the land.

At the first introduction of feuds, as they were gratuitous, so also they were precarious, and held at the will of the lord ^h, who was then the sole judge whether his vasal performed his services faithfully. Then they became certain for one or more years. Among the antient Germans they continued only from year to year: an annual distribution of lands being made by their leaders in their general councils or assemblies'. This was professedly done, lest their thoughts should be diverted from war to agriculture; lest the strong should incroach upon the possessions of the weak ; and lest luxury and avarice should be encouraged by the erection of permanent houses, and too curious an attention to convenience and the elegant superfluities of life. But, when the general migration was pretty well over, and a, peaceable possession of the new-acquired settlements had introduced new customs and manners ; when the fertility of the soil had encouraged the study of husbandry, and an affection for the spots they had cultivated, began naturally to arise'in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory ^k. But still feuds were not yet hereditary ; though frequently granted, by the favour of the lord, to the children of the former possessor ; till, in process of time, it became unusual, and was, therefore, thought hard, to reject the heir, if he were capable to perform the services¹: and, therefore, infants, women and professed monks, who were incapable of bearing arms, were also incapable

h Feud. l.l,t. 1.

i Thus Tacitus: (de inor. Germ. c. 26). " agri ab universis per vices oc. cupantur; ania per annos mutant. " And Cssar yet more fully.: (de bell. Gall. I. 6, c. 21J. " Neque quisquam agri modum certain, out fines proprios habet; ted magistratus et priiicipes, in annos tingulos, .gentibus et cognationikus iominum qui una eoierunt, quantum eis et quo loco iiisum at, attribuunt agri, ah que anno post olio transire copint. "

k Feud. 1. I, t. I. 1 Wright. 14.

of succeeding to a genuine feud. But the heir, when admitted to the feud which his ancestor possessed, used generally to pay a fine or acknowlegement to the lord, in horses, arms, money, and the like, for such renewal of the feud: which was called a relief, because it raised up and re-established the inheritance, or in the words of the feodal writers," incertam et caducam hereditatem relevabat." This relief was afterwards, when feuds became absolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceased.

For, in process of time, feuds came by degrees to be universally extended, beyond the life of the first vasal, to his sons, or perhaps to such one of them as the lord should name; and in this case the form of the donation was strictly observed: for if a feud was given to a man and his sons, all his sons succeeded him in equal portions: and, as they died off, their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation ^m. But when such a feud was given to a man and his heirs in general terms, then a more extended rule of succession took place; and when the feudatory died, his male descendants in injinitum were admitted to the succession. When any such descendant, who thus had succeeded, died, his male descendants were also admitted in the first place; and, in defect of them, such of his male colateral kindred as were of the blood or lineage of the first feudatory, but no others. For this was an unalterable maxim in feodal succession, that " none was capable of inheriting a feud, but such as was of the blood of, that is, lineally descended from, the first feudatory ⁿ." And the descent, being thus confined to males, originally extended to all the males alike; all the sons, without any distinction of primogeniture, succeeding to equal portions of the father's feud. But this being found upon many accounts inconvenient, (particularly, by dividing the services, and thereby weakening the strength of the feodal union) and honorary feuds (or titles of nobility) being now introduced, which were not of a divisible nature, but could only be inherited by the eldest son ° ; in imitation of these, military feuds (or those we are now describing) began also in most coun-

m Wright. 17, n Ibid. 183. o Feud. 2, t. 55.

tries to descend, according to the same rule of primogeniture, to the eldest son, in exclusion of all the rest p.

Other qualities of feuds were, that the feudatory could not aliene or dispose of his feud; neither could he exchange, nor yet mortgage, nor even devise it by will, without the consent of the lord *. For, the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should be at liberty to transfer this gift, either from himself, or from his posterity who were presumed to inherit his valour, to others who might prove less able. And, as the feodal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection, in return for his own fealty and service; therefore, the lord could no more transfer his seignory or protection without consent of his vasal, than the vasal could his feud without consent of his lord ^r : it being equally unreasonable, that the lord should extend his protection to a person to whom he had exceptions, and that the vasal should owe subjection to a superior not of his own choosing.

These were the principal, and very simple, qualities of the genuine or original feuds; which were all of a military nature, and in the hands of military persons: though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants ; obliging them to such returns in service, corn, cattle, or money, as might enable the chief feudatories to attend their military duties without distraction: which returns, or reditus, were the original of rents. And, by these means the feodal polity was greatly extended j these inferior feudatories(who held what are called in the Scots law " rere-fiefs ") being under similar obligations of fealty, to do suit of court, to answer the stipulated renders or rent-service, and to promote the welfare of their immediate superiors or lords⁸... ....

But this at the same time demolished the antient simplicity of feuds; and an inroad being once made upon their constitution, it subjected them, in a course of time, to great varieties and innovations. Feuds began to be bought and sold, and deviations

p Wright. 32. q Ibid. 29. r Ibid. 30. s Ibid. 20.

were made from the old fundamental rules of tenure and succession ; which were held no longer sacred, when the feuds themselves no longer contined to be purely military. Hence these tenures began now to be divided intofeoda propria et impropria, proper and improper feuds; under the former of which divisions were comprehended such, and such only, of which we have before spoken; and under that of improper or derivative feuds, were comprised all such as do not fall within the other description : such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honourable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual license; and such as might descend indifferently either to males or females. But, where a difference was not expressed in the creation, such new-created feuds did, in all respects follow the nature of an original, genuine, and proper feud *.

But, as soon as the feodal system came to be considered in the light of acivil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effect it has produced on the lauded property of England will appear in the following chapters.

t Feud. 2, t. 7-

CHAPTER THE FIFTH.

OF THE ANTIENT ENGLISH TENURES.

IN this chapter we shall take a short view of the antient tenures of our English estates, or the manner in which lands, tenements and hereditaments might have been holden ; as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.

Almost all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon, and holden of some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king; who is stiled the lord par amount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and, thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold of A, and A of the king; or in other words, B held his lands immediately of A, but mediately of the king. The king, therefore, was stiled lord paramount; A was both tenant and lord, who was a mesne lord ; and B was called tenantparavail, or the lowest tenant; being he who was supposed to make avail,

or profit of the land². In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for, according to sir Edward Coke^b, in the lawof England we have not properly allodium ; which, we have seen^c, is the name by which the feudists abroad distinguish such estates of the subject, as are not holden by any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature.

All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did^d. This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.

I. There seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced : the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier, or a freeman to perform; as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, or persons of a servile rank ; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments, The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence ; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies: as to do military\

a 2 Inst. 296. b 1 Inst. 1. c page 47.

d In the Germanic constitution, the electors, the bishops, the secular princes, the imperial cities, ttfc. which hold directly fiom the emperor, are called the immediate states of the empire j all other landholders being denominated mediate ones. Mod. Un. Hiit. xlii. 61.

service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm ; which are free services : or to do whatever the lord should command ; which is a base or villein service.

From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which subsist to this day. Of these, Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account, of any author antient or modern⁶; of which the following is the outline or abstract^f. " Tenements are of two kinds, frank-tenement, and villenage. And, of frank-tenements, some are held freely in consideration of homage and knight-service; others in free-socage with the service of fealty only." And again*', of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein socage ; and these villein-socmen do villein services, but such as are certain and determined." Of which the sense seems to be as follows : first, where the service was free, but uncertain, as military service with homage, that tenure was called the tenure in chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &?c. that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements ; the others were villenous or servile : as, thirdly, where the service was base in it's nature, and uncertain as to time and quantity, the tenure was purum villenagiwn, absolute or pure villenage. Lastly, where the service was base in it's nature, but

reduced to a certainty, this was still villenage, but distinguished

i • e 1. 4. tr. 1. c. 28.

f Tenementorum aliud liberum, aliud •ailtenagium. Item, litrrorum alisitl tenetur libeie pro homagin et servitio militari; aliud in llbero socagio cumjidelitatetantum.Sec.,1.

g Villcuagiorum aliud purum, aliud frivilegiatiim. %i tenet in pnro villenagiofaciet quiajuid ei praeceptutn fuerit, et semper icnebitur ad tnceita. Aim I genus villanagii dicitur vittumtm socagium t et hujusmodi villani tocmanni .... villanafaciunt servitia, sedceria. et determinate!. Sec. 5.

from the other by the name of privileged villenage, villenagium jirivilcgiatum; or it might be still called socage (from the certainty of it's sevvices) but degraded by their baseness into the inferior title ofvillanum socagium, villein-socage.

I. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitittm militare, and in law-French chivalry, or service de chivaler, answering to the fef cPhaubert of the Normans¹¹, which name is expressly given it by the Mirrour¹. This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's ke,feodum militare; the measure of which in 3 Edw. I, was estimated at twelve ploughlands^k, and it's value (though it varied with the times¹), in the reigns of Edward I. and Edward II^m, was stated at 20/. per annum. And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon": which attendance was his reditus or return, his rent or service, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion¹¹¹¹. And there is reason to apprehend, that this service was the whole that our ancestors meant to subject themselves to ; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system.

This tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation, dedi et concessi °; was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it

U Spelm. Gloss.219.

i c. 2. Sec. 27".

k Pasch. S Edw. I. Co. Litt. 69.

1 2 Inst. 596,

m Stat.Westm, 1. c. 36 .Stat, tie milit. 1 Edw. II. Co. Litt. 69. n See writs for this purpose in Memorand. Scacch. 36. prefixed to Maynard's yearbook. Edw. II.

nn Litt. Sec. 95.

o Co. Litt. 9.

these seven fruits and consequences, as inseparably incident to the tenure in chivalry ; viz. aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat: all which I shall endeavour to explain, and shew to be of feodal original.

1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress * ; but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three: first, to ransom the lord's person, if taken prisoner; a necessary consequence of the feodal attachment and fidelity : insomuch that the neglect of doing it, whenever it was in the vasal's power, was by the strict rigour of the feodal law an absolute forfeiture of his estate 1. Secondly, to make the lord's eldest son a knight; a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms^r: the intention of it being to breed up the eldest son and heir apparent of the seignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion: for daughters' portions were in those days extremely slender; few lords being able to save much out of their income for this purpose ; nor could they acquire money by other means, being wholly conversant in matters of arms: nor, by the nature of their tenure, could they charge their lands with this, or any other incumbrances. From bearing their proportion to these aids no rank or profession was exempted: and therefore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder's male heir (of whom their lands were holden) and the marriage of his female descendants'. And one cannot but observe, in this particular, the great resemblance which the lord and vasal of the feodal law bore to the patron'and client of the Roman republic ; between whom also there subsisted a mutual fealty, or engagement of defence and protection. For, with regard to the matter of aids, there were three which were usually raised

p Auxiliafitmt tie gratia et non tie jure. .... cum depended/it ex gratia tenciitium et non ad vntuntateni dominoruni. Bracton,/. 2. tr. 1. c. 16. Sec. 8.

<1 Feud. t. 2. t. 24. r 2 Inst. 233. s 1'hilips's life of Pole I, 22j.

by the client; viz. to marry the patron's daughter; to pay his debts ; and to redeem his person from captivity^e.

But besides these antient feodal aids, the tyranny of lords by degrees exacted more and more; as, aids to pay the lord's debts, (probably in imitation of the Romans,) and aids to enable him to pay aids or reliefs to his superior lord; from which last indeed the king's tenants in capite were from the nature of their tenure, excused, as they held immediately of the king, who had no superior. To prevent this abuse, king John's magna carta ^u ordained, that no aids be taken by the king without consent of parliament, nor any wise by inferior lords, save only the three antient ones above-mentioned. But this provision was omitted in Henry III's charter, and the same oppressions were continued till the 25 Edw. I, when the statute called con-

' t

firmatib chartarum was enacted ; which in this respect revived king John's charter, by ordaining that none but the antient aids should be taken. But though the species of aids was thus restrained, yet the quantity of each aid remained arbitrary and uncertain. King John's charter indeed ordered, that all aids taken by inferior lords should be reasonable ^w ; and that the aids taken by the king of his tenants in capite should be settled by parliament ^x. But they were never completely ascertained and adjusted till the statute Westm. 1, 3 Edw. I, c. 36, which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part of the annual value of every knight's fee, for making the eldest son a knight, or marrying the eldest daughter; and the same was done with regard to the king's tenant's in capite by, statute 25 Edw. III, c. 11. The other aid, for ransom of the lord's person, being not in it's nature capable of any Certainty, was therefore never ascertained.

2. Relief, relevium, was before mentioned as incident to every feodal tenure, by way of fine or composition with the lord

tErnt autem haec inter utrosque officiormn vichsitudo .... ut clientes ad collocandas ser.atoniinf'liasdesuocotiferrent; in aeris alieni dUsotutionem graluitam pecuniainciagaient; ct ab bostilnis in hello captos redhnerent. Paul Manutius de iciiatu £omana. c. 1.

n Ca(i. 12, 15.

w Cap. 15.

x Ibid. 14.

for taking up the estate, which was lapsed or fallen in by the death of the last tenant. But, though reliefs had their original while feuds were only life-estates, yet they continued after feuds became hereditary; and were therefore looked upon, very justly, as one of the greatest grievances of tenure: especially when, at the first they were merely arbitrary and at the will of the lord ; so that, if he pleased to demand an exorbitant relief, it was in effect to disinherit the heir *. The English ill brooked this consequence of their new adopted policy ; and therefore William the Conqueror by his laws ^z ascertained the relief, by directing (in imitation of the Danish heriots) that a certain quantity of arms, and habiliments of war, should be paid by the earls, barons, and vavasours respectively; and if the latter had no arms, they should pay 100*. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feodal laws: thereby in effect obliging every heir to new-purchase or redeem his land ^a: but his brother Henry I, by the charter before-mentioned, restored his father's law; and ordained, that the relief to be paid should be according to the law so established, and not an arbitrary redemption ^b. But afterwards, when by an ordinance in 27 Henry II. called the assise of arms, it was provided that every man's -armour should descend to his heir, for defence of the realm; and it thereby became impracticable to pay these acknowlegements in arms, according to the laws of the conqueror, the composition was universally accepted of 100.9. for every knight's fee ; as we find it ever after established ^c. But it must be remembered, that this relief was only then payable, if the heir at the death of his ancestor had attained his full age of one and twenty years,'

3. Primer seisin was a feodal burthen, only incident to the king's tenants in capite, and not to those who held of inferior or mesne lords. It was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir (provided he were of full age) one whole year's profits

y W right. 99. z c. 22, 23, 24 a 2 Roll. Abr 514. b " Haeres non redimet ternim suain sicutfaciebat temporefratris inei, scj " legitima ctjusta lelecatione relevabit earn." ffcxt. Kojjeia. cap. 3! ) c Clanv. /. 9. c. 4. Litt. Sec. 112.

of the lands, if they were in immediate possesion; and half a year's profits, if the lands were in reversion expectant on an estate for life ^d. This seems to be little more than an additional relief, but grounded upon this feodal reason ; that, by the antient law of feuds, immediately upon the death of a vasal the superior was entitled to enter and take seisin or possession of the land, by way of protection against intruders, till the heir appeared to claim it, and receive investiture: during which interval the lord was entitled to take the profits; and, unless the heir claimed within a year and day, it was by the strict law a forfeiture ^e. This practice however seems not to have long obtained in England, if ever, with regard to tenure under inferior lords ; but, as to the king's tenures in capite, the prima selsina was expressly declared, under Henry III and Edward II, to belong to the king by prerogative, in contradistinction to other lords ^f. The king was entitled to enter and receive the whole profits of the land, till livery was sued j which suit being commonly made within a year and day next after the death of the tenant, in pursuance of the strict feodal rule, therefore the king used to take as an average thejirstfruits, that is to say, one year's profits of the land «. And this afterwards gave a handle to the popes, who claimed to be feodal lords of the church, to claim, in like manner from every clergyman in England the first year's profits of his benefice, by way ofprimitice, or first fruits.

4. These payments were only due if the heir was of full age; but if he was under the age of twenty-one, being a male, or fourteen, being a female ^h, the lord was entiled to the wardship of the heir and was called the guardian in chivalry. This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits, till the age of twenty-one in males, and sixteen in females. For the law supposed the heir-male unable to perform knight-service till twenty-one; but as for the female, she was supposed capable at fourteen to marry, and then her husband might perform the service. The lord therefore had no wardship, if at the death of the ancestor

d Co. I.itt. 77.

f Stat. Marlbr. c. 16.17 Edw. II. c. 3.

h Litt. Sec. 103.

e Feud. I. 2, t. 24.

g Staundf. Prerog. 12.

the heir-male was of the full age of twenty-one, or the heir-female of fourteen: yet, if she was then under fourteen, and the lord once had her in ward, he might keep her so till sixteen, by virtue of the statute of Westm. 1. 3 Edw. I. c. 22, the two additional years being given by the legislature for no other reason but merely to benefit the lord'.

This wardship so far as it related to land, though it was not nor could be part of the law of feuds, so long as they were arbitrary, temporary, or for life only; yet, when they became hereditary, and did consequently often descend upon infants, who by reason of their age could neither perform nor stipulate for the services of the feud, does not seem upon feodal principles to have been unreasonable. For the wardship of the land, or custody of the. feud, was retained by the lord, that he might out of the profits thereof provide a fit person to supply the infant's services, till he should be of age to perform them himself. And, if we consider the feud in it's original import, as a stipend, fee, or reward for actual service, it could not be thought hard that the lord should withhold the stipend, so long as the service was suspended. Though undoubtedly to our English ancestors, where such a stipendiary donation was a mere supposition or figment, it carried abundance of hardship j and accordingly it was relieved by the charter 'of Henry I. before-mentioned, which took this custody from the lord, and ordained that the custody, both of the land and the children, should belong to the widow or next of kin. But this noble immunity did not continue many years.

The wardship of the body was a consequence of the wardship of the land ; for he who enjoyed the infant's estate was the properest person to educate and maintain him in his infancy: and also, in a political view, the lord was most concerned to give his tenant a suitable education, in order to qualify him the better to perform those services which in his maturity he was bound to render.

When the male heir arrived to the age of twenty-one, or the heir-female to that of sixteen, they might sue out their livery or

1 Ibidem.

mtsterkmain ^v ; that is, the delivery of their lands out of their guardian's hands. For this they were obliged to pay a fine, namely, half a year's profits of the land; though this seems expressly contrary to magna carta'. However, in consideration of their lands having been so long in ward, they were excused all reliefs, and the king's tenants also all primer seisins ^m. In order to ascertain the profits that arose to the crown by these fruits of tenure, and to grant the heir his livery, the itenerant justices, or justices in eyre, had it formerly in charge to make inquisition concerning them by a jury of the county ⁿ, commonly called an inquisitio post mortem; which was instituted to inquire (at the death of any man of fortune) the value of his estate, the tenure by which it was holden, and who, and of what age his heir was ; thereby to ascertain the relief and value of the primer seisin, or the wardship and livery accruing to the king thereupon. A manner of proceeding that came in process of time to be greatly abused, and at length an intolerable grievance; it being one of the principal accusations against Empson and Dudley, the wicked engines of Henry VII, that by colour of false inquisitions they compelled many persons to sue out livery from the crown, who by no means were tenants thereunto °. And, afterwards, a court of wards and liveries was erected p, for conducting the same inquiries in a more solemn and legal manner.

When the heir thus came of full age, provided he held a knight's fee in capite under the crown, he was to receive the order of knighthood, and was compellable to take it upon him, or else to pay a fine to the king. For, in those heroical times, no person was qualified for deeds of arms and chivalry wholiad not received this order, which was conferred with much preparation and solemnity. We may plainly discover the footsteps of a similar custom in what Tacitus relates of the Germans, who, in order to qualify their young men to bear arms, presented them in a full assembly with a shield and lance ; which ceremony, as was formerly hinted 1, is supposed to have been the

k Co. Lite. 77.

n Hoveden. sub. Sic. I.

p Stat. 32 Hen. VIII. c. 46.

1 9 Hen. 3, c. 3. o 4 Inst. 198. q Vol. I, p. 404.

ib Co. Litt. 77.

original of the feodal knighthood^r. This prerogative, of compelling the king's vasals to be knighted, or to pay a fine, as expressly recognized in parliament, by the statute de mihtibus, 1 Edw. II; was exerted as an expedient for raising money by many of our best princes, particularly by Edward VI and queen Elizabeth ; but yet was the occasion of heavy murmurs when exerted by Charles I: among whose many misfortunes it was, that neither himself nor his people seemed able to distinguish between the arbitrary stretch, and the legal exertion, of prerogative. However, among the other concessions made by that unhappy prince, before the fatal recourse to arms, he agreed to divest himself of this undoubted flower of the crown, and it was accordingly abolished by statute 16 Car. I. c. 20.

5. But, before they came of age, there was still another piece of authority, which the guardian was at liberty to exercise over his infant wards ; I mean the right of marriage (mart' tagium, as contradistinguished from matrimonium) which in it's feodal sense signifies the power, which the lord or guardian in chivalry had, of disposing of his infant ward in matrimony. For while the infant was in ward, the guardian had the power of tendering him or her a suitable match, without disparagement^ or, inequality : which if the infants refused, they forfeited the value of the marriage, valorem maritagii, to their guardian⁸; that is, so much as a jury would assess, or any one would bonafde give to the guardian for such an alliance': and, if the infants married themselves without the guardian's consent, they forfeited double the value, duplicem valorem maritagii^u. This seems to have been one of the greatest hardships of our antient tenures. There were, indeed, substantial reasons why the lord should have the restraint and control of the ward's marriage, especially of his female ward ; because of their tender years, and the danger of such female ward's intermarrying with the lord's enemy^w: but no tolerable pretence could be assigned why the lord should have the sale, or value of the marriage. Nor indeed is this claim

r " In ipso concilia vet principum aliyuis, vet pater, vel propitiquus, scutojrameacriie juixnem ornant. Jfaec apud Him toga, hie primus juventae honos: ante hoc domus pars videntur; max reipublicae." De mor. Germ. cap. 13.

s Litt. §. 110.

u Litt. §. 110.

t Stat. Mcrt. c. 6, Co. Litt. 82. •w Bract. /. 2, c. 37, Sec. 6.

of strictly feodal origninal; the most probable account of it seeming to be this: that by the custom of Normandy the lord's consent was necessary to the marriage of his female wards ^x ; which was introduced into England, together with the rest of the Norman doctrine of feuds : and it is likely that the lords usually took money for such their consent, since, in the often-cited charter of Henry the first, he engages for the future to take nothing for his consent; which also he promises in general to give, provided such female ward were not married to his enemy. But this, among other beneficial parts of that charter, being disregarded, and guardians still continuing to dispose of their wards in a very arbitrary unequal manner, it was provided by king John's great charter, that heirs should be married without disparagement, the next of kin having previous notice of the contract v : or, as it was expressed in the first draught of that charter, ita maritentur ne disparagentur, etfer consilium propinquorum de consanguinitate sua *. But these provisions in behalf of the relations were omitted in the charter of Henry III: wherein * the clause stands merely thus !' haeredes maritentur absque disparagatione:" meaning certainly, by haeredes, heirs female, as there are no traces before this to be found of the lord's claiming the marriage^b of heirs male; and as Glanvil^c expressly confines it to heirs female. But the king and his great lords thenceforward took a handle (from the ambiguity of this expression) to claim them both, sive sit masculus sivefoemina, as Bracton more than once expresses it^d; and also, as nothing but disparagement was restrained by magna carta, they thought themselves at liberty to make all other advantages that they could^e. And afterwards this right, of selling the ward in marriage or else receiving the price or value of it, was expressly declared by the statute of Merton ^f; which is the first direct mention of it that I have met with, in our own or any other law.

6. Another attendant or consequence of tenure by knight-service was that of fines due to the lord for every alienation, x Gr. Cust. 95. y cap. 6, edit. Oxon.

7. cap. S, ibid. a cap. 6.

b The words maritare and maritagium seem ex vi termini to denote the p/oviding of an husband;

c /. 9, c. 9 tf-12, tf /. 9, c. 4. d /. 2, c. 38. Sec. 1. e Wright. 97. f 20 Hen. III, c. 6.

whenever the tenant had occasion to make over his land to another. This depended on the nature of the feodal connexion; it not being reasonable nor allowed, as we have before seen, that a feudatory should transfer his lord's gift to another, and substitute a new tenant to do the service in his own stead, without the consent of the lord: and, as the feodal obligation was considered as reciprocal, the lord also could not alienate his seignory without the consent of his tenant, which consent of his was called an attornment. This restraint upon the lords soon wore away: that upon the tenants continued longer. For, when every thing came in process of time to be bought and sold, the lords would not grant a licence to their tenant, to aliene, without a fine being paid ; apprehending that, if it was reasonable for the heirtopaya fine or relief on the renovation of hispaternalestate, it was much more reasonable that a stranger should make the same acknowledgment on his admission to a newly purchased feud. With us in England, these fines seem only to have been exacted from the king's tenants in capite, who were never able to aliene without a licence: but, as to common persons, they were-at liberty, by magna cart«s,and the statute oiquia emptore&\ (if not earlier) to aliene the whole of their estate, to be holden of the same lord, as they themselves held it of before. But the king's tenants in capite, not being included under the general words of these statutes, could not aliene without a licence: for if they did, it was in antient strictness an absolute forfeiture of the land¹ j though some have imagined otherwise. But this severity was mitigated by the statute 1 Edw. III. c. 12, which ordained, that in such case the lands should not be forfeited, but a reasonable fine be paid to the king. Upon which statute it was settled, that one third of the yearly value should be paid for a licence of alienation ; but if the tenant presumed to aliene without a licence, a full year's value should be paid^k.

7. The last consequence of tenure in chivalry was escheat; which is the determination of the tenure, or dissolution-of the mutual bond between the lord and tenant, from the extinction of the blood of the latter by either natural or civil means : if he S cap. 32. h 18 Edw. I. c. 1. i 2 Inst. 66. k 2 Inst. 67.

died without heirs of Kis blood, or if his blood was corrupted and stained by commission of treason or felony; whereby every inheritable quality was entirely blotted out and abolished. In such cases the land escheated, or fell back, to the lord of the fee¹; that is, the tenure was determined by breach of the original condition, expressed or implied in the feodal donation. In the one case, there were no heirs subsisting of the blood of the first feudatory or purchaser, to which heirs alone the grant of the feud extended; in the other, the tenant, by perpetrating an atrocious crime, shewed that he was no longer to be trusted as a vasal, having forgotten his duty as a subject; and therefore forfeited his feud, which he held under the implied condition that he should not be a traitor or a felon. The consequence of which in both cases was, that the gift, being determined, resulted back to the lord who gave it^m *.

