The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface By the American Editor.
• A Memoir of Sir William Blackstone,
• Introduction. of the Study, Nature, and Extent of the Laws of England.
• Section I.: On the Study of the Law. †
• Section II.: Of the Nature of Laws In General.
• Section III.: Of the Laws of England.
• Section IV.: Of the Countries Subject to the Laws of England.
• Commentaries On the Laws of England.
• Book the First. of the Rights of Persons.
• Chapter I.: Of the Absolute Rights of Individuals.
• Chapter II.: Of the Parliament.
• Chapter III.: Of the King, and His Title.
• Chapter IV.: Of the King’s Royal Family.
• Chapter V.: Of the Councils Belonging to the King.
• Chapter VI.: Of the King’s Duties.
• Chapter VII.: Of the King’s Prerogative.
• Chapter VIII.: Of the King’s Revenue.
• Chapter IX.: Of Subordinate Magistrates.
• Chapter X.: Of the People, Whether Aliens, Denizens, Or Natives.
• Chapter XI.: Of the Clergy.
• Chapter XII.: Of the Civil State.
• Chapter XIII.: Of the Military and Maritime States.
• Chapter XIV.: Of Master and Servant.
• Chapter XV.: Of Husband and Wife.
• Chapter XVI.: Of Parent and Child.
• Chapter XVII.: Of Guardian and Ward.
• Chapter XVIII.: Of Corporations.
• Book the Second. of the Rights of Things.
• Chapter I.: Of Property, In General.
• Chapter II.: Of Real Property; And, First, of Corporeal Hereditaments
• Chapter III.: Of Incorporeal Hereditaments.
• Chapter IV.: Of the Feodal System.
• Chapter V.: Of the Ancient English Tenures
• Chapter VI.: Of the Modern English Tenures.
• Chapter VII.: Of Freehold Estates of Inheritance.
• Chapter VIII.: Of Freeholds, Not of Inheritance.
• Chapter IX.: Of Estates Less Than Freehold.
• Chapter X.: Of Estates Upon Condition.
• Chapter XI.: Estates In Possession, Remainder, and Reversion.
• Chapter XII.: Of Estates In Severalty, Joint-tenancy, Coparcenary, and Common.
• Chapter XIII.: Of the Title to Things Real, In General.
• Chapter XIV.: Of Title By Descent.
• Chapter XV.: Of Title By Purchase and I. By Escheat.
• Chapter XVI.: II. Of Title By Occupancy.
• Chapter XVII.: III. Of Title By Prescription.
• Chapter XVIII.: IV. Of Title By Forfeiture.
• Chapter XIX.: V. Of Title By Alienation.
• Chapter XX.: Of Alienation By Deed.
• Chapter XXI.: Of Alienation By Matter of Record.
• Chapter XXII.: Of Alienation By Special Custom.
• Chapter XXIII.: Of Alienation By Devise.
• Chapter XXIV.: Of Things Personal.
• Chapter XXV.: Of Property In Things Personal.
• Chapter XXVI.: Of Title to Things Personal By Occupancy.
• Chapter XXVII.: Of Title By Prerogative and Forfeiture.
• Chapter XXVIII.: Of Title By Custom.
• Chapter XXIX.: Of Title By Succession, Marriage, and Judgment.
• Chapter XXX.: Of Title By Gift, Grant, and Contract.
• Chapter XXXI.: Of Title By Bankruptcy.
• Chapter XXXII.: Of Title By Testament, and Administration.
• Appendix.
• No. I.: Vetus Carta Feoffamenti.
• No. II.: Modern Conveyance By Lease and Release.
• No. III.: An Obligation, Or Bond, With Condition For the Payment of Money.
• No. IV.: A Fine of Lands Sur Cognizance De Droit, Come Ceo, &c.
• No. V.: A Common Recovery of Lands With * Double Voucher.

BOOK THE SECOND. Of the Rights of Things.

CHAPTER I.

OF PROPERTY, IN GENERAL.

The former book of these commentaries having 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 in natural law style 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 its several objects.

*[*2There 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 reason for making them. But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper of 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 **3]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 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 ancient 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 cunctis patrimonium esset.”(b) Not that this communion of goods seems ever to have been applicable, even in the earliest stages, to aught 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 **4]quitted the use or occupation of it, another might seize it, without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to its 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 be continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained 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 be 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 **5]temporary huts or movable 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 movables 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 ameliorated 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.”(e) And Isaac, *[*6about ninety years afterwards, reclaimed that as 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 seize 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 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 preoccupied by other tribes. “And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered everywhere, 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.”

*[*7Upon 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 Phœnicians 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 seizing 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, in 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 its spontaneous produce destroyed, without any provision for future supply or succession. It therefore became necessary to 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 connection 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 seize upon and enjoy the product of his industry, art, and labour? Had not therefore a separate property in lands as well as movables 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. **8]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 its rational faculties, as well as of exerting its 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, government, 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 invested: or that it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to everybody, 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.1 However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued *[*9use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.2

Property, both in lands and movables, 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 shows 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 seize 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 seizing the vacant possession, however well founded in 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 **10]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 seizes 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.3

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 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 **11]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 its becoming again common would(k) occasion. And further, 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 its 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.4 It is true, that the transmission of one’s possessions to 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 its 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 *[*12death-bed, and are the earliest witnesses of his decease. They become 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 expressly declaring that, “since God had given him no seed, his steward Eliezer, one born in his house, was his heir.”(l)

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 style 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 movables from his wife and children; and, in general, no will was permitted of lands till the reign of Henry the Eighth; and then only of a certain portion: for it was not till after the restoration that the power of devising real property became so universal as at present.5

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 **13]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 its 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:6 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 **14]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 conveniences: such also are the generality of those animals which are said to be feræ naturæ, or of a wild and untamable disposition; which any man may seize upon and keep for his own use and 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 seize 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 *[*15would 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 dissension, by vesting the things themselves in the sovereign of the state: or else in his representatives appointed and authorized 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 II.

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 immovable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other movables; which may attend the owner’s person wherever he thinks proper to go.1

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.2Land 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 its vulgar accep**17]tation it is only applied to houses and other buildings, yet, in its 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.3 Thus liberum tenementum, frank tenement, 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. Thus an heir-loom, or implement of furniture which by custom descends to the heir together with a house, is neither land, nor tenement, but a mere movable: yet being inheritable, is comprised 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)4

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 its legal signification, any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. *[*18It legally includeth also all castles, houses, and other buildings: for they consist, said 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 solecism; 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 its 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 the land that lies at the bottom, and must call it twenty acres of land covered with water.(f) For water is a movable, 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 immovable: and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other.5

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad cœlum, 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 centre of the earth, belongs to the owner of the surface;6 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.7 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 *[*19equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing:(g)8 but the capital distinction is this, that by the name of a castle,9 messuage,10 toft,11 croft,12 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)

CHAPTER III.

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 exercisable 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:1 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 pro**21]duce 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 shown to the eye, nor of being delivered into bodily possession.

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. 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 its 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 corporeal possession be *[*22had of it. If the patron takes corporeal possession of the church, the churchyard, 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,2 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,3 it is called an advowson in gross, or at large, and never can be appendant any more; but it is for the future annexed to the person of its owner, and not to his manor or 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.4 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 con**23]ferring 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 license, 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 ordinary; 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 anciently 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 a prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shows 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 be, 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 waives this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the ad*[*24vowson is now become forever 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 forever; and will therefore reduce it to the standard of other ecclesiastical livings.5

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:6 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.(q)7

It is not to be expected from the nature of these general commentaries, that I should particularly specify what things are tithable, 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 feræ naturæ, 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 **25]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 tithes upon any divine right; though such a right certainly 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, conveniences, and moderate enjoyments of life, at their expense 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, unacknowledged and unsupported by temporal sanctions.8

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 ad 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 **26]and Northumberland, the bishops, dukes, senators, and people; which was a very few years later than the time that Charlemagne established the payment of them in(t) 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)9

The next authentic mention of them is in the fœdus 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.10 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 its own particular minister; first, by common consent, or the appointment of lords of manors, and afterwards by the written law of the land.(c)

*[*27However, 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 archbishop 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 monasteries 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 forever 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 popo Innocent(e) the Third, about the year 1200, in a decretal epistle, sent to the archbishop 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 ad 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 archbishop 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 **28]added, being correspondent to the ancient law,) it was allowed of, and so became lex terræ. This put an effectual stop to all the arbitrary consecrations of tithes; except some footsteps 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)

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 is11 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 showing that even this caution was ineffectual, and *[*29the 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 effectually 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 partially or totally, discharged from the payment of tithes. And this immemorial usage is binding upon all parties; as it is in its nature an evidence of universal consent and acquiescence, and with reason supposes a real composition to have been formerly 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 two-pence 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.

*[*30To 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 its 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;(o) 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.(q) Thus a modus of 1d. for every milch cow will discharge the tithe of milch kine, but 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 its 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 recompense 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 moduses, it is supposed that an original real composition was anciently made; which being lost by length of time, the immemorial usage is admitted as evidence to show that it once did exist, and that from thence **31]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;(u)12 and any custom may be destroyed by evidence of non-existence in any part of the long period from that time to the present;13 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 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 its non-existence at any time since that era, so also it is destroyed by carrying in itself this internal evidence of a much later original.14

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 from all tithes.(v) So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesiæ.(w)15 But these per sonal 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 tithable.(x) And, generally speaking, it is an established rule, that, in lay hands, modus denon decimando non valet.(y)16 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;(z) 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 *[*32house, 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.(a) Though upon the dissolution of abbeys by Hen. VIII. most of those exemptions from tithes would have fallen with them, and the lands become tithable 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 formerly held them.17 And from this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free: for, if a man can show his lands to have been such abbeylands, and also immemorially discharged of tithes by any of the means before mentioned, this is now a good prescription, de non decimando.18 But he must show both these requisites; for abbey-lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey-lands.19

III. Common, or right of common, appears from its 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.(b) And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers.20

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.(c)

**33]Common appendant is a right belonging to the owners or occupiers of arable land, to put commonable beasts upon the 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 permitted,(d) not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of land 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 lords’ wastes, and on the unenclosed 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.(e) Common appurtenant ariseth from no connection of tenure, nor from any absolute necessity: but may be annexed to lands in other lordships,(f) or extend to other beasts, besides such as are 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,(g) which the law esteems sufficient proof of a special grant or agreement for this purpose. Common because of vicinage, 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 straying mutually into the other’s fields, without any molestation from either.21 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 intercommoned time out of mind. Neither hath any person of one town a right to put his beasts originally *[*34into the other’s common: but if they escape, and stray thither of themselves, the law winks at the trespass.(h) Common in gross, or at large, is such as is neither appendant nor appurtenant 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 prescriptive right, as by a parson of a church, or the like corporation sole.22 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.23

All these species, of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year.24 By the statute of Merton, however, and other subsequent statutes,(i) the lord of the manor may enclose so much of the waste as he pleases for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when justifiable, is called in law “approving,” an ancient expression signifying the same as “improving.”(j)25 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)26

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 ground.(l)27 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 further; 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.

**35]4. Common of estovers or estouviers,28 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 bote is used by us as synonymous to 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 hay, 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 contrary.(m)29

These several species of commons do all originally result from the same necessity as common of pasture; 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.30 I speak not here of the king’s highways, which lead from town to town; 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 granted on a special permission; as when the owner of the land grants to another the 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 taking another *[*36person in his company.(n)31 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 appurtenant to land or houses may clearly be created.32 A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come to it; and I may cross his land for that purpose without trespass.(o) For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same.(p)33 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 Roman.(q)34

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 and his heirs, 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 before the office falls he may become unable and insufficient: but ministerial offices may be so granted;(s) for those may be executed by deputy.35 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 it. For the law presumes that *[*37he who buys an office will, by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public.36

VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in the former book;(t) it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate.37

VII. Franchises are a seventh species. Franchise and liberty are used as synonymous terms; and their definition is(u) a royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject. 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 on 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 have a franchise or freedom. Other franchises are, to hold a court-leet: to have a manor or lordship; or, at least, to have a lordship paramount: 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; 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; **38]wherein the grantee only, and his officers, are to execuse 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:(x) or lastly, to have a forest, chase, 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.(y) But a chase differs from a park, in that it is not enclosed, 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 enclosed 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, which a gentleman pleases to surround with a wall or paling, and to stock with a herd of deer, that is thereby constituted a legal park: for the king’s grant, or at least immemorial prescription, is necessary to make it so.(z) Though now the difference between a real park, and such enclosed grounds, is in many respects not very material: only that it is unlawful at common law for any person to kill any beasts of park or chase,(a) 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 feræ naturæ, every one had a right to kill as he could; but upon **39]the introduction of the forest laws, at the Norman conquest, as will be shown 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 warren is in reality no more than a royal gamekeeper; 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 ancient 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.(d)38 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;(e) 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 second(g) and third(h) charters of Henry III. to those also that were fenced under Richard I.; 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 the soil,(i) which in a free fishery is not requisite. It differs also from a common of piscary before mentioned, in that the free fishery is an exclu*[*40sive 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 afterwards.(k) 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 fishery of the grantor.(l) But to consider such right as originally a flower of the prerogative, till restrained by magna charta, 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 right and distinctions of the three species of fishery are very much confounded in our law-books; and that there are not wanting respectable authorities(m) 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.39

VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one’s maintenance.(n) In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted.(o) And these may be 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. To these may be added,

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 burden imposed upon, and issuing out of, lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor.(p) Therefore, if a man by deed grant to another the sum of 20l. 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;(q) and yet a man may have a real estate in it, though his security is merely personal.40

*[*41X. 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 acknowledgment given for the possession of some corporeal inheritance.(r) It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; 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 may be rendered, and frequently are rendered, by way of rent.(s) 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 year;(t) yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold or enjoy them, it ought to be reserved yearly, because those profits do annually arise and are annually renewed. It must issue out of the thing granted, and not be 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.(u) 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 distrein. Therefore a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like.(w) 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:(x) though it doth not affect the inheritance, and is no legal rent in contemplation of law.41

There are at common law(y) three manner of rents, rent-service, rent-charge, and rent-seck. Rent-service is so called *[*42because it hath some corporeal service incident to it, as at the least fealty or the feodal oath of fidelity.(z) 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, 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.(a) 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 whole 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.(b)42Rent-seck, reditus siccus, or barren-rent, is, in effect, nothing more than a rent reserved by deed, but without any clause of distress.43

There are also other species of rents, which are reducible to these three. Rents of assize are the certain established rents of the freeholders and ancient copyholders of a manor,(c) which cannot be departed from or varied. Those of the freeholders are frequently called chief-rents, reditus capitales; and both sorts are indifferently denominated quit-rents, quieti reditus; because thereby the tenant goes quit and free of all other services. When these payments were reserved in silver or white money, they were anciently called white-rents, blanch-farms, reditus albi,(d) in contradistinction to rents reserved in work, grain, or baser money, which were called **43]reditus nigri, or black-mail.(e)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 its reservation:(f) 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.44

These are the general divisions of rents; 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-seck, rents of assize, and chief-rents, as in case of rents reserved upon lease.(g)45

Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation:(h) but in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country.(i) And strictly the rent is demandable and payable before the time of sunset of the day whereon it is reserved;(k) though perhaps not absolutely due till midnight.(l)46

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

CHAPTER IV.

OF THE FEODAL SYSTEM.

It is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate its 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.1 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 will imagine 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 ancient. 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 splendour.

*[*45The 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 language(e) signifies a conditional stipend or reward.(f) Rewards or stipends they evidently 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 the juramentum fidelitatis, or oath of fealty:(g)2 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, mutually engaged such as accepted them to defend them: and, as they all sprang from **46]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 other’s 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 defence of the whole, and of every part of this their newly-acquired country;(j) the produce of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests.4

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 about a century before the Christian era. They demanded of the Romans, “ut martius populus aliquid sibi terrae daret, quasi stipendium; cæterum, ut vellet, manibus atque armis 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 lord 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 *[*47Spain, 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(l) 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 forever.

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, the possessions of their subjects were perfectly allodial, (that is, wholly independent, and held of no superior at all,) now they parcelled 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.5 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 so 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, atque ferinas, immanesque Longobardorum leges accepit.(n)

**48]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.(o) 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 at their full vigour and maturity, even on the continent of Europe.(p)

This introduction however of the feudal 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 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 seized 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;6 and this has led many hasty writers into a strange historical mistake, and one which, upon the slightest examination, will *[*49be 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 themselves on a military footing, and thereby to prevent any future attempts from the continent, were probably the reasons that prevailed to effect its 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,(q) that in the 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 its 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 nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king’s vassals, and did homage and fealty to his person.(s) This may possibly have been the era 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,(t) *[50and couched in these remarkable words:—“Statuimus, ut omnes liberi homines fœdere et sacramento affirment, quod intra et extra universum regnum Angliæ Wilhelmo regi domino suo fideles esse volunt; terras et honores illius omni fidelitate ubique servare cum eo, et contra inimicos et alienigenas defendere.” 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 vassal: and, secondly, the tenants obliged themselves to defend their lords’ 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 liberi homines totius regni nostri prædicti, habeant et teneant se semper bene in armis et in equis, ut decet et oportet: et sint semper prompti et bene parati, ad servitium suum integrum nobis explendum et peragendum, cum opus fuerit: secundum quod nobis debent de feodis et tenementis suis de jure facere, et sicut illis statuimus per commune concilium totius regni nostri prædicti.”

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 manner as 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 surrendered up all its allodial or free lands into the king’s hands, who restored them to the owners as a beneficium 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 vassals of the crown.(x)7 The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually **51]by the consent of private persons; the latter was done at once, all over England, by the common consent of the nation.(y)

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 kingdom:(z) 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, as were never known to other nations;(a) 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 **52]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 ancient Saxon system; and accordingly, in the first year of his reign, granted a charter,(c) 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 its immunities (especially as altered on its 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 further 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 show, 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 ancient 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.

*[*53Having 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 groundwork 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 only the use and possession, according to the terms of the grant, was styled the feudatory, or vassal, 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 vassal opprobriously, as synonymous to slave or bondman.8 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 vassals; which perpetuated among them the era 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,9 or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal or tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, **54]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 lord.(e) Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words, devenio vester homo.(f)

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 vassals of the inferior lords were bound by their fealty to attend their domestic court barons,(g) (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; pares curtis, or pares curiæ. 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 to themselves (in **55]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 donation, 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 vassal performed his services faithfully. Then they became certain for one or more years. Among the ancient Germans they continued only from year to year; an annual distribution of lands being made by their leaders in their general councils or assembles.(i) This was professedly done lest their thoughts should be diverted from war to agriculture, lest the strong should encroach 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 services:(l) and therefore infants, women, and professed monks, who were incapable of *[*56bearing arms, were also incapable 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 acknowledgment 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 vassal, 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 their 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 infinitum 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 collateral 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 *[*57a divisible nature, but could only be inherited by the eldest son;(o) in imitation of these, military feuds (or those we are now describing) began also in most countries 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.(q) 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 vassal, than the vassal 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 vassal 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; 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 lords.(s) **58]But this at the same time demolished the ancient 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 were made from the old fundamental rules of tenure and succession; which were held no longer sacred, when the feuds themselves no longer continued to be purely military. Hence these tenures began now to be divided into feoda 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 descriptions; 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.(t)

But as soon as the feodal system came to be considered in the light of a civil 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 landed property of England will appear in the following chapters.10

CHAPTER V.

OF THE ANCIENT ENGLISH TENURES

In this chapter we shall take a short view of the ancient 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 styled 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 styled the lord paramount, 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,1 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 *[*60of 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 styled lord paramount; A. was both tenant and lord, or was a mesne lord: and B. was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit of the land.(a) 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 law of 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 of 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 seems 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 nature 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; *[*61as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were only fit 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 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 ancient or modern;(e) 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,(g) “of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatever 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 **62]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 its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called socage, (from the certainty of its services,) but degraded by their baseness into the inferior title of villanum socagium, villein-socage.

I. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitium militare; and in law-French, chivalry, or service de chivaler, answering to the fief d’haubert of the Normans,(h) which name is expressly given it by the Mirrour.(i) 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 fee, feodum militare; the measure of which in 3 Edw. I. was estimated at twelve plough-lands,(k) and its value (though it varied with the times)(l) in the reigns of Edward I. and Edward II.(m) was stated at 20l. per annum.2 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;(n) 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 proportion.(o) And there is reason to *[*63apprehend, 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;(p) 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 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 to show to be of feodal original.3

1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress;(q) 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 vassal’s power, was by the strict rigour of the feodal law an absolute forfeiture of his estate.(r) 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:(s) 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 *[*64their 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 encumbrances.4 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.(t) And one cannot but observe in this particular the great resemblance which the lord and vassal 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 by the client; viz. to marry the patron’s daughter; to pay his debts; and to redeem his person from captivity.(u)

But besides these ancient 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 charta(v) ordained that no aids be taken by the king without consent of parliament, nor in any wise by inferior lords, save only the three ancient ones above mentioned. But this provision was omitted in Henry III.’s charter, and the same oppressions were continued till the 25 Edward I., when the statute called confirmatio chartarum was enacted; which in this respect revived king John’s charter, by ordaining that none but the ancient aids should be taken. But though the species of aids was thus restrain**65]ed, 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 tenants in capite by statute 25 Edw. III. c. 11. The other aid, for ransom of the lord’s person, being not in its 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 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.(y) The English ill brooked this consequence of their new-adopted policy; and therefore William the Conqueror by his law(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 100s. 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, **66]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 Hen. II., called the assize 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 acknowledgments in arms according to the laws of the conqueror, the composition was universally accepted of 100s. 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 of the lands, if they were in immediate possession; 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 ancient law of feuds, immediately upon the death of a vassal, 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 a day, it was by the strict law a for feiture.(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 seisina 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 *[*67whole profits of the land, till livery was sued; 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 the first-fruits, that is to say, one year’s profits, of the land.(g) 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 of primitiæ, 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 entitled 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 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.(i)5

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 **68]to supply the infant’s services, till he should be of age to perform them himself.6 And if we consider the feud in its 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; 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 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 ousterlemain;(k) 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 profit of the land; though this seems expressly contrary to magna carta.(l) 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 profit that arose to the crown by these first-fruits of tenure, and to grant the heir his livery, the itinerant 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 **69]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.(o) 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 pay a fine to the king. For in those heroical times, no person was qualified for deeds of arms and chivalry, who had 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,(q) is supposed to have been the original of the feodal knighthood.(r) This prerogative, of compelling the king’s vassals7 to be knighted, or to pay a fine, was expressly recognised in parliament by the statute de militibus, 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 *[*70that unhappy prince, before the fatal recourse to arms, he agreed to divest himself of this undoubted power 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, (maritagium, as contradistinguished from matrimony,) which in its 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 guardian;(s) that is, so much as a jury would assess, or any one would bona fide give to the guardian for such an alliance;(t) and, if the infants married themselves without the guardian’s consent, they forfeited double the value, duplicem valorem maritagii.(u)8 This seems to have been one of the greatest hardships of our ancient 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 of strictly feodal original; 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 *[*71married 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;(y) or, as it was expressed in the first draught of that charter, ita maritentur ne disparagentur, et per consilium propinquorum de consanguinitate sua.(z) But these provisions in behalf of the relations were omitted in the charter of Henry III.; wherein(a) the clause stands merely thus, “hæredes maritentur absque disparagatione:” meaning certainly, by hæredes, 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 Glanville(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 sive fœmina, 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.9

6. Another attendant or consequence of tenure by knight-service was that of fines due to the lord for every alienation, whenever the tenant had occasion to make over his land to another. This depended on the nature of the feodal connection; it not being reasonable or 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 feo**72]dal 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 license to their tenant to aliene, without a fine being paid; apprehending that, if it was reasonable for the heir to pay a fine or relief on the renovation of his paternal estate, 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 license: but as to common persons, they were at liberty by magna carta(g)10 and the statute of quia emptores(h) (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 license; for if they did, it was in ancient strictness an absolute forfeiture of the land,(i) 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 license of alienation; but if the tenant presumed to aliene without a license, a full year’s value should be paid.(k)11

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 died without heirs of his blood, or if his blood was corrupted and stained by commission of treason or felony,12 whereby every inheritable quality was entirely blotted out **73]and abolished. In such cases the lands escheated, or fell back to the lord of the fee;(l) 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, showed that he was no longer to be trusted as a vassal, 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 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,(n) 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 a knight’s service proper, which was to attend the king in his wars. There were also some other species of knight’s 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’s service proper, and because they were attended with similar fruits and consequences. Such was the tenure by grand serjeanty,13per 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;14 as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer, at his coronation.(o) It was in most other respects like knight-service;(p) only he was not bound to pay aid,(q) or escuage,(r) **74]and, when tenant by knight-service paid five pounds for a relief on every knight’s fee, tenant by grand serjeanty paid one year’s value of his land, were it much or little.(s) Tenure by cornage,15 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.(t)

These services, both of chivalry and grand serjeanty, 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 scutagium 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.16 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 ancient 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 matter of national clamour; and king John was obliged to consent, by his magna carta, that no scutage should be imposed without consent of parliament.(u) But this clause was omitted in his son Henry III.’s charter, where we only find(w) that scutages, *[*75or 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, 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;(y) 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(z) 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 socage,(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 pecuniary assessments, 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 **76]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, however, 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 knighted, 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 Smith(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 further, 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 its freedom. Palliatives were from time to time applied by successive acts of parliament, which assuaged some temporary grievances. Till at length the humanity of king James I. consented,(e) in consideration of a proper equivalent, to abolish them all; though the plan **77]proceeded not to effect; in like manner as he had formed a scheme, and begun to put it in execution, for removing the feodal grievance of heritable jurisdiction in Scotland,(f) which has since been pursued and effected by the statute Geo. II. c. 43.(g) King James’s plan for exchanging our military tenures seems 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 wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienation, tenures by homage, knight-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.17 And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyhold, and the honorary services (without the slavish part) of grand serjeanty.” 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 statute of king Charles extirpated the whole, and demolished both root and branches.

CHAPTER VI.

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 itself was happily done away, yet we are not to imagine that the constitution itself was utterly laid aside, and a new one introduced in its 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 copyhold, 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 ancient 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.1

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, or free 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 **79]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.

II. Socage, in its most general and extensive signification, seems to denote a tenure by any certain and determinate service. And in this sense it is by our ancient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton;(a) if a man holds by rent in money, without any escuage or serjeantry, “id tenementum dici potest socagium:” but if you add thereto any royal service, or escuage, to any the smallest amount, “illud dici poterit feodum militare.” So too the author of Fleta;(b) “ex donationibus, servitia militaria vel magnæ serjantiæ non continentibus, oritur nobis quoddam nomen generale, quod est socagium.” 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(d) he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner as it is defined by Finch,(e) a tenure to be done out of war. The service must therefore be certain, in order to denominate it socage; as to hold by fealty and 20s. 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: free-socage, where the services are not only certain, but honourable; and villein-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil,(g) 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 **80]nature of its 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 word:(h) who derives it from the Saxon appellation soc, 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.(i) 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 ancient 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 its original, it still retains the name of socage or plough-service.(k) But this by no means agrees with what Littleton himself tells us,(l) 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 the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the name of fraunke ferme,(n) 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 *[*81original, 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 to fraunke ferme 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.2

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 tenure;(o) 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 socage.

As therefore the grand criterion and distinguishing mark of this species of tenure are the having its 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 burgage, 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 per**82]son. Petit serjeanty, as defined by Littleton,(p) 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 arrow, or the like. This, he says,(q) 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 liberum et commune socagium: only, being held of the king, it is by way of eminence dignified with the title of parvum servitium regis, or petit serjeanty. 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.3

Tenure in burgage is described by Glanvil,(s) and is expressly said by Littleton,(t) to be but tenure in socage: and it is where the king or other person is lord of an ancient borough, in which the tenements are held by a rent certain.(u) 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 site of houses, in an ancient 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 ever have been held by plough-service; since the te*[*83nants must have been citizens or burghers, the situation frequently a walled town, the tenements 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 ancient burgage: the principal and most remarkable of which is that called Borough English,4 so named in contradistinction as it were to the Norman customs, and which is taken notice of by Glanvil,(w) and by Littleton;(x) viz., that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father. For which Littleton(y) 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 authors(z) 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 of mercheta or marcheta,) till abolished by Malcolm III.(a) And perhaps a more rational account than either may be fetched (though 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 father with a certain allotment of cattle, and go to seek a new habitation. The youngest son, therefore, who continues latest with his father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other northern nations, it was the custom for all the sons but one to migrate from the father, which one be*[*84came 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 Cæsar 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 tenements,(c) and not of the third part only, as at the common law: and that, in others, a man might 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 allowable.(e) A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty.5

The nature of the tenure in gavelkind6 affords us a still stronger argument. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended.7 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 realm.(g) 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.”(i)8 3. In most places he had a power of devising lands by will, before the statute for that purpose was made.(k) 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together;(l) which was indeed anciently the most usual **85]course of descent all over England,(m) though in particular places particular customs prevailed.9 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 its nature certain.(n) Wherefore by a charter of king John,(o) Hubert, archbishop of Canterbury, was authorized 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 should 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 show that this also partakes very strongly of the feodal nature. Which may probably arise from its ancient 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 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 *[*86charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton,(q) their number and value began to swell so far, as to make a distinct, and justly envied, part of our English 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 his tenant.

2. Both were 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 its 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 day.

3. Both were, from their constitution, universally subject (over and above all other renders) to the oath of fealty, or mutual bond of obligation between the lord and tenant.(r) Which oath of fealty usually draws after it suit to the lord’s court. 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,(s) 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; and so he may lose his seignory, and the profit which may accrue to him by escheats and other contingencies.(t)

4. The tenure in socage was subject, of common right, to aids for knighting the son and marrying the eldest daugh**87]ter,(u) which were fixed by the statute of Westm. 1, c. 36 at 20s. for every 20l. 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 5l., 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(x) will not allow this to be properly a relief, but quædam præstatio loco relevii in recognitionem domini. So too the statute 28 Edw. I. c. 1 declares that a free sokeman shall give no relief, but 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 about 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.(y) The statute of Charles II. reserves the reliefs incident to socage 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 tenant.(z)

6. Primer seisin was incident to the king’s socage tenants in capite, as well as to those by knight-service.(a) But tenancy in capite as well as primer seisins are, among the other feodal burthens, entirely abolished by the statute.

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 **88]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,10 as was fully explained, together with the reasons for it, in the former book of these commentaries.(b) At fourteen this wardship in socage ceases; and the heir may oust the guardian and call him to account for the rents and profits;(c) for at this age the law supposes him capable of choosing a guardian for himself. It was in this particular of wardship, as also in that of marriage, and in the certainty of the render of 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 choose 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 from improvidently exposing himself to ruin.

8. Marriage, or the valor maritagii, 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; *[*89lest 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 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 them,(e) speak generally of all tenants in capite, without making any distinction: but now all fines for alienation are demolished by the statute of Charles the Second.

10. Escheats are equally incident to tenure in socage, as they were to tenure by knight-service; except only in gavelkind lands, which are (as is before mentioned) subject to no escheats for felony, though they are to escheats for want of heirs.(f)

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 the lands of both sorts are now holden by 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 subdivided into two classes, pure and privileged villenage, from whence have arisen two other species of our modern tenures.

**90]III. From the tenure of pure villenage have sprung our present copy-hold tenures, or tenure by copy of court-roll at the 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 ancient as the Saxon constitution, though perhaps different a little in some immaterial circumstances from those that exist at this day;(g) just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor, manerium, a manendo,11 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 terræ 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 the 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 called folk-land, 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 or pasture to the lord and his tenants. Manors were formerly called baronies, as they are still 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 **91]of suitors should so fail as not to leave sufficient to make a jury or homage, that is, two tenants at least, the manor itself is lost.12

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 ancient 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,)(i) that no man should either give or sell his land, without reserving sufficient to answer the demand of his lord; and afterwards the statute of Westm. 3, or quia emptores, 18 Edw. I. c. 1, which directs that, upon all sales or feoffments of land, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it.13 But these provisions not extending to the king’s own tenants in capite, the like law concerning them is declared by the statutes of prerogativa regis, 17 Edw. II. c. 6, and of 34 Edw. III. c. 15, by which last all subinfeudations, previous to the reign of king *[*92Edward 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 prince, and no tenant of a common lord since the statute of quia emptores, could create any new tenants to hold of himself.

Now, with regard to the folk-land, or estates held in villenage, 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 its composition. Under the Saxon government there were, as Sir William Temple speaks,(l) 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)a 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 were consigned; their rugged masters, like our northern ancestors, esteeming war the only honourable employment of mankind.

**93]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 transferable by deed from one owner to another.(o) 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 chattels. 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:(p) and their services were not only base, but uncertain both as to their time and quantity.(q) 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(s) 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 seize them to his own use, unless he contrived to dispose of them again before the lord had seized them; for the lord had then lost his opportunity.(t)

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 pa**94]rents; whence they were called in Latin, nativi, which gave rise to the female appellation of a villein, who was called a neife.(x) In case of a marriage between a freeman and a neife, or a villein and a freewoman, the 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 in our law he is nullius filius: 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;(z) 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.15 Neifes indeed had also an appeal of rape in case the lord violated them by force.(a)

Villeins might be enfranchised by manumission, which is either 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 years;(c) 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 seizing 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 *[*95manumission. 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 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 spite of 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 show 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.(e)

Thus copyhold tenures, as Sir Edward Coke observes,(f) although very meanly descended, yet come of an ancient house; 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.16 Which *[*96affords 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 be 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(g) 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, 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 especially 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 impoverish 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.”17 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-rent.(h)

**97]As a further consequence of what has been premised, we may collect these two main principles, which are held(i) 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.18

In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are styled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only: for the custom of the manor has in both cases so far superseded the will of the lord, that, provided the services be 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.19

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 only 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,(j) 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 seized 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, par*[*98takes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian;20 who usually assigns some relation of the infant tenant to act in his stead; and he, like the guardian in socage, is accountable to his ward for the profits.21 Of fines, some are in the nature of primer seisins, due on the death of each tenant, others are mere fines for the alienation of the lands; 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 copyholds, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate.22 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) From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath always shown 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 ancient 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-socage. This, he tells us,(l) is such as has been held of the kings of England from the conquest **99]downwards; that the tenants herein “villana faciunt servitia, sed certa et determinata;” 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 its services, and the freedom of socage in their certainty, he has therefore given a name compounded out of both, and calls it villanum 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-book.(m) The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies,(n) 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 points.(o) Others were in a great measure enfranchised 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;(p) 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;(q)23 not to pay toll or taxes; not to contribute to the expenses of knights of the shire; not to be put on juries; and the like.(r)

*[*100These tenants therefore, though their tenure be absolutely copyhold, yet have an interest equivalent to a freehold: for notwithstanding their services were of a base and villenous original,(s) 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 ideo,” says Bracton, “dicuntur liberi.” Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes(t) 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.(u) Hence Fitzherbert observes,(w) that no lands are antient demesne, but lands holden in socage; that is, not in free and common socage, but in this 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 franktenure, 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 special mark and tincture of villenage, noted by Bracton, and remaining to this day, viz., that they cannot be conveyed 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; *[*101yet with this distinction,(x) 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.”24

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 connection 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 era to 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 called the tenure in frankalmoign.

V. Tenure in frankalmoign, in libera eleemosyna, or free alms, is that whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them and their successors forever.(y) The service which they were bound to render for these lands was not certainly defined; but only in general to pray for the soul of the donor and his heirs dead or alive; and therefore they did no fealty, (which is incident to all other services but this,)(z) because this divine service was of a higher and more exalted nature.(a) This is the tenure by which almost all the antient monasteries 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 **102]of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shown 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 trinoda necessitas, of repairing the highways, building castles, and repelling invasions:(c) just as the Druids, among the antient Britons, had omnium rerum immunitatem.(d) And, even at present, this is a tenure of a nature very distinct from all others; 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 tenure.(g) 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 all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures.

CHAPTER VII.

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 has therein: 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.(a) It is called in Latin status; it signifying 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 its 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 forever. And this occasions the primary division of *[*104estates into such as are freehold, and such as are less than freehold.

An estate of freehold, liberum tenementum, or franktenement, is defined by Britton(b) to be “the possession of the soil by a freeman.” And St. Germyn(c) tells us that “the possession of the land is called in the law of England the franktenement or freehold.” 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 any incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton,(d) that where a freehold shall pass, it behooveth to have livery of seisin. As, therefore, estates of inheritance 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 are conveyed with the same solemnity, therefore no others are properly freehold estates.1

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 styled, tenant in fee) is be that hath lands, tenements, or hereditaments, to hold to him and his heirs forever:(e) 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 its original sense it is **105]taken in contradistinction to allodium;(f) 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 rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum 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(g) defines a feud or fee to be the right which the vassal 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 property 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 dominium:(i) 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 feudal 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 forever: 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.

**106]This is the primary sense and acceptation of the word fee. But (as Sir Martin Wright very justly observes)(l) 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 its primary original 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)

Taking therefore fee for the future, unless where otherwise explained, in this its secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal.(n) But there 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 not in his demesne.(o) For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and houses,(p) 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 law.(q) The dominicum or property is frequently *[*107in one man, while the appendage or service is in another. Thus Caius 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 divers 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 determination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet sometimes the fee may be in abeyance, that is, (as the word signifies,) in expectation, remembrance, and contemplation in law; there being no person in esse in whom it can vest and abide: though the law considers it as always potentially existing, and ready to vest whenever a proper owner appears.2 Thus, in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo est hæres viventis: it remains therefore in waiting or abeyance, during the life of Richard.(r)3 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.(s) 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 until a successor be named, and then it vests in the successor.(t)4

The word “heirs” is necessary in the grant or donation, in order to make a fee, or inheritance. For if land be given to a man forever, or to him and his assigns forever, this vests in him but an estate for life.(u) This very great nicety about the insertion of the word “heirs,” in all feoffments and grants, in order to vest a fee, is plainly a relic of the feodal strictness; by which we may remember(w) it was required **108]that the form of the donation should be punctually pursued; or that, as Cragg(x) expresses it in the words of Baldus, “donationes sint stricti juris, ne quis plus donasse præsumatur quam in donatione expresserit.” 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.(y)

For, 1. It does not extend to devises by will;5 in which, as they were introduced at the time when the feodal rigour was apace wearing out, a more liberal construction is allowed: and therefore by a devise to a man forever, or to one and his assigns forever, 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 or estate, wherein the word “heirs” was expressed.(z) 3. In creations of nobility by writ, the peer so created hath an inheritance 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, 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.6 Nay, in **109]a grant to a bishop, or other sole spiritual corporation, in frankalmoign, the word “frankalmoign” supplies the place of “successors,” (as the word “successors” supplies the place of “heirs,”) ex vi termini; 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.(a) 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 last, 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.7

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: 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 hath 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,8 the grant is entirely defeated. So, when Henry VI. granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, 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 *[*110estate9 is a fee, because by possibility it may endure forever 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 hæredibus 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.10 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 its ancient 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-simple. 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 and the heirs of his body) was a gift upon condition, that it 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.11 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, **111]and wholly unconditional.12 So that, as soon as the grantee had any issue born, his estate was supposed to become absolute, by the performance of the condition; at least, for these 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 reversion.(g) 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.(h) 3. To empower him to charge the land with rents, commons, and certain other encumbrances, so as to bind his issue.(i) 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 tenanth, 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 default 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 repurchased the lands, which gave them a fee-simple absolute, that would descend to the heirs in 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; 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.

*[*112The inconveniences which attended these limited and fettered inheritances, were probably what induced the judges to give way to this subtle finesse of construction, (for such it undoubtedly was,) in order to shorton the 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 second(l) (commonly called the statute de donis conditionalibus) 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 whatsoever. This statute revived in some sort the antient feodal restraints which were originally laid or alienations, by enacting, that from thenceforth the will of the donor 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 a fee-tail;(m) and investing in the donor the ultimate fee-simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion.(n)13 And hence it is that Littleton tells us(o) that tenant in fee-tail is by virtue of the statute of Westminster the second.

Having thus shown the original of estates-tail, I now proceed to consider what things may, or may not, be entailed *[*113under the statute de donis. Tenements is the only word used in the statute: and this Sir Edward Coke(p) 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 like. Also offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailed.(q) 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 chattels; 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)14 An estate to a man and his heirs for another’s life cannot be entailed:(s) for this is strictly no estate of inheritance, (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;(t) 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 marriage is, in successive order, capable of inheriting the estate-tail, per formam doni.(u)15 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 *[*114happen 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 tail. And here we may observe, that the words of inheritance (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.

Estates, in general and special tail, are further diversified by the distinction of sexes in such entails; for both of them may either be in tail male or tail 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 the heirs-female of his body on his present wife begotten, this is an estate tail female special. And, in case of an entail male, the heirs-female shall never inherit, nor any derived from them; nor, è converso, 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.(z)

As the word heirs is necessary to create a fee, so in further limitation of the strictness of the feodal donation, the word body, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular *[*115the 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.(c)16

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 libero maritagio, or frankmarriage. These are defined(d) 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 word frankalmoign, 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 on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached, or called to account for the same. **116]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 properly styled by Pigott)(g) 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 a 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 ancient 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.(i) 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 contrivance 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 donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV.; which were then openly declared by the judges to be a **117]sufficient bar of an estate-tail.(k) For though the courts had, so long before as the reign of Edward III., very frequently hinted their opinion that a bar might be effected upon these principles,(l) yet it was never 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:(n) 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 thereof. 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 parliament(o) 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 *[*118resettled in a similar manner to 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 leases 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(q) 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. This 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 would not be a bar to estates-tail. But the statute of Hen. 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 & 35 Hen. VIII. c. 20, which enacts that no feigned recovery had against tenants in tail, where the estate was created by the *[*119crown,(r) and the remainder or reversion continues still in the crown, shall be of any force and effect. Which is allowing, indirectly and collaterally, 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,(s) 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 law,(t) 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.17

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, and also with such of his debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in a course of extensive commerce.18

CHAPTER VIII.

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 act of the parties; others merely legal, or created by construction and operation of law.(a) We will consider them both in their order.

1. 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 styled tenant for life; only when he holds the estate by the life of another, he is usually called tenant pur auter vie.(b) These estates for life are, like inheritances, of 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 its 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.