These were the principal qualities, fruits, and consequences of the tenure by knight-service : a tenure by which the greatest part of the lands in this kingdom were holden, and that principally of the king in capite, till the middle of the last century; and which'was created, as sir Edward Coke expressly testifies", for a military purpose; viz. for defence of the realm by the king's own principal subjects, which was judged to be much better than to trust to hirelings or foreigners. The description here given, is that of knight-service proper; which was to attend the king in his wars. There were also some other species of knight-service; so called, though improperly, because the service or render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-service proper, and because, they were attended with similar

1 Co. Lite. 13. m Feud. I. 2. t. 86. n 4 Inst. 192.

1. Lands are still liable to escheat in Virginia, upon the total extinction of blood, or affinity, to the person dying seized : but this event is rendered so remote, that it can scarcely ever happen but in the case of an unknown foreigner, who has never married, or had a wife in Virginia, Acts of 1785, c. 60, Edi. 1794, c. 93. Escheats arising from the corruption of the blood of the tenant, by committing trear son or felony, are abolished; as no attainder can work a corruption of blood, either in the federal or state government. C. U. S. Art. 3. L. V. Oct. 1776. c. 3. 1789, c. 30, Edi. IT'94, c, 74,136,

fruits and consequences. Such was the tenure by grand serjeanty per magnum servitium, whereby the tenant was bound, instead of serving the king generally in his wars, to do some special honorary service to the king in person; as to carry his banner, his sword, or the like ; or to be his butler, champion, or other officer, at his coronation °. It was in most other respects like knight-service p ; only he was not bound to pay aid 1, or escuage^r; and, when tenant by knight-service paid five pounds for a relief on every knight's fee, tenant by grand serjeantry paid one year's value of his land, were it much or little ». Tenure by carnage, which was, to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects, was (like other services of the same nature) a species of grand serjeanty^l.

These services, both of chivalry and grand serjaanty-, were all personal, and uncertain as to their quantity or duration. But, the personal attendance in knight-service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; by first sending others in their stead, and in process of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee; and therefore this kind of tenure was called scittagium in Latin, or servitium scuti; scutum being then a well-known denomination for money: and, in like, manner, it was called, in our Norman French, escuage; being indeed a pecuniary, instead of a military, service. The first time this appears to have been taken was in the 5 Hen. II, on account of his expedition to Toulouse ; but it soon came to be so universal, that personal attendance fell quite into disuse. Hence we find in our antient histories, that, from this period, when our kings went to war, they levied scutages on their tenants, that is, on all the landholders of the kingdom, to defray their expenses, and to hire troops: and these assessments, in the time of Henry II, seem to have been made arbitrarily and at the king's pleasure. Which prerogative being greatly abused by his successors, it became mutter of national

o Litt. Sec.l 53. p Ibid. Sec. 158.

q 2 Inst. 233- r Litt. Sec. 15$.

s Ibid. Sec. 154. t Ibid. Set. 156.

clamour; and king John was obliged to consent, by his magna carta, that no scutage should be imposed without consent of parliament". But this clause was omitted in his son Henry III's charter; where we only find ^w, that scutages or escuage should be taken as they were used to be taken in the time of Henry II: that is, in a reasonable and moderate manner. Yet afterwards by statute 25 Edw. I, c. 5 and 6, and many subsequent statutes ^x it was again provided, that the king should take no aids or tasks but by the common assent of the realm: hence it was held in our old books, that escuage or scutage could not be levied but by consent of parliament *; such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.

Since therefore escuage differed from knight-service in nothing, but as a compensation differs from actual service, knight-service is frequently confounded with it. And thus Littleton * must be understood, when he tells us, that tenant by homage, fealty, and escuage, was tenant by knight-service: that is, that this tenure (being subservient to the military policy of the nation) was respected ^a as a tenure in chivalry ^b. But as the actual service was uncertain, and depended upon emergencies, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the assessments of the legislature suited to those emergencies. For had the escuage been a settled invariable sum payable at certain times, it had been neither more nor less than a mere pecuniary rent: and the tenure, instead of knight-service, would have then been of another kind, called sbcage ^c, of which we shall speak in the next chapter.

For the present I have only to observe, that by the degenerating of knight-service, or personal military duty, into escuage, or

u Nut/urn scutagimn ponatur in regno nostro, nisi per commune consi/ium regni nostii. cap. 12.

w Cap. 37. x See Vol. I. page 140.

y Old Ten. tit. Eicuage, 2 Sec. 103.

a Wright. 122.

b Profeoilo tnilitati ieputatur. Flet. /. 2. c. 14. Sec. 7.

e Litt. Sec. 97. 120.

pecuniary assesments, all the advantages (either promised or real) of the feodal constitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia •composed of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this system of tenures now tended to nothing else, but a wretched means of raising money to pay an army of occasional mercenaries. In the mean time, the families of all our nobility and gentry groaned under the intolerable burthens, which, (in consequence of the fiction adopted after the conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the scutages to which they were liable in defect of personal attendance, which,hovvever, were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be inighted or his eldest daughter married; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy. And then, as sir Thomas Snaith^d, very feelingly complains, " when he came to his own, after he was out of -wardship, his woods decayed, houses fallen down, stock wasted and gone, lands let forth and ploughed to be barren," .to reduce him still farther, he was yet to pay half a year's profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him ; or twice that value, if he married another woman. Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a license of alienation.

A slavery so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of it's freedom. Pal-

d Commonw. 1. 3, c. 5.

liati ves were from time to lime applied by successive acts of parliament, which assuaged some temporary grievances. Till at length the humanity of king James I consented⁶, in consideration of a proper equivalent, to abolish them all; though the plan proceeded not to effect; in like manner as he had formed a scheme, and began to put it in execution, for removing the feodal grievance of heritable jurisdictions in Scotland*, which has since been pursued and effected by the statute 2O Geo. II. c. 43«. King James's plan for exchanging our military tenures seeins to have been nearly the same as that which has been since pursued; only with this difference, that, by way of compensation for the loss which the crown and other lords would sustain, an annual fee-farm rent was to have been settled and inseparably annexed to the crown, and assured to the inferior lords, payable out of every knight's fee within their respective seignories. An expedient, seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages (having during the usurpation been discontinued) were destroyed at one blow by the statute 12 Car. II. c. 24, which enacts, that the court of ward and liveries, and all wardships, liveries, primer seisins, and ouster-lemains, values and forfeitures of marriages, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienations, tenures by homage, knights-service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyholds, and the honorary services (without the slavish part) of grand serjeant}'." A statute, which was a greater acquisition to the civil property of this kingdom than even magna carta itself: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour: but the

c 4 Inst. 202.

f Dalrymp. of feuds, 292.

g By another statute of the same year, (20 Geo. II. c. 50,) the tenure of^ v>ard-holdinj[ (equivalent to the knight-service of England) is for ever abolished in Scotland.

statute of king Charles extirpated the whole, and demolished both root and branches².

2. Since military tenures were in force in England at the first settlement of the colony of Virginia, it may naturally be asked, if the laws relative thereto were not in force in the colony, and whether they have ever been formally abolished. The answer seems to be, that king Charles the second, by his charter bearing date October 10,1676, did expressly " declare and grant, that, for the encouragement of such of our subjects as shall from time to time go to dwell in the said plantation, there shall be assigned, out of the lands not already appropriated, to every person so coming to dwell, fifty acres, according as hath been used and allowed since the first plantation, to be held of us, our heirs and successors, as of our manor of East Greenwich within our county of Kent infrce and common socage," The charter of king James the first, and perhaps that of queen Elizabeth to sir Walter Raleigh, contain the same identical words*. The laws relative to military tenures not being adapted to colonists holding lands of the crown in free and common socage, were not necessarily a part of the colonial code, and were too oppressive ever to have been voluntarily adopted. Hence it will appear that the rigours of the feudal .system were never felt in the colonies, even at the time that the parent state groaned under their oppression.. .... We must not, however,

forget, that socage tenure, by which lands in Virginia were held, until the abolition of all feudal tenures in May, 1779, c. 13, was a branch, though the least burthensome, of JJiat oppressive system. See note, page 102.

* See Jefferson's Notes, p 197. Edi. Paris.

CHAPTER THE SIXTH.

OF THE MODERN ENGLISH TENURES.

ALTHOUGH, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feodal constitution was happily done away, yet we are not to imagine that the constitution itself was utterly laid aside, and a new one introducedin it's room: since by the statute 12 Car. II. the tenures of socage and frankalmoign, the honorary services of grand serjeanty, and the tenure by copy of court roll were reserved; nay all tenures in general, except frankalmoign, grand serjeanty, and copy hold, were reduced to one general species of tenure, then well known and subsisting, called free and common socage *. And this, being sprung from the same feodal original as the rest, demonstrates the necessity of fully contemplating that antient system ; since it is that alone to which we can recur, to explain any seeming or real difficulties, that may arise in our present mode of tenure.

The military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services, but which in their nature were unavoidably uncertain in respect to the time of their performance. The second species of tenure, orfree-socage, consisted also of free and honourable services ; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to this day, but has in a manner absorbed and swallowed up (since the statute of Charles the second) almost every other species of tenure. And to this we are next to proceed.

1. See the last note on the preceding chapter.

II. Socage, in it's most general and extensive signification, seems to denote a tenure by any certain and determinate service. And in this sense it is by our antient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton" ; if a man holds by a rent in money, without any escuage or serjeanty, " id tenementum did fotest socagium:" but if you add thereto any royal service, or escuage to any, die smallest, amount, "illiddici poterit feodem militare" So too the author of Fleta^b; " ex donationibus, servitia militaria vel magnae serjantiae non continentibus, oritur nobis quoddam nomen generate, quod est secaghimS' Littleton also^c defines it to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other services ; so that they be not services of chivalry, or knight-service. And therefore afterwards"¹ he tells us, that whatsoever is not tenure in chivalry is tenure in socage : in like manner as it is defined by Finch", a tenure to be done out of war. The service must therefore be certain, in order to denominate its socage ; as to hold by fealty and 20*. rent; or, by homage, fealty, and 20s. rent; or by homage and fealty without rent; or, by fealty and certain corporal service, as ploughing the lord's land for three days; or, by fealty only without any other service : for all these are tenures in socage^f.

But socage, as was hinted in the last chapter, is of two sorts : y"cee-socage, where the services are not only certain, but honourable : and u/7/ezn-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvill, and other subsequent authors, by the name of liberi sokemanni, or tenants in free-socage. Of this tenure we are first to speak ; and this, both in the nature of it's service, and the fruits and consequences, appertaining thereto, was always by much the most free and independent species of any .... And therefore I cannot but assent to Mr. Somner's etymology of the word¹': who derives it from the Saxon appellation s<?c,

a /. 2. c. 16. Sec 9. c Sec. 117. e L. 147. g/. 3. c. 7.

b /. 3. c. 14. Sec. 9.

d Sec. 118.

fLitt. Sec. 117, 118,119.

h Gavclk. 138.

which signifies liberty or privilege, and, being joined to a usual termination, is called socage, in Latin socagium; signifying thereby a free or privileged tenure'. This etymology seems to be much more just than that of our common lawyers in general, who derive it from soca, an old Latin word denoting (as they tell us) a plough : for that in antient time this socage tenure consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plough, sow, or reap for him; but that in process of time, this service was changed into an annual rent by consent of all parties, and that, in memory of it's original, it still retains the name of a socage or plough-service¹¹. But this by no means agrees with what Littleton himself tells us¹, that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plough-service. Besides, even services, confessedly of a military nature and original, (as escuage, which, while it remained uncertain, was equivalent to knight-service,) the instant they were reduced to a certainty changed both their name and nature, and were called socage^m. It was the certainty therefore that denominated it a socage tenure; and nothing sure could be a greater liberty or privilege, than to have the service ascertained, and not left to the arbitrary calls of the lord, as in the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the name offraunke fcrme", tells us, that they are " lands and tenements, whereof the nature of the fee is changed " by feoffment out of chivalry for certain yearly services, and in " respect whereof neither homage, ward, marriage, nor relief " can be demanded." Which leads us also to another observation, that if socage tenures were of such base and servile original, it is hard to account for the very great immunities which the tenants of them always enjoyed ;'so highly superior to those of the tenants by chivalry, that it was thought, in the reigns of both Edward I and Charles II, a point of the utmost importance and value to the tenants, to reduce the tenure by knight-service

i In like manner Skene in his exposition of the Scots' law, title socage, tells us, that it is' ane kind of holding of lands, quhen ony man is infef tfreely,' tfc.

k Litt. Sec. 19. 1 Sec. 118.

k\ Litt. Sec. 98,120. n c. 66.

tofraunkeferme or tenure by socage. We may therefore, I think, fairly conclude in favour of Somner's etymology, and the liberal extraction of the tenure in free socage, against the authority even of Littleton himself.

Taking this then to be the meaning of the word, it seems probable that the socage tenures were the relics of Saxon liberty; retained by such persons as had neither forfeited them to the king, nor been obliged to exchange their tenure, for the more honourable, as it was called, but at the same time more burthensome, tenure of knight-service. This is peculiarly remarkable in the tenure which prevails in Kent, called gavelkind, which is generally acknowledged to be a species of socage tenure⁰ ; the preservation whereof inviolate from the innovations of the Norman conqueror is a fact universally known. And those who thus preserved their liberties were said to hold in free and common socage².

As, therefore, the grand criterion and distinguishing mark of this species of tenure are, the having it's renders or services ascertained, it will include under it all other methods of holding free lands by certain and invariable rents and duties: and, in. particular, petit serjeanty, tenure in bur gage, and gavelkind.

We may remember, that by the statute 12 Car. II. grand serjeanty is not itself totally abolished, but only the slavish appendages belonging to it; for the honorary services (such as carrying the king's sword or banner, officiating as his butler, carver, &?c. at the coronation) are still reserved. Now petit serjeanty bears a great resemblance to grand serjeanty ; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's person. .... Petit serjeanty, as defined by LittletonP, consists in holding lands of the king by the service of rendering to him annually, some small implement of war, as a bow, a sword, a lance, an

o Wright. 211

p Sec. 159.

2. See the notes before on this subject, p. 43, 47, and 77.

arrow, or the like⁵. This, he says"J, is but socage in effect; for it is no personal service, but a certain rent: and, we may add, it is clearly no predial service, or service of the plough, but in all respects llberum et 'commune socagium; only being held of the king, it is by way of eminence dignified with the title ofparvum servitium regis, or petit serjeant)'. And magna carta respected it in this light, when it enacted^r, that no wardship of the lands or body should be claimed by the king in virtue of a tenure by petit serjeanty.

Tenure in burgage is described by Glanvil", and is expressly said by Littleton¹, to be but tenure in socage ; and it is where the king or other person is lord of an antient borough, in which the tenements are held by a rent certain". It is indeed only a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature. A borough, as we have formerly seen, is usually distinguished from other towns by the right of sending members to parliament: and, where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. Tenure in burgage, therefore, or burgage tenure, is where houses, or lands, which were formerly the scite of houses, in an antient borough, are held of some lord in common socage, by a certain established rent. And these seem to have withstood the shock of the Norman encroachments principally on account of their insignificancy, which made it not worth while to compel them to an alteration of tenure; as an hundred of them put together would scarce have amounted to a knight's fee. Besides, the owners of them, being chiefly artificers and persons engaged in trade, could not, with any tolerable propriety, be put on such a military establishment, as the tenure in chivalry was. And here also we have again an instance, where a tenure is confessedly in socage, and yet could not possibly have been held by plough-service; since the tenants must have been

q Sec. 160.

s lib. 7. cap. 3.

u Lite. Sec- 162, 163.

r cap. 27. t Sec. 162.

3. The tributary Indians settled in some of the lower parts of Virginia, hold their lands by a similar render of a bow and arrows, either annually, or once in three or four years, in lieu of all other services.

citizens or burghers, the situation frequently a walled town, the tenement a single house; so that none of the owners was probably master of a plough, or was able to use one if he had it. The free socage, therefore, in which these tenements are held, seems to be plainly a remnant of Saxon liberty; which may also account for the great variety of customs, affecting many of these tenements so held in antient burgage: the principal and most remarkable of which is that called Borough-English, so named in contradistinction, as it were, to the Norman customs, and which is taken notice of by Glanvil^w, and by Littlcton* : viz. that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father⁴. For which Littletony gives this reason ; because the younger son, by reason of his tender age, is not so capable as the rest of his brethren to help himself .... Other authors² have indeed given a much stranger reason for this custom, as if the lord of the fee had antiently a right of concubinage with his tenant's wife on her wedding night; and that therefore, the tenement descended not to the eldest, but the youngest son; who was more certainly the offspring of the tenant. But I cannot learn that ever this custom prevailed in England, though it certainly did in Scotland, (under the name ofmercheta or marcheta) till abolished by Malcolm III*. And perhaps a more rational account than either may be fetched (diough at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their fadier with a certain allotment of cattle; and go to seek a new habitation. The youngest son, therefore, who continues latest with the father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other north.

w ubi supra. x Sec. 165. y Sec. 211. z 3 Mod. Pref. a Seld. tit. of hon. 2. 1. 47. Reg. Mag. I. 4. c. 31.

4. As this species of tenuue dependent upon local and accidental circumstances and customs, it could never have obtained in Virgiginia, even if the colonial charters had been silent on the subject of the tenure of lands. See note 7. p. 36.

em nations, it was the custom for all the sons but one to migrate from the father, which one became his heir^b. So that possibly this custom, wherever it prevails, may be the remnant of that pastoral, state of our British and German ancestors, which Caesar and Tacitus describe. Other special customs there are in different burgage tenures; as that, in some, the wife shall be endowed of all her husband's tenements⁰, and not of the third part only, as at the common law: and that, in others, a man may dispose of his tenements by will^d, which, in general, was not permitted after the conquest till the reign of Henry the eighth; though in the Saxon times it was allowable⁶. A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty.

The nature of the tenure in gavelkind affords us a still stronger argument *. It is universally known what struggles the Kentish men made to preserve their antient liberties and with how much success those struggles were attended. And as it is principally here that we meet with the custom of gavelkind, (though it was and is to be found in some other parts of the kingdom ^f ) we may fairly conclude that this was a part of those liberties; agreeably to Mr Selden's opinion, that gavelkind before the Norman conquest was the general custom of the realms. The distinguishing properties of this tenure are various: some of the principal are these; 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen^h. 2. The estate does not escheat in case of an attainder and execution for felony: their maxim being, " the father to the bough, the son to " the plough'." 3. In most places he had a power of devising lands by will, before the statute for that purpose was made ^k.

b Pater cunctos Jilios adultos a se petlebat, praeter unum quern baeredem sue juris relinquebat. fWalsingb. Upodigm. Neustr. c. 1.)

c Litt. Sec. 166. d Sec. 167. e Wright. 172.

£ Stat. 32 Hen. VIII, c. 29, Kitch. of courts, 200.

g In toto regno ante duds adixntimiffrequens et usitatafuit: posted caeterit adempta, sed privatis quoruiulam locorum consuetudinibus alibi posted regerminans: Car.tianis solum Integra etinviolata remanslt. (Z Anetcct. I. 2. c. T.)

h Lamb. Peramb. 614. i Lamb. 614

k F. N. B. 198. Cro. Car. 561.

5. This species of tenure also, depending upon local and accidental circumstances never had existence in Virginia.

4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together' ; which was indeed antiently the most usual course of descent all over England ^m, though in particular places, particular customs, prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is said to be only a species of a socage tenure, modified by the custom of the country ; the lands being holden by suit of court and fealty, which is a service in it's nature certain ". Wherefore, by a charter of king John⁰, Hubert archbishop of Canterbury was authorised to exchange the gavelkind tenures holden of the see of Canterbury into tenures by knight's-service; and by statute 31 Hen. VIII, c. 3. for disgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands which were never holden by service of socage. Now the immunities which the tenants in gavelkind enjoyed were such, as we cannot conceive shoud be conferred upon mere ploughmen and peasants : from all which I think it sufficiently clear, that tenures in free socage are in general of a nobler original than is assigned by Littleton, and after him by the bulk of our common lawyers.

Having thus distributed and distinguished the several species of tenure in free socage, I proceed next to shew that this also partakes very strongly of the feodal nature. Which may probably arise from it's antient Saxon original; since (as was before observed p) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into such arbitrary consequences as among the Normans. It seems therefore reasonable to imagine, that socage tenure existed in much the same state before the conquest as after; that in Kent it was preserved with a high hand, as our histories inform us it was; and that the rest of the socage tenures dispersed through England escaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own insignificancy: since I

1 Lit, Sec. 210. n Wright. 211. p Page 48.

m Glanvil. /. 7. c. 3.

o Spelm. cod, vet. leg. 355.

do not apprehend the number of socage tenures soon after the conquest to have been very considerable, nor their value by any means large ; till by successive charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton 1, their number and value began to swell so far, as to make a distinct, and justly envied, part of our English system of tenures.

However this may be, the tokens of their feodal original will evidently appear from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry ; remarking their agreement or difference as we go along.

1. In the first place, then, both were held of superior lords; one of the king, either immediately, or as lord paramount, and (in the latter case) of a subject or mesne lord between the king and the tenant⁶.

2. Both are subject to the feodal return, render, rent, or service of some sort or other, which arose from a supposition of an original grant from the lord to the -tenant. In the military tenure, or more proper feud, this was from it's nature uncertain ; in socage, which was a feud of the improper kind, it was certain, fixed, and determinate, (though perhaps nothing more than bare fealty) and so continues to this day⁷.

3. Both were, from their constitution, universally subject (over and above all other renders) to the oath of fealty, or mu-

q c. 66.

6. All the landholders in Virginia, except those in the northern neck held immediately of the king, in free and common socage see note page 77. The landholders in the northern neck held immediately of the proprietor of that territory, but mediately of the king as lord paramount of the soil, V. L. 1736, c. 3 .... 1748, c. 41. Edi. 1794, c. 3, 4.

7. Lands in Virginia, holden of the crown were subject to a quit rent of two shillings sterling for every hundred acres ; together with a reservation of one fifth of all royal mines which should be found therein. These were abolished in May 1776, c. 13. The proprietary tenants in the northern neck were also subject to a similar quit-rent, &c. 1736, c. 3. 1748, c. 41. Edi. 1794, c. 3, 4. •

tual bond of obligation between the lord and tenant^r. Which oath of fealty usually draws • after it suit to the lord's court⁸. And this oath every lord, of whom tenements are holden at this day, may and ought to call upon his tenants to take in his court baron ; if it be only for the reason given by Littleton % that if it be neglected, it will by long continuance of time grow out of memory (as doubtless it frequently hath done) whether the land be holden of the lord or not j and so he may lose his seignory, and the profit which may accrue to him by escheats and other contingencies'.

4. The tenure in socage was subject, of common right, to aids⁹ for knighting the son and marrying the eldest daughter": which were fixed by the statute Westm. 1. c. 36, at 20*. for every 20/. per annum so held; as in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right; but were all abolished by the statute 12 Car. II,

5. Relief is due upon socage tenure, as well as upon tenure in chivalry: but the manner of taking it is very different. The relief on a knight's fee was 5 /. or one quarter of the supposed value of the land ; but a socage relief is one year's rent or render, payable by the tenant to the lord, be the same either great or small ^w; and, therefore, Bracton" will not allow this to be properly a relief, but quaedam praestatio loco relevii in recogniti-

r Litt. §. 117,131. s§. 130.

t Eo maximc praestandum est, tie dubium reddatur jus damini et vetuttatc temporii obscuretur. ( Coroin. jus feod. I. 2. t, 7.J

u Co. Litt. 91. w Litt. Sec. 126, x /. 2, c. 37, Sec. 8.

8. The proprietors of the northern neck, among other franchises, were authorised to hold courts baron, to_vestablish manors, 8cc. I believe these powers were never exercised in any great extent, as no court-baron was ever established, that I have heard of. The oath of fealty seems to have been perfectly obsolete in this country, and if the right of exacting it, ever did exist here, it was abolished, May 1779, c. 13.

9. As the lands in Virginia were held immediately from the crown, this incident to socage tenure could never have existed in Virginia.

onemdomini. So too the statute 28 Edw. I. c. 1, declares, that a free sokeman shall give no relief, bj.it shall double his rent after the death of his ancestor, according to that which he hath used to pay his lord, and shall not be grieved above measure. Reliefs in knight-service were only payable, if the heir at the death of his ancestor was of full age : but in socage they were due even though the heir was under age, because the lord has no wardship over him ?. The statute of Charles II, reserves the reliefs incident to socnge tenures ; and, therefore, wherever lands in fee simple are holden by a rent, relief is still due of common right upon the death of a tenant¹¹⁰.

6. Primer seisin was incident to the king's socage tenants in capite, as well as to those by night-service ^a. But tenancy in capite as well as primer seisins are, among the other feodal burthens, entirely abolished by the statute¹¹.

7. Wardship is also incident to tenure in socage ; but of a nature very different from that incident to knight-service. For if the inheritance descend to an infant under fourteen, the wardship of him does not, nor ever did, belong to the lord of the fee; because, in this tenure, no military or other personal service being required, there was no occasion for the lord to take the profits, in order to provide a proper substitute for his infant tenant: but his nearest relation (to whom the inheritance cannot descend) shall be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen. The guardian must be such a one, to whom the inheritance" by no possibility can descend; as was fully explained, together with the reasons for it, in the former book of these commentaries¹¹¹².

y Lift. Sec. 127. z 3 Lev. 145. a Co. Lift. 77. b Vol. I, p. 461.

10. Charles II, by his Charter, granted to the people of Virginia that all lands escheated might be relieved on paying a composition of two pounds of tobacco, per acre. This was certainly a very high composition. It was abolished, May 1779, c. 13.

11. Primer seisins, do not appear to have been reserved, or exacted in Virginia.

12. Guardians in socage arc expressly recognized by our laws .... 1748, c, 2. 1794, c. 95. Yet it may at this day be doubted who such guardian in socage shall be.

At fourteen this wardship in socage ceases; and the heir may oust the guardian, and call him to account for the rents and profits'¹ : for at this age the law supposes him capable of chusing a guardian for himself. It was in this particular, of wardship, as also in that of marriage,and in the certainty of the render or service, that the socage tenures had so much the advantage of the military ones. But as the wardship ceased at fourteen, there was this disadvantage attending it; that young heirs, being left at so tender an age to chuse their own guardians till twenty-one, might make an improvident choice. Therefore, when almost all the lands in the kingdom were turned into socage tenures, the same statute 12 Car. II, c. 24, enacted, that it should be in . the power of any father by will to appoint a guardian, till his child should attain the age of twenty-one. And, if no such appointment be made, the court of chancery will frequently interpose, and name a guardian, to prevent an infant heir fromimprovidently exposing himself to ruin ".

8. Marriage, or the valor maritagil, was not in socage tenure any perquisite or advantage to the guardian, but rather the reverse. For, if the guardian married his ward under the age of fourteen, he was bound to account to the ward for the value of the marriage, even though he took nothing for it, unless he married him to advantage ^d. For, the law, in favour of infants, is always jealous of guardians, and, therefore, in this case it made them account, not only for what they did, but also for what they might, receive on the infant's behalf; lest by some collusion the guardian should have received the value, and not brought it to account: but, the statute having destroyed all values of marriages, this doctrine of course hath ceased with them. At fourteen years of age the ward might have disposed of himself in marriage, without any consent of his guardian, till the late act for preventing clandestine marriages". These doctrines of wardship and marriage in socage tenure were so diametrically opposite to those in knight-service, and so entirely agree with

c Litt. Sec. 123, Co. Litt. 89.

d Litt. Sec. 123.

13. L. V. 1748, c. 2. 1785, c. 8G. 1794, c. 9Jf. Accordant.

14. L. V. 1794, c. 104, requires the consent of the guardian till the age of twenty-one years.

those parts of king Edward's laws, that were restored by Henry the first's charter, as might alone convince us that socage was of a higher original than the Norman conquest.

9. Fines for alienation were, I apprehend, due for lands holden of the king in capite by socage tenure, as well as in case of tenure by knight-service : for the statutes that relate to this point, and sir Edward Coke's comment on then?.^e, speak generally of all tenants in capita, without making any distinction: but now all fines for alienation are demolished by the statute of Charles the second¹⁵.

10. Escheats are equally incident to tenure in eocage, as they were to tenure by knight-service : except only in gavel-kind land, which are, (as is before mentioned) subject to no escheats for felony, though they are to escheats for want of heirs'¹⁶.

Thus much for the two grand species of tenure, under which almost all the free lands of the kingdom were holden till the restoration in 1660, when the former was abolished and sunk into the latter: so that lands of both sorts are now holden by the one universal tenure of free and common socage.

The other grand division of tenure, mentioned by Bracton as cited in the preceding chapter, is that of villenage, as contradistinguished from liberum tenementum, or frank-tenure. And this (we may remember) he subdivides into two classes, pure and privileged villenage: from whence have arisen two other specjes of our modern tenures.

III. From the tenure of pure villenage have sprung our present copyhold tenures, or tenure by copy of court roll at the

e 1 Inst. 43, 2 Inst. 65. 66, 6"._____f Wright, 210.______ __

15. Fines for alienation appear not to have been due in Virginia.

16. Lands are still liable to esr.lieat in Virginia, for want of heirs, though the event by which an escheat may happen must, under our present laws rarely happen. C. V. Art. 20. L. V. 1794, c. 82, c. 93, }. 14. As there can be no corruption of blood, in consequence of an attainder for felony, escheats can no longer happen on that account.. ....

Edi. 1794, c. 74. C. U. S. Art. 3. L. U. S. 1 Coiig. 2 Suss. c. 9.

will of the lord " : in order to obtain a clear idea of which, it will be previously necessary to take a short view of the original and nature of manors.

Manors are in substance as antient as the Saxon constitution, though perhaps differing a little, in some immaterial circumstances, from those that exist at this day b : just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor manerium, a manendo, because the usual residence of the owner, seems to have been a district of ground, held by lords, or great personages ; who kept in their own hands so much land as was necessary for the use of their families, which were called terrae dominicales or demesne lands ; being occupied by the lord, or dominus manerii, and his servants. The other, or tenemental, lands they distributed among their tenants: which from the different modes of tenure were distinguished by two different names. First, book-land^ or charter land, which was held by deed under certain rents and free services, and in effect differed nothing from free socage lands ^h: and from hence have arisen most of the freehold tenants who hold of particular manors,and owe suit and service to the same. The other species was csl\\z& folk-right, which was held by no assurance in writing, but distributed among the common folk or people at the pleasure of the lord, and resumed at his discretion ; being indeed land held in villenage, which we shall presently describe more at large. The residue of the manor, being uncultivated, was termed the lord's waste, and served for public roads, and for common of pasture to the lord and his tenants. Manors were formerly called baronies, as they still are lordships : and each lord or baron was empowered to hold a domestic court, called the court-baron, for redressing misdemesnors and nuisances within the manor, and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor ; and if the number of suitors should so fail as not to leave sufficient to make a jury or homage, that is, two tenants at the least, the manor itself is lost.

g Co. Cop. Sec. 2 {•)• 10.

h Ibid. Sec. 3.

17. Copyholds are entirely unknown to the laws of Virginia.

In the early times of our legal constitution, the king's greater barons, who had a -large extent of territory held under the crown, granted out frequently smaller manors to inferior persons to be holden of themselves; which do therefore now continue to be held under a superior lord, who is called in such cases the lord paramount over all these manors; and his seignory is frequently termed an honour, not a manor, especially if it hath belonged to an antient feodal baron, or hath been at any time in the hands of the crown. In imitation whereof, these inferior lords began to carve out and grant to others still more minute estates, to be held as of themselves, and were so proceeding downwards in infinitum ; till the superior lords observed, that by this method of subinfeudation they lost all their feodal profits, of wardships, marriages, and escheats, which fell into the hands of these mesne or middle lords, who were the immediate superiors of the terre-tenant, or him who occupied the land : and also that the mesne lords themselves were so impoverished thereby, that they were disabled from performing their services to their own superiors. This occasioned, first, that provision in the thirty-second chapter of magna carta, 9 Hen. III. (which is not to be found in the first charter granted by that prince, nor in the great charter of king John') that no man should either give or sell his land, without reserving sufficient to answer the demands of his lord; and, afterwards the statute of Westm. 3, or quia emptores, 18 Edw. I. c. 1, which directs, that, upon all sales and feoffments of land, the feoffee shall hold the same, not of his immediate feoffbr, but of the chief lord of the fee, of whom such feoffor himself held it. But these provisions, not extending to the king's own tenants in captte, the like law concerning them is declared by the statutes of prerogativa regis, 17 Ed. II. c. 6, and of 34 Edw. III. c. 15, by which last all subinfeudations, previous to the reign of king Edward I, were confirmed: but all subsequent to that period were left open to the king's prerogative. And from hence it is clear, that all manors existing at this day, must have existed as early as king Edward the first: for it is essential to a manor, that there be tenants who hold of the lord; and, by the operation of these statutes, no tenant in capite since the accession of that i See the Oxford editions of the charters.

prince, and no tenant of a common lord since the statute oiquia emptores, could create any new tenants to' hold of himself.

Now with regard to the folk-land, or estates held in villcnage, this was a species of tenure neither strictly feodal, Norman, or Saxon; but mixed and compounded of them all^k: and which also, on account of the heriots that usually attend it, may seem to have somewhat Danish in it's composition. Under the Saxon government there were, as sir William Temple speaks', a sort of people in a condition of downright servitude, used and employed in the most servile works, and belonging, both they, their children, and effects, to the lord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folk-land, from which they were removable at the lord's pleasure. On the arrival of the Normans here, it seems not improbable, that they, who were strangers to any other than a feodal state, might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them, as well as others, to the oath of fealty, which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition ^m. This they called villenage, and the tenants villeins, either from the word vilis, or else, as sir Edward Coke tells us ⁿ, « villa; because they lived chiefly in villages, and were employed in rustic works of the most sordid kind: resembling the Spartan helotes, to whom alone the culture of the lands was consigned; their rugged masters, like our northern ancestors, esteeming war the only honorable employment of mankind.

These villeins, belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land : or else they were in gross, or at large, that is, annexed to the person of the lord, and transferrable by deed from one owner to another". They could not leave their lord without his permission ; but, if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chat-

' k Wright. 215. < 1 Introd. Hist. Engl. 59. mWright, 217. n 1 Inst. 116. o Litt. Sec. 181.

tels ^1S. They held indeed small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased ; and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord's demesnes, and any other the meanest offices!¹: and their services were not only base, but uncertain both as to their time and quantity"). A villein, in short, was in much the same state with us, as Lord Molesworth ^r describes to be that of the boors in Denmark, and which Stiernhook» attributes also to the traals or slaves in Sweden ; which confirms the probability of their being in some degree monuments of the Danish tyranny. A villein could acquire no property either in lands or goods : but, if he purchased either, the lord might enter upon them, oust the villein, and seise them to his own use, unless he contrived to dispose of them again before the lord had seised them ; for the lord had then lost his opportunity'.

In many places also a fine was payable to the lord, if the villein presumed to marry his daughter to any one without leave from the lord ^u: and, by the common law, the lord might also bring an action against the husband for damages in thus purloining his property ^w. For the children of villeins were also in the same state of bondage with their parents ; whence they were called in Latin, nativi¹⁹, which gave rise to the female appellation of a villein, who was called a neife*. In case of a marriage between a freeman and a neife, or a villein and a freewoman, the

p Litt. Sec. 172.

q Ille f/ui tenet in mllenagiofaciet quicquid et praceptunifoent, nee tcire debet sero quidfacere debet in crastino, et semper tenebitur ad incerta. Bracton, /. 4. tr. 1. c. 28.)

r c. 8. s dcjure Suomim, I. 2.- c. 4.

t Litt. Sec. 177. u Co. Litt. 140.

w Litt. Sec. 202. x Litt. Sec 187.

18. Thus far villeins appear to resemble slaves in Virginia, when the laws had declared them to be real estate. See V. L. 1705, c. 3. 1727,c. 4. Sec. 12. Edi. 1769.

19. That villeins were stiled nativi in Latin, creates a strong presumption that all the natives of England, were at one period or other reduced to that condition. See 1 Inst. 116. a. 307. a. Barrington on the Statutes, viz. Magna Charta, c. 4, as also vol. 4, p. 419, 420, of the Commentaries. Appendix to vol. 1» part 2, note H.

issue followed the condition of the father, being free if he was free, and villein if he was villein ; contrary to the maxim of the civil law, that partus sequitur ventrem. But no bastard could be born a villein, because by another maxim of our law he is nullius JiKus; and as he can gain nothing by inheritance, it were hard that he should lose his natural freedom by it y. The law, however, protected the persons of villeins, as the king's subjects, against atrocious injuries of the lord: for he might not kill, or maim his villein ^x; though he might beat him with impunity, since the villein had no action or remedy at law against his lord, but in case of the murder of his ancestor, or the maim of his own person. Neifes indeed had also an appeal of rape, in case the lord violated them by force».

Villeins might be enfranchised by manumission, which is cither express or implied: express ; as where a man granted to the villein a deed of manumission ^b : implied ; as where a man bound himself in a bond to his villein for a sum of money, granted him an annuity by deed, or gave him an estate in fee, for life or years⁰; for this was dealing with his villein on the footing of a freeman, it was in some of the instances giving him an action against his lord, and in others vesting in him an ownership entirely inconsistent with his former state of bondage. So also, if the lord brought an action against his villein, this enfranchised him ^d; for, as the lord might have a short remedy against his villein, by seising his goods, (which was more than equivalent to any damages he could recover) the law, which is- always ready to catch at any thing in favour of liberty,presumed, that by bringing this action he meant to set his villein on the same footing with himself, and therefore held it an implied manumission. But, in case the lord indicted him for felony, it was otherwise ; for the lord could not inflict a capital punishment on his villein, without calling in the assistance of the law.

Villeins, by these and many other means, in process of time gained considerable ground on their lords ; and, in particular, strengthened the tenure of their estates to that degree, that they

y Litt. Sec. 187,183. z Ibid. Sec. 189, 194.

a Ibid. Sec. 190. b Ibi'I. Sec. 204.

c Sec. 204, 5, 6. A Sec. 208.

came to have in them an interest in many places full as good, in others better than their lords. For the good-nature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the common law, of which custom is the life, now gave them title to prescribe against their lords; and, on performance of the same services, to hold their lands, in spightof any determination of the lord's will. For, though in general they are still said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the custom of the manor; which customs are preserved and evidenced by the rolls of the several courts baron in which they are entered, or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And, as such tenants had nothing to shew for their estates but these customs, and admissions in pursuance of them, entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court roll, and their tenure itself a copyhold'.

Thus copyhold tenures, as sir Edward Coke observes ^f, although very meanly descended, yet come of an ancient house j for, from what has been premised, it appears, that copyholders are in truth no other but villeins, who, by a long series of immemorial encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord's will. Which affords a very substantial reason for the great variety of customs that prevail in different manors, with regard both to the descent of the estates, and the privileges belonging to the tenants. And these encroachments grew to bo so universal, that when tenure in villenage was virtually abolished, (though copyholds were reserved) by the statute of Charles II, there was hardly a pure villein left in the nation. For sir Thomas Smith * testifies, that in all his time (and he was secretary to Edward VI) he never knew any villein in gross throughout the realm ; and the few villeins regardant that were then remaining were such only as had belonged to bishops, monasteries, e F. N. li. 12. f Cop. Sec. 32. £ Commonwealth, b. 3, c. 10.

or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that" the holy fathers, monks, and friars, had in their confessions, and specially in their extreme and deadly sickness, convinced the laity how dangerous a practice it was (for one Christian man to hold another in bondage: so that temporal men, by little and little, by reason of that terror in their consciences, were glad to manumit all their villeins. But the said holy fathers, with the abbots and priors, did not in like sort by theirs ; for they also had a scruple in conscience to empoverish and despoil the church so much, as to manumit such as were bond to their churches, or to the manors which the church had gotten ; and so kept their villeins still." By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders : their persons being enfranchised by manumission or long acquiescence; but their estates, in strictness, remaining subject to the same servile conditions and forfeitures as before ; though, in general, the villein services are usually commuted for a small pecuniary quit-rent¹¹.

As a farther consequence of what has been premised, we may collect these two main principles, which are held * to be the supporters of the copyhold tenure, and without which it cannot exist; 1. That the lands be parcel of, and situate within that manor, under which it is .held. 2. That they have been demised, or demisable, by copy of court roll immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day.

In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are stiled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for

h In some manors the copyholders were bound to perform the most servile offices, as to hedge and ditch the lord's grounds, to lop his trees, and reap his corn, and the like; the lord usually finding them meat and drink, and sometimes (as is still the use in the highlands of Scotland) a minstrel or piper for their diversion. (Roil. Maner. rle JEdgware Com. Midd.) As in the kingdom of Whidah, on the slave coast of Africa, the people are bound to cut and carry in the king's corn from off his demesne lands, and are attended by music during all the time of theirlabour. (Mod. Un. Hist. xvi. 439.)

i Co. Litt. 58.

life only: for the custom of the manor has in both cases so far superseded the will of the lord, that, provided the services he performed or stipulated for by fealty, he cannot, in the first instance, refuse to admit the heir of his tenant upon his death; nor, in the second, can he remove his present tenant so long as he lives, though he holds nominally by the precarious tenure of his lord's will.

The fruits and appendages of a copyhold tenure, that it hath in common with free tenures, are fealty, services, (as well in rents as otherwise) reliefs, and escheats. The two latter belong to copyholds of inheritance; the former to those for life also. But, besides these, copyholds have also heriots, wardship, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we shall say more hereafter ^k, are a render of the best beast or other good (as the custom may be) to the lord on the death of the tenant. This is plainly a relic of villein tenure ; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seised them even in the villein's lifetime. These are incident to both species of copyhold; but wardship and fines to those of inheritance only. Wardship, in copyhold estates, partakes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian; who usually assigns some relation to the infant tenant to act in his stead: and he, like guardian in socage, is accountable to his ward for the profits. Of fines, some are in the nature of primer seisins, due on the death of each tenant, others are mere fines for alienation of the lands j in some manors, only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom: but, even when arbitrary, the courts of law, in favour of the liberty of copyholders, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate. No fine therefore is allowed to be taken upon descents and alienations, (unless in particular circumstances) of more than two years improved value of the estate ^{k k}. From this instance we may judge of the favourable disposition of that law of England

k Sec cli. 28.

kk2Ch, Uep.154.

(which is a law of liberty) hath always shewn to this species of tenants ; by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands; by declaring, that the will of the lord was to be interpreted by the custom of the.manor: and where no custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes with an equitable moderation, and will not suffer the lord to extend his power so far, as to disinherit the tenant.

Thus much for the antient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally descended from it.

IV. There is yet a fourth species of tenure, described by Bracton under the name sometimes of privileged villenage, and sometimes of villein-socage²⁰. This, he tells us', is such as has been held of the kings of England from the conquest downwards: that the tenants herein, " villanafaciunt servitia, sed cer.ta et determinate ;'' that they cannot aliene or transfer their tenements by grant or feoffment, any more than pure villeins can: but must surrender them to the lord or his steward, to be again granted out and held in villenage. And from these circumstances we may collect that what he here describes is no other than an exalted species of copyhold, subsisting at this day, viz. the tenure in antient demesne; to which, as partaking of the baseness of villenage in the nature of it's services, and the freedom of socage in their certainty, he has therefore given a name compounded out of both, and calls it villamtm socagium.

Antient demesne consists of those lands or manors, which, though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the confessor, or William the conqueror; and so appear to have been by the great survey in the exchequer called domesday-book⁰¹. The

1 /. 4. tr. 1. c. 28. m F. N. IJ. 14.16.

20. This species of tenure never had existence in Virginia.

tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies", continued for a long time pure and absolute villeins, dependent on the will of the lord: and those who have succeeded them in their tenures now differ from common copyholders in only a few points⁰. .... Others were in great measure franchised by the royal favour: being only bound in respect of their lands to perform some of the better sort of villein services, but those determinate and certain ; as, to plough the king's land for so many days, to supply his court with such a quantity of provisions, or other stated services ; all of which are now changed into pecuniary rents: and in consideration hereof they had many immunities and privileges granted to them?; as, to try the right of their property in a peculiar court of their own, called a court of antient demesne, by a peculiar process denominated a writ of right close* ; not to pay toll or taxes; not to contribute to the expences of knights of the shire; nor to be put on juries; and the like^r.

These tenants therefore, though their tenure be absolutely copyhold, yet have an interest equivalent to a freehold: for, notwithstandingtheir services were of a base and villenous original', yet the tenants were esteemed in all other respects to be highly privileged villeins ; and especially, for that their services were fixed and determinate, and that they could not be compelled (like pure villeins) to relinquish these tenements at the lord's will, or to hold them against their own: " et idea, says Bracton, " dicuntur liberi." Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes' to be " lands and tenements, which are not held by knight-service, nor by grand serjeanty, nor by petit, but by simple services, being as it were, lands enfranchised by the king or his predecessors from their antient demesne." And the same name is also given them in Fleta". Hence Fitzherbert observes™, that no lands are antient demesne, but lands holden in socage: that is, not in free and common socage, but in this

nc. 66. oF. N. B. 228.

p 4 Inst. 269. qF.N.B. 11.

r Ibid. 14. s Gilb. hist, of exch. 16 &. 30.

tc. 66, u A I.e. 8. wN.B. 13.

amphibious subordinate class of villein-socage. And it is possible, that as this species of socage tenure is plainly founded upon predial services, or services of the plough, it may have given cause to imagine that all socage tenures arose from the same original; for want of distinguishing, with Bracton, between free-socage or socage of frank-tenure, and villein-socage or socage of antient demesne.

• Lands holden by this tenure are therefore a species of copyhold, and as such preserved and exempted from the operation of the statute of Charles II. Yet they differ from common copyholds, principally in the privileges before-mentioned: as also they differ from freeholders by one especial mark and tincture of villenage, noted by Bracton and remaining to this day; viz. that they cannot be conve)^-ed from man to man by the general common law conveyances of feoffment, and the rest; but must pass by surrender to the lord or his steward, in the manner of common copyholds: yet with this distinction", that, in the -surrender of these lands in antient demesne, it is not used to say " to hold at the will of the lord" in their copies, but only, " to hold according to the custom of the manor.'*

Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both antient and modern, in which we cannot but remark the mutual connexion and dependence that all of them have upon each other. And upon the whole it appears, that, whatever changes and alterations these tenures have in process of time undergone, from the Saxon aera to the 12 Car. II, all lay tenures are now in effect reduced to two species ; free tenure in common socage, and base tenure by copy of court roll.

I mentioned lay tenures only; because there is still behind one other species of tenure, reserved by the statute of Charles II, which is of a spiritual nature, and calleji the tenure in frank-almoign.

V. Tenure in frankalmoign, in libera eleemosyna, or free alms, is that, whereby a religious corporation, aggregate or »ole,

x Kitchin on courts, 194.

holdeth lands of the donor to them and their successors for ever*. The service which they were bound to render for these lands was not certainly defined : but only in general to pray for the souls of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other services but this¹) because this divine service was of a higher and more exalted nature*. This is the tenure, by which almost all the antient monastries and religious houses held their lands; and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this day^b ; the nature of the service being upon the reformation altered, and made conformable to the purer doctrines of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in antient times. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinodn neccssitas, of repairing the highways, building castles, and repelling invasions⁶ : just as the Druids, among the antient Britons, had omnium return immunitatem* .... , And, even at present, this is a tenure of a nature very distinct from all others j being not in the least feodal but merely spiritual. For if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor to correct it^e. Wherein it materially differs from what was called tenure by divine service; in which the tenants were obliged to do some special divine services in certain; as to sing so many masses, to distribute such a sum in alms, and the like: which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrein, without any complaint to the visitor^f. All such donations are indeed now out of use: for, since the statute of quia emptores, 18 Edw. I, none but the king can give lands to be holden by this tenures. So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II, and therefore subsists in many instances at this day. Which is

y Litt. Sec. 133. z Lilt. 131.

a Ibid. 135, b Bracton. /. 4 tr. 1. c. 28. Sec. 1.

c Scld. Jan. 1, 42. «1 Casar tie Ml. Gat. I. 6. c. 13.

e Lilt. Sec. 136. f Litt. 137. g Ibid. 140.

all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures*¹.

21. The statute of quia emfitorea terrarum being prior to the settlement of Virginia, tenure in frankalmoign, was obsolete in practice even in England, at that time, and no traces remain of it's having ever been introduced into the colonial code.

Oj> See appendix, note A. as to the tenure of lands in Virginia, with the manner of acquiring them under the former, and present government.

CHAPTER THE SEVENTH.

OF FREEHOLD ESTATES, OF INHERITANCE.

THE next objects of our disquisitions are the nature and properties of estates. /An estate in lands, tenements and hereditaments, signifies such interest as the tenant hath therein :J so that if a man grants all his estate in Dale to A and his heirs, every thing that he can possibly grant shall pass thereby*. It is called in Latin status; it signif) ing the condition, or circumstance, in which the owner stands, with regard to his property. And, to ascertain this with proper precision and accuracy, estates may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement: secondly, with regard to the time at which that quantity of interest is to be enjoyed : and, thirdly, with regard to the number and connections of the tenants.

First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by it's duration and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man ; to determine at his own decease, or to remain to his descendants after him : or it is circumscribed within a certain number of years, months, or days : or, lastly, it is infinite and unlimited, being vested in him and his representatives for ever. And this occasions the primary division of estates, into such as are freehold, and such as are less than freehold. '

An estate of freehold, liberum tenemcntum, or franktencment, is defined by Britton^b to be, ^u the possession of the soil by a free-

a Co. Litt. 34$.

b c. 32.

man." And St. Germyn^c tells us, that " the possession of the and is called in the law of England the franktenement or free-hold." Such estate,therefore, and no other, as requires actual possession of the land, is legally speaking freehold: which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seisin, or, in tenements of an incorporeal nature, by what is equivalent thereto. And, accordingly, it is laid down by Littleton^d, that where a freehold shall pass, it behoveth to have livery of seisin. As, therefore, estates of inhe« ritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates were conveyed with the same solemnity, therefore no others are properly freehold estates.

Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail.

I. Tenant in fee-simple (or, as he is frequently stiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to ¹ hold to him and his heirs for ever^e a generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. •. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in it's original sense-it is taken in contradistinction to allodium*; which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any renter service to any superior'. This is property in it's highest degree ; and the owner thereof hath

c l)r. and Stud. b. 2. d. 22. e Litt. Sec. 1.

d Sec. 59.

f See pages 45, 47.

. 1. Lands held of the crown, formerly, or granted by the commonwealth of Virginia since the revolution, are now allodial. V. L. May Session, 1779, c. 13. Edi. 1785, vi. note 2, p. 47. Note 1, p. 44.

absolution et directum dominium^and therefore is Said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. And, therefore, sir Henry Spelman e defines a feud or fee to be the right which the vasal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services ; the mere allodial propriety of the soil always remaining in the lord. This allodial property no subject in England has^h ; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king, therefore, only hath absolutum et directum dominium¹: but all subjects' lands are in the nature of feodum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration: for they cannot come to any man by either of those ways, unless accompanied with those feodal clogs, which were laid upon the first feudatory when it was originally granted. A subject, therefore, hath only the usufruct, and not the absolute property of the soil; or, as sir Edward Coke expresses it^k, he hath dominium utile, but not dominium directum. And hence it is, that, in the most solemn acts of law/we express the strongest and highest estate that any subject can have, by these words; " he is seised thereof in his demesne, as of fee." It is a man's demesne, dominicum, or property, since it belongs to him and his heirs for ever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee; that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides.

This is the primary sense and acceptation of the word fee, But (as sir Martin Wright very justly observes¹) the doctrine, " that all lands are holden," having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this it's primary original

g of feuds, c. 1. h Co. Litt. 1.

i Praedium damini regis est directum dominium, cujut nullus est author nisi Deus. . Ibid.

k Ibid.

1 of ten. 148,

sense, in contradistinction to allodium or absolute property, with which they have no concern ; but generally use it to express the continuance*- or quantity of estate. A fee, therefore, in general, signifies an estate of inheritance ; being the highest and most extensive interest that a man can have in a feud: and, when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it, (as a fee, or a fee simple) it is used in contradistinction to a fee conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man^{m 2}.

Taking, therefore,^ for the future, unless where otherwise explained, in this it's secondary sense, as a state of inheritance, it is applicable to, and may'be had in, any kind of hereditaments either corporeal or incorporeal". Butjhere is this distinction between the two species of hereditaments; that, of a corporeal inheritance a man shall be said to be seised in his demesne, as of fee,- of an incorporeal one, he shall only be said to be seised as of fee, and «ot in his demesne⁰. For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and housesP, their owner hath no property, dominicum, or demesne, in the thing itself, but hath only something derived out of it; resembling the servitutes, or services, of the civil lawi. The dominicum or property is frequently in one man, while the appendage or service is in another. Thus Gaius may be seised as of fee of a way leading over the land, of which Titius is seised in his demesne as of fee.

%

The fee-simple or inheritance of lands and tenements is generally vested and resides in some person or other ; though di-

m Co. Litt. 1.

n Feodum est craadquis tenet sibi et haeredibus suis, she sit tenenientiim,sit>e reditus, &c. Flet. /. 5. ,c. 5, Sec. 7.

o Litt. Sec. 10- p See page 20.

q Scroitus est jus, quo res mea alteriiu rei vel peraonae servit. Ff. 8. 1. 1.

2. The term fee aimfile, must now be understood in the same sense in Virginia, and for the same reason, for the landholders in Virginia do not hold their lands of any superior.

vers inferior estates may be carved out of it. As if one grants a lease for twenty-one years, or for one or two lives, the fee-simple remains vested in him and his heirs; and after the deterinitiation of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet some* times the fee may be in abeyance, that is (as the word signifies) in expectation, remembrance, and contemplation in law j) there being no person in esse, in whom it can vest and abide: -mough the law considers it as always potentially existing, and ready to vest whenever a proper owner appears. Thus, in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is [,-iainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam. nemo est haeres viventis: it remains, therefore, in waiting or abeyance, during the life of Richard ^r'. This is, likewise, always the case of a parson of a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance •. And

•not only the fee, but the freehold also, may be in abeyance ; as, when a parson dies, the freehold of his glebe is in abeyance, untill a successor be named, and then it vests in the successor^l.