*[*121Estates for life may be created, not only by the express words before mentioned, but also by a general grant, without defining 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, mentioned in the grant, it cannot be construed to be a fee, 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 a term of life generally, shall be construed to be an estate for the life of the grantee;(e) in case the grantor hath authority to make such 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 be taken most strongly against the grantor,(f) 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 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 gone.(g) 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 death.(i)1

*[*122The 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 estovers(k) or botes.(l) For he hath a right to the full enjoyment and use of the land, and all its profits, during his estate therein. But he is not permitted to cut down timber, or to do other waste upon the premises:(m) 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.1½

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.(n) Therefore if a tenant for his own life sows the lands, and dies before harvest, his executors shall have the emblements, or profits of the crop: for the estate was determined by the act of God, and it is a maxim in the law, that actus Dei nemini facit injuriam.2 The representatives, therefore, of the tenant for life shall have the emblements to compensate for the labour and expense of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the increase 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 *[*123of August, the heirs of the tenant received the whole.(o) 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 que vie, or he on whose life the land is held, dies after the corn sown, the tenant pur auter vie shall have the emblements. 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 sows 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 act of law.(p) 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 by their own acts, shall not be entitled to take the emblements.(q) 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 expense and labour of the tenant, but are either a permanent or natural profit of the earth.(r)3 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 its 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. 11. 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 indulgences than the lessors, the original tenants for life. The same; for the law of estovers and emblements **124]with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place:(s) 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 her.(t)4 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 anybody for the occupation of the land since the last quarter-day, or other day assigned for payment of rent.(u) To remedy which, it is now enacted(v) that the 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.5

II. The next estate for life is of the 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 *[*125would 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 per formam 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 styled 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.

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 matrimonii, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance once vested in them.(y) 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 partly 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.;(a)6 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, **126]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 nature.

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 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 its 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,(e) so that probably our word curtesy was understood to signify rather an attendance upon the lord’s court or curtis, (that is, being his vassal or tenant,) than to denote any peculiar favour belonging to this island.7 And therefore it is laid down(f) 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.(g) It also appears(h) to have obtained in Normandy; and was likewise used among the ancient Almains or Germans.(i) 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 *[*127the 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 tenant.(l) 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 the wife.(m) 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin, or possession of the lands; not a bare right to possess, which is a seisin in law,8 but an actual possession, which is a seisin in deed.9 And therefore a man shall not be tenant by the curtesy of a remainder or reversion.10 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 lifetime 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.(n) If the wife be an idiot, 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.(o)11 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 its being born alive; 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 Cæsarean operation is performed, the husband in this case shall not be tenant by the *[*128curtesy; because, 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 womb; and the estate, being once so vested, shall not afterwards be taken from him.(q) 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.(s) 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.(t) 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,12 he shall not be tenant of them by the curtesy.(u) And hence we may observe, with how much nicety and consideration the old rules of law were framed; and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture; for, whether it were 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.(y)13

**129]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 third14 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 life.(z)

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 its original state, had nothing that bore a resemblance: nor indeed is there any thing in general more different than the regulations of landed property according to the English and Roman laws. Dower out of the lands seems also to have been unknown in the early part of our Saxon constitution; for in the laws of king Edmond,(a) 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.15 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 triens, 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 **130]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.(g)

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 barred or prevented.

1. Who may be endowed. She must be the actual wife16 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, ibi nulla dos.(h) But a divorce a mensa et thoro only doth not destroy the dower;(i) no, not even for adultery itself by the common law.(k) Yet now by the statute West. 2.(l) 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 her.17 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(o) 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 *[*131the wife her dower. But a subsequent statute(p) 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,)(q) but not the widows of felons. An alien also cannot be endowed,18 unless she be queen-consort; for no alien is capable of holding lands.(r) The wife must be above nine years old at her husband’s death, otherwise she shall not be endowed:(s) though in Bracton’s time the age was indefinite, and dower was then only due “si uxor possit dotem promereri, et virum sustinere.”(t)

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)19 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; 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 possibility 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 dowable; 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 **132]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 transitu, 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 thereof.(y)20 And, in short, a widow may be endowed of all her husband’s lands, tenements, and hereditaments, corporeal or incorporeal,21 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 alienes them liable to dower.(c)22

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 plus belle, having been abolished together with the military tenures, of which it was a consequence.23 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 ecclesiæ:(f) which is where tenant in fee-**133]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 the 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 further ceremony. 4. Dower ex assensu patris;(g) which is only a species of dower ad ostium ecclesiæ, 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 ecclesiæ et ad ostium ecclesiæ; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandestina fuerint 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 incontinency 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;(i) and afterwards we hear no more of it. Under Henry the Second, according to Glanvil,(k) the dower ad ostium ecclesiæ was the most usual species of dower; and here, as well as in Normandy,(l) it was binding upon the wife, if by her consented to at the time of marriage. Neither, in those days of feodal rigour, was the husband allowed to endow her ad ostium ecclesiæ 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 wardships and other feodal profits.(m) But if no specific dotation was made at the **134]church porch, then she was endowed by the common law of the third part (which was called her dos rationabilis) 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:(n) 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(o) in lands which he afterwards acquired.(p) In king John’s magna carta, and the first chapter of Henry III.,(q) 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 lifetime:(r) yet in case of a specific endowment of less ad ostium ecclesiæ, 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 III. and Edward I.(s) In Henry IV.’s time it was denied to be law, that a woman can be endowed of her husband’s goods and chattels:(t) and, under Edward IV., Littleton lays it down *[*135expressly, that a woman may be endowed ad ostium ecclesiæ with more than a third part:(u) 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 ecclesiæ and ex assensu patris, have since fallen into total disuse.24

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 license; lest she should contract herself, and so convey part of the feud, to the lord’s enemy.(x) This license 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,(z) 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 further, 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 assigned. These forty days are called the widow’s quarantine, 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 assigned(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 *[*136thereof 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 quarantine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign it.(c) Or if the heir (being under age) or his guardian assign 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 bounds; 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.(e)

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 alteration of the ancient law respecting dower ad ostium ecclesiæ, which hath occasioned the entire disuse of that species of dower, jointures 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,25 and other disabilities before mentioned, 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 Gloucester,(g) if a dowager alienes the land assigned her for dower, she forfeits it ipso **137]facto, and the heir may recover it by action.26 A woman also may be barred of her dower, by levying a fine, or suffering a recovery of the lands, during her coverture.(h)27 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, but in common acceptation extends also to a sole estate, limited to the wife only, is thus defined by Sir Edward Coke;(i) “a competent livelihood of freehold for the wife, of lands and tenements; to take effect, in profit or possession, presently after the death of the husband, for the life of the wife at least.” This description is framed from the purview of the statute 27 Henry VIII. c. 10, before mentioned; commonly called the statute of uses, 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 the profits thereof, in another; 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 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 itself. In consequence of which legal seisin,28 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 *[*138upon making such an estate in jointure to the wife before marriage, she shall be forever precluded from the dower.(k) 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 auter vie, or for any term of years, or other smaller estate.29 3. 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 be30 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 ad ostium ecclesiæ, 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 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.(l)31

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. Tenant in dower by the old common law is subject to no tolls or taxes; 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.(m) But, on the other **139]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 ecclesiæ, which a jointure in many points resembles; and the resemblance was still greater while that species of dower continued in its primitive state: whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower.(n) And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow.(o) Wherefore Sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiæ, the most eligible species of any.32

CHAPTER IX.

OF ESTATES LESS THAN FREEHOLD.

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

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,(a) and the lessee enters thereon.(b)1 If the lease be but for half a year or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled 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 concerning the division and calculation of time by the English law.2

The space of a year3 is a determinate and well-known period, consisting commonly of 365 days; for though in bis*[*141sextile 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 day, shall be accounted for one day only. 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.4 A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; not only because it is always 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; 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 its 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 meant 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.(e) 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 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 **142]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(g) 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 long terms, for three hundred years or a thousand, were certainly in use in the time of Edward III.,(i) 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 for family settlements and mortgages: continuing subject, however, to the same rules of succession, *[*143and with the same inferiority to freeholds, as when they were little better than tenancies at the will of the landlord.5

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 its duration or continuance is bounded, limited, and determined: for every such estate must have a certain beginning and certain end.(l) But id certum 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;(m) 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.(n) A lease for so many years as J. S. shall live, is void from the beginning;(o) 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 estate for life, even if it be pur auter vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate.(q) 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 **144]twenty years, this is good; but to hold from Michaelmas next for the term of his natural life, is void. For no estate or freehold can commence in futuro;6 because it cannot be created at common law without livery of seisin, or corporal possession of the land; and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter.(r) 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 years;(s) the possession or seisin of the land remaining still in him who hath the freehold.7 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.(t)8

Tenant for term of years hath incident to and inseparable from his estate, unless by special agreement, the same estovers which we formerly observed(u) 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.(x)9

*[*145With regard to emblements, or the profits of lands sowed by tenant for years, there is this difference between him, and tenant 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 year 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 could never reap the profits of.(y) But where the lease for years depends upon an uncertainty: as, upon the death of a 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.(z) 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.(a)10

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 possession.(b) 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 connection with the other at his own pleasure.(c) Yet this must be understood with some restriction. **146]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: 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; for in this case the landlord shall have the profits of the land.(e)

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)(g) 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,(i) or making a feoffment, or lease for years of the land to commence immediately;(k) 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;(l) 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 **147]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.(o) 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; but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved:11 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.(p)12

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. This, as was before observed,(q) was in its 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 **148]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 continuance 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 custom 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, promulgated 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 a freehold; for the freehold of the whole manor abides always in the lord only,(s) who hath granted out the use and occupation, but not the corporal 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-**149]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 immediate enfranchisement of the villein.(t) The lords therefore, though they were willing to enlarge the interest of their villeins, 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 power 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 styled 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 forever, 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 ancient 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 to 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.

*[*150However, 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 bondmen, 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 copyholder of inheritance, with a fine certain, to be little inferior to an absolute 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.13

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 a 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)14 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.(x) 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:(y) 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.

**151]Thus stands the law with regard to tenants by sufferance, and landlords are obliged in these cases to make formal entries upon their lands,(z) and recover possession by the legal process of ejectment;15 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 the statute 4 Geo. II. c. 23, in case any tenant 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 possession. 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.16

CHAPTER X.

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;1 being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged,2 or finally defeated.(a)3 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 its 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 office,(b) on breach of which condition **153]it is lawful for the grantor, or his heirs, to oust him, and grant it to another person.(c) For an office, either public or private, may be forfeited by mis-user or non-user, both of which are breaches of this implied condition. 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper 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 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.(e)

Upon the same principle proceed all the forfeitures which are given by law of life-estates and others, 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 estate than they themselves are entitled to.(f)4 So if any tenants for years, for life, or in fee, commit a felony; the king or other lord of the fee is entitled to have their tenements, because their estate is determined by the breach of the condition, “that they shall not commit felony,” which the law tacitly annexes to every feodal donation.

**154]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.(g)5 These conditions are therefore either precedent, or subsequent.6 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 estate(h) 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.(i) But if a man grants an estate in fee-simple, reserving to himself and his heirs a certain rent; and that if such rent be not paid at the time 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.(l) 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. And so, if a personal annuity be granted at this day to a man and the heirs of his body, 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 durante viduitate, &c.; these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of these *[*155subsequent conditions, by the failure of these contingencies; by the grantee’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 determinable 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 its 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 until out of the rents and profits he shall have made 500l., and the like.(n) 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 500l.,) 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 40l. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c.,)(o) the law permits it to endure beyond the time when such contingency happens, 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.(p) 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 **156]condition:(q) because if it were a condition, then, upon the breach thereof, only A. or his representatives 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.(r)

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;(s) because the estate is capable to last forever, or at least for the life of the tenant, supposing the condition to remain unbroken. But where the estate is at the utmost a chattel interest, which must 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 its 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, **157]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.(t) But 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.(u)

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 radium, or living pledge; and mortuum vadium, dead pledge, or mortgage.

Vivum vadium, or living pledge, is when a man borrows a sum (suppose 200l.) of another; and grants him an estate, as of 20l. 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.(w) But mortuum 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. 200l.) *[*158and grants him an estate in fee, on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 200l. on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; or, as is now the more usual way, that then the mortgagee shall reconvey the estate to the mortgagor: in this case, the land, which is so put in pledge, is by law,7 in case of non-payment at the time limited, forever 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.(x) But as it was formerly a doubt,(y) whether, by taking such estate in fee, it did not become liable to the wife’s dower, and other encumbrances, of the mortgagee, (though that doubt has been long ago overruled by our courts of equity,)(z) it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on repayment 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 dispossessed, 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 payment; 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 dead. But here again the courts of equity interpose; and, though a mortgage be thus forfeited, and the *[*159estate 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;8 paying to the mortgagee his principal, interest and expenses: for otherwise, in strictness of law, an estate worth 1000l. might be forfeited for non-payment of 100l. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption: 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 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 mortgages,(a) the fraudulent mortgagor forfeits all equity of redemption whatsoever.9 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,10 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.(b)11 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 reassign his securities. In Glanvil’s time, when the universal method of conveyance was by livery of seisin *[*160or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the creditor; “si non sequatur ipsius vadii traditio, curia domini regis hujusmodi privatas conventiones tueri non solet;” for which the reason given is, to prevent subsequent and fraudulent pledges of the same land: “cum in tali casu possit eadem res pluribus aliis creditoribus tum prius tum posterius invadiari.”(c) And the frauds which have arisen since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient law.12

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 ascertained. For both the statute merchant and 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 mercatoribus, 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 principal commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns,(d) 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 seized 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 extended to all the king’s subjects in general, by virtue of the statute 23 Hen. VIII. c. 6, amended by 8 Geo. I. c. 25, which directs 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 bona fide purchasers, from the day of their enrolment, 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 *[*161estate by elegit. What an elegit 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(e) 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 he so holds them, he is called tenant by elegit. 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 emptores,(f) 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 mercatoribus (passed in the same year)(g) the whole of a man’s lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though one-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;” (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 assize) as a tenant of the freehold shall have,(i) yet it is but the *[*162similitude 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 to other uncertain interests, shall 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 executors:(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.

CHAPTER XI.

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; with regard to the time of their enjoyment, when the actual 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.1

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. **164]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 forever: 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.(a) 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 forever: 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 part, of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all *[*165the remainders expectant thereon, is only one fee-simple: as 40l. is part of 100l. and 60l. 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 100l. 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 observed 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 particula, 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 ancient law,(d) to be executed either now or hereafter, as the contracting parties should agree; but an estate of freehold must be created to commence immediately. For it is an ancient 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 *[*166common 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 forever from the end of three years next ensuing, is void.2 So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular 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 giving 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 remainderman is seised 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 præsenti, 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 remainder. Besides, if it be a freehold remainder, livery of seisin must be given at the time of its creation; and the entry of the grantor to do this determines the estate at will **167]in the very instant in which it is made:(g) or if the remainder be a chattel interest, though perhaps the deed of creation might operate as a future contract, if the tenant for years be a party to it, yet it is void by way of remainder: for it is a separate 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 taken.(h) And hence it is generally true, that if the particular estate is void in its creation, or by any means is defeated afterwards, the remainder supported thereby shall be defeated also:(i) 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 breach of which condition the grantor enters and avoids the estate;(l) 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.(m) 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.(n) 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 enure to him in remainder, as both are but one estate in law.(o)

**168]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.(p) 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. 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 forever.(q) And this depends upon the principle before laid down, that the precedent particular estate, and the remainder are one estate in law; they must therefore subsist and be in esse 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.3

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 *[*169particular 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.(s)4

First, they may be limited to a dubious and uncertain person. As if A. be tenant for life, 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 of 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. were tenant for life, remainder to his 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.(t) But, to remedy this hardship, it is enacted by statute 10 & 11 W. III. c. 16, that posthumous children shall be capable of taking in remainder, in the same manner as if they had been born in their father’s lifetime: that is, the remainder is allowed to vest in them, while yet in their mother’s womb.(u)5

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 propinqua, be in esse at or before the particular estate determines.(w) As if an estate be *[*170made 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 hæres 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.(y) For here there must two contingencies happen: first, that such a person as B. shall be born; and, secondry. that he shall also die during the continuance of the particular estate; which make it potentia remotissima, 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 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.(z)6 A limitation of a remainder to a bastard before it is born, is not good:(a)7 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 forever gone; but if A dies first, the remainder to B. becomes vested.

**171]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 nowhere: 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.8

Contingent remainders may be defeated, by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested.(c) Therefore when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation, 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.9 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.10 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 **172]particular estate in possession, sufficient to support the remainders depending in contingency. This method is said to have been invented by Sir Orlando Bridgman, Sir Geoffrey Palmer, and other eminent counsel, 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 when, after the restoration, these 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.11

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 particular subtleties 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.12 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.13 It differs from a remainder in three very material points: 1. That it needs not any *[*173particular 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 heirs 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, by way of executory devise.(e) For, since by a devise a freehold may pass without corporal tradition or livery of seisin, (as it must do, if it passes at all,) therefore it may commence in futuro; because the principal reason why it cannot commence in futuro in other cases, is the necessity of actual seisin, which always operates in præsenti. And since it may thus commence in futuro, there is no need of a particular estate to support it; the only use of which is to make the remainder, by its unity with the particular estate, a present interest. And hence also it follows, that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences.(f)

2. By executory devise, a fee, or other less estate, may be limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to commence on a future contingency. As if a man devises land to A. and his heirs; but if he dies before the age of twenty-one, then to B. and his heirs: this remainder, though void in deed, is good by way of executory devise.(g) But, in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a mode **174]rate term of years, for courts of justice will not indulge even wills so as to create a perpetuity, which the law abhors:(h) because by perpetuities, (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation,)(i) estates are made incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one-and-twenty years afterwards. As when lands are devised to such unborn son of a feme-covert, as shall first attain the age of twenty-one, and his heirs; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise.(k)14

3. By executory devise, a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed; for by law the first grant of it, to a man for life, was a total disposition of the whole term; a life-estate being esteemed of a higher and larger nature than any term of years.(l) And, at first, the courts were tender, even in the case of a will, of restraining the devisee for life from aliening the term; but only held, that in case he died without exerting that act of ownership, the remainder over should then take place:(m) for the restraint of the power of alienation, especially in very long terms, was introducing a species of perpetuity. But, soon afterwards, it was held,(n) that the devisee for life hath no power of aliening the term, so as to bar the remainderman: yet, in order to prevent the danger of perpetuities, it was settled,(o) that though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be *[*175in esse during the life of the first devisee; for then all the candles are lighted and are consuming together, and the ultimate remainder is in reality only to that remainderman who happens to survive the rest: and it was also settled, that such remainder may not be limited to take effect, unless upon such contingency as must happen (if at all) during the life of the first devisee.(p)15

Thus much for such estates in expectancy, as are created by the express words of the parties themselves; the most intricate title in the law. There is yet another species, which is created by the act and operation of the law itself, and this is called a reversion.

III. An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him.(q) Sir Edward Coke(r) describes a reversion to be the returning of land to the grantor or his heirs after the grant is over. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law: and so also the reversion, after an estate for life, years, or at will, continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is never therefore created by deed, or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But both are equally transferable, when actually vested, being both estates in præsenti, though taking effect in future.

The doctrine of reversions is plainly derived from the feodal constitution. For when a feud was granted to a man for life, or to him and his issue male, rendering either rent or other services; then, on his death or the failure of issue male, the feud was determined, and resulted back to the **176]lord or proprietor, to be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty however results of course, as an incident quite inseparable, and may be demanded as a badge of tenure, or acknowledgment of superiority; being frequently the only evidence that the lands are holden at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion.(s) The rent may be granted away, reserving the reversion; and the reversion may be granted away, reserving the rent; by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converso: for the maxim of law is, “accessorium non ducit, sed sequitur, suum principale.”(t)

These incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, however inaccurately the parties themselves may describe them. For if one seised of a paternal estate in fee makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion,(u) to which rent and fealty shall be incident; and which shall only descend to the heirs of his father’s blood, and not to his heirs general, as a remainder limited to him by a third person would have done:(w) for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A., reserving rent, with reversion to B. and his heirs, B. hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A.’s estate.(x)

**177]In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their death, it is enacted by the statute 6 Anne, c. 18 that all persons on whose lives any lands or tenements are holden, shall, (upon application to the court of chancery, and order made thereupon,) once in every year, if required, be produced to the court, or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements, till the party shall appear to be living.

Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate,(y) the less is immediately annihilated; or, in the law phrase, is said to be merged,16 that is, sunk or drowned in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another, (en auter droit,) there is no merger.17 Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife.(z) An estate-tail is an exception to this rule: for a man may have in his own right both an estate-tail and a reversion in fee: and the estate-tail, though a less estate, shall not merge in the fee.(a) For estates-tail are protected and preserved from merger by the *[*178operation and construction, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate.(b) But, in an estate-tail, the case is otherwise; the tenant for a long time had no power at all over it, so as to bar or destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like:(c) it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue; and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee.

CHAPTER XII.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON.

We come now to treat of estates, with respect to the number and connections of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in coparcenary, and in common.1

I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants.

**180]II. An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grants an estate is called an estate in joint-tenancy,(a) and sometimes an estate in jointure, which word as well as the other signifies a union or conjunction of interest; though in common speech the term jointure is now usually confined to that joint-estate which, by virtue of the statute 27 Hen. VIII. c. 19, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman’s dower.(b)

In unfolding this title, and the two remaining ones, in the present chapter, we will first inquire how these estates may be created; next, their properties and respective incidents; and lastly, how they may be severed or destroyed.

1. The creation of an estate in joint-tenancy depends on the wording of the deed or devise, by which the tenants claim title: for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words,2 as if an estate be granted to A. and B. and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects.3 For,

2. The properties of a joint-estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.

**181]First, they must have one and the same interest.4 One joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life, and the other for years; one cannot be tenant in fee, and the other in tail.(c) But if land be limited to A. and B. for their lives, this makes them joint-tenants of the freehold; if to A. and B. and their heirs, it makes them joint-tenants of the inheritance.(d)5 If land be granted to A. and B. for their lives, and to the heirs of A.; here A. and B. are joint-tenants of the freehold during their respective lives, and A. has the remainder of the fee in severalty:6 or if land be given to A. and B., and the heirs of the body of A.; here both have a joint-estate for life, and A. hath a several remainder in tail.(e)7Secondly, joint-tenants must also have a unity of title; their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the same disseisin.(f) Joint-tenancy cannot arise by descent or act of law; but merely by purchase or acquisition by the act of the party: and, unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove good and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be a unity of time; their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A. and B.; or a remainder in fee to A. and B. after a particular estate; in either case A. and B. are joint-tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A. and B.; and during the continuance of the particular estate A. dies, which vests the remainder of one moiety in his heir; and then B. dies, whereby the other moiety becomes vested in the heir of B.: now A.’s heir and B.’s heir are not joint-tenants of this remainder, but tenants in common; for one moiety vested at one time, and the other moiety vested at another.(g) *[*182Yet where a feoffment was made to the use of a man, and such wife as he should afterwards marry, for term of their lives, and he afterwards married; in this case it seems to have been held that the husband and wife had a joint-estate, though vested at different times:(h)8 because the use of the wife’s estate was in abeyance and dormant till the intermarriage; and, being then awakened, had relation back, and took effect from the original time of creation.9 Lastly, in joint-tenancy there must be a unity of possession. Joint-tenants are said to be seised per my et per tout, by the half or moiety, and by all: that is, they each of them have the entire possession, as well of every parcel as of the whole.(i) They have not, one of them a seisin of one half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety.(j) And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my: the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.(k)10

Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the joint-tenant’s estate. If two joint-tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint-reversion.(l)11 If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate.(m) On the same reason, livery of seisin, made to one joint-tenant, shall enure to both of them:(n) and the entry, or re-entry, of one joint-tenant is as effectual in law as if it were the act of both.(o) In all actions also relating to their joint-estate, one joint-tenant cannot sue or be sued without joining the other.(p)12 But if two or more joint-tenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either: because neither joint-tenant hath a several right of patronage, but each is seised of *[*183the whole; and if they do not both agree within six months, the right of presentation shall lapse. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine service may be regularly performed; which is no more than he otherwise would be entitled to do, in case their disagreement continued, so as to incur a lapse: and, if the clerk of one joint-tenant be so admitted, this shall keep up the title in both of them; in respect of the privity and union of their estate.(q) Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land:(r) for each has an equal right to enter on any part of it. But one joint-tenant is not capable by himself to do any act which may tend to defeat or injure the estate of the other;13 as to let leases, or to grant copyholds:(s) and if any waste be done, which tends to the destruction of the inheritance, one joint-tenant may have an action of waste against the other, by construction of the statute Westm. 2. c. 22.(t) So too, though at common law no action of account lay for one joint-tenant against another, unless he had constituted him his bailiff or receiver,(u) yet now by the statute 4 Anne, c. 16, joint-tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint-tenancy.14

From the same principle also arises the remaining grand incident of joint-estates; viz., the doctrine of survivorship: by which when two or more persons are seised of a joint estate, of inheritance, for their own lives, or pur auter vie, or are jointly possessed of any chattel-interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it be, whether an inheritance, or a common freehold only, or even a less estate.(w)15 This is the natural and regular consequence of the union and entirety of their interest. The interest of two joint-tenants *[*184is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other; but, if by any subsequent act (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint-tenancy instantly ceases. But, while it continues, each of two joint-tenants has a concurrent interest in the whole; and therefore on the death of his companion, the sole interest in the whole remains to the survivor. For the interest which the survivor originally had is clearly not devested by the death of his companion; and no other person can now claim to have a joint-estate with him, for no one can now have an interest in the whole, accruing by the same title and taking effect at the same time with his own; neither can any one claim a separate interest in any part of the tenements; for that would be to deprive the survivor of the right which he has in all and every part. As therefore the survivor’s original interest in the whole still remains; and as no one can now be admitted, either jointly or severally, to any share with him therein; it follows, that his own interest must now be entire and several, and that he shall alone be entitled to the whole estate (whatever it be) that was created by the original grant.16

This right of survivorship is called by our ancient authors(x) the jus accrescendi, because the right upon the death of one joint-tenant accumulates and increases to the survivors: or, as they themselves express it, “pars illa communis accrescit superstitibus, de persona in personam, usque ad ultimam superstitem.” And this jus accrescendi ought to be mutual; which I apprehend to be one reason why neither the king,(y) nor any corporation,(z) can be a joint-tenant with a private person. For here is no mutuality: the private person has not even the remotest chance of being seised of the entirety by benefit of survivorship; for the king and the corporation can never die.17

**185]3. We are, lastly, to inquire how an estate in joint-tenancy may be severed and destroyed. And this may be done by destroying any of its constituent unities. 1. That of time, which respects only the original commencement of the joint-estate, cannot indeed (being now past) be affected by any subsequent transactions. But, 2. The joint-tenant’s estate may be destroyed without any alienation, by merely disuniting their possession. For joint-tenants being seised per my et per tout, every thing that tends to narrow that interest, so that they shall not be seised throughout the whole and throughout every part, is a severance or destruction of the jointure. And therefore, if two joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants: for they have now no joint-interest in the whole, but only a several interest respectively in the several parts. And for that reason also, the right of survivorship is by such separation destroyed.(a) By common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the other so to do:(b) for this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without a similar universal consent. But now by the statutes 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32. joint-tenants, either of inheritances or other less estates, are compellable by writ of partition to divide their lands.(c) 3. The jointure may be destroyed by destroying the unity of title. As if one joint-tenant alienes and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common;(d) for the grantee and the remaining joint-tenant hold by different titles, (one derived from the original, the other from the subsequent, grantor,) though, till partition made, the unity of possession continues.18 But a devise of one’s share by will *[*186is no severance of the jointure:19 for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has therefore a priority to the other)(e) is already vested.(f)20 4. It may also be destroyed by destroying the unity of interest. And therefore, if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointure;(g) though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one and the same conveyance, they are not separate estates, (which is requisite in order to a merger,) but branches of one entire estate.(h) In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure:(i) for it destroys the unity both of title and of interest. And, whenever or by whatever means the jointure ceases or is severed, the right of survivorship, or jus accrescendi, the same instant ceases with it.(k) Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship:(l) and if one of three joint-tenants release his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure;(m) for they still preserve their original constituent unities. But when, by an act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensable properties, a sameness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant; the jointure is instantly dissolved.

**187]In general it is advantageous for the joint-tenants to dissolve the jointure; since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs. Sometimes, however, it is disadvantageous to dissolve the joint-estate: as if there be joint-tenants for life, and they make partition, this dissolves the jointure; and, though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely; and on the death of either, the reversioner shall enter on his moiety.(n) And therefore if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture:(o) for, in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; and then he grants the same land for the life of another; which grant, by a tenant for his own life merely, is a forfeiture of his estate:(p) for it is creating an estate which may by possibility last longer than that which he is legally entitled to.

III. An estate held in coparcenary is where lands of inheritance descend from the ancestor to two or more persons. It arises either by common law or particular custom. By common law: as where a person seised in fee-simple or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives: in this case they shall all inherit, as will be more fully shown when we treat of descents hereafter; and these coheirs are then called coparceners; or, for brevity, parceners only.(q) Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c.(r) And, in either of these cases, all the parceners put together make but one heir, and have but one estate among them.(s)

**188]The properties of parceners are in some respects like those of joint-tenants; they having the same unities of interest, title, and possession. They may sue and be sued jointly for matters relating to their own lands;(t) and the entry of one of them shall in some cases enure as the entry of them all.(u) They cannot have an action of trespass against each other; but herein they differ from joint-tenants, that they are also excluded from maintaining an action of waste;(w) for coparceners could at all times put a stop to any waste by writ of partition, but till the statute of Henry the Eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points. 1. They always claim by descent; whereas joint-tenants always claim by purchase. Therefore, if two sisters purchased lands to hold to them and their heirs, they are not parceners, but joint-tenants;(x) and hence it likewise follows, that no lands can be held in coparcenary, but estates of inheritance, which are of a descendible nature; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time necessary to an estate in coparcenary. For if a man had two daughters, to whom his estate descends in coparcenary, and one dies before the other; the surviving daughter and the heir of the other, or when both are dead, their two heirs are still parceners;(y) the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have a unity, have not an entirety of interest. They are properly entitled each to the whole of a distinct moiety;(z) and of course there is no jus accrescendi, or survivorship between them: for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in possession, so long are the tenants therein, whether male or female, called parceners. But if **189]the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in common.(a)21

Parceners are so called, saith Littleton,(b) because they may be constrained to make partition.22 And he mentions many methods of making it;(c) four of which are by consent, and one by compulsion. The first is, where they agree to divide the lands into equal parts in severalty, and that each shall have such a determinate part. The second is, when they agree to choose some friend to make partition for them, and then the sisters shall choose each of them her part according to seniority of age; or otherwise, as shall be agreed. The privilege of seniority is in this case personal; for if the eldest sister be dead, her issue shall not choose first, but the next sister. But, if an advowson descend in coparcenary, and the sisters cannot agree in the presentation, the eldest and her issue, nay, her husband, or her assigns, shall present alone, before the younger.(d)23 And the reason given is, that the former privilege, of priority in choice upon a division, arises from an act of her own, the agreement to make partition; and therefore is merely personal: the latter, of presenting to the living, arises from the act of the law, and is annexed not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall choose last; for the rule of law is, cujus est divisio, alterius est electio. The fourth method is, where the sisters agree to cast lots for their shares. And these are the methods by consent. That by compulsion is, where one or more sue out a writ of partition against the others; whereupon the sheriff shall go to the lands, and make partition thereof by the verdict of a jury there impanelled, and assign to each of the parceners her part in severalty.(e) But there are some things *[*190which are in their nature impartible. The mansion-house, common of estovers, common of piscary uncertain, or any other common without stint, shall not be divided; but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance: or, if that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take the advowson.(f)

There is yet another consideration attending the estate in coparcenary; that if one of the daughters has had an estate given with her in frankmarriage by her ancestor, (which we may remember was a species of estates-tail, freely given by a relation for advancement of his kinswoman in marriage,)(g) in this case, if lands descend from the same ancestor to her and her sisters in fee-simple, she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage in equal proportion with the rest of the lands descending.(h) This mode of division was known in the law of the Lombards;(i) which directs the woman so preferred in marriage, and claiming her share of the inheritance, mittere in confusum cum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum. With us it is denominated bringing those lands into hotch-pot:(k) which term I shall explain in the very words of Littleton:(l) “it seemeth that this word hotch-pot, is in English a pudding; for in a pudding is not commonly put one thing alone, but one thing with other things together.” By this housewifely metaphor our ancestors meant to inform us(m) that the lands, both those given in frankmarriage and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions among all the daughters. But this was left to the choice of the donee in frankmarriage: and if she did not choose to put her lands into hotch-pot, she was presumed to be sufficiently **191]provided for, and the rest of the inheritance was divided among her other sisters. The law of hotch-pot took place then only when the other lands descending from the ancestor were fee-simple; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given into hotch-pot.(n) And the reason is, because lands descending in fee-simple are distributed, by the policy of law, for the maintenance of all the daughters; and if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more: but lands, descending in tail, are not distributed by the operation of the law, but by the designation of the giver, per forman doni: it matters not therefore how unequal this distribution may be. Also no lands, but such as are given in frankmarriage, shall be brought into hotch-pot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage-portion.(o) And therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotch-pot, had not this method of division been revived and copied by the statute for distribution of personal estates, which we shall hereafter consider at large.

The estate in coparcenary may be dissolved, either by partition, which disunites the possession; by alienation of one parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty.

IV. Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy promiscuously.(p) This tenancy therefore happens where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. For if there be two tenants in common of lands, one may hold his part in fee-simple, the other in tail, or for life; so that there is no **192]necessary unity of interest: one may hold by descent, the other by purchase; or the one by purchase from A., the other by purchase from B.; so that there is no unity of title; one’s estate may have been vested fifty years, the other’s but yesterday; so there is no unity of time. The only unity there is, is that of possession: and for this Littleton gives the true reason, because no man can certainly tell which part is his own: otherwise even this would be soon destroyed.

Tenancy in common may be created, either by the destruction of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest. As, if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they have now several titles, the other joint-tenant by the original grant, the alienee by the new alienation;(q) and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles and conveyances.(r) If one of two parceners alienes, the alienee and the remaining parcener are tenants in common;(s) because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of the life-estate, but they shall have several inheritances; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten:(t) and in this, and the like cases, their issue shall be tenants in common; because they must claim by different titles, one as heir of A., and the other as heir of B.; and those two not titles by *[*193purchase, but descent. In short, whenever an estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common.

A tenancy in common may also be created by express limitation in a deed; but here care must be taken not to insert words which imply a joint-estate; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is apt in its constructions to favour joint-tenancy rather than tenancy in common;(u) because the divisible services issuing from land (as rent, &c.) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily be upon a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common;(w) and, if one grants to another half his land, the grantor and grantee are also tenants in common:(x) because, as has been before(y) observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed, that it is impossible they should take a joint-interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, is said to be a joint-tenancy;(z) because that is necessarily implied in the word “jointly,” the word “severally” perhaps only implying the power of partition: and an estate given to A. and B., equally to be divided between them, though in deeds it hath been said to be a joint-tenancy,(a)24 (for it implies no more than the law has annexed to that estate, viz., divisibility,)(b) yet in wills it is certainly a tenancy in common;(c) because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed.25 And this nicety in the wording of grants makes it the most usual as well as the safest way, when a tenancy in common *[*194is meant to be created, to add express words of exclusion as well as description, and limit the estate to A. and B., to hold as tenants in common, and not as joint-tenants.

As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable by the statutes of Henry VIII. and William III., before mentioned,(d) to make partition of their lands; which they were not at common law. They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common.26 Their other incidents are such as merely arise from the unity of possession; and are therefore the same as appertain to joint-tenants merely upon that account: such as being liable to reciprocal actions of waste, and of account, by the statutes of Westm. 2, c. 22, and 4 Anne, c. 16. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate;(e) though, if one actually turns the other out of possession, an action of ejectment will lie against him.(f)27 But, as for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions,(g) unless in the case where some entire or indivisible thing is to be recovered,)(h) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several.28

Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise; which brings the whole to one severalty: 2. By making partitions between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates but merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature of estates.

CHAPTER XIII.

OF THE TITLE TO THINGS REAL, IN GENERAL.

The foregoing chapters having been principally employed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein; I now come to consider, lastly, the title to things real, with the manner of acquiring and losing it.

A title is thus defined by Sir Edward Coke:(a) —Titulus est justa causa possidendi id quod nostrum est: or, it is the means whereby the owner of lands hath the just possession of his property.

There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.

I. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate, without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; which is termed a disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of **196]the heir, or after the death of a particular tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out him that had a right to enter. In all which cases, and many others that might be here suggested, the wrongdoer has only a mere naked possession, which the rightful owner may put an end to, by a variety of legal remedies, as will more fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to devest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title.1 And, at all events, without such actual possession no title can be completely good.

II. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself, but in another. For if a man be disseised, or otherwise kept out of possession, by any of the means before mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the disseisor, and turning him out of that occupancy which he has so illegally gained. But this right of possession is of two sorts: an apparent right of possession, which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents. Thus if the disseisor, or other wrongdoer, dies possessed of the land whereof he so became seised by his own unlawful act, and the same descends to his heir; now, by the common law the heir hath obtained an apparent right, though the actual right of possession resides in the person disseised; and it shall not be lawful for the person disseised to devest this apparent right by mere entry or other act of his own, but only by an action at law:(b) for, until the contrary be proved by legal demonstration, the law will rather presume the right to **197]reside in the heir whose ancestor died seised, than in one who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feodal law, which, after feuds became hereditary, much favoured the right of descent; in order that there might be a person always upon the spot to perform the feodal duties and services;(c) and therefore when a feudatory died in battle, or otherwise, it presumed always that his children were entitled to the feud, till the right was otherwise determined by his fellow-soldiers and fellow-tenants, the peers of the feodal court. But if he, who has the actual right of possession, puts in his claim, and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became seised, he will then by sentence of law recover that possession, to which he hath such actual right.2 Yet, if he omits to bring this his possessory action within a competent time, his adversary may imperceptibly gain an actual right of possession, in consequence of the other’s negligence. And by this, and certain other means, the party kept out of possession may have nothing left in him, but what we are next to speak of; viz.

III. The mere right of property, the jus proprietatis, without either possession or even the right of possession. This is frequently spoken of in our books under the name of the mere right, jus merum; and the estate of the owner is in such cases said to be totally devested, and put to a right.(d) A person in this situation may have the true ultimate property of the lands in himself: but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is strongly in favour of his antagonist; who has thereby obtained the absolute right of possession. As, in the first place, if a person disseised, or turned out of possession of his estate, neglects to pursue his remedy within the time limited by law: by this means the disseisor or his heirs gain the actual right of possession: *[*198for the law presumes that either he had a good right originally, in virtue of which he entered on the lands in question, or that since such his entry he has procured a sufficient title; and, therefore, after so long an acquiescence, the law will not suffer his possession to be disturbed without inquiring into the absolute right of property. Yet still, if the person disseised or his heir hath the true right of property remaining in himself, his estate is indeed said to be turned into a mere right; but, by proving such his better right, he may at length recover the lands. Again, if a tenant in tail discontinues his estate-tail, by alienating the lands to a stranger in fee, and dies; here the issue in tail hath no right of possession, independent of the right of property: for the law presumes prima facie that the ancestor would not disinherit, or attempt to disinherit, his heirs, unless he had power so to do; and therefore, as the ancestor had in himself the right of possession, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by showing the absolute right of property to reside in another person. The heir therefore in this case has only a mere right, and must be strictly held to the proof of it, in order to recover the lands. Lastly, if by accident, neglect, or otherwise, judgment is given for either party in any possessory action, (that is, such wherein the right of possession only, and not that of property, is contested,) and the other party hath indeed in himself the right of property, this is now turned to a mere right; and upon proof thereof in a subsequent action, denominated a writ of right, he shall recover his seisin of the lands.3

Thus, if a disseisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right of possession, and right of property. If the disseisor dies, and the lands descend to his son, the son gains an apparent right of possession; but I still retain the actual right both of possession and property. If I acquiesce for thirty years, without bringing any action to recover possession of the lands, the son gains the actual right of possession, and I retain **199]nothing but the mere right of property. And even this right of property will fail, or at least it will be without a remedy, unless I pursue it within the space of sixty years. So also if the father be tenant in tail, and alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the son hath only the mere right or right of property. And hence it will follow, that one man may have the possession, another the right of possession, and a third the right of property. For if a tenant in tail enfeoffs A. in fee-simple, and dies, and B. disseises A.; now B. will have the possession, A. the right of possession, and the issue in tail the right of property: A. may recover the possession against B.; and afterwards the issue in tail may evict A., and unite in himself the possession, the right of possession, and also the right of property In which union consists,

IV. A complete title to lands, tenements, and hereditaments. For it is an ancient maxim of the law,(e) that no title is completely good, unless the right of possession be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droit.(f) And when to this double right the actual possession is also united, when there is, according to the expression of Fleta,(g)juris et seisinæ conjunctio, then, and then only, is the title completely legal.4

CHAPTER XIV.

OF TITLE BY DESCENT.

The several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of property) may be reciprocally lost and acquired: whereby the dominion of things real is either continued or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or its correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an ancient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages: and so, in case of forfeiture, the tenant by his own misbehaviour or neglect has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default: and, in alienation by common assurances, *[*201the two considerations of loss and acquisition are so interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of the grantor as the grantee.

The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.(a)1

Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor:2 and an estate, so descending to the heir, is in law called the inheritance.

The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heirs; this is a point that we must result back to the standing law of descents in fee-simple to be informed of.

**202]In order therefore to treat a matter of this universal consequence the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs; reserving that for the chapter of escheats. I shall also pass over the frequent division of descents into those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough English, have already been often(b) hinted at, and may also be incidentally touched upon again, but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already(c) copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common-law doctrine of inheritance; which, and which only, it will now be our business to explain.

And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood.(d)

Consanguinity, or kindred, is defined by the writers on these subjects to be “vinculum personarum ab eodem stipite descendentium:” the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal or collateral.

**203]Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his great-grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil(e) and canon(f) as in the common law.(g)

The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees; and so many different bloods(h) is a man said to contain in his veins as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father and the parents of his mother; he hatl. eight in the third, the parents of his two grandfathers and two grandmothers, and, by the same rule of progression, he hath an hundred and twenty-eight in the seventh; a thousand and twenty-four in the tenth: and at the twentieth degree, or the distance of twenty generations, every man hath above a million of ancestors, as common arithmetic will demonstrate.(i) This lineal consanguinity, we may observe, falls strictly within the definition of vinculum *[*204personarum ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both of course from the same common ancestor.

Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this, that they do not descend one from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who have *[*205each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.

We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both are derived from one father: Titius and his first cousin are related; why? because both descend from the same grandfather; and his second cousin’s claim to consanguinity is this, that they are both derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we are taught by holy writ, that there is one couple of ancestors belonging to us all, from whom the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other. For indeed, if we only suppose each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more, (and, without such a supposition, the human species must be daily diminishing;) we shall find that all of us have now subsisting near two hundred and seventy millions of kindred in the fifteenth degree, at the same distance from the several common ancestors as ourselves are; besides those that are one or two descents nearer to or farther from the common stock, who may amount to as many more.(k) And if this calculation should appear incompatible with the number of inhabitants on the earth, it is because, by intermarriages among the several descendants from the same ancestor, a hundred or a thousand modes of consanguinity may be consolidated in one person, or he may be related to us a hundred or a thousand different ways.

**206]The method of computing these degrees in the canon law,(l) which our law has adopted,(m) is as follows: we begin at the common ancestor and reckon downwards: and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus, Titius and his brother are related in the first **207]degree; for from the father to each of them is counted only one; Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz., his own grandfather, the father of Titius. Or, (to give a more illustrious instance from our English annals,) king Henry the Seventh, who slew Richard the Third in the battle of Bosworth, was related to that prince in the fifth degree. Let the propositus therefore in the table of consanguinity represent king Richard the Third, and the class marked (e) king Henry the Seventh. Now, their common stock or ancestor was king Edward the Third, the abavus in the same table: from him to Edmond duke of York, the proavus, is one degree; to Richard earl of Cambridge, the avus, two; to Richard duke of York, the pater, three; to king Richard the Third, the propositus, four; and from king Edward the Third to John of Gant (a) is one degree; to John earl of Somerset, (b) two; to John duke of Somerset, (c) three; to Margaret countess of Richmond, (d) four; to king Henry the Seventh, (e) five. Which last-mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though, according to the computation of the civilians, (who count upwards, from either of the persons related, to the common stock, and then downwards again to the other, reckoning a degree for each person both ascending and descending,) these two princes were related in the ninth degree, for from Richard the Third to Richard duke of York is one degree; to Richard earl of Cambridge, two; to Edmond duke of York, three; to king Edward the Third, the common ancestor, four; to John of Gant, five; to John earl of Somerset, six; to John duke of Somerset, seven; to Margaret countess of Richmond, eight; to king Henry the Seventh, nine.(n)4

*[*208The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules or canons of inheritance, according to which, estates are transmitted from the ancestor to the heir; together with an explanatory comment, remarking their original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations.

I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised in infinitum; but shall never lineally ascend.

To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est hæres viventis.5 Before that time the person who is next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heir to the father whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born; as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter, in the former cases, the estate shall be devested and taken away by the birth of a posthumous child; and, in the latter, it shall also be totally devested by the birth of a posthumous son.(o)6

**209]We must also remember, that no person can be properly such an ancestor, as that an inheritance of lands or tenements can be derived from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor’s lessee for years, or by receiving rent from a lessee of a freehold:(p)7 or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson,(q) and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter or be otherwise seised. And therefore all the cases which will be mentioned in the present chapter are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir.8 Which notoriety had succeeded in the place of the ancient feodal investiture, whereby, while feuds were precarious, the vassal on the descent of lands was formerly admitted in the lord’s court, (as is still the practice in Scotland,) and there received his seisin, in the nature of a renewal of his ancestor’s grant, in the presence of the feodal peers; till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county, (which if disputed was afterwards to be tried by those peers,) or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisin therefore of any person, thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived: which is very briefly expressed in this maxim, seisina facit stipitem.(r)

**210]When therefore a person dies so seised, the inheritance first goes to his issue: as if there be Geoffrey, John, and Matthew, grandfather, father, and son; and John purchases lands, and dies; his son Matthew shall succeed him as heir, and not the grandfather Geoffrey; to whom the land shall never ascend, but shall rather escheat to the lord.(s)9

This rule, so far as it is affirmative and relates to lineal descents, is almost universally adopted by all nations; and it seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possessions of the parents should go, upon their decease, in the first place to their children, as those to whom they have given being, and for whom they are therefore bound to provide. But the negative branch, or total exclusion of parents and all lineal ancestors from succeeding to the inheritance of their offspring, is peculiar to our own laws, and such as have been deduced from the same original. For, by the Jewish law, on failure of issue, the father succeeded to the son in exclusion of brethren, unless one of them married the widow and raised up seed to his brother.(t) And by the laws of Rome, in the first place, the children or lineal descendants were preferred; and on failure of these, the father and mother or lineal ascendants succeeded together with the brethren and sisters;(u) though by the law of the twelve tables the mother was originally, on account of her sex, excluded.(v) Hence this rule of our laws has been censured and declaimed against as absurd, and derogating from the maxims of equity and natural justice.(w) Yet that there is nothing unjust or absurd in it, but that on the contrary it is founded upon very good legal reason, may appear from considering as well the nature of the rule itself, as the occasion of introducing it into our laws.

**211]We are to reflect, in the first place, that all rules of succession to estates are creatures of the civil polity, and juris positivi merely. The right of property, which is gained by occupancy, extends naturally no further than the life of the present possessor: after which the land by the law of nature would again become common, and liable to be seised by the next occupant; but society, to prevent the mischiefs that might ensue from a doctrine so productive of contention, has established conveyances, wills, and successions; whereby the property originally gained by possession is continued and transmitted from one man to another, according to the rules which each state has respectively thought proper to prescribe. There is certainly therefore no injustice done to individuals, whatever be the path of descent marked out by the municipal law.

If we next consider the time and occasion of introducing this rule into our law, we shall find it to have been grounded upon very substantial reasons. I think there is no doubt to be made, but that it was introduced at the same time with, and in consequence of, the feodal tenures. For it was an express rule of the feodal law,(x) that successionis feudi talis est natura, quod ascendentes non succedunt; and therefore the same maxim obtains also in the French law to this day.(y)10 Our Henry the First indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line:(z) but this soon fell again into disuse; for so early as Glanvil’s time, who wrote under Henry the Second, we find it laid down as established law,(a) that hæreditas nunquam ascendit; which has remained an invariable maxim ever since. These circumstances evidently show this rule to be of feodal original; and taken in that light, there are some arguments in its favour, besides those which are drawn *[*212merely from the reason of the thing. For if the feud of which the son died seised was really feudum antiquum, or one descended to him from his ancestors, the father could not possibly succeed to it, because it must have passed him in the course of descent, before it could come to the son; unless it were feudum maternum, or one descended from his mother, and then for other reasons (which will appear hereafter) the father could in no wise inherit it. And if it were feudum novum, or one newly acquired by the son, then only the descendants from the body of the feudatory himself could succeed, by the known maxim of the early feodal constitutions;(b) which was founded as well upon the personal merit of the vassal, which might be transmitted to his children, but could not ascend to his progenitors, as also upon this consideration of military policy, that the decrepit grandsire of a vigorous vassal would be but indifferently qualified to succeed him in his feodal services. Nay, even if this feudum novum were held by the son ut feudum antiquum, or with all the qualities annexed to a feud descended from his ancestors, such feud must in all respects have descended as if it had been really an ancient feud; and therefore could not go to the father because if it had been an ancient feud the father must have been dead before it could have come to the son. Thus whether the feud was strictly novum, or strictly antiquum, or whether it was novum held ut antiquum, in none of these cases the father could possibly succeed. These reasons, drawn from the history of the rule itself, seem to be more satisfactory than that quaint one of Bracton,(c) adopted by Sir Edward Coke,(d) which regulates the descent of lands according to the laws of gravitation.11

II. A second general rule or canon is, that the male issue shall be admitted before the female.

*[*213Thus sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred.(e) As if John Stiles hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew, and (in case of his death without issue) then Gilbert shall be admitted to the succession in preference to both the daughters.

This preference of males to females is entirely agreeable to the law of succession among the Jews,(f) and also among the states of Greece, or at least among the Athenians;(g) but was totally unknown to the laws of Rome,(h) (such of them I mean as are at present extant,) wherein brethren and sisters were allowed to succeed to equal portions of the inheritance. I shall not here enter into the comparative merit of the Roman and the other constitutions in this particular, nor examine into the greater dignity of blood in the male or female sex: but shall only observe, that our present preference of males to females seems to have arisen entirely from the feodal law. For though our British ancestors, the Welsh, appear to have given a preference to males,(i) yet our Danish predecessors (who succeeded them) seem to have made no distinction of sexes, but to have admitted all the children at once to the inheritance.(k) But the feodal law of the Saxons on the continent (which was probably brought over higher, and first altered by the law of king Canute) gives an evident preference of the male to the female sex. “Pater aut mater defuncti, filio non filiæ hæreditatem relinquent. . . . . . Qui defunctus non filios sed filias reliquerit, ad eas omnis hæreditas pertineat.”(l) It is possible therefore that this preference might be a branch of that imperfect system of feuds which obtained here before the conquest; especially as it subsists among the customs of gavelkind, and as, in the **214]charter or laws of king Henry the First, it is not (like many Norman innovations) given up, but rather enforced.(m) The true reason of preferring the males must be deduced from feodal principles: for, by the genuine and original policy of that constitution, no female could ever succeed to a proper feud,(n) inasmuch as they were incapable of performing those military services, for the sake of which that system was established. But our law does not extend to a total exclusion of females, as the Salic law, and others, where feuds were most strictly retained: it only postpones them to males; for though daughters are excluded by sons, yet they succeed before any collateral relations; our law, like that of the Saxon feudists before mentioned, thus steering a middle course between the absolute rejection of females and the putting them on a footing with males.

III. A third rule or canon of descent is this: that where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together.12

As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew his eldest son shall alone succeed to his estate, in exclusion of Gilbert the second son and both the daughters; but, if both the sons die without issue before the father, the daughters Margaret and Charlotte shall both inherit the estate as coparceners.(o)

This right of primogeniture in males seems anciently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance;(p) in the same manner as with us, by the laws of king Henry the First,(q) the eldest son had the capital fee or principal feud of his father’s possessions, and no other pre-eminence; and **215]as the eldest daughter had afterwards the principal mansion, when the estate descended in coparcenary.(r) The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some among the males only. This is certainly the most obvious and natural way; and has the appearance, at least in the opinion of younger brothers, of the greatest impartiality and justice. But when the emperors began to create honorary feuds, or titles of nobility, it was found necessary (in order to preserve their dignity) to make them impartible,(s) or (as they styled them) feuda individua, and in consequence descendible to the eldest son alone. This example was further enforced by the inconveniences that attended the splitting of estates; namely, the division of military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life, instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments.(t) These reasons occasioned an almost total change in the method of feodal inheritances abroad; so that the eldest male began universally to succeed to the whole of the lands in all military tenures: and in this condition the feodal constitution was established in England by William the Conqueror.

Yet we find that socage estates frequently descended to all the sons equally, so lately as when Glanvil(u) wrote, in the reign of Henry the Second; and it is mentioned in the Mirror(w) as a part of our ancient constitution, that knights’ fees should descend to the eldest son, and socage fees should be partible among the male children. However, in Henry the Third’s time we find by Bracton(x) that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands: *[*216except in Kent, where they gloried in the preservation of their antient gavelkind tenure, of which a principal branch was a joint inheritance of all the sons;(y) and except in some particular manors and townships, where their local customs continued the descent, sometimes to all, sometimes to the youngest son only, or in other more singular methods of succession.

As to the females, they are still left as they were by the antient law: for they were all equally incapable of performing any personal service; and therefore one main reason of preferring the eldest ceasing, such preference would have been injurious to the rest: and the other principal purpose, the prevention of the too minute subdivision of estates, was left to be considered and provided for by the lords, who had the disposal of these female heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown;(z) wherein the necessity of a sole and determinate succession is as great in the one sex as the other. And the right of sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honour. For if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters; the eldest shall not of course be countess, but the dignity is in suspense or abeyance till the king shall declare his pleasure; for he, being the fountain of honour, may confer it on which of them he pleases.(a)13 In which disposition is preserved a strong trace of the antient law of feuds, before the descent by primogeniture even among the males was established; namely, that the lord might bestow them on which of the sons he thought proper,—“progressum est ut ad filios deveniret, in quem scilicet dominus hoc vellet beneficium confirmare.”(b)

IV. A fourth rule, or canon of descents, is this; that the lineal descendants, in infinitum, of any person deceased, **217]shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living.

Thus the child, grandchild, or great-grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infinitum.(c) And these representatives shall take neither more nor less, but just so much as their principals would have done. As if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters; and then John Stiles, the father of the two sisters, dies without other issue; these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary: so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the surviving sister shall have six, and her six nieces, the daughters of Margaret, one apiece.

This taking by representation is called succession in stirpes, according to the roots; since all the branches inherit the same share that their root, whom they represent, would have done. And in this manner also was the Jewish succession directed;(d) but the Roman somewhat differed from it. In the descending line the right of representation continued in infinitum, and the inheritance still descended in stirpes: as if one of three daughters died, leaving ten children, and then the father died; the two surviving daughters had each one-third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still subsisting, (as if the deceased left one brother, and two nephews the sons of another brother,) the succession was still guided by the roots: but, if both of the brethren were dead leaving issue, then (I apprehend) their representatives in equal degree became themselves principals, **218]and shared the inheritance per capita, that is, share and share alike; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation.(e) So, if the next heirs of Titius be six nieces, three by one sister, two by another, and one by a third; his inheritance by the Roman law was divided into six parts, and one given to each of the nieces: whereas the law of England in this case would still divide it only into three parts, and distribute it per stirpes, thus: one-third to the three children who represent one sister, another third to the two who represent the second, and the remaining third to the one child who is the sole representative of her mother.

This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, and next to the first-born among the males, to both which the Roman law is a stranger. For if all the children of three sisters were in England to claim per capita, in their own right as next of kin to the ancestor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female; then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males and the first-born among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform and steady: the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the saine right of primogeniture obtain as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. And if a man hath two sons, A. and B., and A. dies leaving two *[*219sons, and then the grandfather dies; now the eldest son of A. shall succeed to the whole of his grandfather’s estate: and if A. had left only two daughters, they should have succeeded also to equal moieties of the whole, in exclusion of B. and his issue. But if a man hath only three daughters, C., D., and E.; and C. dies leaving two sons, D. leaving two daughters, and E. leaving a daughter and a son who is younger than his sister: here, when the grandfather dies, the eldest son of C. shall succeed to one-third, in exclusion of the younger; the two daughters of D. to another third in partnership; and the son of E. to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in infinitum.14

Yet this right does not appear to have been thoroughly established in the time of Henry the Second, when Glanvil wrote: and therefore, in the title to the crown especially, we find frequent contests between the younger (but surviving) brother and his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor: for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew; though the nephew, by representing his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief; and besides had frequently superior interest and strength to back his pretensions, and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburg Schwerin and Strelitz in 1692.(f) Yet Glanvil, with us, even in the twelfth century, seems(g) to declare for the right of the nephew by representation; provided the eldest son had not received a provision in lands from his father, or (as the civil law would call it) had not been *[*220foris-familiated, in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm:(h) but in the time of his son, king Henry the Third, we find the rule indisputably settled in the manner we have here laid it down,(i) and so it has continued ever since. And thus much for lineal descents.15

V. A fifth rule is that on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser;16 subject to the three preceding rules.17

Thus if Geoffrey Stiles purchases land, and it descends to John Stiles his son, and John dies seised thereof without issue; whoever succeeds to this inheritance must be of the blood of Geoffrey, the first purchaser of this family.(k)18 The first purchaser, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any other method, except only that of descent.

This is a rule almost peculiar to our own laws, and those of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans: none of whose laws looked any further than the person himself who died seised of the estate; but assigned him an heir, without considering by what title he gained it, or from what ancestor he derived it. But the law of Normandy(l) agrees with our law in this respect: nor indeed is that agreement to be wondered at, since the law of descents in both is of feodal original; and this rule or canon cannot otherwise be accounted for than by recurring to feodal principles.

When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is, lineally de *[*221scended from, the first feudatory or purchaser. In consequence whereof, if a vassal died seised of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule:—“frater fratri, sine legitimo hærede defuncto, in beneficio quod eorum patris fuit succedat: sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo hærede, frater ejus in feudum non succedit.”(m) The true feodal reason for which rule was this; that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And therefore, as in estates-tail, (which a proper feud very much resembled,) so in the feodal donation, “nomen hæredis, in prima investitura expressum, tantum ad descendentes ex corpore primi vasalli extenditur; et non ad collaterales, nisi ex corpore primi vasalli sive stipitis descendant;”(n) the will of the donor, or original lord, (when feuds were turned from life-estates into inheritances,) not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo: not hereditary to the collateral relations, or lineal ancestors, or husband, or wife, of the feudatory, but to the issue descended from his body only.

However, in process of time, when the feodal rigour was in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is, with all the qualities annexed of a feud derived from his ancestors; and then the collateral relations were admitted to succeed even in infinitum, because they might have been of the blood of, that is, descended from, the first imaginary purchaser. For **222]since it is not ascertained in such general grants, whether this feud shall be held ut feudum paternum or feudum avitum, but ut feudum antiquum merely; as a feud of indefinite antiquity: that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended; the law will not ascertain it, but will suppose any of his ancestors, pro re nata, to have been the first purchaser: and therefore it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.

Of this nature are all the grants of fee-simple estates of this kingdom, for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut novum: unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchaser) are admitted; but every grant of lands in fee-simple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite: and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance.19

Yet, when an estate hath really descended in a course of inheritance to the person last seised, the strict rule of the feodal law is still observed; and none are admitted but the heirs of those through whom the inheritance hath passed: for all others have demonstrably none of the blood of the first purchaser in them, and therefore shall never succeed.20 As, if lands come to John Stiles by descent from his mother Lucy Baker, no relation of his father (as such) shall ever be his heir of these lands; and vice versa, if they descended from his father Geoffrey Stiles, no relation of his mother (as such) shall ever be admitted thereto, for his father’s kindred have none of his mother’s blood, nor have his mother’s relations any share of his father’s blood. And so, if the estate descended from his father’s father, George Stiles; the relations of **223]his father’s mother, Cecilia Kempe, shall for the same reason never be admitted, but only those of his father’s father.21 This is also the rule of the French law,(o) which is derived from the same feodal fountain:

Here we may observe, that so far as the feud is really antiquum, the law traces it back, and will not suffer any to inherit but the blood of those ancestors from whom the feud was conveyed to the late proprietor. But when, through length of time, it can trace it no farther; as if it be not known whether his grandfather, George Stiles, inherited it from his father Walter Stiles, or his mother Christian Smith, or if it appear that his grandfather was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity; in either of these cases the law admits the descendants of any ancestor of George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this estate; because in the first case it is really uncertain, and in the second case it is supposed to be uncertain, whether the grandfather derived his title from the part of his father or his mother.

This then is the great and general principle upon which the law of collateral inheritances depends; that, upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser; or, that it shall result back to the heirs of the body of that ancestor from whom it either really has, or is supposed by fiction of law to have, originally descended; according to the rule laid down in the year-books,(p) Fitzherbert,(q) Brook,(r) and Hale,(s) “that he who would have been heir to the father of the deceased” (and, of course, to the mother, or any other real or supposed purchasing ancestor) “shall also be heir to the son;” a maxim that will hold universally, except in the case of a brother or sister of the half-blood, which exception (as we shall see hereafter) depends upon very special grounds.

The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor was; which *[*224in feudis vere antiquis has in process of time been forgotten, and is supposed so to be in feuds that are held ut antiquis.

VI. A sixth rule or canon therefore is, that the collateral heir of the person last seised must be his next collateral kinsman of the whole blood.22

First, he must be his next collateral kinsman either personally or jure representationis;23 which proximity is reckoned according to the canonical degrees of consanguinity before mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who is only in the second. And herein consists the true reason of the different methods of computing the degrees of consanguinity, in the civil law on the one hand, and in the canon and common laws on the other. The civil law regards consanguinity principally with respect to successions, and therein very naturally considers only the person deceased, to whom the relation is claimed: it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him; and makes not only his great-nephew but also his first-cousin to be both related to him in the fourth degree; because there are three persons between him and each of them. The canon law regards consanguinity principally with a view to prevent incestuous marriages between those who have a large portion of the same blood running in their respective veins; and therefore looks up to the author of that blood, or the common ancestor, reckoning the degrees from him: so that the great-nephew is related in the third canonical degree to the person proposed, and the first-cousin in the second: the former being distant three degrees from the common ancestor, (the father of the propositus,) and therefore deriving only one-fourth of his blood from the same fountain; the latter, and also the propositus himself, being each of them distant only two degrees from the common ancestor, (the grandfather of each,) and therefore having one-half of each of their bloods the same. The common law regards consanguinity principally with respect to descents; and having therein the same object in view as the civil, it may seem as if it ought **225]to proceed according to the civil computation. But as it also respects the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore counts its degrees in the same manner. Indeed, the designation of person, in seeking for the next of kin, will come to exactly the same end, (though the degrees will be differently numbered,) whichever method of computation we suppose the law of England to use; since the right of representation of the parent by the issue is allowed to prevail in infinitum.24 This allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degree of kindred, as (for instance) uncles and nephews of the deceased: which multiplicity, though no material inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion where the right of sole succession, as with us, is established. The issue or descendants therefore of John Stiles’s brother are all of them in the first degree of kindred with respect to inheritances, those of his uncle in the second, and those of his great-uncle in the third; as their respective ancestors, if living, would have been; and are severally called to the succession in right of such their representative proximity.