The word, heirs, is necessary in the grant or donation, in order to make a fee, or inheritance ⁴. For if land be given to

r Co. Lilt. 342. s Ibid. Sec. 646. t Hid. Sec. 6, 7.

3. That is to say, during the joint lives of Richard and John, the tenant for life ; for if Richard dies during the life of John, then the fee-simple is no longer in abeyaiice, but the remainder presently take* place in the heirs of Richard, but if John dies during the life of Richard the remainder is become totally void, there being no person in

•whom it can vest during the life of Richard, for the reason above given, and the estate settles again in the. donor, or his heirs, as if no limitation in vemainder had been made. 4. Ba. Abr. 306. fearne on Cont. Rem. 275. See also Fearne, 513, and 526. (4. Edi.)

4. Herein the law is altered, V. L. 1785, c. 62, which took effect the first day of January, 1787. That act declares, that every estate in lands, Vrfhich should be thereafter granted, conveyed, or devised to one, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee-simple, if a Jess estate be not limited by express words, or do not appear to have been grant* ed, conveyed or devised by construction, or operation of lav/| Edi,

iry-i, c. so. $. 12.

a man for ever, or to him and his assigns for ever, this vests in him but an estate for life ^u. This very great nicety about the insertion of the word " heirs " in all fcoffments and grants, in order to vest a fee, is plainly a relic of the feodal strictness: by •which we may remember", it was required that the form of the donation should be punctually pursued; or that, as Crag ^x, expresses it in the words of Baldus, ^u donationes sint stricti juris, " ne quisplus donassepraesumatur quam in donations txpresserit" And, therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own person and subsisted no longer than his life: unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs. But this rule is now softened by many exceptions ?.

For, 1. It does not extend to devises by will; in which as they were introduced at the time when the feodal rigor was apace wearing out, a more liberal construction is allowed: and, therefore, by a devise to a man for ever, or to one and his assigns for ever, or to one in fee-simple, the devisee hath an estate of inheritance; for the intention of the devisor is sufficiently, plain from the words of perpetuity annexed, though he hath omitted the legal words of inheritance; But if the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee shall take only an estate for life ; for it does not appear that the devisor intended any more. 2. Neither does this rule extend to fines or recoveries, considered as a species of conveyance ; for, thereby, an estate, in fee, passes by act and operation of law without the word " heirs:" as it does also, for particular reasons, by certain other methods of conveyance, which have relation to a former grant m estate, wherein the word " heirs " was expressed *. 3. In creations of nobility by writ, the peer so created hath an ineritance in his title, without expressing the word " heirs ;" for heirship is implied in the creation, unless it be otherwise specially provided: but in creations by patent,

u Lilt. Sec. 1.

x /. 1, t. 9, Sec. 17_:

z Kid. 9.

w See p. 56. y Co. Litt. 9, 10.

which are stricti juris, the word " heirs" must be inserted, otherwise there is no inheritance. 4. In grants of lands to sole corporations and their successors, the word " successors »' supplies the place of " heirs;" for as heirs take from the ancestor, so doth the successor from the predecessor. Nay, in a grant to a bishop, or other sole spiritual corporation, in frankalmoign; the word " frankalmoign " supplies the place of ^l' successors " (as the word " successors" supplies the place of " heirs ") ex vi terminii; and in all these cases a fee-simple vests in such sole corporation. But, in a grant of lands to a corporation aggregate, the word " successors " is not necessary, though usually inserted: for, albeit such simple grant be strictly only an estate for life, yet as that corporation never dies, such estate for life is perpetual, or equivalent to a fee-simple, and .therefore, the law allows it to be one ». 5. Lastly, in the case of the king, a fee simple will vest in him, without the word " heirs" or *' successors" in the grant; partly from prerogative royal, and partly from a reason similar to the las,t, because the king in judgment of law never dies^b. But the general rule is, that the word " heirs" is necessary to create an estate of- inheritance *.

II. We are next to consider limited fees, or such estates of inheritance as are clogged and confined with conditions, or qualifications, of any sort. And these we may divide into two sorts j 1. Qualified, or base fees: and 2. Fees conditional, so called at the common law ; and afterwards fees-tail, in consequence of the statute de donis,

1. A base, or qualified fee, is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As, in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is entirely defeated. So, when Henry VI granted to John Talbot, lord of the manor of Kingston-Lisle in Berks,

a See Vol. I. page 484

b Ibid. 249.

5. See note 4, page 107.

that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle ; here John Talbot had a base or qualified fee in that dignity ^c, and, the instant he or his heirs quitted the seignory of this manor, the dignity was at an end. This estate is a fee, because by possibility it may endure for ever in a man and his heirs ; yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is, therefore, a qualified or base fee.

2. A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others: " donatio stricta et coarctata ^d; sicut certis haeredibus, quibusdam a successione exclusis:" as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs : or, to the heirs male of his body, in exclusion both of collaterals, and lineal females also. It was called a conditional fee, by reason of the condition expressed or implied in the donation of it, that if the donee died without such particular heirs, the land should revert to the donor. For this was a condition annexed by law to all .grants whatsoever; that, on failure of the heirs specified in the grant, the grant should be at an end, and the land return to it's antient proprietor ^e. Such conditional fees were strictly agreeable to the nature of feuds, when they-first ceased to be mere estates for life, and were not yet arrived to be absolute estates in fee-simple⁶. And we find strong traces of these limited, conditional fees, which could not be alienated from the lineage of the first purchaser, in our earliest Saxon laws ^f.

Now, with regard to the condition annexed to these fees by the common law, our ancestors held, that such a gift (to a man

c Co. Litt. 27. d Flet. /. 3. c. 3. Sec. 5. . e Plowd. 241.

fSi quit terrum haereditariain babeat, cam non vendat a cogndtis bacredibus mis, «' illi oiroprohibition sit, qui earn ab initio acquiiivit, ut itafacere nequeat, LL. Aelfred, c. 37.

6. Conditional fees at the common law are utterly abolished in Virginia. V. L. 1785, c. 62, which took effect January 1, 1787, EdU 1794, c. 90. §. 9.

and the heirs of his body) was a gift upon condition, that H should revert to the donor, if the donee had no heirs of his body; but, if he had, it should then remain to the donee. They therefore called it a fee-simple, on condition that he had issue. Now we must observe, that, when any condition is performed, it is thenceforth entirely gone ; and the thing to which it was before annexed, becomes absolute, and wholly unconditional. So that, as the grantee had an issue born, his estate was supposed to become absolute, by the performance of the condition; at least, for three purposes: 1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversions. 2. To subject him to forfeit it for treason: which he could not do, till issue born, longer than for his own life ; lest thereby the inheritance of the issue, and reversion of the donor, might have been defeated ^k. 3. To empower him to charge the land with rents, commons, and certain other incrumbrances, so as to bind his issue'. And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor's reversion was rendered more distant and precarious: and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact aliene the land, the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation ; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in defanlt of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent,'the donees of these conditional fee-simples took care to aliene as soon as they had performed the condition by having issue ; and afterwards re-purchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course'of the common law. And thus stood the old law with regard to conditional fees : which things, says sir Edward Coke^k, though they seem antient, are yet necessary to be known;

g Co. Litt. 19. 2 Inst. 233. h Co. Litt. ibid. 2 Inst. 234.

i Co. Litt. 19. k 1 Inst. 19.

as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such like inheritances, as are not within the statutes of entail, and, therefore, remain as at the common law.

The inconveniences, which attended these limited and settered inheritances, were probably what induced the judges to give way to this subtile finesse of construction, (for such it undoubtedly was) in order to shorten ihe duration of these conditional estates. But, on the-other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the second¹, (commonly called the statute de donis condition* alibusj to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever⁷. This statute revived in some sort the antient feodal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the dontr be observed: and that the tenements so given, (to a man and the heirs of his body) should, at all events, go to the issue, if there were any; or, if none, should revert to the donor. >

Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee-simple, which became absolute and at his own disposal, the instant any issue was born ; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated &fee-tail^m; and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue;

1 13 Edw. I. c. 1. .

m The expression fee-tail, or feodum talliatvm, was borrowed from the feudists; (See Crag. /. 1.1.10. Sec. 24, 25.) among whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off; being derived from the barbarous verb tatiare, to cut j from which the French taiUer and the Italian lag-flora are formed. (Spelm. Glass. 531.)

7. The statute de donis conditionalibus was repealed in Virginia. Oct. 1776, c. 26. Edi. ms. See Edi. 1794, c. 90. \. 9.

which expectant estate is what we now call a reversion". And hence it is that Littleton tells us⁰, that tenant in fee-tail is by virtue of the statute of Westminster the second.

Having thus shewn the original of estates tail, I now proceed to consider, what things may, or may not, be entailed under the statute de donis. Tenements is the only word used in the statute: and this sir Edward Coke? expounds to comprehend all corporeal hereditaments whatsoever; and also all incorporeal hereditaments which savour of the realty, that is which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same ; as, rents, estovers, commons, and the like⁸. Also offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailedi'. But mere personal chattels, which savour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels¹; nor an annuity, which charges only the person, and not the lands, of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee conditional at common law, as before the statute ; and by his alienation (after issue born) may bar the heir or reversioner^r *. An estate to a man and his heirs for ano-

n 2 Inst.35. p 1 Inst. 19, 20. r Co. Litt. 19,20'

o Sec. 13. q 7 Rep. 33.

' If an annuity is granted out of personal property to a man and the heirs of his body, it is a fee-conditional at common law, and there can be no remainder or further limitation of it j and when the grantee has issue, he has the full power of alienation, and of barring the possibility of it's reverting to the grantor by the extinction of his issue. 2 Ves. 170. 1 Bro. 335.

But out of a term of years, or any personal chattel, except in the instance of an annuity, neither a fee-conditional nor an estate-tail can be created ,• for if they are granted or devised by such words as would convey an estate-tail in real propeity, the grantee or devisee has the entire and absolute interest without having issue j and as soon as such an interest is vested in any one, all subsequent limitations of consjcjucnce become null and void. 1 Bro. 274. Harg. Co. Lilt. 20. Fearne, 3-i5.3d. edi. Cbitliaa.

8. Slaves were made subject to entails. V. L. 1727, c. 4. Edi. 1769. But that act was repealed in substance by the act of 1796, Oct. Sess. c. 26.

9. This must be understood of private offices ; of which no instance probably has occurred in Virginia, where they have been granted to

ther's life cannot be entailed': for this is strictly no estate of in-' heritance, (as will appear hereafter) and therefore not within the statute de donis. Neither can a copyhold estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord ; but, by the special custom of the manor, a copyhold may be limited to the heirs of the body'; for here the custom ascertains and interprets the lord's will. ,

Next, as to the several species of estates-tail, and how they are respectively created. Estates-tail, are either general or special. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten; which is called tail-general, because, how often soever such donee in tail be married, his issue in general by all and every such marrriage is, in successive order, capable of inheriting the estate-tail, per -formam doni*. Tenant in tail-special is where the gift is restrained to certain heirs of .the donee's body, and does not go to all of them in general. And this may happen several ways ^w. I shall instance in only one; as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten: here no issue can inherit, but such special issue as is engendered between them two; not such as the husband may have by another wife: and therefore it is called special tail¹⁰. And here we may observe, that the words of inheri-

s 2 Vern. 225. u Litt. Sec. 14,15. x Ibid. Sec. 21, 22.

t 3 Rep. 8.

w Litt. Sec. 16. 26, 27,28,29.

a man and to his heirs. As to public offices, these, by our Bill df Rights, can not be inherited, and dignities are proscribed by our constitution. See note 9. p. 56. note 11. p. 37.

10. This by virtue pf the act for docking all estates tail; would now be a fee-simple ; but suppose the devise were to a man, and his •wife and the heirs of their two bodies begotten, which was also an estate in special tail formerly ; in this case, as the law now stands, the husband and wife would have, during their joint lives a kind of joint etsate in fee : and it would seem, that upon the death of either, the heirs of the person dying would be entitled to a moiety of the lands, and the other moiety, upon the death of the survivor would go to the heirs of the survivor. For inasmuch as these words, would by the common law, have vested an estate-tail, both in the husband and wife,

• tance (to him and his heirs) give him an estate in fee ; but they being heirs to be by him begotten, this makes it a fee-tail; and the person being also limited, on whom such heirs shall be begotten, (viz. Mary his present wife} this makes it a fee-tail special.

the act of 1776, c. 26. 1794, c. 90. Sec. 9, would now convert that estate-tail into a fee simple, in both, notwithstanding the limitation to the heirs of their two bodies begotten, which by those acts, is rendered null and void. They would therefore be a sort of joint-tenants in fee; as described hereafter page 182, and according to the ancient law, the survivor should have had the whole in fee; but in this respect also, the law now seems to be altered, by the act of 178t>, c. 60, which took effect the first day cf July 1787, by which the right of survivorship is abolished, and the joint-estate shall descend and pass as if had been a tenacy in common, Edi. 1794, c. 24. The following case may shew how materially the law is now altered from what it was before the revolution.

A. by a former marriage having two sons, marries B. who by a former marriage had two daughters. .... After the marriage, lands are given to A. and B. and to the heirs male of their two bodies begotten. A. and B. have a son, and a daughter. The daughter by the common law can never inherit the lands, not being within the words of the gift which is limited to the issue male. A. dies; B. is now tenant in tail of the whole, with remainder to her son born of the marriage with A. and after her death, that son, and no other child of A. or B. shall inherit the lands, by the course of the common law. .... But at this day, upon the death of A. one half of the lands should go to B. in fee simple, and the other half should be equally divided between all the children of A. though born of different mothers, and of different sexes, subject nevertheless to B's dower in that moiety, for she would be endowed threof equally as of any other estate. .... After the death of B. her moioty would be equally divided between her children in like manner : so that the children of the marriage between A. and B. would eventually have larger portions than any of the others, because they would inherit trom both parents.

It may seem very hard that an estate given by words which so clearly manifest the donors intention towards a particular set of persons, should be defeated by a general rule of law. But we must remember that all laws relative to property are juris fioaitivi, and the legislature from the experience of ages being sensible of the bad policy of suffering perpetuities yi estates to be created by any set form of words, probably found it would be unsafe to permit any evasion of the act for preventing entails to be introduced by any set form of words, or device whatsoever. To guard against this great and general evil which they apprehend m ight

Estates, in general and special tail, are farther diversified by the distinction of sexes in such entails ; for both of them may either be in tail male or \M\female. As if lands be given to a man, and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and his \\e\rsfemale of his body on his present wife begotten, this is an estate in tail female special. And., in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor e converse, the heirs male, in case of a gift in tail female ^x. Thus, if the donee in tail male, hath a daughter, who dies leaving a son, such grandson in this case cannot inherit the estate-tail; for he cannot deduce his descent wholly by heirs male y. And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And, therefore, if a man hath two estates-tail, the one in tail male, the other in tail female; and he hath issue a daughter, which daughter hath issue a son; this grandson can succeed to neither of the estates; for he cannot convey his descent wholly either in the male or female line *.

As the word h°.;rs is necessary to create a fee, so in farther limitation of the strictness of the feodal donation, the word body,

xLitt. Sec. 21,22.

y Ibid. Sec. 24.

z Co. Litt. 25.

be continued, they have laid down a general rule, which perhaps may in one or two instances be inconvenient in its application : but this inconvenience, possibly might be avoided, if instead of a devise to a man and the heirs of his body on Mary his now wife to be begotten, the devise were to a man and his children* by Mary his now wife ; although the sense would be expressly the same in common understanding, yet it is not impossible that a court would now interpret this to be a devise to the father for life, with remainder to his children by Mary his wife as joint-tenant; the word children, fee. being in this case to be interpreted as designatio personae, and consequently words of purchase, whereas the word heirs, in the case put by Mr. Blackstone, has always been construed as a word of descent; whereby the quantity and duration of the estate, and the interest of the donee, were as well intended to be ascertained, as the course in which the inheritance should descend.

• A devise to a man and his children, if he had no children at the time of the devise will create an estate ta'l, 6. Co. 17. Therefore, %.«.

or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular the fee is limited. If therefore either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate tail. As, if the grant be to a man and his issue of his body, to a man and his seed, to a man and his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs ^a. So, on the other hand, a gift to a man, and his heirs male, or female, is an estate in fee-simple, and not in fee-tail; for there are no words to ascertain the body out of which they shall issue ^b. Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs male; or by other irregular modes of Expression ^e *.

There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in Kbero maritagio, or frankmarriage. These are defined⁴ to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frankmarriage. Now by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them, and the heirs of their two bodies begotten ; that is, they are tenants in special tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the \\orAfrankalmoign, but likewise limits that inheritance ; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is void, until the fourth degree of consanguinity be past between the issues of the donor and donee ^e.

The incidents to a tenancy in tail, under the statute Westm. 2, are chiefly these ^f. 1. That a tenant in tail may commit waste a Co Litt. 20. b Litt. Sec. 31. Co. Litt. 27. c Co. Litt. 9. 27. d Litt. Sec. 17. e Ih. Sec. 19,20 f Co. Litt. 224.

* Or to a man and his children, if he has no children at the time of the devise (6 Co. 17.) or not to a man and his posterity (ff. Bl. 447.) or by any other words, which shew an intention to restrain the inheritance to the descendants of the devisee. See 381. post .... Christian.

on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached, or called to account, for the same. 2. That the wife of the tenant in tail shall have her dower, or thirds, of the estate-tail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the estate-tail. , 4. That an estate-tail may be barred, or destroyed by a fine, by a common recovery ", or by lineal warranty descending with assets to the heir. All which will hereafter be explained at large.

Thus much for the nature of estates-tail: the establishment of which family law (as it is propeily stiled by Pigotts) occasioned infinite difficulties and disputes^h. Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts; for, if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth: innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our antient books are full: and treasons were encouraged; as estates-tail were not liable to forfeiture, longer than for the tenant's life. So that they were justly branded, as the source of new contentions, and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm *. But as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature ; and therefore, by the connivance of an active and politic prince, a method was devised to evade it.

About two hundred years intervened between the making of the statute de ntfns, and the application of common recoveries

g Com. llecov. 5. hi Rep. 131.

i Co. Litt. 19. Moor. 156. 10 Rep. 38. _____________

11. So much were estates tail favoured in Virginia, tthat the act of mo, c. 13. Edi. 1733, declares, that fines and recoveries for the purpose of docking entails of land shall be absolutely null and void, and that no estate tail should thereafter be^efeated, but by act of assembly. This clause was re-enacted in 1748, c. 1. Edi. 1769.

to this intent, in the twelfth year of Edward IV; which were then openly declared by the judges to be a sufficient bar of an estate-tail^k. For though the courts had, so long before as the rcign of Edward III, very frequently hinted, their opinion that a bar might be effected upon these principles^l, yet it never was carried into execution ; till Edward IV observing ^m (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families., whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum's case to be brought before the court" : wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction there of. What common recoveries are, both in their nature and consequences, and why they are allowed- to be a bar to the estate tail, must be reserved to a subsequent inquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and, that these recoveries, however clandestinely introduced, are now become by long use and acquiescence a most common assurance of lands ; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispose of his lands and tenements: so that no court will suffer them to be shaken or reflected on, and even acts of parliament⁰ have by a sidewind countenanced and established them.

This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently re-settled in a similar manner, to

k 1 Rep. 131. 6 Rep. 40. 110 Rep. 37, 38. ' m Pigott, 8.

n Year book. 12 Edw. IV. 14,19. Fitzh. Mr. lit faux recov. 20 Bro.,^Ar. ibid. 30. tit. recov. in value. 19. tit. taite, 36.

o 11 Hen. VII. c. 20. 7 Hen. VIH. c. 4. 35 and35Hen. VIII. c. 20.14 Eliz. ₆.8. 4 & 5 Ann. c. 1C. 14 Geo. II. c. 20.

suit the convenience of families, had address enough to procure a statute p, whereby all estates of inheritance (under which general words estates-tail were covertly-included) are declared to be forfeited to the king upon any conviction of high treason.

The next attack which they suffered in order of time, was by the statute 32 Hen. VIII. c. 28, whereby certain leaser made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines 1, by " the statute 32 Hen. VIII. c. 36, which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons,, claiming under such entail. JThis was evidently agreeable to the intention of Henry VII, whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared, that they should not be a bar to estates-tail. But the statute of Henry VIII, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 and 35 Hen. VIII. c. 20, which enacts, that no feigned recovery had against tenants in tail, where the estate'was created by the crown ^r, and the remainder or reversion continues still in the crown, shall be of any force and effect. Which is allowing, indirectly and collateral!}',

p 36 Hen. VIII. c. 13. i Co. Litt. 372,

<1 4 Hen. VII. c. 24.

their full force and effect with respect to ordinary estates-tail) where the royal prerogative is not concerned.

Lastly, by a statute of the succeeding year ', all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt laws', they are also subjected to be sold for the debts contracted by a bankrupt '*„ And, by the construction put on the statute 43 Eliz. c. 4, an appointment^u by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery.

Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, the tenant in tail is now enabled to aliene his lands and tenements by fine, by recovery, or by certain other means; and thereby to defeat the interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and, lastly, he may charge them with reasonable leases^1S, and also with such of his debts as are due to the crown on specialties, or have been contracted \Vith his fellow-subjects in a course of extensive commerce¹⁴.

s 33 Hen. VIII. c. 39. Sec. 75. t Stat. 21 Jac. I. c. 19. u 2 Vern. 453. Clian. Free. 16.

12. L. U. S. 6 Cong. 1 Sess. c. 19. Sect. 11, accordant.

13. The act of 1764, c. 14, authorised tenants in tail to make leases not exceeding three lives, or twenty-one years. Edi. 1769.

14. Entails, as was before observed, were formerly greatly favoured in Virginia ; the statute de donis conditionalibus, extending to the colony, no act of assembly authorising entails of lands, occurs in our code. In 1710, as we have seen, they were protected from being defeated by a fine and recovery. In 1727, slaves were subjected to limitations in tail, by being annexed to lands entailed, and were to descend and pass in possession, reversion, and remainder, with the lands themselves, c. 4. Sec. 12. Edi. 1769. By the act of 1734, c. 6, Sessions acts, an abstract of which is preserved in Mercer's abridgment, title, entails, " any person seised in fee-tail of any lands, tenements, or hereditaments, not exceeding the value of 20(W. sterling, and not being parcel of, or contiguous to other entailed lands of the same party, might sue out a writ from the secretary's office in the nature

of an ad quod damnum to the sheriff of the county, commanding him to inquire, by the oaths of good and lawful men of his county, of the value of such lands, and whether, &c. and if such lands shall be found not to exceed the value as aforesaid, and to be a separate parcel, and an inquisition to that effect be made and returned to the office, then a deed of bargain and sale reciting the title, and such inquisition, wherein a valuable consideration shall be expressed, and bonafide paid, acknowledged, or proved by three witnesses, before the general court, within eight monthsafter the date thereof, should be sufficient in law to pass the fee simple estate to the purchaser, and the right of the issue of the vender, and all other persons in remainder or reversion, should be barred, &c." This act was amended by the act of 1748, c. 1. J. 16, which requires the surveyor of the county to attend and survey the lands in the presence of the jury, and to give them an account of the number of acres. And where the tenant in tail had no issue capable of inheriting the lands, if there were a remainder over, the remainder man, or, if an infant, his guardian or next friend should have notice to attend the survey, and see that the valuation was fairly made ; and the deed of bargain and sale was to be recorded in the general court within eight months. Edi. 1769. Estates, .above the value of 200/. sterling, were barred by private acts of assembly passed for that special purpose.

But when the revolution took place, a different mode of thinking succeeded ; it was found that entails would be the means of accumulating and preserving great estates in certain families, which would, not only introduce all the evils complained of in England, but be utterlj incompatible with the genius and spirit of onr constitution and government. At the first session, therefore, after the declaration of independence, an act passed, declaring tenants of lands, or slaves in tail, to hold the same in fee simple. This act avoids all estates tail in possession, reversion, or remainder theretofore created by deed, will, act of assembly, or any other ways or means, or thereafter to be created, any words, limitations, or conditions in the deed, will, or act of assembly, or other instrument to the contrary notwithstanding ; and further declares, that every estate, so created, shall be held in full and absolute fee simple. This act is further confirmed by the acts of 1785 and 1792, which declare, that every estate in lands which hath been , limited since the seventh day of October, V76, or hereafter, shall be limited, so that as the law aforetime was, such estate would have been an estate tail, shall be deemed to have been, and continue an estate in fee simple. The act of May, 1783, declares, that all estates in lands or slaves which have become, or shall become escheatable to the commonwealth, by virtue of the " act declaring tenants of lands or slaves in tail, to hold the same in fee simple," for defect of blood, shall descend, and be deemed to have descended agreeable to the limitations of the deed or will creating the same. But that act does not extend to

lands or slaves which had been escheated anil sold. L. V. Oct. 1776, C. 26. May 1783, c. 27. Edi. 1785. Sessions acts of 1785, c. 62. Edi. 1794, c. 90. Sect. 9,10,11.

In the construction of these arts_t it has been decided, that by the act of October 1776, for docking entails, all remainders, as well contingent as vested, arc utterly barred, whether the entail be created before or after passing the act. And though executory devises of lands, after a devise thereof in fee simple, may still be created as before that statute, yet the court will not, in order to avoid the effect of the statute, construe that to be an executory devise, which, before, would have been held tobe a contingent remainder. Carter, vs. Tylcr, and also 1 Call's Rep. 165.

And in this case, Pendleton, president, said, a parent may guard against an improvident child's wasting his estate, by limiting his interest in, or power over it. He may give an estate for life, and limit remainders over, upon it; but how far he may go in limiting estates for life, one after another, so as to effect a perpetuity, we leave to be decided when the experiment shall be made. At present, we can safely say, that whenever the conveyance gives an estate-tail in lands, the act vests in that tenant, an cstatein fee simple. Ibidem, 185.

See also Hunters v. Haynes. 1 Wash. Hep. 71. Where a devise to A. for life, with remainder to B. and the heirs of his body lawfully begotten for ever; but in case B. should die without such issue, then to C. and his heirs for ever. In this case the court decided, that although B. died without issue in the life-time of A. yet his next heir should have the land in preference to C. the next remainder man. For, by the operation of the act of 1776, B.'s vested remainder in tail, was turned into an absolute fee simple, and descended to his heirs after the death of the tenant for life.

CHAPTER THE EIGHTH.

OF FREEHOLDS, NOT OF INHERITANCE.

WE are next to discourse of such estates of freehold, as are not of inheritance, but for life only. And of these estates for life, some are conventional, or expressly created by the acts of the parties; others merely legal, or created by construction and operation of law⁸. We will consider them both in their order.

I. Estates for life, expressly created by deed or grant, (which

•alone are properly conventional) are where a lease 'is made of lands or tenements to a man, to .hold for the term of his own life, or for that of any other person, or for more lives than one: in any of which cases .he is stiled tenant for life; only, when he .holds the estate by the life of another, he is usually called tenant

•pur outer vie ^b. These estates for life are, like inheritances, of a feodal nature; and were, for some time, the highest estate that 'any man could have in a feud, which (as, we have before seen ^c) was not in it's original hereditary. They are given or conferred by the same feodal rights and solemnities, the same investiture or livery of seisin, as fees themselves are ; and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on.

Estates for life may be created, not only by the express words beforementioned, but alsoiy a general grant, without denning or limiting any specific estate. As, if one grants to A. B. the manor of Dale, this makes him tenant for life^d. For .though, as there are no words of inheritance, or heirs, men-

a Wright. 190. b Litt. §. 56. c page 55. d Co. Litt. 42.

tioned in the grant, it cannot be construed to be a fee¹, it shall, however, be construed to be as large an estate as the words of the donation will bear, and, therefore, an estate for life. Also such a grant at large, or a grant for term of life generally, shall be construed to be an estate for the life of the grantee"; in case the grantor hath authority to make such a grant: for an estate for a man's own life is more beneficial and of a higher nature than for any other life ; and the rule of law is, that all grants are to b'e taken most strongly against the grantor*, unless in the case of the king.

Such estates for life will, generally speaking, endure as long as the life for which they are granted: but there are some estates e Co. Litt. 42. f Ibid. 36.

1. This rule of construction is now altered, the word heirs, not being necessary to create a fee simple in a deed, or grant, as was before observed, p. 107, note 4. The act of 1785, c. 62, by which this rule of construction was changed, took effect, January 1, 1787. See Edi. 1794, c. 90. J. 12. And by the act of 1785, c. 62, cited in the last note, any estate limited in such manner, as to have been an estate-tail, according to the former rules of construction, shall now be deemed a fee-simple. These two rules taken together, render an attention to the manner in which any limita ion in a deed or will may be created, almost, (perhaps equally) as necessary at this day, as formerly. For it has been held that where a dc vise was," to Launcelot Hicks, for and during the term of his natural life, and no longer; and after his decease to such son as he shall have lawfully to be begotten; and for want of such issue, a devise over," that this devise gave to Launcelot Hicks an estate in tail male, notwithstanding the express estate devised to him for life, and no longer. 1. Burrow 51. This decision seems to be founded upon that antient rule of law, which is cited in Shelbey's case, 1 Co. 104. That when the ancestor by any gift or conveyance, taketh an- estate of freehold, and in the same gift or conveyance, an estate is limited either mediately or immediately to his heirs in fee, or in tail, that always, in such cases, the heirs are words of limitation of the estate, and not words of purchase ; that is, the word heirs, in this case, enures so as to encrease the estate of the ancestor from atennancy for life, to a fee simple, or fee tail. Post 242. But if the limitation be to the heir in the singular number upon a lease for life, there the heir taketh an estate for life, by purchase, and the ancestor hath only an estate for life, in the lease. 1 Co. 1C4. Taking all these rules together, it would seem as difficult to limit an estate for life, only, at this day, as it was formerly, to limit an estate of inheritance in exact conformity to the donor's intention.

for life which may determine upon future contingencies, before the life, for which they are created, expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gones. Yet, while they subsist, they are reckoned estates for life; because, the time for which they will endure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And, moreover, in case an estate be granted to a man for his life, generally, it may also determine by his civil death: as if he enters into a monastery, whereby he is dead in law^h: for which reason in conveyances the grant is usually made " for the term of a man's natural life ;" which can only determine by his natural death¹.

The incidents to an estate for life, are principally the following ; which are applicable not only to that species of tenants for life, which are expressly created by deed; but also to those, which are created by act and operation of law.

1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers³¹ or bates*. For he hath a right to the full enjoyment and use of the land, and all it's profits, during his estate therein. But he is not permitted to cut down timber or do other waste upon the premises¹": for the destruction of such things, as are not the temporary profits of the tenement, is not necessary for the tenant's complete enjoyment of his estate; but tends to the permanent and lasting loss of the person entitled to the inheritance.

2. Tenant for life, or his representatives, shall not be prejudiced by any sudden determination of his estate, because such a determination is contingent and uncertain". Therefore, if a

g Co. Litt. 42. 3 Rep. 20. h 2 Rep. 48. i See Vol. I. p. 132. k See p. 35. 1 Co. Litt. 41. • m Ibid. 52. n Kid. 55.

tenant for his own life sows the lands, and dies before harvest, his executors shall have the emblements, or profits of the crop²: for the estate was determined by the act of God; and it is a maxim in the law, that actusDei nemini facit injuriam. The represen-

2. This most just and reasonable rule of law was altered in Virginia by the act of 1785, c. 61, which took effect January 1,1787. .... By that act, if a person die after the first day of March, all the emblements severed before the thirty-first day of December following, shall go to the executors; but the emblements growing on that day, or at the death of the person between the thirty-first of December, and the first day of March, shall pass with the land to the heir, devisee, reversioner, or remainderman. Wheat and all other winter crops, must have been sown, before the thirty-first of December, and cannot be severed for some time after the first day of March. The seed, and expence of putting it into the ground, costs more than any other crop ; after that is done, nothing remains but to preserve the enclosures, and to reap the crop. It seems not easy to reconcile to good policy, or justice, a law which gives to the reversioner or remainderman the profits of the labour of a tenant whom the act of God, only, hath prevented from reaping what he had sown.

By the samepct, if any person die after the first day of March, his slaves, whether held for life, or other interest, which were employed in making a crop, shall be continued on the plantation of the deceased, until the last day of December following; and their crops shall go to the executors, and be subject to debts, legacies, and distribution; the levies and taxes, their tools, expence of supporting them, and (heir families, and delivering them well clothed, being first deducted ; and if the slaves were held for life only, the executor shall be obliged to deliver to the remainderman, or reversioner, three barrels of Indian corn, for each slave, old and young, to be allowed in his accounts of administration. This clause, except the latter part of it, agrees pretty nearly with the act of 1748, c. 3, which required all slaves above ten years of age, to be delivered well clothed, but did not require any corn to be delivered with them. The act of 1785 further provides, that if there be tenant for life of lands, or slaves let, or hired to another, if the tenant for life die after the first day of March, the lessee, or person hiring, shall hold the lands and slaves until the last day of December following, paying rent, or hire to that time, and delivering the slaves well clothed : and further, that the rent of land, or hire of slaves shall be apportioned between the executor of the tenant for life, or other uncertain interest, who shall die before the rent or hire becomes due, and the heir, devisee, reversioner, or remainderman,unlessin the case of a devisee the testator shall otherwise direct. See V. L. 1748, c. 3,

tatives, therefore, of the tenant for life shall have the emblements, to compensate for the labour and expence of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the encrease and plenty of provisions, ought to have the utmost security and privilege that the law can give it. Wherefore by the feodal law, if a tenant for life died between the beginning of September and the end of February, the lord, who was entitled to the reversion, was also entitled to the profits of the whole year; but, if he died between the beginning of March and the end of August, the heirs of the tenant received the whole⁰. From hence our law of emblements seems to have been derived, but with very considerable improvements. So it is also, if a man be tenant for the life of another, and cestuy ynevie^ar he on whose life the land is held, dies after the corn sown, the tenant pur outer vie shall have the emblements³. The same is also the rule, if a life-estate be determined by the act of law. Therefore, if a lease be made to husband and wife during coverture, (which gives them a determinable estate for life) and the husband *ows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this case; for the sentence of divorce is the ast of law*. But if an estate for life be determined by the tenant's own act (as, by forfeiture for waste committed; or, if a tenant during widowhood thinks proper to marry) in these, and similar cases, the tenants, having thus determined the estate br their own acts, shall not be entitled to take the emblements'J. The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit, but it is otherwise of fruit-trees, grass, and the like; which are not planted annually at the expence and labour of the tenant, but are either a

o Feud. I. 2. t. 28.

p 5 Hep. 116.

q Co. Litt. 55,

J. 30, 31, 32. Edi. 1769. Acts of 1785, c. 61, $. 43, 44, 45,46. Edi. 1794, c. 92, ^. 46, &c.

Although the words of the above act are general, yet by an act of the same session, it is provided, that widows may bequeath the crops of their ground; as well of their dowers, as of other their lands and tenements. Sessions acts, 1785, c. 65. Edi. 1794, c. 94.

3. Herein I presume the law remains unaltered, in Virginia.

permanent, or natural, profit of the earth^r. For when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of it's being useful to himself in future, and to future successions of tenants. The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII. c. II⁴. For all persons, who are presented to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation.

3. A third incident to estates for life relates to the under, tenants or lessees. For they have the same, nay greater indulgencies than their lessors, the original tenants for life. The same; for the law of estovers and emblements, with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place¹: and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee who is a third person*. As in the case of a woman who holds durante viduitate: her taking husband is her own act, and therefore deprives her of the emblements: but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger and could not prevent her¹. The lessees of tenants for life had also at the common law another most unreasonable advantage ; for, at the death of their lessors the tenants for life, these under-tenants might if they pleased quit the premises, and pay no rent to any body for the occupation of the land since the last quarter day, or other day assigned for payment of rent". To remedy which it is now enacted*, that the

r Co. Litt. 55, 56. 1 Roll. Abr. 728.

s Co. Litt. 55. t Cro Eliz. 461. 1 Roll Abr, 727.

u 10 llep. 127. v Stat. 11 Geo. II. c. 19, Sec. 15

4. This statute is repealed in Virginia. Edi. 1794, c. 147. ' 5. Quaere, If the law dies not i:i this respect remain unaltered, notwithstanding the act of 1785, c. 61. For as that, so far as relates to the emblements growing between the thirty-first of December and the first of March, is unquestionably a hard law, it seems reasonable that it should not be extended beyond the strict letter ; and the case of a lessee of tenant for life seems not to be within it.

executors or administrators of tenant for life on whose death any lease determined, shall recover of the lessee a ratable proportion of rent, from the last day of payment to the death of such lessor".

II. The next estate for life is of a legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct. This happens, where one is tenant in special tail, and a person, from whose body the issue was to spring, dies without issue ; or, having left issue, that issue becomes extinct: in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As, where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue^w ; in this case the man has an estate-tail, which cannot possibly descend to any one ; and therefore the law makes use of this long periphrasis, as absolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant in fee-tail special, that would not have distinguished him from others ; and besides he has no longer an estate of inheritance, or fee^x, for he can have no heirs, capable of taking performam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been stiled tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition, therefore, could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail which he once had, but also states that this possibility is now extinguished and gone.

w Litt. Sec. 32. x 1 Roll. Rep. 184. 11 Rep. 80.

6. The act of 1785, c. 61, declares that the rent in this case shall be apportioned between the executor of the tenant for life, and the person to whom the land shall belong. But it seems defective, in not giving them an action against the lessee of the land. So that the inconvenience which is noticed above still remains, perhaps, without remedy. See Edi. 1794, c. 92, §. 49. But quaere, if the executors may not have a special action on the case against the tenant, founded upon this act ?

This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo »za«rz«0n/V,theyshallneitherofthemhave this estate,butbe barely tenants for life, notwithstanding the inheritance once vested in them''. A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties ; even, though the donees be each of them an hundred years old^z.

This estate is of an amphibious nature, partaking pardy of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but with many of the privileges of a tenant in tail; as, not to be punishable for waste, &?c.»: or, he is tenant in tail, with many of the restrictions of a tenant for life; as, to forfeit his estate if he alienes it in fee-simple ^b : whereas such alienation by tenant in tail, though voidable by the issue, is no forfeiture of the estate to the reversioner : who is not concerned in interest, till all possibility of issue be extinct. But in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life; which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature⁷.

III. Tenant by the curtesy of England, is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee-simple or fee-tail; and has by her issue, born alive, which was capable of inheriting her estate. In this

j Co Lite. 28. z Litt. Sec. 34. Ce. Litt. 28.

a/iW. 27. b/4iV.28.

7. This, as well as every other species of estates tail, was abolished, by the act of October, 1776, c. 26. Edi. 1785, acts of 1785, c. 62. Edi. 1794, c. 90. And it would seem that under the operation of the act for abolishing entails, which includes estates in special, as well as general tail, that the tenant in tail after possibility of issue extinct, would have an estate in fee simple vested in him by that act, notwithstanding what is here said.

case, he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England ^c.

This estate, according to Littleton, has it's denomination, because it is used within the realm of England only; and it is said in the mirrour ^d to have been introduced by king Henry the first; but it appears also to have been the established law of Scotland, wherein it was called curialitas % so that probably our word curtesy was understood to signify rather an attendance upon the lord's court or curtis, (that is, being his vasal or tenant) than to denote any peculiar favour belonging to this island. And therefore it is laid down* that by having issue, the husband shall be entitled to do homage to the lord, for the wife's lands, alone: whereas, before issue had, they must both have done it together. It is likewise used in Ireland, by virtue of an ordinance of king Henry III s. It also appears ^h to have obtained in Normandy; and was likewise used among the antient Almainsor German's¹. And yet it is not generally apprehended to have been a consequence of feodal tenure^k, though I think some substantial feodal reasons may be given for its introduction. For, if a woman seised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to the profits of the lands in order to maintain it: for which reason the heir apparent of a tenant by the curtesy could not be in ward to the lord of the fee, during the life of such .tenant¹. As soon, therefore, as any child was born, the father began to have- a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the curtesy initiate; and this estate being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant.

There are four requisites necessary to make a tenancy by the curtesy; marriage, seisin of the wife, issue, and death of

c Litt. Sec. 35, 52. d c. 1, S«c. 3.

c Crag. 1. 2, «. 19, Sec. 4. f Litt. Sec. 90, Co. Litt. 30,67.

g Pat. 11, H. III, w. 30, in 2 Bac, Abr. 659.

h Grand Coattiim.^. 119. i Lindenbrog. LL. Alman. t. 92.

k Wright, 294. 1 F. N. B. 143.

the wife ^m. 1. The marriage must be canonical and legal⁸. .... 2. The seisin of the wife must be an actual seisin, or possesssion of the lands: not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed. And, therefore, a man shall not be tenant by the curtesy, of a remainder or reversion. But of some incorporeal hereditaments a man may be tenant by the curtesy, though there have been no actual seisin of the wife: as in case of an advowson, where the church has not become void in the life-time of the wife; which a man may hold by the curtesy, because it is impossible ever to have actual seisin of it, and impotentia excusat legem*. If the wife be an ideot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she, herself, has any title; and since she could never be rightfully seised of the lands, and the husband's title depends entirely upon her seisin, the husband can have no title as tenant by the curtesy ° ». 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying, indeed, is the strongest evidence of it's being born alive j but it is not the only evidence p. The issue also must be born during the life of the mother; for, if the mother dies in labour, and the Caesarean operation is performed, the ' husband in this case shall not be tenant by the curtesy: because

m Co. Litt. 30.

o Ibid. 30, Plowd. 263.

n Ibid. 29.

p Dyer, 25, 8 Hep. 34.

8. It certainly is not necessary that a marriage should be canonical in Virginia, to make a tenancy by curtesy. Edi. 1794, c. 104. }. 5, 7, and c. 169, and Sessions Acts of 1796, c. 28. It may also be questioned whether the marriage must be strictly legal: for marriages without licence or publication of banns, are to certain purposes illegal, yet it would seem that the validity of the marriage is not affected thereby, as perhaps it may be England, where the parties are under age. But if the wife be under the age of fourteen years, at the time of her marriage, and shall have been married contrary to the will or consent of her father or guardian, and without legal publication of the banns, and the next of kin enter for the forfeiture, the husband, I apprehend, could not be tenant by the curtesy. See L. V. Edi. 1794, c. 104, §. 15. But, quaere, if there were no entry made by the next of kin ?

9. Perhaps a better reason may be, that an ideot is not capable of contracting marriage, for want of that portion of understanding which is necessary to the completion of all contracts, vide post. p. 130. "

at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child while he was yet in his mother's wombj and the estate being once so vested, shall not afterwards be taken from him i. In gavelkind lands, a husband may be tenant by the curtesy without having any issue^r. But, in general, there must be issue born; and such issue as is also capable of inheriting the mother's estate'. Therefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male'. And this seems to be the principal reason, why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised: because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife; but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seised; and, therefore, as the husband hath never begotten any issue that can be heir to those lands, he shall not be tenantHjf them by the curtesy ^{u 10}. And hence, we may observe, with fibw much nicety and consideration the old rules of law were framed j and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is

q Co. Litt. 29. 8 Litt. Sec. 56: u Mid. 40.

r Ibid. 30. t Co. Litt. 29.

10. Upon similar reasons to these it was a maxim of the common law, that a man should not be tenant by curtesy of an estate, in which the wife at the time of her death was joint-tenant with another person ; because, by the jus accrescendi, or right of survivorship between joint-tenants, the whole estate vested immediately upon her death in the surviving joint-tenant, and the issue of the person dying;, although h were a joint tenancy in fee simple, was forever excluded from the inheritance: therefore, inasmuch as the issue was incapable of succeeding to the estate, the husband was incapable of being tenant by the curtesy .... But the law is now altered in Virginia, by the act of 1786, c. 60. Edi. 1794, c. 24, which took effect July 1, 1787. Since which period estates held in joint-tenancy in Virginia, are subject to curtesy, and dower, and shall in other respects descend and pass to the heirs of the several joint-tenants as if thevjiad been'held in common. '

immaterial, provided it were during the coverture: for, whether it were born before or after the wife's seisin of the lands, whether it be living or dead, at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy ^w. The husband by the birth of the child becomes (as was before observed) tenant by the curtesy initiate ^x, and may do many acts to charge the lands; but his estate is not consummate till the death of the wife " ; which is the fourth and last requisite to make a complete tenant by the curtesy *.

IV. Tenant in dower is where the husband of a woman is seised of an estate of inheritance, and dies ; in this case, the wife shall have the third part of all the lands and tenements whereof he was seised at any time during the coverture, to hold to herself for the term of her natural life²¹².

w Co. Litt. 29 x Ibid. 30. y Ibid. z Litt. §. 36.

11. Where any person, to whose use, or in trust for whose benefit another is seized of lands, tenements., or hereditaments, hath such an estate in the use or trust, as if it were a legal¹ estate, would be subject to curtesy or dower, the husband or wife shall recover curtesy or dower, therein, as if it had been a legal estate. Acts of 1785, c. 62, Edition of 1794, c. 90. In the case of tenant by the curtesy, the law seems to have always been, that he shall be tenant by the curtesy of a trust estate, in some cases where the wife shall not be endowed of such an estate. For if the wife make a mortgage in fee before marriage, the husband shall be tenant by curtesy of the equity of redemption. 1. Atkyns, 603. But if the husband had made a mortgage in fee of his lands, and afterwards married, the wife could not be endowed of this equity of redemption. 1. Brown's rep. in Ch. 328.

12. Lord Coke says, that all kinds of dowers were instituted for the subsistence of the wife, which right of dower is not only a legal, but a moral right; the relation of husband and wife, as it is the nearest, so it is the earliest, and therefore the wife is the proper object of the care and kindness of her husband ; the husband is bound by the law of God and man to provide for her during his life, and after his death the moral obligation is not at an end, but he ought to take care of her provision during her own life. .... This is the more reasonable, as during the coverture she can acquire no property of her own ; .... if before her marriage she had a real estate, this by the coverture ceases to be hers, and the right thereto, whilst she is married vests in the husband; her personal estate becomes his absolutely; so that unless she have a real estate of her pwn, which is the case of but few,

Dower is called in Latin by the foreign jurists doarium, but by Bracton and our English writers dos: which among the Romans signified the marriage portion, which the wife brought to her husband; but with us is applied to signify this kind of estate, to which the civil law, in it's original state, had nothing that bore a resemblance : nor indeed is there any thing in general

she may by his death be destitute of the necessaries of life, unless provided for out of his estate, either by a jointure or dower; as to the husbands personal estate, unless restrained by special custom, which very rarely takes place, he may give it all away from her * ; so that his real estate, if he has any, is the only plank she can lay hold of to prevent her sinking under her distress ; thus is the wife said to have a moral right of dower. .... Dower also is a legal right created by law, which settles the quality of the estate out of which the wife's dower arises, and.likewise settles the quantum thereof. The common law says, a third part is rationabilis dos ; it likewise ascertains dower with respect to the nature and quantity of the husbands estate ; it says it must come out of such an estate as would descend to the issue by that wife, and gives dower of the husband's seisin, though not actual, or reduced into possession. It annexes privileges to dower, as not to be liable to distress for the husband's debt to the king, much less for any due to the subject .... Dower is also an equitable right, and such a one as is a foundation for relief in a court of equity; it arises from a contract made upon a valuable consideration ; marriage being in its nature a civil, and in its celebration a sacred contract; and the obligation is a consideration moving from each of the contracting parties to the other; from this obligation arises an equity to the wife, in several cases, without any previous agreement; as to make good a defective execution of a power, or a defective conveyance ; in which cases the court relieves the wife, and makes a provision for her, where it is not unreasonable, or injurious with respect to others. By the common law, where the husband had an inheritable estate, it was part of the marriage contract that the wife should have her dower, instead of which the general words of endowing with all his worldly goods, in the office of matrimony now in use, have come in : from whence it is to be inferred, that dower is, and time out of mind has been, a part of the marriage contract, when it came to be publickly solemnized, and is therefore, an equitable right founded in contract. .... Sir Joseph Jekyl's (master of the rolls,) argument in the case of Banks and Sutton, 2. p. Wms. 634.

* Though a man can not in Virginia, by his will deprive his wife of her proportion of his personal estate, yet, if so disposed, he may give it all away from her in his lifetime ; and she can have no part thereof until after the payment of his debts, which often swallow up the whole

more different, than the regulation of landed property according to the English and Roman laws. Dower out of lands seems also to have been unknown in the early part of our Saxon constitution ; for, in the laws of king Edmond% the wife is directed to be supported wholly out of the personal estate. Afterwards, as may be seen in gavelkind tenure, the widow became entitled to a conditional estate in one half of the lands ; with a proviso that she remained chaste and unmarried ^b: as is usual also in copyhold dowers, or free bench. Yet some ^c have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we cannot expect any feodal reason for its invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triem, tertia ^d, and dotalitium} by the emperor Frederick the second ^e ; who was contemporary with our king Henry III. It is possible, therefore, that it might be with us the relic of a Danish custom: since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals ^f. However this be, the reason, which our law gives for adopting it, is a very plain and sensible one ; for the sustenance of the wife, and the nurture and education of the younger children &.

In treating of this estate, let us, first, consider, who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and fourthly, how dower may be bar red or prevented.

1. Who may be endowed. She must be the actual wife of the party at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed ; for ubi nullum matrimonium, ibl nulla dos^h. But a divorce a mensa et thoro only

a Wilk. 75. . b Somner. Gavelk. 51. Co. Litt. 33. Bro. Dower. 70,

c Wright. 192. d Crag. /. 2. t. 22. §. 9. , c Hid. f Mod. Un. Hist, xxxii. 91. S Bract. /. 2. c. 39. Co. Litt. 30. h Bract. I. 2. c. 39. §. 4.

doth not destroy the dower'; no, not even for adultery itself by the common law ^k. Yet now by the statute Westm. 2'. if a woman voluntarily leaves (which the law calls eloping from) her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her¹³. It was formerly held, that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the curtesy ^m: but as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot cannot marry, being incapable of consenting to any contract, this doctrine cannot now take place. By the antient law the wife of a person attainted of treason or felony could not be endowed; to the intent, says Staunforde ⁿ, that if the love of a man's own life cannot restrain him from such atrocious acts, the love of his wife and children may: though Britton ° gives it another turn ; viz. that it is presumed the wife was privy to her husband's crime. However, the statute 1 Edw. VI, c. 12, abated the rigour of the common law in this particular, and allowed the wife her dower. But a subsequentstatuteP revived this severity against the widows of traitors, who are now barred of their dower, (except in the case of certain modern treasons relating to the coin i) but not the widows of felons ". An alien also cannot be endowed, unless she be queen consort; for no alien is capable of holding lands'. The wife must be above nine years old at her husband's death, otherwise she shall not be endowed •: though in Bracton's time the age was indefinite, and dower was then only due "«' uxor possit dotem promereri, etvirum sustinere*."

i Co. Litt. 32.

k Yet, among the antient Goths, an adulteress was punished by the Iocs of her dotalitii et trientis ex banis mobilibus viri. (Stiernh. /. 3. c. 2.)

113 Edw. I, c. 34. m Co. Litt. 31.

n P. C. b. 3. c. 3. oc.,110.

p S and 6 Edw. 6. c. 11.

q Stat. 5 Eliz. c. 11. 18Ellz. c. 1. 8 and9 W. III, c. 26. 15 and 16 G«o. 11, c. 28. r Co. Litt. 31.

s Litt. Sec. 36 t /. 2. c. 9. Sec. 3.

13. L. V. 1785, c. 65. Edi. 1794. c. 94. accordant.

14. No forfeiture of dower is incurred in Virginia either by treason or felony, October 1776, c. 3, 1794. c. 74. $. 31. C. U. S. Art. 3. In. U. S. 1 Cong. 2. Sess. c. 9.

2. We are next to inquire, of what a wife may be endowed. And she is now by law entitled to be endowed of all lands and tenements, of which her husband was seised in fee-simple or fee-tail, at any time during the coverture ; and of which any issue, which she might have had, might, by possibility, have been heir^u '*. Therefore, if a man, seised in fee-simple, hath a son by his first wife, and after marries a second wife, she shall be endowed of his lands ; for her issue might by possibility have been heir, on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to him and the heirs of his body begotten on Jane his wife j though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed ; for no issue, that she could have could, by any possibi-

U Litt. Sec. 36,53.

IS. She shall be endowed of one full and equal third part of all the lands, tenements, and other real estate whereof her husband, or any other to his use, was seised of an estate of inheritance at any time during the coverture, to which she shall not have relinquished her right of dower, by deed executed, acknowledged, and recorded in the manner prescribed by law. V. L. 1705, c. 7. 1785, e. 60. Edi. 1794, c. 94.

The wife shall be endowed of an estate of inheritance in which the hnsband, at the time of his death, was joint-tenant with another, which by the common, law she could not be endowed of. 1786, c. 60. • Edi. 1794, c. 24.

When slaves were declared to be real estate in Virginia, the widow was dowable thereof, and might have a writ of dower to recover her right and possession of such slaves. But she was not authorised to carry or send them out of the colony, without consent of him in the reversion, under penalty of forfeiting her whole dower therein. 1705, c. 3. Edi. 1769. But slaves being now personal estate, she has no longer a right of dower therein, but she is nevertheless entitled to an interest resembling dower, inasmuch as her interest is only to the use of the slave during her life. Edi. 1794, c. 92, 103.