The right of representation being thus established, the former part of the present rule amounts to this; that on failure of issue of the person last seised, the inheritance shall descend to the other subsisting issue of his next immediate ancestor. Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, or his representatives, he being lineally descended from Geoffrey Stiles, John’s next immediate ancestor, or father. On the failure of brethren, or sisters, and their issue, it shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infinitum. Very similar to which was the law of inheritance among the ancient Germans, our progenitors:—“hæredes successoresque, sui cuique liberi, et nullum testamentum: si liberi, non sunt, proximus gradus in possessione, fratres, patrui, avunculi.”(t)

*[*226Now here it must be observed, that the lineal ancestors, though (according to the first rule) incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring. And therefore in the Jewish law, which in this respect entirely corresponds with ours,(u) the father or other lineal ancestor is himself said to be the heir, though long since dead, as being represented by the persons of his issue; who are held to succeed, not in their own rights, as brethren, uncles, &c., but in right of representation, as the offspring of the father, grandfather, &c. of the deceased.(w) But, though the common ancestor be thus the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent. For the descent between two brothers is held to be an immediate descent; and therefore title may be made by one brother or his representatives to or through another without mentioning their common father.(x) If Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey; and so the son of Francis may claim as cousin and heir to Matthew the son of John, without naming the grandfather; viz., as son of Francis, who was the brother of John, who was the father of Matthew. But though the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood; and therefore, in order to ascertain the collateral heir of John Stiles, it is first necessary to recur to his ancestors in the first degree; and if they have left any other issue besides John, that issue will be his heir. On default of such, we must ascend one step higher, to the ancestors in the second degree, and then to those in the third and fourth, and so upwards in infinitum, till some couple of ancestors be found who have other issue descending from them besides the deceased, in a parallel or collateral line. From these ancestors the heir of John Stiles must derive his descent; and in such derivation the same rules must be observed, with regard to the sex, **227]primogeniture, and representation, that have before been laid down with regard to lineal descents from the person of the last proprietor.

But, secondly, the heir need not be the nearest kinsman absolutely, but only sub modo; that is, he must be the nearest kinsman of the whole blood; for if there be a much nearer kinsman of the half-blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded; nay, the estate shall escheat to the lord, sooner than the half-blood shall inherit.25

A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For as every man’s own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who hath (so far as the distance of degrees will permit) all the same ingredients in the composition of his blood that the other had. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father, and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, hath entirely the same blood with John Stiles; or he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and hath issue by him; the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that of Lewis Gay (instead of Geoffrey Stiles) on the other part, it hath therefore only half the same ingredients with that of John Stiles; so that he is only his brother of the half-blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A. and B., by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A., who enters thereon, and dies seised without issue; still B. shall not be heir to this estate, because he is only of the half-blood to A., the person last seised; but it shall descend to a sister (if any) of the whole blood to A.: for in such cases the maxim is, that the seisin or possessio fratris facit sororem esse hæredem. Yet, had A. died without entry, then B. might have inherited; not as **228]heir to A. his half-brother, but as heir to the common father, who was the person last actually seised.(y)26

This total exclusion of the half-blood from the inheritance, being almost peculiar to our own law, is looked upon as a strange hardship by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule, which is not so much to be considered in the light of a rule of descent, as of a rule of evidence: an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that the heir to a feudum antiquum must be of the blood of the first feudatory or purchaser, that is, derived in a lineal descent from him; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchaser, and to show that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages) to be forgotten who was really the first feudatory or purchaser, and thereby the proof of an actual descent from him became impossible; then the law substituted what Sir Martin Wright(z) calls a reasonable, in the stead of an impossible, proof; for it remits the proof of an actual descent from the first purchaser; and only requires, in lieu of it, that the claimant be next of the whole blood to the person last in possession, (or derived from the same couple of ancestors;) which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchaser. For he who is my kinsman of the whole blood can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also; and mine are vice versa his: he therefore is very likely to be derived from that un known ancestor of mine from whom the inheritance descended. But a kinsman of the half-blood has but one-half of his ancestors above the common stock the same as mine; and therefore there is not the same probability27 of that standing requisite in the law, that he be derived from the blood of the first purchaser.

**229]To illustrate this by example. Let there be John Stiles, and Francis, brothers, by the same father and mother, and another son of the same mother by Lewis Gay, a second husband. Now, if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to be in the line of descent from the first purchaser, whether it were the line of the father or the mother. But if Francis should die before John without issue, the mother’s son by Lewis Gay (or brother of the half-blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchaser, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchaser, as to be descended; and therefore the inheritance shall go to the nearest relation possessed of this presumptive proof, the whole blood.

And, as this is the case in feudis antiquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case in feudis novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this nature are all grants of lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral kindred of the real modern purchaser (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor: but those of the half-blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchaser, though only of the half-blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law: since it is only upon a like supposition and fiction that brethren of purchasers (whether of the whole or half blood) are entitled to inherit at all; for we have seen that in feudis stricte novis neither brethren nor any other collaterals were admitted. As **230]therefore in feudis antiquis we have seen the reasonableness of excluding the half-blood, if by a fiction of law a feudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.

Perhaps by this time the exclusion of the half-blood does not appear altogether so unreasonable as at first sight it is apt to do. It is certainly a very fine-spun and subtle nicety; but considering the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals; and though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before. The doctrine of the whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchaser, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method, answer this purpose entirely. For though all the ancestors of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree, (that is, unless they have the same father and mother,) there will be intermediate ancestors, below the common stock, that belong to either of them respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors than what are in common to them both; yet with regard to his uncle where the common stock is removed one degree higher, (that is, the grandfather and grandmother,) one-half of John’s ancestors will not be the ancestors of his uncle: his patruus, or father’s brother, derives not his descent from John’s maternal ancestors: nor his avunculus, or mother’s brother, **231]from those in the paternal line. Here then the supply of proof is deficient, and by no means amounts to a certainty: and the higher the common stock is removed, the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half-blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, the whole brother of John Stiles is sure to be descended from that unknown ancestor; his half-brother has only an even chance, for half John’s ancestors are not his. So, in the second degree, John’s uncle of the whole blood has an even chance; but the chances are three to one against his uncle of the half-blood, for three-fourths of John’s ancestors are not his. In like manner, in the third degree, the chances are only three to one against John’s great-uncle of the whole blood, but they are seven to one against his great-uncle of the half-blood, for seven-eighths of John’s ancestors have no connection in blood with him. Therefore the much less probability of the half-blood’s descent from the first purchaser, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half-blood in all.

But, while I thus illustrate the reason of excluding the half-blood in general I must be impartial enough to own, that, in some instances, the practice is carried further than the principle upon which it goes will warrant. Particularly when a kinsman of the whole blood in a remoter degree, as the uncle or great-uncle, is preferred to one of the half-blood in a nearer degree, as the brother; for the half-brother hath the same chance of being descended from the purchasing ancestor as the uncle; and a thrice28 better chance than the great-uncle or kinsman in the third degree. It is also more especially overstrained, when a man has two sons by different venters, and the estate on his death descends from him to the eldest, who enters and dies without issue; in which case the younger son cannot inherit this estate, because he is not of the whole blood to the last proprietor.(a) This, it must be *[*232owned, carries a hardship with it, even upon feodal principles: for the rule was introduced only to supply the proof of a descent from the first purchaser; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half-brother must be of the blood of the first purchaser, who was either the father or some of the father’s ancestors. When, therefore, there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother, indeed, been a purchaser, there would have been no hardship at all, for the reasons already given; or had the frater uterinus only, or brother by the mother’s side, been excluded from an inheritance which descended from the father, it had been highly reasonable.

Indeed, it is this very instance, of excluding a frater consanguineus, or brother by the father’s side, from an inheritance which descended a patre, that Craig(b) has singled out on which to ground his strictures on the English law of half-blood. And, really, it should seem as if originally the custom of excluding the half-blood in Normandy,(c) extended only to exclude a frater uterinus, when the inheritance descended a patre, and vice versa, and possibly in England also; as even with us it remained a doubt, in the time of Bracton,(d) and of Fleta,(e) whether the half-blood on the father’s side was excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly-purchased lands. So also the rule of law, as laid **233]down by our Fortescue,(f) extends no further than this: frater fratri uterino non succedet in hæreditate paterna. It is moreover worthy of observation, that by our law, as it now stands, the crown (which is the highest inheritance in the nation) may descend to the half-blood of the preceding sovereign,(g) so that it be the blood of the first monarch purchaser, or (in the feodal language) conqueror of the reigning family. Thus it actually did descend from king Edward the Sixth to queen Mary, and from her to queen Elizabeth, who were respectively of the half-blood to each other. For the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock, which was formerly king William the Norman, and is now (by act of parliament)(h) the princess Sophia of Hanover. Hence also it is that in estates-tail, where the pedigree from the first donee must be strictly proved, half-blood is no impediment to the descent:(i) because, when the lineage is clearly made out, there is no need of this auxiliary proof.29 How far it might be desirable for the legislature to give relief, by amending the law of descents in one or two instances, and ordaining that the half-blood might always inherit, where the estate notoriously descended from its own proper ancestor, and in cases of new-purchased lands, or uncertain descents, should never be excluded by the whole blood in a remoter degree; or how far a private inconvenience should be still submitted to, rather than a long-established rule should be shaken, is not for me to determine.30

The rule then, together with its illustration, amounts to this: that, in order to keep the estate of John Stiles as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only are not so likely to be in the line of that purchasing ancestor, as those who are descended from both.

*[*234But here another difficulty arises. In the second, third, fourth, and every superior degree, every man has many couples of ancestors, increasing according to the distances in a geometrical progression upwards,(k) the descendants of all which respective couples are (representatively) related to him in the same degree. Thus, in the second degree, the issue of George and Cecilia Stiles and of Andrew and Esther Baker, the two grandsires and grandmothers of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of James and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which therefore of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance? In answer to this, and likewise to avoid all other confusion and uncertainty that might arise between the several stocks wherein the purchasing ancestor may be sought for, another qualification is requisite, besides the proximity and entirety, which is that of dignity or worthiness of blood. For,

VII. The seventh and last rule or canon is, that in collateral inheritances the male stocks shall be preferred to the female, (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near;) unless where the lands have, in fact, descended from a female.

Thus the relations on the father’s side are admitted in infinitum, before those on the mother’s side are admitted at all;(l) and the relations of the father’s father, before those of the father’s mother; and so on.31 And in this the English law is not singular, but warranted by the examples of the Hebrew and Athenian laws, as stated by Selden,(m) and Petit;(n) though among the Greeks in the time of Hesiod,(o) when a man died without wife or children, all his kindred (without any **235]distinction) divided his estate among them. It is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father, were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian(p) abolished all distinction between them. It is also conformable to the customary law of Normandy,(q) which indeed in most respects agrees with our English law of inheritance.

However, I am inclined to think that this rule of our law does not owe its immediate original to any view of conformity to those which I have just now mentioned; but was established in order to effectuate and carry into execution the fifth rule, or principal canon of collateral inheritance, before laid down; that every heir must be of the blood of the first purchaser. For, when such first purchaser was not easily to be discovered after a long course of descents, the lawyers not only endeavoured to investigate him by taking the next relation of the whole blood to the person last in possession, but also, considering that a preference had been given to males (by virtue of the second canon) through the whole course of lineal descent from the first purchaser to the present time, they judged it more likely that the lands should have descended to the last tenant from his male than from his female ancestors; from the father (for instance) rather than from the mother; from the father’s father rather than from the father’s mother: and therefore they hunted back the inheritance (if I may be allowed the expression) through the male line; and gave it to the next relations on the side of the father, the father’s father, and so upwards; imagining with reason that this was the most probable way of continuing it in the line of the first purchaser. A conduct much more rational than the preference of the agnati, by the Roman laws: which, as they gave no advantage to the males in the first instance or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian.

**236]That this was the true foundation of the preference of the agnati, or male stocks, in our law, will further appear, if we consider that, whenever the lands have notoriously descended to a man from his mother’s side, this rule is totally reversed; and no relation of his by the father’s side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchaser. And so, e converso, if the lands descended from the father’s side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father’s mother Cecilia Kempe; here not only the blood of Lucy Baker his mother, but also of George Stiles his father’s father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker and of George Stiles, but also of Luke Kempe, the father of Cecilia, is excluded. Whereas, when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be holden ut feudum antiquum,) here the right of inheritance first runs up all the father’s side, with a preference to the male stocks in every instance; and, if it finds no heirs there, it then, and then only, resorts to the mother’s side; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchaser. The greatest probability of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females.32

This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance; as the ability for personal service was the reason for preferring the males at first in the direct lineal succession. We see clearly, that if males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line of ancestors must at last have inevitably brought us up to the first purchaser: but as males have not been *[*237perpetually admitted, but only generally preferred; as females have not been utterly excluded, but only generally postponed to males; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability, of arriving at the first purchaser; which, joined with the other probability, of the wholeness of entirety of blood, will fall little short of a certainty.33

Before we conclude this branch of our inquiries, it may not be amiss to exemplify these rules by a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity.(r)

In the first place succeeds the eldest son, Matthew Stiles, or his issue: (n° 1,)—if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue: (n° 2,)—in default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue. (n° 3.)—On failure of the descendants of John Stiles himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in: viz., first, Francis Stiles, the eldest brother of the whole blood, or his issue: (n° 4,)—then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issue: (n° 5,)—then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue. (n° 6.)—In defect of these, the issue of George and Cecilia Stiles, his father’s parents; respect being still had to their age and sex: (n° 7,)—then the issue of Walter and Christian Stiles, the parents of his paternal grandfather: (n° 8,)—then the issue of Richard and Anne Stiles, the parents of his paternal grandfather’s father: (n° 9,)—and so on in the paternal grandfather’s paternal line, or blood of Walter Stiles, in infinitum. In defect of these, the issue of William and Jane Smith, the parents of his paternal grandfather’s mother: (n° 10,)—and so on in the paternal grandfather’s maternal line, or blood of Christian Smith, in infinitum: till both the **238]immediate bloods of George Stiles, the paternal grandfather, are spent.—Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles’s paternal grandmother: (n° 11,)—then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother’s father: (n° 12,)—and so on in the paternal grandmother’s paternal line, or blood of Luke Kempe, in infinitum.—In default of which we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother’s mother: (n° 13,)—and so on in the paternal grandmother’s maternal line, or blood of Frances Holland, in infinitum: till both the immediate bloods of Cecilia Kempe, the paternal grandmother, are also spent.—Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations; or the blood of the Bakers, (n° 14, 15, 16,) Willises, (n° 17,) Thorpes, (n° 18, 19,) and Whites, (n° 20,) in the same regular successive order as in the paternal line.

The student should however be informed, that the class n° 10 would be postponed to n° 11, in consequence of the doctrine laid down, arguendo, by justice Manwoode, in the case of Clere and Brooke;(s) from whence it is adopted by lord Bacon,(t) and Sir Matthew Hale:(u) because, it is said, that all the female ancestors on the part of the father are equally worthy of blood; and in that case proximity shall prevail. And yet, notwithstanding these respectable authorities, the compiler of this table hath ventured (in point of theory, for the case never yet occurred in practice)34 to give the preference to n° 10 before n° 11; for the following reasons: 1. Because this point was not the principal question in the case of Clere and Brooke: but the law concerning it is delivered obiter only, and in the course of argument by justice Manwoode; though afterwards said to be confirmed by the three other justices in separate, extrajudicial conferences with the reporter. 2. Because the chief justice, Sir James Dyer, in reporting the resolution of the court in what seems to be the same case,(w) takes no notice of this doctrine. 3. Because it appears from Plowden’s report that very many gentlemen of the law were dissatisfied **239]with this position of justice Manwoode; since the blood of n° 10 was derived to the purchaser through a greater number of males than the blood of n° 11, and was therefore in their opinion the more worthy of the two. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table; wherein n° 17, which is analogous in the maternal line to n° 10 in the paternal, is preferred to n° 18, which is analogous to n° 11, upon the authority of the eighth rule laid down by Hale himself: and it destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before(x) given, besides the mere dignity of blood. 5. Because it introduces all that uncertainty and contradiction, which is pointed out by that ingenious author;(y) and establishes a collateral doctrine (viz., the preference of n° 11 to n° 10) seemingly, though perhaps not strictly, incompatible with the principal point resolved in the case of Clere and Brooke, viz., the preference of n° 11 to n° 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to clear this difficulty; it is apprehended that the difficulty may be better cleared by rejecting the collateral doctrine, which was never yet resolved at all. 6. Because the reason that is given for this doctrine by lord Bacon (viz., that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) is directly contrary to many instances given by Plowden and Hale, and every other writer on the law of descents. 7. Because this position seems to contradict the allowed doctrine of Sir Edward Coke;(z) who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stileses (alias Fairfields) fail. Now the blood of the Stileses does certainly not fail till both n° 9 and n° 10 are extinct. Wherefore n° 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case Mich. 12 Edw. IV. 14(a) (much relied on in that of Clere and Brooke) it is laid down as a rule, that “cestuy, que doit inheriter al pere, doit inheriter al fils.”(b) And so Sir Matthew Hale(c) says, “that though the law excludes the father from inheriting, yet it substitutes and directs the descent as it should have been had the father inherited.”35 Now, it is settled, by the resolution of Clere *[*240and Brooke, that n° 10 should have inherited before n° 11 to Geoffrey Stiles, the father, had he been the person last seised; and therefore n° 10 ought also to be preferred in inheriting to John Stiles, the son.

In case John Stiles was not himself the purchaser, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference: that the blood of that line of ancestors, from which it did not descend, can never inherit: as was formerly fully explained.(d) And the like rule, as there exemplified, will hold upon descents from any other ancestors.

The student should also bear in mind, that during this whole process, John Stiles is the person supposed to have been last actually seised of the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir; since he, by his own seisin, now becomes himself an ancestor or stipes, and must be put in the place of John Stiles. The figures therefore denote the order in which the several classes would succeed to John Stiles, and not to each other: and before we search for an heir in any of the higher figures, (as n° 8,) we must be first assured that all the lower classes (from n° 1 to n° 7) were extinct at John Stiles’s decease.36

CHAPTER XV.

OF TITLE BY PURCHASE AND I. BY ESCHEAT.

Purchase,perquisitio, taken in its largest and most extensive sense, is thus defined by Littleton;(a) the possession of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law.(b)

Purchase, indeed, in its vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale for money, or some other valuable consideration. But this falls far short of the legal idea of purchase: for, if I give land freely to another, he is in the eye of the law a purchaser,(c) and falls within Littleton’s definition, for he comes to the estate by his own agreement; that is, he consents to the gift. A man who has his father’s estate settled upon him in tail, before he was born, is also a purchaser; for he takes quite another estate than the law of descents would have given him. Nay, even if the ancestor devises his estate to his heir-at-law by will, with other limitations, or in any other shape, than the course of descents would direct, such heir shall take by purchase.(d) But if a man, seised in fee, devises his whole estate to his heir-at-law, so that the heir takes neither a greater nor a less estate by the **242]devise than he would have done without it, he shall be adjudged to take by descent,(e) even though it be charged with encumbrances:(f) this being for the benefit of creditors, and others, who have demands on the estate of the ancestor.1 If a remainder be limited to the heirs of Sempronius, here Sempronius himself takes nothing; but if he dies during the continuance of the particular estate, his heirs shall take as purchasers.(g) But if an estate be made to A. for life remainder to his right heirs in fee, his heirs shall take by descent: for it is an ancient rule of law, that whenever the ancestor takes an estate for life, the heir cannot by the same conveyance take an estate in fee by purchase, but only by descent.(h) And if A. dies before entry, still his heirs shall take by descent, and not by purchase: for where the heir takes any thing that might have vested in the ancestor, he takes by way of descent(i) The ancestor, during his life, beareth in himself all his heirs;(k) and therefore, when once he is or might have been seised of the lands, the inheritance so limited to his heirs vests in the ancestor himself: and the word “heirs” in this case is not esteemed a word of purchase, but a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple.2 And had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchaser originally nominated in the deed, as must have been the case if the remainder had been expressly limited to Matthew or Thomas by name; then, in the times of strict feodal tenure, the lord would have been defrauded by such a limitation of the fruits of his signiory arising from a descent to the heir.