By the act of 1785, c. 62. Edi. 1794, c. 90. }. 16, it is further declared, that where any person to whose use, or in trust for whose benefit another is seised of lands, tenements, or hereditaments, hath such an inheritance in the use or trust as, that if it had been a legal estate,

lity, inherit them ^v ("). A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife do\vable ; for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands : which is one reason why he shall not be tenant by the curtesy, but of such lands whereof the wife, or he himself in her right, was actually seised in deed ^w. The seisin of the husband, for a transitory instant only, when the same act which gives him the estate conveys it also out of him again, (as where by a fine, land is granted to a man, and he immediately renders it back by the same fine) such a seisin will not entitle the wife to dower ^x: for the land was merely in transita, and never rested in the husband ; the grant and render being one continued act. But, if the land abides in him, for the interval of but a single moment, it seems that the wife shall be endowed

v Litt. Sec. 53. w Co. Litt. 31. x Cro. Jac. 615. 2 Rep. 67. Co. Litt. 31.

the husband or wife would have been entitled to curtesy, or dower,

they shall have, and may recover curtesy or dower of such lands, &c.

•

In consequence of this act, it would seem that a wife might now be endowed of a trust estate, in some cases where it was formerly held that she could not be endowed. For now, I presume, she should be endowed of an equity of redemption, of which the husband, in a parallel case, would have been tenant by the curtesy. See page 128, note 11. 1 Ath. 603. 1 Brown's Rep. in Ch. 328. So of a trust term against a purchaser, as well as against an heir, which it seems she could not formerly. Shower's Ca. in Park. 69. 2 P. Wms. 639. So of a trust created by the husband himself, which it was held would bar her right of dower, though it was held otherwise if the term were created by another person. 2 P. Wms. 640, 642. So of a trust attending the whole inheritance, as well as of a trust term attending the inheritance. 2 P. Wms. 646. Shower's Ca. in Park. 69 .... See, also, 1 P. Wms. 108, 121, 137. Cases time of Talbot, 138. S-jlk. 291. 1 Atk. 208, 209, 526. In the case last cited, lord Hardwicke lays it down as an established doctrine at that day, that a wife is not dowable of a trust estate; and that she was not dowable of an use before the statute 27 H. 8. c. 10. See, also, 1 Eg. Ca. Abr. Title Dower. 2 Eg. Ca. Title, Dower, and Jointure. 3 P. Wms. 229, 245, 365.

- (15.) But herein the law is now altered, inasmuch as such donee in special tail would now have an absolute and unconditional estate iu fee simple, of which the wife would consequently be enti.led to dower. L. V. Edi. 1794. c. 90. &. 9.

thereof t ^l*. And, in short, a widow may be endowed of all her husband's lands, tenements, and hereditaments, corporeal or incorporeal, under the restrictions before mentioned ; unless there be some special reason to the contrary. Thus, a woman shall not be endowed of a castle, built for defence of the realm ^z: nor of a common without stint; for, as the heir would then have one portion of this common, and the widow another, and both without stint, the common would be doubly stocked ^a. Copyhold estates are also not liable to dower, being only estates at the lord's will; unless by the special custom of the manor, in which case it is usually called the widow's free-bench^b. But, where dower is allowable, it matters not though the husband aliene the lands during the coverture ; for he aliens them liable to dower ^c »⁷.

3. Next, as to the manner in which a woman is to be endowed. There are now subsisting four species of dower; the fifth, mentioned by Littleton ^d, de la phis belle, having been abolished together with the military tenures, of which it was a consequence. 1. Dower by the common law, or that which is before described. 2. Dower by particular custom ^e ; as that- the wife should have half the husband's lands, or in some places the whole, and in some only a quarter, 3. Dower ad ostium eccle-

y This doctrine was extended very far by a jury in Wales, where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became seised of an estate in fee by survivorship, in consequence of which seisin his widow had a verdict for her dower. (Cro. Eliz. 503.

z Co. Lilt. 31. 3 Lev. 401. a Co. Litt. 32. 1 Jon. 315.

b 4 Rep. 22. c Co. Litt. 32.

d Sec 48, 49. e Litt. §. 37.

16. The widow of a mortgagee in fee shall not be endowed of the mortgaged premises, if the mortgage be not foreclosed in the life-time of the husband ; for, until the foreclosure, the mortgage is only in the nature of a pledge. Hardr. 466. Yet it was long doubted, whether the wife of a mortgagee in fee, especially after the day of payment was past, should not be endowed of the mortgaged premises. Post. 158.

17. Unless she renounces her right thereto, and her privy examination be made of record. V. L. 1748, c. 1. Edi. 1794, c. 90. J. 7_; and c. 94.

tiae^f: which is where tenant in fee-simple of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (sir Edward Coke in his translation of Littleton adds) troth plighted between them, doth endow his wife with the whole, or such quantity as he shall please, of his lands ; at the same time specifying and ascertaining the same: on which the wife, after her husband's death, may enter-without farther ceremony. 4. Dower ex assensu patris *; which is only a species of dower ad ostium eccksiae, made when the husband's father is alive, and the son by his consent, expressly given, endows his wife with parcel of his father's lands. In either of these cases, they must (to prevent frauds) be made ^h in facie eccleslae et ad ostium eccksiae ; nonenim valentfacta in lecto mortali, nccin camera, out alibi ubi clandestina fuere conjugia.

It is curious to observe the several revolutions which the doctrine of dower has undergone, since its introduction into England. It seems first to have been of the nature of the dower in gavelkind, before-mentioned; viz. a moiety of the husband's •lands, but forfeitable by inconstancy or a second marriage. By the famous charter of Henry I, this condition, of widowhood and chastity, was only required in case the husband left any issue': and afterwards we hear no more of it. Under Henry the second, according to Glanvil^k, the dower ad ostium eccksiae was the most usual species of dower; and here, as well as in Normandy¹, it was binding upon the wife, if by her consented to, at the time of marriage. Neither in jhose days of feodal rigor, was the husband allowed Jo endow her ad ostium eccksiae with more than the third part of the lands whereof he then was seised, though he might endow her with less ; lest by such liberal endowments the lord should be defrauded of his v/ardships and other feodal profits"¹. But if no specific donation was made at the church porch, then she was endowed by the common law

{ Litt. Sec.39. g Litt. Sec 40.

h Bracton, I. 2 c. 49. Sec. 4.

i 5V mortuo viro uxor ejus rcmamcrit, et tine liberiifuerit, dotam iuam habebit .... si vero uxor cum Itberis renianterit, dotem qutdeiti habebit, duin corf us tuumlegitime tervaverit. (Can. Hen. I. A. D. 1101. Introd. to great charter. edit. Oxon. page iv )

k /. 6. c. 1 y 2. 1 Gr. Couttum. c. 101.

m Bract. /. 2. c, 39. Sec. 6.

of the third part (which was called her dos rationabllls) of such lands and tenements, as the husband was seised of, at the time of the espousals, and no other; unless he specially engaged before the priest to endow her of his future acquisitions": and, if the husband had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dower" in lands which he afterwards acquiredP. In king John's magna carta, and the first charter of Hemy IIIi, no mention is made of any alteration of the common law, in respect of the lands subject to dower: but in those of 1217, and 1224, it is particularly provided, that a widow shall be entitled for her dower to the third part of all such lands as the husband had held in his life-time^r: yet, in case of a specific endowment of less ad ostittm ecdesiae, the widow had still no power to waive it after her husband's death. And this continued to be law, during the reigns of Henry

n De tfiestu suo. (Glunv. ib.} JDe terns acquisitii et acquirendis- (Bract. Hi.} o Glanv. c. 2.

p Whan special endowments were made ad ostiuin ecclesiae, the husband, after affiance made, and troth plighted, used to declare with what specific lands he meant to endow his wife, (ijitadilotateam tie tali manerio cum pfrtinentiis, t9*c. Bract. ibid.) and therefore in the eld York utual (Seld. Ux. Hebr. I 2. c. 27.) there is, at this part of the matrimonial service, the following rubric; " tacerdos interroget doteni mulieris; etsitciraei in doteni dettir, tune dicaturpsalmiis isle, &c." When the wife was endowed generally, fubi quis uxorem suain dataverit in generalise omnibus terriset tenementis; Biact.j'iiW.) the husbandsee'ms to have said," with all m> lands and tenements I thee endow;" and then they all become liable toner dower. When heendowed her with personalty only.he' used to say, " with all my worldly goods (or, as the Salisbury ritual has it, with all my -worldly chattel) I thee endow :" which intitled the wife to her thirds, or pan rational/His, of his personal estate, which is provided for by magna carta, cap. 26. and will be farther treated of in the concluding chapter of this book ; though the retaining this last expression in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which she acquires during coverture, out of her husband's personalty 18.

q A. D. 1215, c. 7. edit. Oxon.

r Assignetur autem ei pro dote sua tertia pars totitis terrae mariti siti quae sua Jiiit in vita sun, niti de minori dotatafeurit adostium ecclesiae. c. 7- (Ibid}.

18. Sir Joseph Jekyl, master of the rolls in England, Anno, 1732, considers these words as giving to the wife, an equitable right of dower, founded in contract. See his argument in the case of Banks and Sutton, 3 P. Wms. 637. See note 12, page 129.

III and Edward I¹. In Henry IV's time it was denied to be law, that a woman*can be endowed of her husband's goods and chattels¹: and, under Edward IV, Littleton lays it down expressly, that a woman may be endowed ad outturn ecclesia with more than a third part"; and shall have her election, after her husband's death, to accept such dower or refuse it, and betake herself'to her dower at common law^w. Which state of uncertainty was probably the reason, that these specific dowers, ad ostium ecclesiae and ex assensu patris, have since fallen into total disuse.

I proceed, therefore, to consider the method of endowment, or assigning dower, by the common law, which is now the only usual species. By the old law, grounded on the feodal exactions, a woman could not be endowed without a fine paid to the lord: neither could she marry again without his licence; lest she should contract herself, and so convey part of the i'cud, to the lord's enemy*. This licence the lords took care to be well paid for; and, as it seems, would sometimes force the dowager to a second marriage in order to gain the fine. But, to remedy these oppressions, it was provided, first by the charter of Henry I y, and afterwards by magna carta*, that the widow shall pay nothing for her marriage, nor shall be distreined to marry afresh, if she chooses to live without a husband; but shall not however marry against the consent of the lord; and farther, that nothing shall be taken for assignment of the widow's dower, but that she shall remain in her husband's capital mansion-house for forty days after his death, during which time her dower shall be assigned¹⁹.

s Bract, ubi mpr. Britton. c. 101, 102. 'Flct. l.S.c. 23. Sec. 11, 12 t P. 7 Hen. IV. 13, 14. u Sec. 39. F. N. B. 150. Sec. 41. x Mirr. c. 1. Sec. 3. y ubi supra.. z cap. 7.

19. Until dower be assigned, the widow may remain in the manlion-house, and plantation thereunto belonging, without being chargeable to the heir to pay any rent for the same, any law, custom, or usage to the contrary notwithstanding. V. L. 1705, c. 7. Edi. 1763 .... Edi. 1794, c. 94. And if she be thereof in the mean time deforced, she shall have a -vicentiel writ, in the nature of a writ de quarentina habcnda, the proceedings on which will be hereafter noted in the third book of the commentaries. If the husband during the coverture

These forty days are called the widow's quarentine,• a term made use of in law to signify the number of forty days, whether applied to this occasion, or any other^a. The particular lands, to be held in dower, must be asssigned^b by the heir of the husband, or his guardian; not only for the sake of notoriety, but also to entitle the lord of the fee to demand his services of the heir, in respect of the lands so holden. For the heir by this entry becomes tenant thereof to the lord, and the widow is immediate tenant to the heir, by a kind of subinfeudation, ^or under-tenancy, completed by this investiture or assignment; which tenure may still be created, notwithstanding the statute of quia emptores, because the heir parts not with the fee-simple, but only with an estate for life. If the heir or his guardian do not assign her dower within the term of quarentine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign it^{c 20}. Or if the heir (being under age) or his guardian assign

a It signifies, in particular, the forty days, which persons coming from infected countries arc obliged to wait, before they are permitted to land in England.

b Co. Litt. 84, 35. c Co. Litt, 34, 35. '

aliene his lands, the wife not consenting thereto, she may have a writ of dower, wide nihil habet, where the whole lands are aliened, or a •writ of rig/it of dower, where a part only have been aliened, against the purchaser. And the same remedy lies for her against the heir, if she be deforced from her dower in the lands descended. Treatise of Dower, 367. V. L. 1794, c. 94.

The ordinary method of assigning dower, in Virginia, is by bill in chancery, in the county courts; this practice probably arose from the method of assigning to widows dower in the slaves of their husbands, pursuant to the act of 1727, c. 4. J 18, which declares that where any person shall have a right to demand dower of slaves, Such person may exhibit a bill in equity for that purpose; and the court before whom the bill shall be exhibited may compel the defendants to answer, and may proceed upon such bill and answer, although any of the defendants may be under twenty-one years of age according to the course and rules of equity, and shall make such decree for the assignment of such dower in such manner as shall be most agreeable to equity : and such asssignment of dower shall be as effectual as if the same were in the ordinary methods of the common law. Edition of 1769.

20. Or, she may remain in the mansion-house, and plantation without paying any vent for it, until her dower be assigned, at her election. V. L. 1705, c.' 7. Edi. 1794, c. 94.

more than she ought to have, it may be afterwards remedied by writ of admeasurement of dower ^d. If the thing of which she is endowed be divisible, her dower must be set out by metes and hounds ; but if it be indivisible, she must be endowed specially ; as of the third presentation to a church, the third toll-dish of a mill, the third part of the profits of an office, the third sheaf of tithe, and the like^c.

Upon preconcerted marriages, and in estates of considerable consequence, tenancy in dower happens very seldom: for, the claim of the wife to her dower at the common law diffusing itself so extensively, it became a great clog to alienations, and was otherwise inconvenient to families. Wherefore, since the alter-

•ation of the antient law respecting dower ad ostium ecclesiae, which hath occasioned the entire aisuse of that species of dower, jointures ²¹ have been introduced in their stead, as a bar to the claim at common law. Which leads me to inquire, lastly,

4. How dower may be barred or prevented. A widow may be barred of her dower not only by elopement, divorce, being an alien, the treason of her husband, and other disabilities before-mentioned²², but also by detaining the title deeds, or evidences of the estate from the heir, until she restores them ^f: and, by the statute of Glocester e, if a dowager alienes the land assigned her

d F. N. B. 148. Finch. L. 314. Stat. Westm. 2. 13 Edw. I. c. 7. e Co. Litt 32. f Kid. 39. g 6 Edw. I. c. 7-

• 21. Jointur .s are very rare in Virginia, consequently the right of dower occurs in almost every case where a man leaves a widow in this country, where land is so abundant, that very few men of any substance are wholly without some property therein, of which the

•wife may be endowed.

22. See notes 13 and 14, p. 130,131 .... also, if any widow possessed of a slave or slaves, as of the dower of her husband, shall remove or voluntarily permit to be removed out of the commonwealth such slave or slaves, or any of their increase without the consent of him or her in reversion, such widow shall forfeit all and every such slave or slaves, and all other the dower, which she holds of the endowment of her husband's estate, unto the person or persons that shull have the reversion thereof, any law, custom or usage to the contrary notwithstanding. And if the husband of such widow shall do the like,

for dower, she forfeits it ipso facto, and the heir may recover it by action^a3. A woman also may be barred of her dower, by levying a fine, or suffering a recovery of the lands, during her coverture¹¹²⁴. But the most usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII. c. 10.

A jointure, which, strictly speaking, signifies a joint estate, limited to both husband and wife, and in common acception, extends also to a sole estate, limited to the wife only, is thus defined by sir Edward Coke'; " a competent livelyhood of freehold for the wife, of lands and tenements j to take effect, in profit or possession, presently after the death of her husband; for the life of the wife at least." This description is framed from the purview of the statute 27 Hen. VIII. c. 10, beforementioned ; commmonly called the statute^of ws«, of which we shall speak fully hereafter. At present I have only to observe, that before the making of that statute, the greatest part of the land of England was conveyed to uses: the property or possession of the soil being vested in one man, and the use, or profits thereof, in another j whose directions, with regard to the disposition thereof, the former was in conscience obliged to follow, and might be compelled by a court of equity to observe. Now, though a husband had the use of lands in absolute fee-simple, yet the wife

h Pig. of recov. 66.

i 1 inst. 36.

he in the reversion may enter into, possess, and enjoy all the estate which such husband holdeth in right of his wife's dower, for and during the life of the said husband .... V. L. 1705, c. 3. Edi. 1769. 1785, c. 61. Edi. 1794, c. 103. Sec. 44.

23. This statute is repealed. V. L. Edi. 1794, c. 147. But if a tenant by the curtesy,ov tenant in dower, commit waste in the houses, woodsy or any other thing belonging to the tenements so held, without special licence in writing so to do, they shall be subject to an action of waste, and moreover lose, the thing wasted, and recompence the party injured in three times the amount of the damages assessed. L. V. 1794, c. 139.

24. But in this case she must be a party to the fine, consequently her consent must be of record .... but fines and recoveries may be considered as obsolete in Virginia j they were formerly prohibited, where the intent was to bar an estate tail .... but that prohibition may now be considered as at an end. See V. L. 1710, c. 13. 1748, c. 1.

was not entitled to any dower therein; he not being seised thereof: wherefore it became usual, on marriage, to settle by express deed some special estate to the use of the husband and his wife, for their lives in joint-tenancy, or jointure ; which settlement would be a provision for the wife in case she survived her husband. At length the statute of uses ordained, that such as had the use of lands, should, to all intents and purposes, be reputed and taken to be absolutely seised and possessed of the soil itself³*. In consequence of which legal seisin, all wives would have become dowable of such lands as were held to the use of their husbands, and also entitled at the same time to any special' lands that might be settled in jointure: had not the same statute provided that upon making such an estate to the wife before marriage, she shall be for ever precluded from her dower^{k 26}. But then these four requisites must be punctually observed, 1. The jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur outer iiie, or for any term of years, or other smaller estate. S."~It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be (a)²⁷ in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband's death, as in dower adostium ecclesiae, and may either accept it, or refuse it and betake herself to her dower at common law; for she was not capable of consenting to

k 4 Rep. 1,2.

(a) Or it may be averred to 6e, Co. Litt. 36. b. 4 Rep. 3. An assurance wasmade to a woman, to the intent it shouldbe for her jointure, but it was not so expressed in the deed. And the opinion of the court •was, that it might be averred that it was for a jointure, and that such averment was traversable. Owen, 33. (*).

(») L. V. 1785, c. 65. Edi. 1794, c. 94, agree herewith.

25. L. V. 1785, c. 62. Edi. 1794, c. 90. J. 14. Accordant.

26. L. V. 1785, c. 65. Edi. 1794, c. 94. Accordant. , 27. And if not so expressed, itjmay be averred. L. V, 1785, c. 65. Edi. 1794, c. 94.

it during coverture*. And if, by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statute) have her dower pro tanto at the common law^{1 J8}.

There are some advantages attending tenants in dower that do not extend to jointresses ; and so vice versa, jointresses are in some respects more privileged than tenants in dower.

1 These settlements, previous to marriage, seem to have been in use among the antient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account. " Datum non uxor marito, sed ttxari maritus affert: " intersunt parentes et propinqui, et munera probant." (demar. Germ. c. 1S.J And Cssar (de hello Galileo, I. 6. c. 18.) has given us the terms of a marriage settlement among the Gauls, as nicely calculated as any modern jointure. Yiri, quantas petunias nbuxoribus dotis nomine ticcepentnt, tantcis ex suis bonis aeitimationefacta, cum ctotibus communicant. Hujus amnis pecuniae conjunctiin ratio ha!>etur,fructusque servantar. Uter eonan vita juperavit, odeum pars utriusque cum fructibus superiorum temporum pcnxnit." The dauphin's commentator on Ciesar supposes that this Gaulish custom was the ground of the new regulations made by Justinian (~Nov. 79.) with regard to the provision for widows among the Romans ; but surely there is as much reason to suppose, thai it gave the hint for our statutablcjointures.

* And where a devisee is expressed tobe given in lieu and satisfaction of dower, or where that is, the clear and manifest intention oi the testator, the \vife shall not have both, but shall have her choice, Harg. Co. Lift. 36. 6.

28. In addition to these statutory provisions, with which our law agrees, it is declared, that when any conveyance intended to be in lieu of dower, shall, through any defect, fail to be a legal barthereto, and the widow availing herself of such defect, shall demand her dower, the estate and interest conveyed to such widow, with intention to bar her dower, shall thereupon cease and determine. V. L. 1785, c. 6$. Ecli. 1794. c. 94.

The act of 1727, c. 4, provided that a widow not satisfied with the provision made for her by her husband's will, might within nine months, by deed, executed before two witnesses, or by declaration made before the court where the will should be proved, renounce all benefit and advantage which she might claim under such will, and thereupon might recover her dower of the husband's slaves, itli her distributaable share of his personal estate ; but if such declaration be not made within that time, she was thereby barred to claim any other /tart of her husband's estate than was given or bequeathed by such will. It

Tenant in dower by the old common law is subject to no tolls or taxes²⁹; and hers is almost the only estate on which, when derived from the king's debtor, the king cannot distrein for his debt; if contracted during the coverture"^{1 3o}. But, on the other hand, a widow may enter at once, without any formal process, on her jointure land ; as she also might have done on dower ad ostium ecclesiae, which a jointure in many points resembles; and the resemblance was still greater, while that species of dower continued in it,'s primitive state : whereas no small trouble, and a very tedious method of proceeding, as necessary to compel a legal assignment of dower"³¹. And, what is more, though dower be forfeited by the treason of the husband³², yet lands settled in jointure remain unimpeached to the widow". Wherefore sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiae, the most eligible species of any.

m Co. Litt. 31. a. F. N. B. 150. n Kill. 36. o Ibid. 37

seems to have been a popular opinion, that under these general words, she was bar.red of her dower in lands, unless she renounced all benefit under the will. But that the act ought not to be construed to extend to lands, we have the authority of the present chancellor. Wythe's Rep. in Chanc. 11, in notis. The law is still the same in respect to slaves and personal estate, except that the declaration of the widow may now be made within one year. V. L. 1785, c. 61. Edi. 1794, c. 92. \. 25.

29. Herein the common law seems to be obsolete in Virginia.

30. By the act of 1787, c. 40. The lands and tenements of public collectors, and their securities may be taken and sold in execution upon all judgments obtained in behalf of the commonwealth after the first of January, 1788.; there is no reservation of the right of dower in that act, which was re-enacted in 1792. See Edi. 1794, c. 84. J. 9. On the other hand, the act concerning dower, which was re-enacted in the same session, gives the wife dower in all the estates of inheritance, of which the husband was seized during the coverture, to which, she has not relinquished her right of dower. Edi. 1794, c. 94.

31. For these the student must, for the present, be referred to the third volume of the commentaries, p. 183, 194 ; as also to the Edi, 1794, c. 94.

32. See note 14. p. 131.

CHAPTER THE NINTH.

OF ESTATES LESS THAN FREEHOLD.

OF estates that are less than freehold, there are three sorts i 1. Estates for years: 2. Estates at will: 3. Estates by suflerance.

I. An estate for years is a contract for the possession of lands or tenements, for some determinate period: and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee*, and the lessee enters thereon^b. If the lease be but for Haifa year, or a quarter, or any less time, this lessee is respected as a tenant for years, and is stiled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of^c. And this may, not improperly, lead us into a short digression, concerningthe division and calculation of time by the English law.

The space of a year is a determinate and well-known period, consisting commonly of 365 days: for,though in bissextile or leap years it consists properly of 366, yet by the statute 21 Hen. III. the increasing day in the leap-year, together with the preceding

a We may here remark, once for all, that the terminations of " .... or" and " ...ee" obtain, in law, the one an active, the other a passive signification; the former usually denoting the doer of any act, the latter him to whom it is done, The feoffer is he that maketh a feoffment j the feoffee is he to whom it is made: the donor is one that giveth lands in tail; the donee is he who receiveth it: he thatgranteth alease is denominated the lessor; and he to whom it is granted the lessee. (Litt. Sec. 57.)

b Ibut. 58. <. Ibid. ST.

day, shall be accounted for one day only^l. That of a month is more ambiguous : there being, in common use, two ways of calculating months ; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make a year: or, as calendar months of unequal lengths, according to the Julian division in our common almanacs, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; not only because it is alw ays one uniform period, but because it falls naturally into a quarterly division by weeks. Therefore, a lease for " twelve months" is only for forty-eight weeks j but if it be for " a twelvemonth" in the singular number, it is good for the whole year^d. For herein the law recedes from it's usual calculation, because the ambiguity between the two methods of computation ceases ; it being generally understood that by the space of time called thus, in the singular number, .a twelvemonth, is me'ant the whole year, consisting of one solar revolution. In the space of a day all the twenty-four hours are usually reckoned; the law generally rejecting all fractions of a day, in order to avoid disputes'. Therefore, if I am bound to pay money on any certain day, I discharge the obligation if I pay it before twelve o'clock at night; after which the following day commences. But to return to estates for years.

These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords; but, in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will

d 6 Rep. 61.

e Co. Litt. 135.

1, This statute stands repealed by the general law repealing all British statutes, Edi. 1794, c. 147. The committee of revisors appointed in 1776, reported-a bill for " regulating the commencement of the year and the computation of time," which never passed in the general assembly. The present popular mode of computing time in Virginia is founded upon a British statute passed in the year 1752, for the alteration of the stile. As no act of parliament subsequent to the 4th of Jas. I. is admitted to be in force here, some legislative provision on the subject seems necessary.

of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the bailiffs or servants of the lord, who were to receive and account for the profits at a settled price, than as having any property of their own. And, therefore, they were not allowed to have a freehold estate: but their interest (such as it was) vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and his other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, by the antient law, be at any time defeated by a common recovery suffered by the tenant of the freehold^f; which annihilated all leases for years then subsisting, unless afterwards renewed by the recoveror, whose title was supposed superior to his by whom those leases were granted.

While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and indeed we are told « that by the antient law no leases for more than forty years were allowable, because any longer possession (especially when given without any livery declaring the nature and duration of the estate) might tend to defeat the inheritance. Yet this law, if ever it existed, was soon antiquated ; for we may observe, in Madox's collection of antient instruments, some leases for years of a pretty early date, which considerably exceed that period^h; and longterms, for three hundred years or a thousand, were certainly in use in the time of Edward III', and probably of Edward I^k. But certainly, when by the statute 21 Hen. VIII. c. 15*,'the termor (that is,he who is entitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before ; and were afterwards extensively introduced, being found extremely convenient

f Co. Litt. 46. g Mirror, c. 2. Sec. 27. Co. Litt. 45, 46.

h MzdoxFormulare Anglican, no. 239,/o/. 140. Demise for eighty years, 22 Ric. \l .... Ibid. no. 245, fat. 146, for the like term. A. D. 1429 .... /AiW, no. 248,/o/ 148, for fifty >cars, 7 Edw. IV.

i 32 Ass. pi. C. Bro. abr. t. inonlaumestar, 42, spoliation, 6.

k Stat, of mortmain, 7 Edw. I,

2. This statute is now repealed. V. L. Edi. 1794, c. 147.

for family settlements and mortgages: continuing subject, however, to the same rules of succession, and with the same inferio- 143 rity to freeholds, as when they were little better than tenancies at the will of the landlord.

Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And therefore this estate is frequently called a term, terminus, because it's duration or continuance is bounded, limited, and determined : for every such estate must have a certain beginning, and certain end¹. But id cerium est, quod certum reddi potest: therefore if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years™; for though it is at present uncertain, yet when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this, estate, it begins from the making, or delivery, of the lease". A lease for so many years as J. S. shall live, is void from the beginning⁰; for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he should so long continue parson, is good p : for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S. or his ceasing to be parson there.

we have before remarked, and endeavoured to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estsate for life, even if it be pur outer vie, is a freehold; but that an estate for a thousand years is only a chattie, and reckoned part of the personal estate «. Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life cannot. As if I grant lands to Titius to hold from Michaelmas next for twenty years, this is good; but

1 Co. Litt. 45. n Co. Litt, 46, p Hid.

hi 6 Rep. 35. o Co Litt. 45. q Ibid. 46.

to hold from Michaelmas next for the term of his natural life, is void. For no estate of freehold can commence in futuro; because it cannot be created at common law without livery of setsin, or corporal possession of the land: and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter'. And, because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised, or to have true legal seisin of the lands. Nor indeed does the bare lease vest any estate in the lessee; but only gives him a right of entry'on the tenement, which right is called his interest in the term or interesse termini: but when he has actually so entered, and thereby accepted the grant,' the estate is then, and not before, vested in him, and he is possessed, not properly of the land, but of the term of years⁸; the possession or seisin of the land remaining still in him who hath the freehold. Thus the word, term, does not merely signify the time specified in the lease, but the estate also and interest that passes by that lease ; and therefore the term may expire, during the continuance of the time ; as by surrender, forfeiture, and the like. For which reason, if I grant a lease to A for the term of three years, and after the expiration of the said term to B for six years, and A surrenders or forfeits his lease at the end of one year, B's interest shall immediately take effect: but if the remainder had been to B from and after the expiration of the said three years, or from and after the expiration of the said time, in this case B's interest will not commence till the time is fully elapsed, whatever may become of A's term*.

Tenant for term of years hath incident to and inseparable from his estate, unless by special agreement, the same estovers, which we formerly observed™ that tenant for life was entitled to; that is to say, house-bote, fire-bote, plough-bote, and hay-bote^w ; terms which have been already explained".

With- regard to emblements, or the profits of lands sowed by tenant for years, there is this difference between him, and tenant

r 5 Rep. 94, t Co. Litt. 45. w Ibid. 45.

s Co. Litt. 46. u page 122. x page 35.

for life: that where the term of tenant for years depends upon a certainty, as if he holds from midsummer for ten years, and in the last ) ear he sows a crop of corn, and it is not ripe and cut before midsummer, the end of his term, the landlord shall have it; for the tenant knew the expiration of his term, and therefore it was his own folly to sow what he never could reap the profits oiV. But where the lease for years depends upon an uncertainty ; as, upon the death of the lessor, being himself only tenant for life, or being a husband seised in right of his wife ; or if the term of years be determinable upon a life or lives ; in all these cases, the estate for years not being certainly to expire at a time foreknown, but merely by the>act of God, the tenant, or his executors, shall have the emblements in the same manner that a tenant for life, or his executors, shall be entitled thereto * ³. Not so, if it determine by the act of the party himself: as if tenant for years does any thing that amounts to a forfeiture: in which case the emblements shall go to the lessor, and not to the lessee, who hath determined his estate by his own default*.

II. The second species of estates not freehold, are estates at will. An estate at will is where lands and tenements are let by one man to another, to have and to hold, at the will of the lessor; and the tenant by force of this lease obtains possession¹¹. Such tenant hath no certain indefeasible estate, nothing that can be assigned by him to any other; because the lessor may determine his will, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant; so that either of them may determine his will, and quit his connexions with the other at his own pleasure ^c. Yet this must be understood with some restriction. For, if the tenant at will sows his land, and the landlord before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits ^d. And this for the same reason, upon which all the cases of emblements turn; viz. the point of uncertainty ;

y Litt. Sec. 68. a Co. Litt. 55. c Ibid. 55.

z Co. Litt. 56. b Litt. Sec. 68. d Ibid. 56.

3 See note 2. p. 122, and note 5. p. 124. vol. in. Y

since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land; which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will j for in this case the landlord shall have the profits of the land".

What act does, or does not, amount to a determination of the will on either side, has formerly been matter of great debate in our courts. But it is now, I think, settled, that (besides the express determination of the lessor's will, by declaring that the lessee shall hold no longer; which must either be made upon the land ^f, or notice must be given to the lessee 8) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber ^h, taking a distress for rent and impounding it thereon *, or making a feoffment, or lease for years of the land to commence immediately ^k j any act of desertion by the lessee, as assigning his estate to another, or committing waste, which is an act inconsistent with such a tenure '; or, which is instar omnium, the death or outlawry of either lessor or lessee ^m ; puts an end to, or determines the estate at will.

The law is however careful, that no sudden determination of the will by one party, shall tend to the manifest and unforeseen prejudice of .the other. This appears in the case of emblements before-mentioned ; and, by a parity of reason, the lessee, after the determination of the lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils ⁿ. And, if rent be payable quarterly or half yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half-year °. And, upon the same principle, courts of law have of late years leaned as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will j but have rather held them to be tenancies from

e Co. Litt. 55. g 1 Vcntr. 248. i Co. Litt. ST. J Kid. 55. n Litt. Sec. 69.

f Co. Litt. 55.

\\Md.S5.

k 1 Roll. Abr. 860. 2. Lev. 88.

m Rep 116. Co. Litt. 57, 62,

o Salk. 414. 1 Sid- 339.

year to year so long as both parties please, especially where an annual rent is reserved: in which case they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other, which is generally understood to be six months f.

There is one species of estates at will that deserves a more particular regard than any other; and that is, an estate held by copy of court roll: or, as we usually call it, a copyhold estate ⁴. This, as was before observed 1, was in it's original and foundation nothing better than a mere estate at will. But, the kindness and indulgence of successive lords of manors having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts ; therefore, though they still are held at the will of the lord, and so are in general expressed in the court rolls to be, yet that will is qualified, restrained, and limited, to be exerted according to the custom of the manor. This custom, being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same, and no other, that has time out of mind been exercised and declared by his ancestors. A copyhold tenant is therefore now full as properly a tenant by the custom, as a tenant at will: the custom having arisen from a series of uniform wills. And therefore it is rightly observed by Calthorpe^r, that " copyholders and customary tenants differ not so much in nature as in name : for although some be called copyholders, some customary, some tenants by the virge, some base tenants, some bond tenants, and some by one name and some by another; yet do they all agree in substance and kind of tenure : all the said lands are holden in one general kind, that is, by custom and continu-

p This kind of lease was in use as long ago as the reign of Henry VIII. when half a year's notice seems to have been required to determine it. (T. 13 Hen. VIII. 15,16.)

q page 93. r On copyholds, 51, 54.

4. There are no cofiyhold estates in Virginia, as has'been already noticed. Note 17, page 90.

" ance of time ; and the diversity of their names doth not alter " the nature of their tenure."

Almost every copyhold tenant being therefore thus tenant at. the will of the lord according to the/ustom of the manor ; which customs differ as much as the humour and temper of the respective antient lords, (from whence we may account for their great variety) such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of interest, which we have hitherto considered, or may hereafter consider, and hold them united with this customary estate at will. A copyholder may, in many manors, be tenant in fee-simple, in fee-tail, for life, by the curtesy, in dower, for years, at sufferance, or on condition : subject however to be deprived of these estates upon • the concurrence of those circumstances which the will of the lord, promulged by immemorial custom, has declared to be a forfeiture or absolute determination of those interests; as in some manors the want of issue male, in others the cutting down timber, the non-payment of a fine, and the like. Yet none of these interests amount to freehold j for the freehold of the whole manor abides always in the lord only⁸, who hath granted out the use and occupation, but not the corporeal seisin or true legal possession, of certain parcels thereof, to these his customary tenants at will.

The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord's will, seems to have arisen from the nature of villenage tenure ; in which a grant of any estate of -freehold, or even for years absolutely, was an immediately enfranchisement of the villein¹. The lords therefore, though they were willing to enlarge the interest of-their villein's, by granting them estates which might endure for their lives, or sometimes be descendible to their issue yet not caring to manumit them entirely, might probably scruple to grant them any absolute freehold ; and for that reason it seems to have been contrived, that a pow-

c Litt. Sec. 81. 2 Inst. 325. t Mirr. c. 2, Sec. 28. Lilt. Sec. 204, S, 6.

er of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands: and of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposed it still to continue and remain in the lord. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing their .usual services, but yet continued to be stiled in their admissions tenants at the will of the lord .... the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest: and therefore continued and now continues to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for though he really holds to him and his heirs for ever, yet he is also said to hold at another's will. But with regard to certain other copyholders, of free or privileged tenure, which are derived from the antient tenants in villein-socage ^u, and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity in allowing them to be capable of enjoying a freehold interest: and therefore the law doth not suppose the freehold of such lands to rest in the lord of whom they are holden, but in the tenants themselves ^v; who are sometimes called customary freeholders, being allowed to have a freehold interest, though not a freehold tenure.

However, in common cases, copyhold estates are still ranked (for the reasons above-mentioned) among tenancies at will ; though custom, which is the life of the common law, has established a permanent property in the copyholders, who were formerly nothing better than bondmeni equal to that of the lord himself, in the tenements holden of the manor : nay sometimes even superior; for we may now look upon a copyhold of inheritance, with a fine certain, to be little inferior to an absolute

u See page 98, f3"c.

v Fitz. Alir. tit. corone. 310. custom. 12. Bra. Mr. tit. custom. 22,17. tenant par topic. 22. 9 Rep. 76. Co. Litt. 59. Co. Copyh. Sec. 32. Cro. Car. 229. IRqll. Abr. 562. 2 Vcntr. 143 Carth. 432.Lord Raym. 1225.

freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.

III. An estate at sufferance, is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and, after the year is expired, continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man maketh a lease at will, and dies, the estate at will is thereby determined ; but if the tenant continueth possession, he is tenant at sufferance ^w *. But, no man can be tenant at sufferance against the king, to whom no laches, or neglect, in not entering and ousting the tenant, is ever imputed by law: but his tenant, so holding over, is considered as an absolute intruder *. But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands and oust the tenant: for, before entry, he cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger ?: and the reason is, because the tenant being once in, by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful; unless the owner of the land by some public and avowed, act, such as entry is, will declare his continuance to be tortious, or, in common language, wrongful.

Thus stands the law, with regard to tenants by sufferance; and landlords are obliged in these cases to make formal entries upon their lands^l, and recover possession by the legal process of ejectment: and at the utmost, by the common law, the tenant •was bound to account for the profits of the land so by him detained. But now, by statute 4 Geo. II. c. 28, in case Any tenant

•w Co. Litt. 57. y Ibid.

y. Ibid.

i 5 Mod. 384-

* A lease at will being now considered a lease from year to year, which cannot be vacated without half a year's notice to quit, upon the death of the lessor the tenant cannot be ejected without half a year's notice from his heir. 2. !T. J?. 159. And it has also been decided, that it is necessary to give that notice to the personal representative of the lessee. 3 Wits. 25.

for life or years or other person claiming under or by collusion with such tenant, shall wilfully hold-over after the determination of'the term, and demand made and notice in writing given, by him to whom the remainder or reversion of the premises shall belong, for delivering the possession thereof; such person, so holding over or keeping the other out of possession, shall pay for the time he detains the lands, at the rate of double their yearly value. And, by statute 11 Geo. II. c. 19, in case any tenant, having power to determine his lease, shall give notice of his intention to quit the premises, and shall not deliver up.the possession at the time contained in such notice, he shall thenceforth pay double the former rent, for such time as he continues in possession⁵. These statutes have almost put an end to the practice of tenancy by sufferance, unless with the tacit consent of the owner

of the tenement.

\

5. These statutes were never in force in Virginia, nor have we any similar provision in our code, a circumstance jvhich merits the attention of the legislature.

CHAPTER THE TENTH.

OF ESTATES UPON CONDITION.

BESIDES the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate -upon condition; being such^vhose existence depends upon, the happening or not happening of some uncertain event, whereby the estate maybe either originally created, or enlarged, or finally defeated¹.) And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves ; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then upon condition, thus understood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed: under which last may be included, 3. Estates held in vadio,gage, or pledge: 4. Estates by statute merchant or statute staple: 5. Estates held by elegit.

I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably, from it's essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office¹", on breach of which condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person⁰. For an office, either public or private, may be forfeite.d by mis-user or non-user, both of which are breaches of this implied condition. 1. By misuser, or abuse: as if a judge takes a bribe_, ora park-keeper

a" Co. Litt. 201.

b Litt. Sec. 378.

' c Litt. Sec. 379. ,

kills deer without authority. 2. By non user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture : but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby ^d. For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention : but, private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief: upon which account some special loSs must be proved, in order to vacate these. Franchises^l also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them ; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect'.

Upon the same principle proceed all the forfeitures which are given by law of life estates and otfiers; for any acts done by the tenant himself, that are incompatible with the estate which he holds. • As if tenants for life or years enfeoff a stranger in fee-simple : this is, by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz. that they shall not attempt to create a greater _f estate than they themselves are entitled to^{f 2}. So if any tenants^ for years, for life, or in fee, commit a felony; the king or other _t lord of the fee is entitled to have their tenements, because their estate is determined by the breach of the condition, " that theyj

d Co. Lilt. 233. f Co. Litt. 215.

e 9 Rep. 50.

1. Franchises (in the sense here spoken of) were totally abolished in Virginia, at the revolution. See Bill of Rights, art. .4.

2. AH alienations and warranties of lands made by any person, purporting to pass or assure a greater right or estate than such person may lawfully pass or assure, shall operate as alienations or warranties of so much of the right and estate in such lands, as such person might lawfully convey, but shall not pass or bar the residue of the said right or estate purported to be conveyed or assured. V. L. 1785, c. 67. Edi. 1794, c. 13. Quere, whether the common law, as to the forfeiture be not thereby repealed ?

" shall not commit felony," which the law tacitly annexes to every feodal donation ³.

II. An estate on condition expressed in the grant itself, is where an estate is granted, either in fee-simple or otherwise^ with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition s. .... These conditions are therefore either precedent, or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a precedent condition, and till that happens no estate¹' is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee-simple passeth not till the hundred marks be paid'. But if a man grant an estate in fee-simple, reserving to himself and his heirs a certain -rent; and, that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate: in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed ^k. To this class may also be referred all base fees, and fee-simples conditional at the common law' ⁴. Thus an estate to a man and his heirs tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor.

g Co. Litt. 201. h Show. Parl. Cas. 83, &c.

i Co. Lilt. 217. k Litt. Sec. 325. 1 See pag. 109,110, 111.

3. No forfeiture ensues upon conviction of any felony, nor evei) of treason, in Virginia, or under the federal government. L.V. Edi. 1776, c. 3, Edi. 1794, c. 74, $ 31. C.U. S. Art. 3. L. U. S. 1 Cong. 2. Sess. c.9. .But where the owner of lands neglects to pay the taxes thereon for three years, this operates as a forfeiture under our present laws, 1790, c. 5. Edi. 1794, c. 83. Sec. 34,35, and L. U. S. 5. Cong. c. 92.Sec. 13. And this seems to be upon the principle implied in every government, that those who enjoy property under it, shall contribute to support it.

4. Of this kind were the conditions of seating and planting all lands granted by the crown, within a limited time, inserted formerly in all patents in this country ; such also were the conditions contained

And so, if a personal annuity be granted at this day to a man and the heirs of his bodyj as this is no tenement within the statute of Westminster the second, it remains, as at common law, a fee-simple on condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the eighth chapter: as duran'e viduitate, £s?c. these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of these subsequent conditions, by the failure of these contingencies; by the grantees's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole ; the estates which were respectively vested in each grantee are wholly determined and void.

A distinction is however made between a condition In deed and a limitation, which Littleton ^m denominates also a condition in law. For when an estate is so expressly confined and limited by the words of it's creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation : as when land is granted to a man, so long as he is parson of Dale, or while he continues unmarried, or untill out of the rents, and profits he shall have made 50O/. and the like". In such case the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the 500/.) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 4O/. by the grantor, or so that »the grantee continues unmarried, or provided he goes to York, &?c.°) the law permits it to endure beyond the time when such

m Set. "80. 1 Inst. 234. n 10 Rep. 41. o Kid. 42.

in Lord Fairfax's grants, containing a clause of forfeiture in case the quit-rents should not be paid for two years together. All persons holding lands under grants from tfie crown are .discharged from the former by the act of May 1779, c. 13. Edi. 1785 .... The act of 1? 85, c. 47, likewise declares that the landholders in the northern neck shall be forever thereafter discharged from composition, and quit-rents.

contingency happen?, unless the grantor or his heirs or assigns •take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate ?. Yet, though strict words of condition be used in the creation of the estate, if on breach of the condition the estate be limited over to a third person, and does not, immediately revert to the grantor or his representatives, (as if an estate be granted by A to B, on condition that within two years B intermarry with C, and on failure thereof then to D and his heirs) this the law construes to be a limitation and not a condition 1 : because, if it were a condition, then, upon the breach thereof, only A or his representative* could avoid the estate by entry, and so D's remainder might be defeated by their neglecting to enter ; but, when it is a limitation, the estate of B determines, and that of D commences, and he may enter on the lands, the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he pays a sum of money, and for non payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition' ^J.

In all these instances, of limitations or conditions subsequent, it is to be observed, that so long as the condition, either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in itself of a freehold nature ; as if the original grant express either an estate of inheritance, or for life, or no estate, at all, which is constructively an estate for life. For the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold •; because the estate is capable to last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken.

p Litt. Sec. 347. Sta t. 32 Hen. VIII. c. 34.

q 1 Ventr. 202. r Cro. Eliz. 205. 1 Roll. Abr. 411.

s Co. Litt. 42.

5. The case of Gulliver on the demise of Corrie, alias Wykes vs. Ashby, contains much information on this subject. 4. Burr. 1929. 2. Blacks, rep. 607. See also Co. Litt. 214.

But where the estate is at the utmost a chattel interest, which muit determine at a time certain, and may determine sooner, (as a grant for ninety-nine years, provided A, B, and C, or the survivor of them, shall so long live) this still continues a mere chattel, and is not, by such it's uncertainty, ranked among estates of freehold.

These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself, or if they be contrary to law, or repugnant to the nature of the estate, are void. In any of which cases, if they be conditions subsequent, that is, to be 'performed after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to,a man in fee-simple, on condition that unless he goes to Rome in twenty-four hours; or unless he marries with Jane S. by such a day; (within which time the woman dies, or the- feoffor marries her himself) or unless he kills another; or in case he alienes in fee; that then and in any of such cases the estate shall be vacated and determine: here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant'. Sat if the condition be precedent, or to be performed before the estate vests, as a grant to a man that, if he kills another, or goes to Rome in a day, he shall have an estate in fee ; here, the void condition being precedent, the estate which depends thereon, is also void, and the grantee shall take nothing by the grant: for he hath no estate until the condition be performed °.

There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are

III. Estates held in vadio, in gage, or pledge; which are of two kinds vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage.

Vivum vadium, or living pledge, is when a man borrows a Bum (suppose 200/.) of another; and grants him an estate, as, of t Co. Litt. 206. u Ibid.

201. per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void, as soon as such sum is raised. And in this case the land or pledge is said to be living: it subsists, and survives the debt; and, immediately on the discharge of that, results back to the borrower". But mortuitm vadium, a dead pledge, or mortgage, (which is much more common than the other) is where a man borrows of another a specific sum (e. g. 200/.) and grants him an estate in fee, on condition that if he, the mortgager, shall repay the mortgagee the said sum of 200/.) on a certain day mentioned in the deed, and then the mortgager may re-enter on the estate so ^granted in pledge; or, as is now the more usual way, and then the mortgage .shall re-convey the estate to the mortgagor: in this case the land, which is so put in pledge, is by law, in case of non-payment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but absolute. But, so long as it continues conditional, that is, between the time of lending the money and the time allotted for payment, the mortgagee is called tenant in mortgage*. But, as it was formerly a doubt*, whether, by taking such estate in fee, it did not become liable to the wife's dower, aud other incumbrances, of the mortgagee (though that doubt has been long ago overruled by our courts of equity') it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on re-payment of the mortgage-money: which course has been since pretty generally continued, principally because on the death of the mortgagee, such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.

As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be disposessed, upon performance of the condition by payment of the mortgage-money, at the day limited. And, therefore, the usual way is to agree that the mortgagor shall hold the land till the day assigned for

•w Co. Litt.205.

y Itit!. Sec. 357. Cto. Car. 191.

x Litt. Sec. 532. z Hardt. 466.

payment⁶: when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now forever dead⁷. But here

6. When the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises at will in the strictest sense, and therefore no notice is ever given him to quit, and he is not even entitled to reap the crop, as other tenants at will are, because all is liable for the debt; on payment of which, the mortgagees's title ceases. The mortgagor has no power, express or implied, to let leases, not subject to every circumstance of the mortgage. If by implication, the mortgagor had such a power, it must go to a great extent; to leases where a fine is taken on renewal for lives. The tenant stands exactly in the situation of the mortgagor. Per Lord Mansfield, in the case of Keech vs. Hall .... Douglas's rep. 22.

A mortgagee after giving notice of the mortgage to the tenant in possession under a lease prior to the mortgage, is entitled to the rent in arrear at the time of the notice, as well as to what accrues afterwards, and mayxlistrein for it. after such notice. And in this case Lord Mansfield observed, that since the statute 4. Ann. c. 16. (to

•which our act of 1785, c. 62. Edi. 1794, c. 90, Sec. 17. corresponds) the conveyance is complete without the attornment of the tenant. See the case of Moss v. Galliroore, Doug. rep. 269.

7. Although the estate of the mortgagee is said to be absolute at law after failure in paying the money, yet by a devise of all lands, tenements and hereditaments, made by a mortgage in fee, after the • day of payment and failure,, a mortgage in fee will not pass, unless the equity of redemption be foreclosed ; and if after such devise made, a foreclosure is had, yet such estate does not pass, by those general words,

•because a foreclosure is considered as a new purchase of the land. 1. Atk. 605, 606. The interest of the land must be somewhere; but it is not in the mortgagee, and therefore must remain in the mortgagor. It is certain the mortgagee is not barely a trustee to the mortgagor ; but to some purposes, viz. with regard to the inheritance, he certainljr is, till a foreclosure. 1. Atk. 606.

Therefore, although the mortgagee brings an ejectment and enters into possession, yet until after foreclosure in consideration of a court of equity and notwithstanding the form, the mortgagee is considered as having but a chattel, and the mortgage is only a security ; the morgagor is the real owner. It follows of course that the mortgagee before foreclosure cannot exercise any act of ownership over the property, which may encumber the mortgagor. He can make no lease

•f the lands for years to an under tenant. Powel on Mortgages, 86,

again the courts of equity interpose ; and, though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to recall or redeem his estate*; paying to the mortgagee his principle,interest, and expences : for otherwise, in strictness of law, an estate worth 1OOO/. might be forfeited for non-payment of 100/. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption :⁸ and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest: thereby turning the mortuum. into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or 'else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be

* In general, if the mortgagee has been twenty years in possession, the court of chancery, in conformity'to the time of bringing an ejectment, will not permit the mortgagor to redeem, unless during part of the time the mortgagor has been an infant or a married woman; or unless the mortgagee admits he holds the estate as a mortgage; or he has kept accounts upon it and treated it as redeemable w ithin twenty years; or there is some other special circumstance which forms an exception to the general rule. £7. Ca. Abra. 313. 2 JBro. 399. 2 Ves.jun. 83. Where two different estates are mortgaged by the owner to the same person, one cannot be redeemed without the other. Amb. 733.

Neither can he justify in equity the commission of any act which may injure the estate ; therefore, though at law a mortgagee in fee may commit waste, yet he will be restrained in equity, unless the security be defective ; for in that case the court will not restrain a just creditor from his legal privileges ; but then the timber when cut down must be applied to ease the estate, and not to the mortgagee's benefit. Powel on Mortgages 87, 88.

8. An equity of redemption is considered as an estate in the land, for it may be devised, granted, or entailed with remainders, and such entail and remainders, may be barred by fine and recovery, and there, fore cannot be considered as a mere right, only, but such an estate •whereof there may be seisin; the person therefore intitled to the equity of redemption is considered as the owner of the land, and a mortgage in fee is considered as personal assets. 1. Atk. 605.

forever foreclosed from redeeming the same ; that is, to lose his equity of redemption without possibility of recall. And also, in some cases of fraudulent mortgages³, the fraudulent mortgagor forfeits all equity of redemption whatsoever*. It is not, however, usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small ; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment*, and take the land into his own hands, in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was where the possession of the thing pledged remained with the debtor^bl0 .... But, by statute 7 Geo. II. c. 20, after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to re-assign his securities¹¹. In Glanvil's time, when the universal method of conveyance was by livery of seisin or corporal tradition of the lands, no gage or pledge of lands was good unless possession was

a Stat. 4, and 5. W. and M. c. 16.

b Pignoris appcllatione earn (n-oprie rem contineri dicimus, qaae siinul etiam traditur creditor}. At earn, quae sine traditione nuda conventions tenetur, proprie bypothecae appellatione contineri dicimus. Inst. I. 4. t. 6. Sec. 7.

• The mortgagee is not now obliged to bring an ejectment to recover the rents and profits of th& estate, for it has been determined that where there is a tenant in possession, by a lease prior to the mortgage, the mortgagee may at any time give him notice to pay the rent to him; and he may distrain for all the rent which is due at the time of the notice, and also for all that accrues afterwards. Moss v. Gallimore, Doug. 266. The mortgagor has no interest in the premises, but by the mere indulgence of the mortgagee; he has not even the estate of a tenant at will, for it is held he may be prevented from carrying away the emblements, or the crops which he himself has sown.

¹ Christian.

9. The statute 4, and 5. W. t5*M. c. 16, here referred to, was never in force in Virginia.

10. On this subject the student may consult a very excellent treatise on mortgages, by John Joseph Powel, Esq. c. 3, and 4. See also the cases of Keech v. Hall, Doug. 21, and Moss v. Gallimore, ib. 266. See also 1. Wash. rep. 18, 125,177. 1. Call's rep. 188, and 280, and 2. Call 421, 206.

11. This statute was never in force in Virginia, nor is there any similar provision in our law.

also delivered to the creditor; "«' nonsequater ipsius vadii Iraditto, curia domini regls hujusmodi privatas convent/ones tueri non solct:" for \vhidi the reason given is, to prevent subsequent and fraudulent pledges of the same land: " cum in tali casu fossil caa'ftn res plitribus aliis creditoribus turn prius turn poslerius invadiari*." And the frauds which have arisen, since - the exchange of these public and notorious conveyances for more private and secret bargains¹², have well evinced the wisdom of our antient law*. ^% c /. 10. c. 8. d See book I.e. 8.

* It has been said by a learned judge to be an established rule of equity, that a second mortgagee, who has the title deeds without notice of any prior incumbrance, shall be preferred, because if a mortgagee lend money upon real property without taking the title deeds, he enables the mortgagor to commit a fraud. 1 1'. K. 162. But lord Thurlow afterwards observed upon this, that he did not conceive that the not taking the deeds was alone sufficient to postpone the first mortgagee •, if it were so, there could be no such thing as a mortgage of a reversion j and he held that the second mortgagee in possession of the title deeds, was preferred only in cases where the first had been guilty of fraud or of gross negligence. 3 Bio. 652.

Out I should be inclined to think that fraud or gross negligence would be presumed, unless the first mortgagee could shew that it was impossible for him to obtain the possession of the title deeds, or that he had used all due and neceslary dilligcnce for that purpose.

Whatever may be the value of the estate, it is of great importance to those who lend money upon real security, to be certain that there is no prior mortgage upon the estate; for it has been long settled, that if a third mortgagee, who at the time of his mortgage had no notice of the second, purchases the first mortgage even pending a bill filed by the second to redeem the lirst, both the first and third mortgages shall be paid out of the estate, before any share of it can be appropriated to the second : and the reason assigned is, that the third, by thus obtaining the legal estate, has both law and equity on his side, which snpercede the equity of the second* And even lord Hale held it right, that the third should seize what ho cr.lled the tabula in naiifragio, a plank in the shipwreck, and thus leave the second to perish. But a subbequent mortgagee can obtain no advantage over a prior one, if at the time of lending his money, he had notice of the prior incumbiancc. 1 ?' It. 763. But among mortgagees,

12. All deeds of trust and mortgages (whether of lands, slaves, or chattel:,,) are void as to all creditors and subsequent purchasers, unless they be acknowledged by the parties wproved by three witnesses before the general court or the court of that district, county, city, or corporation in which the lands conveyed, or some part thereof lie, (except in case of persons absent from the commonwealth, tyhose

IV. A fourth species of estates, defeasible on condition subsequent, are those held by statute merchant, and statute staple; which are very nearly related to the vivum vadium before-mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained¹³. For both the statute merchant and

where none has the legal estate, the rule in equity is, jui prior est tempore, potibr tstjure. 2 P. Wm*. 491. 1 Bro. 63.

As this is the equity which is intelligible to ordinary understandings, if it were not presumptuous to reflect a censure upon a doctrine so long sanctioned by illustrious names, it might be observed that the equity of the second ought to have outweighed both the law and the equity of the third; for it can hardly be reconciled with substantial justice, that the third 1>v any contrivance or combination should be permitted to run away with the whole estate, and leave nothing to the second, who had fairly and honestly advanced his property. But this, if wrong, can only be corrected by the authority of the legislature. .... Christ.

deeds maybe proved within two years after execution, and of persons not residing within the district or county, whose acknowledgment may be taken in the court of the district, See. where the party may reside) and recorded within eight months according to the, directions of the several acts of 1748, c. 1. and 1785, c. 62. 1794, c. 90. Or if the mortgage be of slaves or chattels, it would seem that the mortgage should be recorded in the general court, or court of the county, or district in which one of the parties lives .... Edi. 1794, c. 10. But in the case of Clayborne v. Hill, 1. Wash. rep. 177, the court seem to have thought that a mortgage of slaves might be recorded in any other county. If a deed be re-acknowledged within eight months from its date, and recorded within four months from the re-acknowledgment, it is good even as against creditors, from the date of the re-acknowledgment, although there may be more than eight months between the first execution of it, and the time of recording. 2. Call's rep. 183,184. Our laws likewise require that a docket, containing the dates, acknowledgments, and probates, names, surnames, and additions of the parties, in alphabetical order, and the quantities and situation of lands contained in any deed, be transmitted by the clerks of the district and county courts, to the clerk of the general court, annually, to be there recorded. See also p. 309. n. 13.

If A give a mortgage on lands to B, and then the agent of B and A, agree to convey those lands to C, on his securing the mortgage money, and afterwards C gives a deed of trust on sundry slaves, for-that and other debts to a succeeding agent of B, the first mortgage is thereby discharged, though B never conveyed the lands to C. Towler v. Buchanan, &c. 1. Call 187.

13. These estates are unknown in Virginia ; the statutes under which they were created in England, are now repealed in this country. V. L. 1794, c. 147.

statute staple are securities for money; the one entered into before the chief magistrate of some trading town, pursuant to the statute 13 Edw. I. de mcrcatoribus, and thence called a statute merchant; the other pursuant to the statute 27" Edw. III. c. 9, before the mayor of the staple, that is to say, the grand mart for the principle commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns'¹, from whence this security is called a statute staple. They are both, I say, securities for debts acknowledged to be due ; and originally permitted only among traders, for the benefit of commerce ; whereby not only the body of the debtor may be imprisoned, and his goods seised in satisfaction of the debt, but also his lands may be delivered to the creditor, till out of the rents and profits of them the debt may be satisfied: and, during such time as the creditor so holds the lands, he is tenant by statute merchant or statute staple. There is also a similar security, the recognizance in the nature of a statute staple, acknowledged before either of the chief justices, or (out of term) before their substitutes, the mayor of the staple at Westminster and the recorder of London; whereby the benefit of this mercantile transaction is extended to all the king's subjects in general, by virtue of the statute 23 Hen. VIII. c. 6, amended by 8 Geo. I. 9. 25, which direct such recognizances to be enrolled and certified into chancery. But these by the statute of frauds, 29 Car. II. c. 3, are only binding upon the lands in the hands of bonafde purchasers, from the day of their enrollment, which is ordered to be marked on the record.

V. Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an estate by elegit. "\yhat an flegit is, and why so called, will be explained in the third part of these commentaries. At present I need only mention, that it is the name of a writ, founded on the statute* of Westm. 2, by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of one half of the defendant's lands and tenements, to be occupied and enjoyed, until his debt and damages are fully paid: and, during the time

4 See Book I, c. 8.

e 13 Edw. I. c. 18.

he so holds them, he is called tenant by elegit*⁴. It is easy to observe, that this is also a mere conditional estate, defeasible as soon as the debt is levied. But it is remarkable, that the feodal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia cmptoreif, it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them:. the statute therefore of Westm. 2, permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatorihus (passed in the same years) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade: though only half of them was liable to be taken in execution for any other debt of the owner.

I shall conclude what I had to remark of these estates, by statute merchant, statute staple, and elegit, with the observation of sir Edward Coke^h, " These tenants have uncertain interests

in lands and tenements, and yet they have but chattels and no freeholds j" (which makes them an exception to the general rule) " because though they may hold an estate of inheritance, or for life, ut liberum tenementum, until their debt be paid ; yet it shall go to their executors: for ut- is similitudinary ; and though, to recover their estates, they shall have the same remedy (by assise) as a tenant of the freehold, shall have', yet

it is but the similitude of a freehold, and nullum simile est idem.'" This indeed only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold: but it does not assign the reason why these estates,in contradistinction tootheruncertain interests, shall

f 18 Edw. I. gUEdw.I. h 1 Inst, 42,4j. i The words of the statute de inercatoribus are," puisseporter brefde navelc " disseisins,auxi sicnm defrankter.emerit."

14. The provisions of the statute of Westm. 2, were introduced into our code, at least, so long ago as the year 172C, c. 3, and have been continued to this day, 1748, c. 8. 1794, c. 151.

vest in the executors of the tenant and not the heir; which is probably owing to this: that being a security and remedy provided for'personal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in those to whom the debts if recovered would belong. For, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executor^k: because they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund, out of which he has directed them to be paid.

k Co. Litt. 42.

CHAPTER THE ELEVENTH.

OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.

HITHERTO we have considered estates solely with regard to their duration, or the quantity of interest, which the owners have therein. We are now to consider them in another view 4 with regard to the time of their enjoyment, when the ac-~ tual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages, arising therefrom) begins. Estates, therefore, with respect to this consideration, may either be in possession, or in expectancy; and of expectancies there are two sorts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion.

I. Of estates in possession, (which are sometimes called estates executed, whereby a present interest passes to, and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory} there is little, or nothing, peculiar to be observed. All the estates we have hitherto spoken of, are of this kind; for, in laying down general rules, we usually apply them to such estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will, therefore, require a minute discussion, and demand some degree of attention.

II. An estate, then, in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined.) As if a man seised in fee-simple granteth lands to A for twenty years, and, after the determination of the said

term, then to B and his heirs for ever: here A is tenant for years, remainder to B in fee. In the first place an estate for years is created or carved out of the fee, and given to A ; and the residue, or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee*. They are, indeed, different parts, but they constitute only one whole: they are carved out of one and the same inheritance: they are both created, and may both subsist, together: the one in possession, the other in expectancy. So, if land be granted to A for twenty years, and after the determination of the said term to B for life; and after the determination of B's estate for life, it be limited to C and his heirs for ever: this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the estate of inheritance undergoes a division into three portions: there is first A's estate for years, carved out of it; and after that B's estate for life ; and then the whole that remains is limited to C and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance, and if there were a hundred remainders, it would still be the same thing; upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence, also, it is easy to collect, that no remainder can be limited after the grant of an estate in fee-simple ^b: because a fee-simple is the highest and largest estate, that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder, therefore, which is only a portion, or residuary fart of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all the remainders expectant thereon, is only one fee-simple; as 4O/. is part of 100/. and 60/. is the remainder of it: wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than after the whole 100/. is appropriated there can be any residue subsisting.

Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observ-

a Co. Litt. 143. b Plowd. 29. Vaugli. 269.

ed in the creation of remainders, and the reasons upon which those rules are founded.

1. And, first, there must necessarily be some particular estate, precedent to the estate in remainder^c. As, an estate for years to A, remainder to B for life ; or, an estate for life to A, remainder to B in tail. This precedent estate is called the particular estate, as being only a small part, or farticitla, of the inheritance ; the residue or remainder of which is granted over to another. The necessity of creating this preceding particular estate, in order to make a good remainder, arises from this plain reason ; that remainder is a relative expression, and implies that some part of the thing is previously disposed of: for where the whole is conveyed at once, there cannot possibly exist a remainder : but the interest granted, whatever it be, will be an estate in possession.

An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no remainder : it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the antient law ^d, to be executed either now or hereafter, as the contracting parties should agree i but an estate of freehold must be created to commence immediately. For it is an antient rule of the common law, that an estate of freehold cannot be created to commence in futuro ; but it ought to take effect presently either in possession or remainder^e : because at common law no freehold in lands could pass without livery of seisin; which must operate either immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which, imports an immediate possession. Therefore though a lease to A for seven years, to commence from next Michaelmas, is good; yet a conveyance to B of lands, to hold to him and his heirs for ever from the end ot three years next ensuing, is void. So that'when it is intended to grant an estate of freehold, whereof the enjoyment shall be defered till a future time, it is necessary to create a previous pnrti-

c Co. Litt. 49. Plowd. 25. d Raym, 151. c S Rep 94.

cular estate, which may subsist till that period of time is completed ; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be given possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A for three years, with remainder to B in fee, and makes livery of seisin to A ; here by the livery the freehold is immediately created, and vested in B, during the continuance of A's term of years. The whole estate passes at once from the grantor to the grantees, and the remainder-man is seized of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in praesenti, though to be occupied and enjoyed in futuro.

As no remainder can be created, without such a precedent particular estate, therefore the particular estate is said to support the remainder. But a lease at will is not held to be such a particular estate, as will support a remainder over^f. For an estate at will is of a nature so slender and precarious, that it is not looked upon as a portion of the inheritance; and a portion must first be taken out of it, in order to constitute a ren-ainder. Besides, if it be a freehold remainder, livery of seisin must be given at the time of it's creation; and the entry of the grantor, to do this, determines the estate at will in the very instant in which it is madeS; or, if the remainder be a chattel interest, though perhaps the deed of creation might operate as & future contract, if the tenant for years be a party to it, yet it is void by way of remainder : for it is a seperate independent contract, distinct from the precedent estate at will; and every remainder must be part of one and the same estate, out of which the preceding particular estate is taken¹¹. And hence it is generally true, that if the particular estate is void in it's creation, or by any means is defeated afterwards, the remainder supported thereby shall be defeated also¹: as where the particular estate is an estate for the life of a person not in esse^k ; or an estate>for life upon condition, on

f 8 Rep. 75. g Dyer. 18. h Raym. 151. i Co. Litt. 298. k 2 Roll. Abr. 413.

breach of which condition the grantor enters and avoids the estate¹ ; in either of these cases the remainder over is void.

2. A second rule to be observed is this; that the remainder must commence or pass out of the grantor at the time of the creation of the particular estate"¹. As, where there is an estate to A for life, with remainder to B in fee: here B's remainder in fee passes from the grantor at the same time that seisin is delivered to A of his life estate in possession. And it is this, which induces the necessity at common law of livery of seisin being made on the particular estate, whenever a freehold remainder is created. For, if it be limited even on an estate for years, it is necessary that the lessee for years should have livery of seisin, in order to convey the freehold from and out of the grantor; otherwise the remainder is void". Not that the livery is necessary to strengthen the estate for years; but, as livery of the land is requisite to convey the freehold, and yet cannot be given to him in remainder without infringing the possession of the lessee for years, therefore the law allows such livery, made to the tenant of the particular estate, to relate and inure to him in remainder, as both are but one estate in law⁰.

3. A third rule respecting remainders is this; that the remainder must vest in the grantee during the continuance of the particular estate or eo instanti that it determines!". As, if A be tenant for life, remainder to B in tail; here B's remainder is vested in him, at the creation of the particular estate to A for life: or, if A and B be tenants for their joint-lives, remainder to the survivor in fee ; here, though during their joint-lives the remainder is vested in neither^ yet, on the death of either of them the remainder vests instantly in the survivor: wherefore, both these are good remainders. But, if an estate be limited to A for life, remainder to the eldest son of B in tail, and A dies before B hath any son; here the remainder will be void, for it did not vest in any one during the continuance, nor at the determination, of the particular estate: and, even supposing-that B

1 IJon. 58:

n Litt. Sec. 60.

p I'lowd. 25. 1 Hep. 66.

m Litt. Sec. 671. Plowd. 25. o Co. Litt. 49.

should afterwards have a son, he shall not take by this remainder ; for, as it did not vest at, or before the end of the particular estate, it never can vest at all, but is gone for ever'. And this depends upon the pihiciple before laid down, that the precedent particular state, and the remainder, are one estate in law; thty must, therefore, subsist and be in ease at one and the same instant of time, either during the continuance of the first estate or at the very instant when that determines, so that no other estate can possibly come between them. For there can be no intervening estate between the particular estate, and the remainder supported thereby^r: the thing supported must fall to the ground, if once its support be severed from it.

It is upon these rules, but principally the last, that the doctrine of contingent remainders depends. For remainders are either vested or contingent. Vested remainders (or remainders executed, whereby, a present interest passes to the party, though to be enjoyed in futuro} are, where the estate is invariably fixed to remain to a determinate person, after the particular estate is spent. As if A be tenant for twenty years, remainder to B in fee; here B's is a vested remainder, which nothing can defeat, or set aside.

Contingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take effect'.

First, they may be limited to adubious and uncertain person. As if A be tenant foiylife, with remainder to B's eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B will have a son or no : but the instant that a son is born, the remainder is no longer contingent, but vested. Though, if A had died before the contingency happened, that is, before B's son was born, the remainder would have been absolutely gone ; for the particular estate was determined before the remainder could vest. Nay, by the strict rule of law, if A

q 1 Kep. 138.

r 3 Rep. 21.

I Ibid. 20.

were tenant for life, remainder to his own eldest son in tail, and A died without issue born, but leaving his wife enseint or big with child, and after his death a posthumous son was born, this son could not take the land, by virtue of this remainder ; for the particular estate determined before there was any person in esse, in whom the remainder could vest'. But, to remedy this hardship, it is enacted by statute 1O and 11 W. III, c. 16, that posthumous children shall be capable of taking in remainder, in the same manner as if they had been boni in their father's lifetime: that is, the remainder is allowed to vest in them, while yet in their mother's womb ^{u l}.

This species of contingent remainders, to a person not in being, must however be limited to some one, that may by common possibility, or potentia propinqna, be in esxe at or before the particular estate determines ^w. As if an estate be made to A for life, remainder to the heirs of B : now, if A dies before B, the remainder is at an end ; for during B's life he has no heir, nemo est haeres viventis : but if B dies first, the remainder then immediately vests in his heir, who will be entitled to the land on the death of A. This is a good contingent remainder, for the possibility of B's dying before A is potentia propinqua, and therefore allowed in law ^x. But a remainder to the right heirs of B (if there be no such person as B in esse) is void t. For here there must two contingencies happen ; first, that such a person as B shall be born ; and, secondly, that he shall also die during the continuance of the particular estate ; which make it potentia remotessimd, a most improbable possibility. A remainder to a man's eldest son, who hath none (we have seen) is good; for by common possibility he may have one ; but if it be

t Salk. 228. 4 Mod. 282. w 2 Rep. 51. y Hob. 33.

u See Vol. I. page 130. x Co. Litt. 578.

1. The act of 1785, c. 62. Edi. 1794. c. 90. $. 13, accordant : it took effect January 1, 1787. And it has been decided in England tl\at such posthumous child, by virtue of the statute, is entitled to the intermediate profits from the death of the father, 3 Atk. 203. It is otherwise in the case of a descent divided by the birth of a posthumous child. 3 Wilson 526.

limited in particular to his son John, or Richard, it is bad, if he have no son of that name; for it is too remote a possibility, that he should not only have a son, but a son of a particular name ". A limitation of a remainder to a bastard before it is born, is not good ^a: for though the law allows the possibility of having bastards, it presumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the person who is to take it.

A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with remainder to B in fee : here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A and B it is contingent; and if B dies first, it never can vest in his heirs, but is for ever gone : but if A dies first, the remainder to B becomes vested.

Contingent remainders of either kind, if they amount to a freehold, cannot be limited on an estate for years, or any other particular estate, less than a freehold. Thus if land be granted to A for ten years, with remainder in fee to the right heirs of B, this remainder is void ^b : but if granted to A for life, with a like remainder, it is good. For, unless the freehold passes_|Out of the grantor at the time when the remainder is created, such freehold remainder is void: it cannot pass out of him, without vesting somewhere ; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest no where : unless therefore the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him, and consequently the remainder is void.

Contingent remainder may be defeated, by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested⁰. There-

z 5 Rep. 51. b 1 Rep. 130.

a Cro. Eliz. 509. c 1 Hep. 66, 135.

fore when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation², surrender, or other methods, destroy and determine his own life-estate, before any of those remainders vest; the consequence of which is that he utterly defeats them all. As if there be tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son is born, surrenders his life-estate, he by that means defeats the remainder in tail to his son : for his son not being in esse, when the particular estate determined, the remainder could not then vest: and, as it could not vest then, by the rules before laid down, it never can vest at all. In these cases therefore it is necessary to have trustees appointed to preserve the contingent remainders; in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his estate determines. If therefore his estate for life determines otherwise than by his death, the estate of the trustees, for the residue of his natural life, will then take effect, and become a particular estate in possession, sufficient to support the remainders depending in contingency. This method is said to have been invented by sir Orlando Bridgman, eir Geoffrey Palmer, and other eminent council, who betook themselves to conveyancing during the time of the civil wars; in order thereby to secure in family settlements a provision for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for life ^d : and d See Moos. 486. 2 Roll. Abr. 797. pi. 12 2. Sid. 159. 2 Chan. Rept. 170.

2. Quaere, how far the law in this case may be altered by the provisions contained in the act of 1785, c. 67, concerning wrongful alienations, Edi. 1794, c. 13, which declares that all alienations or warranties of lands, tenements and hereditaments made by any, purporting to pass or assure a greater right or estate than such person may lawfully pass or assure, shall operate as alienations or warranties of so much of the right and estate M such lands, &c. as such person might lawfully convey ; but shall not pass, or bar, the residue of the said right or estate purported to be conveyed or assured.

But a conveyance of a greater estate than he has, by bargain and sale or by lease and release, is no forfeiture, and will not defeat a contingent remainder, 2 Leon. CO. 3. Mod. 151. But it is otherwise, if the conveyance be made by feoffment, or by a fine, or by a rcco\ ery, 1. Co. 66. Cro. Eliz. 630.1. Salk. 224.

when, after the restoration, those gentlemen came to fill the first offices of the law; they supported this invention within reasonable and proper bounds, and introduced it into general use *.

* We have seen before, in chapter vii. that, in a grant of a fee-simple to A, it is necessary to give it to A and his heirs; of a fee-tail, to A and the heirs of his body; and that a grant to A, without any additional words, gives him only an estate for life. Hence the word heirs in the first case, and the words heirs of the body in the second, are said to be words of limitation, because they limit or describe what interest A takes by the giant, viz. in one case, a fee-simple, in the other, a fee-tail: and the heirs in both instances take no interest any farther than as the ancestor may permit the estate to descend to them. But if a remainder is granted, orestate devised to the heirs of A, where no estate of freehold is at the same time given to A, the heir of A cannot take by descent from A j but he takes by purchase, under the grant, in the same manner as if the estate had been given to him by his proper name. Here the word heirs is called a word of purchase. Having premised the distinction between words of limitation and words of purchase, I may observe, that the much-talked-of rule in Shelly's case, \Co. 104 is this, viz. " when theancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, that always in such cases the heirs are words of limitation, and not words of purchase :" and the remainder is said to be executed in the ancestor, where there is no intermediate estate; or vested, when an estate for life or in tail intervenes.

As if an estate be given to A for life, and after his death to the heirs of his body; this remainder is executed in A, or it unites with his estate for life; and the effect is the same as if the estate had at once been given to A and the heirs of his body ; which expression limits an estate tail to A, and the issue have no indefeasible interest conveyed to them, but can only take by descent from A. So also if an estate be given to A for life, with remainder to B for life or in tail, remainder to the heirs, or the heiis of the body, of A .... A takes an estate for life, in this case, <yith a vested remainder in fee or in tail; and his heir under this grant can only take by descent at his death. Fearne, 21. But when the estate for life, and the remainder in tail or in fee unite and coalesce, and heirs is a word of limitation, the two estates must be created by the same instrument, and must be either both legal, or both trust estates. Doug. 490. 2 f. S. 444, But an appointment in pursuance of a power, when exe. cuted, is to be considered as if it had been inserted in the original deed by which the power of appointment was created. 7 f. R. 347. The rule with regard to the execution or coalition of such estates seems now to be the same-in equitable as in legal estates. 1 Bra. 206. And in all these cases where a person has an estate tail or a vested remainder in tail, he can cut off the expectations or inheritance of his issue, by a fine, or a recovery. Daug. 32J. In order, therefore, to secure a certain provision for childien, the method was invented of granting the estate to the father fur life, and, after his death, to his first and other son*

Thus the student will observe how much nicety is required in creating and securing a remainder ; and I trust he will in some measure see the general reasons, upon which this nicety is founded. It were endless to attempt to enter upon the parti-

in tail j for the words ton or daughter were held to be words of purchase, and the remainder to them did not, like the remainder to heirs, unite with the prior estate of freehold. But if the son was unborn, the remainder was contingent, and might have been defeated by the alienation of the father by feoffmerit, fine, or recovery: to prevent this, it was necessary to interpose trustees, to whom the estate is given upon such a determination of the life-estate, and in whom it rests, till the contingent estate, if at all, comes into existence; and thus they are said to support and preserve the contingent remainders. Thisiscalled a strict settlement, and is the only mode (executory devises excepted) by which a certain and indefeasible provision can be secured to an unborn child. But in the case of articles or covenants before marriage, for making a settlement upon the husband and wife, and their offspring, if there be a limitation to the parents for life, wilh a remainder to the heirs of their bodies, the latter words are generally considered as words of purchase, and not of limitation j and a court of equity will decree the articles to be executed in strict settlement. See Fearne, 124, and examples there cited. It being the great object of such settlements to secure fortunes for the issue of the marriage, it would be useless to give the parents an estate tail, of which they would almost immediately have the absolute disposal. And, therefore, the courts of equity will decree the estate to be settled upon the parent or parents for life; and upon the determination of that estate by forfeiture, to trustees to support contingent remainders for their lives; and after their decease, to the first and other sons successively in tail, with remainder to all the daughters nvtail as tenants in common, with subsequent remainders or provisions according to the occasions and intentions of the parties. In these strict settlements, the estate is unalienable till the first son attains the age of 21, who, if his father is dead, has then, as tenant in tail, full power over |he estate j or if his father is living, he then can bar his own issue, by a fine, independent of the father. Cruise, 161. But the .father, and the sou at that age, can cut off all the subsequent limitations, and dispose of the estate in any manner they please by joining in a common rccoveiy. This is the origin of the vulgar error, that a tenant of an estate.tail must havethe consent of Ins eldest son to enable him to cut off the entail; for that is necessary where the father has only a life-estate, and his eldest son has the remainder in tail. But there is no method whatever of securing an estate to the grandchildren of a person, who is without children at the time of the settlement; for the law will not permit a perpetuity; and Lord Thurlow has defined a perpetuity to be " any extension of an estate beyond a life in being, and 21 years after." 2 Bro. 30. See n. 4. Hence, wherein a settlement the father has a power to appoint an estate to or amongst hiSjdiildren, he cannot afterwards give this to his children in strict settlement, or give any of his sons an estate for life, with a iemainder in tail to His eldest son; for if he could do this, a perpetuity wouU be created by the original settlement. 2 T. R. 241. The,

172

THE RIGHTS

BOOK II.

cular subtilties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries, has been spun out and subdivided: neither are they consonant to the design of these elementary disquisitions. I must not however omit, that in devises by last will and testament, (which, being often drawn up when the party is inops consilii, are always more favoured in construction than formal deeds, which are presumed to be made with great caution, forethought, and advice) in these devises, I say, remainders may be created in some measure contrary to the rules before laid down: though our lawyers will not allow such dispositions to be strictly remainders; but call them by another name, that of executory devises, or devises hereafter to be executed.

An executory devise of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points : 1. That it needs not any particular estate to support it. 2. That by it a fee-simple or other less estate, may be limited after a fee-simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same.

1. The first case happens when a man devises a future estate to arise upon a contingency; and, till that contingency happens, does not dispose of the fee-simple, but leaves it to descend to his heir at law. As if one devises land to a feme-sole and her heirs, upon her day of marriage : here is in effect a contingent remainder without any particular estate to support it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, byway of executory devise⁸. ....

e 1 Sid. 153.

The student, who -wishes to obtain a dear and comprehensive knowledge of this abstruse branch of legal learning, cannot bestow too great attention upon Mr. Fearne's treatise upon Contingent Remainders and Executory Devises, where itislearnedl) and pel spicuoiibly'discussed and methodized. I have thought it proper to select and to