What we call purchase, perquisitio, the feudists called conquests, conquæstus, or conquisitio:(l) both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scotland:(m) as it was among the Norman jurists, who styled *[*243the first purchaser (that is, he who brought the estate into the family who at present owns it) the conqueror or conquereur.(n) Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successors’ charters, and by the historians of the times, entitled conquæstus, and himself conquæstor or conquisitor;(o) signifying that he was the first of his family who acquired the crown of England, and from whom therefore all future claims by descent must be derived: though now, from our disuse of the feodal sense of the word, together with the reflection on his forcible method of acquisition, we are apt to annex the idea of victory to this name of conquest or conquisition: a title which, however just with regard to the crown, the Conqueror never pretended with regard to the realm of England; nor, in fact, ever had.(p)

The difference, in effect, between the acquisition of an estate by descent and by purchase, consists principally in these two points: 1. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner’s blood in general, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase, he takes it not ut feudum paternum or maternum, which would descend only to the heirs by the father’s or the mother’s side: but he takes it ut feudum antiquum, as a feud of indefinite antiquity, whereby it be comes inheritable to his heirs general, first of the paternal, and then of the maternal, line. 2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will. For if the ancestor, by any deed, obligation, covenant, or the like, bindeth himself and his heirs, and dieth; this deed, obligation, or covenant, shall be binding upon the heir so far forth only as he (or any other in trust for him)(q) had any estate of inheritance vested in him by descent **244]from, (or any estate pur auter vie coming to him by special occupancy, as heir to,)(r) that ancestor, sufficient to answer the charge;(s) whether he remains in possession, or hath alienated it before action brought;(t) which sufficient estate is in the law called assets; from the French word assez, enough.(u) Therefore if a man covenants, for himself and his heirs, to keep my house in repair, I can then (and then only) compel his heir to perform this covenant, when he has an estate sufficient for this purpose, or assets, by descent from the covenantor: for though the covenant descends to the heir, whether he inherits any estate or no, it lies dormant, and is not compulsory, until he has assets by descent.(v)3

This is the legal signification of the word perquisitio, or purchase; and in this sense it includes the five following methods of acquiring a title to estates: 1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation. Of all these in their order.

I. Escheat, we may remember,(w) was one of the fruits and consequences of feodal tenure.4 The word itself is originally French or Norman,(x) in which language it signifies chance or accident; and with us it denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency: in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee.(y)

Escheat therefore being a title frequently vested in the lord by inheritance, as being the fruit of a signiory to which he was entitled by descent, (for which reason the lands escheated shall attend the signiory, and be inheritable by such only of his heirs as are capable of inheriting the other,)(z) it may seem in such cases to fall more properly under the former general head of acquiring title to estates, viz., by descent, (being vested in him by act of law, and not by his own act **245]or agreement,) than under the present, by purchase. But it must be remembered that, in order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or suing out a writ of escheat:(a) on failure of which, or by doing any act that amounts to an implied waiver of his right, as by accepting homage or rent of a stranger who usurps the possession, his title by escheat is barred.(b) It is therefore in some respect a title acquired by his own act, as well as by act of law. Indeed, this may also be said of descents themselves, in which an entry or other seisin is required, in order to make a complete title: and therefore this distribution of titles by our legal writers, into those by descent and by purchase, seems in this respect rather inaccurate, and not marked with sufficient precision: for, as escheats must follow the nature of the signiory to which they belong, they may vest by either purchase or descent, according as the signiory is vested. And, though Sir Edward Coke considers the lord by escheat as in some respects the assignee of the last tenant,(c) and therefore taking by purchase; yet, on the other hand, the lord is more frequently considered as being ultimus hæres, and therefore taking by descent in a kind of caducary succession.

The law of escheats is founded upon this single principle, that the blood of the person last seised in fee-simple is, by some means or other, utterly extinct and gone; and, since none can inherit his estate but such as are of his blood and consanguinity, it follows, as a regular consequence, that when such blood is extinct, the inheritance itself must fail: the land must become what the feodal writers denominate feudum apertum; and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.

Escheats are frequently divided into those propter defectum sanguinis, and those propter delictum tenentis: the one sort, if the tenant dies without heirs; the other, if his blood be attainted.(d) But both these species may well be *[*246comprehended under the first denomination only; for he that is attainted suffers an extinction of his blood, as well as he that dies without relations. The inheritable quality is expunged in one instance, and expires in the other; or, as the doctrine of escheats is very fully expressed in Fleta,(e) “dominus capitalis feodi loco hæredis habetur, quoties per defectum vel delictum extinguitur sanguis tenentis.”

Escheats therefore arising merely upon the deficiency of the blood, whereby the descent is impeded, their doctrine will be better illustrated by considering the several cases wherein hereditary blood may be deficient, than by any other method whatsoever.

1, 2, 3. The first three cases, wherein inheritable blood is wanting, may be collected from the rules of descent laid down and explained in the preceding chapter, and therefore will need very little illustration or comment. First, when the tenant dies without any relations on the part of any of his ancestors: secondly, when he dies without any relations on the part of those ancestors from whom his estate descended: thirdly, when he dies without any relations of the whole blood. In two of these cases the blood of the first purchaser is certainly, in the other it is probably, at an end; and therefore in all of them the law directs that the land shall escheat to the lord of the fee; for the lord would be manifestly prejudiced, if, contrary to the inherent condition tacitly annexed to all feuds, any person should be suffered to succeed to the lands, who is not of the blood of the first feudatory, to whom for his personal merit the estate is supposed to have been granted.5

4. A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage: but, although it hath deformity in any part of its body, yet if it **247]hath human shape it may be heir.(f) This is a very ancient rule in the law of England;(g) and its reason is too obvious and too shocking to bear a minute discussion. The Roman law agrees with our own in excluding such births from successions:(h) yet accounts them, however, children in some respects, where the parents, or at least the father, could reap any advantage thereby:(i) (as the jus trium liberorum, and the like,) esteeming them the misfortune, rather than the fault, of that parent. But our law will not admit a birth of this kind to be such an issue as shall entitle the husband to be tenant by the curtesy;(k) because it is not capable of inheriting. And therefore, if there appears no other heir than such a prodigious birth, the land shall escheat to the lord.

5. Bastards are incapable of being heirs. Bastards, by our law, are such children as are not born either in lawful wedlock, or within a competent time after its determination.(l) Such are held to be nullius filii, the sons of nobody; for the maxim of law is, qui ex damnato coitu nascuntur, inter liberos non computantur.(m) Being thus the sons of nobody, they have no blood in them, at least no inheritable blood: consequently, none of the blood of the first purchaser: and therefore, if there be no other claimant than such illegitimate children, the land shall escheat to the lord.(n) The civil law differs from ours in this point, and allows a bastard to succeed to an inheritance, if after its birth the mother was married to the father:(o) and also, if the father had no lawful wife or child, then, even if the concubine was never married to the father, yet she and her bastard son were admitted each to one-twelfth of the inheritance;(p) and a bastard was likewise **248]capable of succeeding to the whole of his mother’s estate, although she was never married; the mother being sufficiently certain, though the father is not.(q) But our law, it favour of marriage, is much less indulgent to bastards.6

There is, indeed, one instance, in which our law has shown them some little regard; and that is usually termed the case of bastard eignè and mulier puisnè. This happens when a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who, in the language of the law, is called a mulier, or, as Glanvil(r) expresses it in his Latin, filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now, here the eldest son is bastard, or bastard eignè; and the younger son is legitimate, or mulier puisnè. If then the father dies, and the bastard eignè enters upon his land, and enjoys it to his death, and dies seised thereof,7 whereby the inheritance descends to his issue; in this case the mulier puisnè, and all other heirs, (though minors, feme-coverts, or under any incapacity whatsoever,) are totally barred of their right.(s) And this, 1. As a punishment on the mulier for his negligence, in not entering during the bastard’s life, and evieting him. 2. Because the law will not suffer a man to be bastardized after his death who entered as heir and died seised, and so passed for legitimate in his lifetime.8 3. Because the canon law (following the civil) did allow such bastard eignè to be legitimate on the subsequent marriage of his mother; and therefore the laws of England (though they would not admit either the civil or canon law to rule the inheritances of this kingdom, yet) paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shown to no other kind of bastard; for, if the mother was never married to the father, such bastard could have no colourable title at all.(t)9

*[*249As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For, as all collateral kindred consists in being derived from the same common ancestor, and a bastard has no legal ancestors, he can have no collateral kindred; and, consequently, can have no legal heirs but such as claim by a lineal descent from himself. And therefore if a bastard purchase land and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee.(u)

6. Aliens,(v) also, are incapable of taking by descent, or inheriting:(w) for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defence of the kingdom, would have been defeated. Wherefore if a man leaves no other relations but aliens, his land shall escheat to the lord.10

As aliens cannot inherit, so far they are on a level with bastards; but as they are also disabled to hold by purchase,(x)11 they are under still greater disabilities. And, as they can neither hold by purchase nor by inheritance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heir to inherit; but so it is expressly holden,(y) because they have not in them any inheritable blood.

And further, if an alien be made a denizen by the king’s letters-patent, and then purchases land, (which the law allows such a one to do,) his son, born before his denization, shall not (by the common law) inherit those lands; but a son born afterwards may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his eldest son; but by denization it acquires **250]an hereditary quality, which will be transmitted to his subsequent posterity. Yet if he had been naturalized by act of parliament, such eldest son might then have inherited; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not.(z)12

Sir Edward Coke(a) also holds, that if an alien cometh into England and there hath issue two sons, who are thereby natural-born subjects; and one of them purchases land, and dies: yet neither of these brethren can be heir to the other. For the commune vinculum, or common stock of their consanguinity, is the father; and as he had no inheritable blood in him, he could communicate none to his sons; and, when the sons can by no possibility be heirs to the father, the one of them shall not be heir to the other. And this opinion of his seems founded upon solid principles of the ancient law: not only from the rule before cited,(b) that cestuy, que doit inheriter al père, doit inheriter al fils: but also because we have seen that the only feodal foundation, upon which newly-purchased land can possibly descend to a brother, is the supposition and fiction of law, that it descended from some one of his ancestors; but in this case, as the intermediate ancestor was an alien, from whom it could by no possibility descend, this should destroy the supposition, and impede the descent, and the land should be inherited ut feudum stricte novum; that is, by none but the lineal descendants of the purchasing brother; and, on failure of them, should escheat to the lord of the fee. But this opinion hath been since overruled:(c) and it is now held for law, that the sons of an alien born here, may inherit to each other; the descent from one brother to another being an immediate descent.(d) And reasonably enough upon the whole; for, as (in common purchases) the whole of the supposed descent from indefinite ancestors is but fictitious, the law may as well suppose the requisite ancestor as suppose the requisite descent.

**251]It is also enacted, by the statute 11 & 12 W. III. c. 6, that all persons, being natural-born subjects of the king, may inherit and make their titles by descent from any of their ancestors lineal or collateral; although their father or mother, or other ancestor, by, from, through, or under whom they derive their pedigrees, were born out of the king’s allegiance. But inconveniences were afterwards apprehended, in case persons should thereby gain a future capacity to inherit, who did not exist at the death of the person last seised. As, if Francis the elder brother of John Stiles be an alien, and Oliver the younger be a natural-born subject, upon John’s death without issue his lands will descend to Oliver the younger brother: now, if afterwards Francis has a child born in England, it was feared that, under the statute of king William, this new-born child might defeat the estate of his uncle Oliver. Wherefore it is provided, by the statute 25 Geo. II. c. 39, that no right of inheritance shall accrue by virtue of the former statute to any persons whatsoever, unless they are in being and capable to take as heirs at the death of the person last seised:—with an exception however to the case, where lands shall descend to the daughter of an alien; which descent shall be divested in favour of an after-born brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual rule(e) of descents by the common law.

7. By attainder also, for treason or other felony, the blood of the person attainted is so corrupted, as to be rendered no longer inheritable.

Great care must be taken to distinguish between forfeiture of lands to the king, and this species of escheat to the lord; which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee, and therefore entitled to both, have been often confounded together. Forfeiture of lands, and of whatever else the offender possessed, was the doctrine of the old Saxon law,(f) as a part of punishment for the offence; *[*252and does not at all relate to the feodal system, nor is the consequence of any signiory or lordship paramount:(g) but, being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which, escheat must undoubtedly be reckoned. Escheat therefore operates in subordination to this more antient and superior law of forfeiture.

The doctrine of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony, (under which denomination all treasons were formerly comprised,)(h) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out forever. In this situation the law of feodal escheat was brought into England at the conquest; and in general superadded to the antient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in its passage: in case of treason, forever; in case of other felony, for only a year and a day; after which time it goes to the lord in a regular course of escheat,(i) as it would have done to the heir of the felon in case the feodal tenures had never been introduced. And that this is the true operation and genuine history of escheats will most evidently appear from this incident to gavelkind lands, (which seems to be the old Saxon tenure,) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason.(j)

*[*253As a consequence of this doctrine of escheat, all lands of inheritance immediately revesting in the lord, the wife of the felon was liable to lose her dower, till the statute 1 Edw. VI. c. 12 enacted, that albeit any person be attainted of misprision of treason, murder, or felony, yet his wife shall enjoy her dower. But she has not this indulgence where the antient law of forfeiture operates, for it is expressly provided by the statute 5 & 6 Edw. VI. c. 11 that the wife of one attaint of high treason shall not be endowed at all.13

Hitherto we have only spoken of estates vested in the offender at the time of his offence or attainder. And here the law of forfeiture stops; but the law of escheat pursues the matter still further. For the blood of the tenant being utterly corrupted and extinguished, it follows not only that all that he now has shall escheat from him, but also that he shall be incapable of inheriting any thing for the future. This may further illustrate the distinction between forfeiture and escheat. If therefore a father be seised in fee, and the son commits treason and is attainted, and then the father dies: here the lands shall escheat to the lord; because the son, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life; but nothing shall be forfeited to the king, for the son never had any interest in the lands to forfeit.(k) In this case the escheat operates, and not the forfeiture; but in the following instance the forfeiture works, and not the escheat. As where a new felony is created by act of parliament, and it is provided (as is frequently the case) that it shall not extend to corruption of blood; here the lands of the felon shall not escheat to the lord, but yet the profits of them shall be forfeited to the king for a year and a day, and so long after as the offender lives.(l)

There is yet a further consequence of the corruption and extinction of hereditary blood, which is this: that the person **254]attainted shall not only be incapable himself of inheriting, or transmitting his own property by heirship, but shall also obstruct the descent of lands or tenements to his posterity, in all cases where they are obliged to derive their title through him from any remoter ancestor. The channel which conveyed the hereditary blood from his ancestors to him is not only exhausted for the present, but totally dammed up and rendered impervious for the future. This is a refinement upon the antient law of feuds, which allowed that the grandson might be heir to his grandfather, though the son in the intermediate generation was guilty of felony.(m) But, by the law of England, a man’s blood is so universally corrupted by attainder, that his sons can neither inherit to him nor to any other ancestors,(n) at least on the part of their attainted father.

This corruption of blood cannot be absolutely removed but by authority of parliament. The king may excuse the public punishment of an offender, but cannot abolish the private right which has accrued or may accrue to individuals as a consequence of the criminal’s attainder. He may remit a forfeiture, in which the interest of the crown is alone concerned; but he cannot wipe away the corruption of blood; for therein a third person hath an interest, the lord who claims by escheat. If, therefore, a man hath a son, and is attainted, and afterwards pardoned by the king; this son can never inherit to his father, or father’s ancestors; because his paternal blood, being once thoroughly corrupted by his father’s attainder, must continue so: but if the son had been born after the pardon, he might inherit; because by the pardon the father is made a new man, and may convey new inheritable blood to his after-born children.(o)

Herein there is, however, a difference between aliens and persons attainted Of aliens, who could never by any possibility be heirs, the law takes no notice and therefore we have **255]seen that an alien elder brother shall not impede the descent to a natural-born younger brother. But in attainders it is otherwise: for if a man hath issue a son, and is attainted, and afterwards pardoned, and then hath issue a second son, and dies; here the corruption of blood is not removed from the eldest, and therefore he cannot be heir; neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a possibility of being heir: and therefore the younger brother shall not inherit, but the land shall escheat to the lord: though had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he hath no corruption of blood.(p) So, if a man hath issue two sons, and the elder in the lifetime of the father hath issue, and then is attainted and executed, and afterwards the father dies, the lands of the father shall not descend to the younger son; for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord.(q) Sir Edward Coke in this case allows(r) that if the ancestor be attainted, his sons born before the attainder may be heirs to each other; and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father; but he makes a doubt (upon the principles before mentioned, which are now overruled)(s) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in them.

Upon the whole, it appears that a person attainted is neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished forever: the consequence of which is, that estates thus impeded in their descent result back and escheat to the lord.

*[*256This corruption of blood, thus arising from feodal principles, but perhaps extended further than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive part of the feodal tenures being now in general abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty, (which, however severe, is sufficiently justified upon reasons of public policy,) but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And therefore in most (if not all) of the new felonies created by parliament since the reign of Henry the Eighth, it is declared that they shall not extend to any corruption of blood: and by the statute 7 Anne, c. 21 (the operation of which is postponed by the statute 17 Geo. II. c. 39) it is enacted, that after the death of the late pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself: which provisions have indeed carried the remedy further than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.14

Before I conclude this head of escheat, I must mention one singular instance in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the case of a corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat; which is perhaps the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law, we are told,(t) doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant *[*257faileth. This is indeed founded upon the self-same principle as the law of escheat; the heirs of the donor being only substituted instead of the chief lord of the fee: which was formerly very frequently the case in subinfeudations, or alienations of lands by a vassal to be holden as of himself, till that practice was restrained by the statute of quia emptores, 18 Edw. I. st. 1, to which this very singular instance still in some degree remains an exception.

There is one more incapacity of taking by descent, which, not being productive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 & 12 Will. III. c. 4,15 that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent as well as purchase, any real estates whatsoever; and his next of kin, being a protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descents to others of his kindred. In like manner as, even in the times of popery, one who entered into religion, and became a monk professed, was incapable of inheriting lands, both in our own(u) and the feodal law; eo quod desiit esse miles seculi qui factus est miles Christi: nec beneficium pertinet ad eum qui non debet gerere officium.(w) But yet he was accounted only civiliter mortuus; he did not impede the descent to others, but the next heir was entitled to his or his ancestor’s estate.16

These are the several deficiencies of hereditary blood, recognised by the law of England; which, so often as they happen, occasion lands to escheat to the original proprietary or lord.

CHAPTER XVI.

II. OF TITLE BY OCCUPANCY.

Occupancy is the taking possession of those things which before belonged to nobody. This, as we have seen,(a) is the true ground and foundation of all property, or of holding those things in severalty which by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognised by the laws of Rome,(b)quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real property, (for of personal chattels I am not in this place to speak,) hath been confined by the laws of England within a very narrow compass; and was extended only to a single instance; namely, where a man was tenant pur auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was holden; in this case he that could first enter on the land might lawfully retain the possession, so long as cestuy que vie lived, by right of occupancy.(c)

**259]This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly(d) was supposed so to do; for he had parted with all his interest, so long as cestuy que vie lived: it did not escheat to the lord of the fee, for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it; much less of so minute a remnant as this: it did not belong to the grantee; for he was dead: it did not descend to his heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the hæreditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands: for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king’s title and a subject’s concur, the king’s shall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occurrit regi.(e) And, even in the case of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant: as having a special exclusive right by the terms of the original grant, to enter upon and occupy this hæreditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety,(f) and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one 29 Car. II. c. 3, which enacts (according to the ancient rule of law)(g) that where there is no special occupant, in whom the estate may vest, the tenant pur auter vie may devise it *[*260by will, or it shall go to the executors or administrators, and be assets in their hands for payment of debts:1 the other, that of 14 Geo. II. c. 10, which enacts that the surplus of such estate pur auter vie, after payment of debts, shall go in a course of distribution like a chattel interest.

By these two statutes the title of common occupancy is utterly extinct and abolished; though that of special occupancy by the heir-at-law continues to this day; such heir being held to succeed to the ancestor’s estate, not by descent, for then he must take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like,(h) (because, with respect to them, there could be no actual entry made, or corporal seisin had; and therefore by the death of the grantee pur auter vie a grant of such hereditaments was entirely determined,) so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor vest in the executors, nor go in a course of distribution. For these statutes must not be construed so as to create any new estate, or keep that alive which by the common law was determined, and thereby to defer the grantor’s reversion; but merely to dispose of an interest in being, to which by law there was no owner, and which therefore was left open to the first occupant.2 When there is a residue left, the statutes give it to the executors and administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either.(i) They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody’s; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform; this being the only instance wherein a title to real estate could ever be acquired by occupancy.3

*[*261This, I say, was the only instance; for I think there can be no other case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the common course of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee, by escheat.

So also in some cases, where the laws of other nations give a right by occupancy, as in lands newly created, by the rising of an island in the sea or in a river, or by the alluvion or dereliction of the waters; in these instances the law of England assigns them an immediate owner. For Bracton tells us,(j) that if an island arise in the middle of a river, it belongs in common to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore: which is agreeable to, and probably copied from, the civil law.(k) Yet this seems only to be reasonable, where the soil of the river is equally divided between the owners of the opposite shores; for if the whole soil is the freehold of any one man, as it usually is whenever a several fishery is claimed,(l) there it seems just (and so is the constant practice) that the eyotts or little islands, arising in any part of the river, shall be the property of him who owneth the piscary and the soil. However, in case a new island rise in the sea, though the civil law gives it to the first occupant,(m) yet ours gives it to the king.(n) *[*262And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks back below the usual watermark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining.(o) For de minimis non curat lex: and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss. But if the alluvion or dereliction be sudden and considerable, in this case it belongs to the king; for, as the king is lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry.(p) So that the quantity of ground gained, and the time during which it is gaining, are what make it either the king’s or the subject’s property.4 In the same manner if a river, running between two lordships, by degrees gains upon the one, and thereby leaves the other dry; the owner who loses his ground thus imperceptibly has no remedy: but if the course of the river be changed by a sudden and violent flood, or other hasty means, and thereby a man loses his ground, it is said that he shall have what the river has left in any other place, as a recompense for this sudden loss.(q) And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law;(r) from whence indeed those our determinations seem to have been drawn and adopted: but we ourselves, as islanders, have applied them to marine increase, and have given our sovereign the prerogative he enjoys, as well upon the particular reasons before mentioned, as upon this other general ground of prerogative, which was formerly remarked,(s) that whatever hath no other owner is vested by law in the king.

CHAPTER XVII.

III. OF TITLE BY PRESCRIPTION.

A third method of acquiring real property by purchase is that by prescription; as when a man can show no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries.(a) At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then show what sort of things may be prescribed for.

And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to a person; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege.(b)1 As for example; if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation, (which is held(c) to be a lawful usage;) this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the *[*264tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath:(d) which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended(e) for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. c. 2, it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made.(f)

Secondly, as to the several species of things which may, or may not, be prescribed for: we may, in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right of way, a common, &c.; but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had.(g) For a man shall not be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seisin, and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be *[*265laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates.(h) For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for any thing, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord’s estate, and the tenant for life under cover of the tenant in fee-simple. As if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with its appurtenances, to him the said tenant for life.2 3. A prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed.3 Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription.(i)4 4. A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchise of deodands, felons’ goods, and the like. These not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by an inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record.(k) 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds,) nothing **266]is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix of an estate, with which the thing claimed has no connection; but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross.(l) Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor; but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly,5 we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase; for every accessory followeth the nature of its principal.6

CHAPTER XVIII.

IV. OF TITLE BY FORFEITURE.

Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained.

Lands, tenements, and hereditaments may be forfeited in various degrees and by various means: 1. By crimes and misdemesnors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of condition. 6. By waste 7. By breach of copyhold customs. 8. By bankruptcy.

I. The foundation and justice of forfeitures for crimes and misdemesnors, and the several degrees of those forfeitures proportioned to the several offences, have been hinted at in the preceding book;(a) but it will be more properly considered, and more at large, in the fourth book of these commentaries. At present I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following six: 1. Treason. 2. Felony. 3. Misprision of treason. 4. Præmunire. **268]5. Drawing a weapon on a judge, or striking any one in the presence of the king’s principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists.1 But at what time they severally commence, how far they extend, and how long they endure, will with greater propriety be reserved as the object of our future inquiries.2

II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.

1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations,(b) and the religious houses themselves to be principally considered in forming the statutes of mortmain; in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics in cluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses: how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, hath obtained a decisive victory.

By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feodal restraints of alienation were worn away. Yet, in consequence of these it was always, and is still necessary,(c) for corporations to have a license in mortmain *[*269from the crown, to enable them to purchase lands; for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats, and other feodal profits, by the vesting of lands in tenants that can never be attainted or die. And such licenses of mortmain seem to have been necessary among the Saxons, above sixty years before the Norman conquest.(d) But, besides this general license from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his license also (upon the same feodal principles) for the alienation of the specific land. And if no such license was obtained, the king or other lord might respectively enter on the land, so aliened in mortmain, as a forfeiture. The necessity of this license from the crown was acknowledged by the constitutions of Clarendon,(e) in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations.(f) Yet, such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a license could not be obtained) their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate, first conveyed his lands to the religious house, and instantly took them back again to hold as tenant to the monastery; which kind of instantaneous seisin was probably held not to occasion any forfeiture: and then, by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newlyacquired signiory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feodal services, ordained for the defence of the kingdom, were every day visibly withdrawn; that the circulation of landed property from man to man began to *[*270stagnate; and that the lords were curtailed of the fruits of their signiories, their escheats, wardships, reliefs, and the like; and therefore, in order to prevent this, it was ordered by the second of King Henry III.’s great charter,(g) and afterwards by that printed in our common statute-book, that all such attempts should be void, and the land forfeited to the lord of the fee.(h)

But as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, Sir Edward Coke observes,(i) in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bonâ fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edw. I.; which provided, that no person, religious or other whatsoever, should buy or sell, or receive under pretence of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself, any lands or tenements in mortmain: upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and, in default of all of them, the king, might enter thereon as a forfeiture.

This seemed to be a sufficient security against all alienations in mortmain: but as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to bring an *[*271action to recover it against the tenant; who, by fraud and collusion, made no defence, and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right, which are since become the great assurance of the kingdom, under the name of common recoveries. But upon this the statute of Westminster the second, 13 Edw. I. c. 32, enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land, and if the religious house or corporation be found to have it, they shall still recover seisin; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lord’s default. And the like provision was made by the succeeding chapter,(k) in case the tenants set up crosses upon their lands (the badges of knights templars and hospitallers) in order to protect them from the feodal demands of their lords, by virtue of the privileges of those religious and military orders. So careful, indeed, was this provident prince to prevent any future evasions, that when the statute of quia emptores, 18 Edw. I., abolished all subinfeudations, and gave liberty for all men to alienate their lands to be holden of their next immediate lord,(l) a proviso was inserted(m) that this should not extend to authorize any kind of alienation in mortmain. And when afterwards the method of obtaining the king’s license by writ of ad quod damnum was marked out, by the statute 27 Edw. I. st. 2, it was further provided by statute 34 Edw. I. st. 3 that no such license should be effectual, without the consent of the mesne or intermediate lords.

Yet still it was found difficult to set bounds to ecclesiastical ingenuity; for when they were driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly, but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and receiving **272]the actual profits, while the seisin of the land remained in the nominal feoffee; who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it is to these inventions that our practisers are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device; for the statute 15 Ric. II. c. 5 enacts, that the lands which had been so purchased to uses should be amortised by license from the crown, or else be sold to private persons; and that, for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of churchyards, such subtile imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those salutary laws. And, lastly, as during the times of popery, lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore, at the dawn of the reformation, the statute 23 Hen. VIII. c. 10 declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.

But, during all this time, it was in the power of the crown, by granting a license of mortmain, to remit the forfeiture, so far as related to its own rights; and to enable any spiritual or other corporation to purchase and hold any lands or tenements in perpetuity; which prerogative is declared and confirmed by the statute 18 Edw. III. st. 3, c. 3. But, as doubts were conceived at the time of the revolution how far such license was valid,(n) since the kings had no **273]power to dispense with the statutes of mortmain by a clause of nonobstante,(o) which was the usual course, though it seems to have been unnecessary:(p) and as, by the gradual declension of mesne signiories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass; it was therefore provided by the statute 7 & 8 W. III. c. 37, that the crown for the future at its own discretion may grant licenses to aliene or take in mortmain, of whomsoever the tenements may be holden.

After the dissolution of monasteries under Henry VIII., though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years by the statute 1 & 2 P. and M. c. 8, and during that time any lands or tenements were allowed to be granted to any spiritual corporation without any license whatsoever. And, long afterwards, for a much better purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II. c. 3, that appropriators may annex the great tithes to the vicarages; and that all benefices under 100l. per annum may be augmented by the purchase of lands, without license of mortmain in either case; and the like provision hath been since made, in favour of the governors of queen Anne’s bounty.(q) It hath also been held,(r) that the statute 23 Hen. VIII., before mentioned, did not extend to any thing but superstitious uses; and that therefore a man may give lands for the maintenance of a school, a hospital, or any other charitable uses. But as it was apprehended from recent experience, that persons on their death-beds might make large and improvident dispositions even for these good purposes, and defeat the political ends of the statutes of mortmain; it is therefore enacted by the statute 9 Geo. II. c. 36, that no lands or tenements, or money to be laid out thereon, shall *[*274be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after its execution, (except stocks in the public funds, which may be transferred within six months previous to the donor’s death,) and unless such gift be made to take effect immediately, and be without power of revocation: and that all other gifts shall be void.3 The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons than are equal in number to one moiety of the fellows or students, upon the respective foundations.4

2. Secondly, alienation to an alien is also a cause of forfeiture to the crown of the land so alienated; not only on account of his incapacity to hold them, which occasions him to be passed by in descents of land,(s) but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding book.(t)

3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and devest the remainder or reversion,(u) are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee;5 these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate to him in remainder or reversion.(v)6 For which there seem to be two reasons. First, because such alienation amounts to a renunciation of the feodal connection and dependence; it implies a refusal to perform the due renders and services to the lord of *[*275the fee, of which fealty is constantly one: and it tends in its consequence to defeat and devest the remainder or reversion expectant: as therefore that is put in jeopardy by such act of the particular tenant, it is but just that, upon discovery, the particular estate should be forfeited and taken from him, who has shown so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law, which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold or of chattel interests; but if tenant in tail alienes in fee, this is no immediate forfeiture to the remainderman, but a mere discontinuance (as it is called)(w) of the estate-tail, which the issue may afterwards avoid by due course of law:(x) for he in remainder or reversion hath only a very remote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law.(y) For the law will not hurt an innocent lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it, and defeat the interest which he himself has created.

Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; as where a tenant, who holds of any lord, neglects to render him the due services, and, upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord,(z) upon reasons most apparently feodal. And so likewise, if in any court of record the **276]particular tenant does any act which amounts to a virtual disclaimer; if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenant of a superior class;(a) if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like;(b) such behaviour amounts to a forfeiture of his particular estate.

III. Lapse is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary by neglect of the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. For it being for the interest of religion, and the good of the public, that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken the patron; who might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority)(c) of the council of Lateran,(d) which was in the reign of our Henry the Second, when the bishops first began to exercise universally the right of institution to churches.(e) And therefore, where there is no right of institution, there is no right of lapse: so that no donative can lapse to the ordinary,(f) unless it hath been augmented by the queen’s bounty.(g) But no right of lapse can accrue, when the original presentation is in the crown.(h)

The term, in which the title to present by lapse accrues from the one to the other successively, is six calendar months,(i) (following in this case the computation of the church, and not the usual one of the common law,) and this **277]exclusive of the day of the avoidance.(k) But if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in;(l) for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also if the bishop doth not collate his own clerk immediately to the living, and the patron presents, though after the six months are elapsed, yet his presentation is good, and the bishop is bound to institute the patron’s clerk.(m) For as the law only gives the bishop this title by lapse, to punish the patron’s negligence, there is no reason that, if the bishop himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan, the patron has also the same advantage if he presents before the archbishop has filled up the benefice; and that for the same reason. Yet the ordinary cannot, after lapse to the metropolitan, collate his own clerk to the prejudice of the archbishop.(n) For he had no permanent right and interest in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of during the time, he cannot afterwards retrieve it. But if the presentation lapses to the king, prerogative here intervenes and makes a difference; and the patron shall never recover his right till the king has satisfied his turn by presentation: for nullum tempus occurrit regi.(o) And therefore it may seem as if the church might continue void forever, unless the king shall be pleased to present; and a patron thereby be absolutely defeated of his advowson. But to prevent this inconvenience, the law has lodged a power in the patron’s hands, of as it were compelling the king to present. For if, during the delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron’s clerk, or, after induction, may remove him by quare impedit: but if he does not, and the patron’s clerk dies incumbent, or is canonically deprived, the king hath lost his right, which was only to the next or first presentation.(p)

*[*278In case the benefice becomes void by death, or cession through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can take no advantage by way of lapse.(q) Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the archbishop nor the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months, and hath exceeded his time: for the first step or beginning faileth, et quod non habet principium, non habet finem.(r) If the bishop refuse or neglect to examine and admit the patron’s clerk, without good reason assigned or notice given, he is styled a disturber by the law, and shall not have any title to present by lapse; for no man shall take advantage of his own wrong.(s) Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided.(t)

IV. By simony, the right of presentation to a living is forfeited, and vested pro hac vice in the crown. Simony is the corrupt presentation of any one to an ecclesiastical benefice for money, gift, or reward. It is so called from the resemblance it is said to bear to the sin of Simon Magus, though the purchasing of holy orders seems to approach nearer to his offence. It was by the canon law a very grievous crime: and is so much the more odious, because, as Sir Edward Coke observes,(u) it is ever accompanied with perjury; for the presentee is sworn to have committed no simony. However, it was not an offence punishable in a criminal way at the common law;(w) it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect *[*279the simoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, divers acts of parliament have been made to restrain it by means of civil forfeitures; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, because they devest the corrupt patron of the right of presentation, and vest a new right in the crown.

By the statute 31 Eliz. c. 6, it is for avoiding of simony enacted, that if any patron for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclesiastical benefice or dignity; such presentation shall be void, and the presentee be rendered incapable of ever enjoying the same benefice: and the crown shall present to it for that turn only.(x) But if the presentee dies, without being convicted of such simony in his lifetime, it is enacted by stat. 1. W. and M. c. 16, that the simoniacal contract shall not prejudice any other innocent patron, on pretence of lapse to the crown or otherwise. Also by the statute 12 Anne, stat. 2, c. 12, if any person for money or profit shall procure, in his own name or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, this is declared to be a simoniacal contract; and the party is subject to all the ecclesiastical penalties of simony, is disabled from holding the benefice, and the presentation devolves to the crown.

Upon these statutes many questions have arisen, with regard to what is, and what is not, simony. And, among others, these points seem to be clearly settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious simony:(y) this being expressly in the face of the statute. 2. That for a clerk to bargain for the next presentation, the incumbent being sick and about to die, was simony, even before the statute of queen Anne:(z) and now, by that statute, to purchase, either in his own name or another’s, the next presentation, and be thereupon presented **280]at any future time to the living, is direct and palpable simony. But, 3. It is held that for a father to purchase such a presentation, in order to provide for his son, is not simony: for the son is not concerned in the bargain, and the father is by nature bound to make a provision for him.(a) 4. That if a simoniacal contract be made with the patron, the clerk not being privy thereto, the presentation for that turn shall indeed devolve to the crown, as a punishment of the guilty patron; but the clerk, who is innocent, does not incur any disability or forfeiture.(b) 5. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal,(c) provided the patron or his relations be not benefited thereby;(d) for this is no corrupt consideration, moving to the patron. 6. That bonds of resignation, in case of non-residence or taking any other living, are not simoniacal;(e) there being no corrupt consideration herein, but such only as is for the good of the public. So also bonds to resign, when the patron’s son comes to canonical age, are legal; upon the reason being given, that the father is bound to provide for his son.(f) 7. Lastly, general bonds to resign at the patron’s request are held to be legal:(g) for they may possibly be given for one of the legal considerations before mentioned; and where there is a possibility that a transaction may be fair, the law will not suppose it iniquitous without proof.7 But, if the party can prove the contract to have been a corrupt one, such proof will be admitted, in order to show the bond simoniacal, and therefore void. Neither will the patron be suffered to make an ill use of such a general bond of resignation; as, by extorting a composition for tithes, procuring an annuity for his relation, or by demanding a resignation wantonly or without good cause, such as is approved by the law; as, for the benefit of his own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbent.(h)

*[*281V. The next kind of forfeitures are those by breach or non-performance of a condition annexed to the estate, either expressly by deed at its original creation, or impliedly by law from a principle of natural reason. Both which we considered at large in a former chapter.(i)

VI. 1 therefore now proceed to another species of forfeiture, viz by waste Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail.(k)8

Waste is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive,9 which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance is waste.(l) Therefore removing wainscot, floors, or other things once fixed to the freehold of a house, is waste.(m)10 If a house be destroyed by tempest, lightning, or the like, which is the act of Providence, it is no waste: but otherwise, if the house be burned by the carelessness or negligence of the lessee: though now, by the statute 6 Anne, c. 31, no action will lie against a tenant for an accident of this kind.11 Waste may also be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance.(n) Timber also is part of the inheritance.(o) Such are oak, ash, and elm in all places; and in some particular countries, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste.(p)12 But underwood the tenant may cut down at any seasonable time *[*282that he pleases;(q) and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions.(r) The conversion of land from one species to another is waste. To convert wood, meadow, or pasture into arable; to turn arable, meadow, or pasture into woodland; or to turn arable or woodland into meadow or pasture, are all of them waste.(s) For, as Sir Edward Coke observes,(t) it not only changes the course of husbandry, but the evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable, and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value.(u) To open the land to search for mines of metal, coal, &c. is waste; for that is a detriment to the inheritance:(v)13 but if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use;(w) for it is now become the mere annual profit of the land. These three are the general heads of waste, viz., in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value, of the inheritance, is considered by the law as waste.

Let us next see who are liable to be punished for committing waste. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; “si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur.”(x) But in our antient common law the rule was by no means so large; for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishablo in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the *[*283curtesy;(y) and not in tenant for life or years.(z) And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and, if he did not, it was his own default. But, in favour of the owners of the inheritance, the statutes of Marlbridge, 52 Hen. III. c. 23, and of Gloucester, 6 Edw. I. c. 5, provided that the writ of waste shall not only lie against tenants by the law of England, (or curtesy,) and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him for waste, committed. But tenant in tail after possibility of issue extinct is not impeachable for waste; because his estate was at its creation an estate of inheritance, and so not within the statutes.(a) Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account:(b) but it seems reasonable that it should lie for the reversioner, expectant on the determination of the debtor’s own estate, or of these estates derived from the debtor.(c)

The punishment for waste committed was, by common law and the statute of Marlbridge, only single damages;(d) except in the case of a guardian, who also forfeited his wardship(e) by the provisions of the great charter;(f) but the statute of Gloucester directs that the other four species of tenant shall lose and forfeit the place wherein the waste is committed, and also treble damages to him that hath the inheritance. The expression of the statute is, “he shall forfeit the thing which he hath wasted;” and it hath been determined that under these words the place is also included.(g) And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a *[*284house, the whole house shall be forfeited;(h) because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood, (or perhaps in one room of a house, if that can be conveniently separated from the rest,) that part only is the locus vastatus, or thing wasted and that only shall be forfeited to the reversioner.(i)14

VII. A seventh species of forfeiture is that of copyhold estates, by breach of the customs of the manor. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste: whereupon the lord may seise them without any presentment by the homage;(k) but also to peculiar forfeitures annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vassals, the marks of feodal dominion continue much the strongest upon this mode of property. Most of the offences, which occasioned a resumption of the fief by the feodal law, and were denominated feloniæ, per quas vasallus amitteret feudum,(l) still continue to be causes of forfeiture in many of our modern copyholds. As, by subtraction of suit and service;(m)si dominum deservire noluerit:(n) by disclaiming to hold of the lord, or swearing himself not his copyholder;(o)si dominum ejuravit, i.e. negavit se a domino feudum habere:(p) by neglect to be admitted tenant within a year and a day;(q)si per annum et diem cessaverit in petenda investitura:(r) by contumacy in not appearing in court after three proclamations;(s)si a domino ter citatus non comparuerit:(t) or by refusing, when sworn of the homage, to present the truth according to his oath;(u) **285]si pares veritatem noverint, et dicant nescire, cum sciant.(w) In these and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord’s court-baron:(x)per laudamentum parium suorum;(y) or, as it is more fully expressed in another place,(z)nemo miles adimatur de possessione sui beneficii, nisi convicta culpa, quæ sit laudanda(a)per judicium parium suorum.15

VIII. The eighth and last method whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined; a trader who secretes himself, or does certain other acts tending to defraud his creditors.

Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter; when we shall endeavour more fully to explain its nature as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements is transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.

By statute 13 Eliz. c. 7, the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as *[*286he may lawfully part with,) or purchased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and enrolled, or divide them proportionably among the creditors. This statute expressly included not only free, but customary and copyhold, lands; but did not extend to estates-tail, further than for the bankrupt’s life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I. c. 19 enacts, that the commissioners shall be empowered to sell or convey, by deed indented and enrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remaindermen, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged estates shall be at the disposal of the commissioners; for they shall have power to redeem the same as the bankrupt himself might have done, and after redemption to sell them. And also by this and a former act,(b) all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchaser bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptey committed.

By virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred by his commissioners to their assignees without his participation or consent.16

CHAPTER XIX.

V. OF TITLE BY ALIENATION.

The most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense; under which may be comprised any method wherein estates are voluntarily resigned by one man and accepted by another; whether that be effected by sale, gift, marriage, settlement, devise, or other transmission of property by the mutual consent of the parties.

This means of taking estates by alienation is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law,(a) a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of alienation would have been easily frustrated and evaded.(b) And, as he could not aliene it in his lifetime, so neither could he by will defeat the succession by devising his feud to another family; nor even alter the course of it by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir.(c) And therefore it was very usual in antient feoffments to express that **288]the alienation was made by consent of the heirs of the feoffor: or sometimes for the heir-apparent himself to join with the feoffor in the grant.(d) And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vassal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seising of his cattle by the lord of a neighbouring clan.(e) This consent of the vassal was expressed by what was called attorning,(f) or professing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incomplete:(g) which was also an additional clog upon alienations.

But by degrees this feodal severity is worn off; and experience hath shown that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained. The road was cleared in the first place by a law of king Henry the First, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power than over what had been transmitted to him in a course of descent from his ancestors:(h) **289]a doctrine which is countenanced by the feodal constitutions themselves:(i) but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate.(j) Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase-deed, he was not empowered to aliene:(k) and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heir.(l) By the great charter of Henry III.,(m) no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one-half or moiety of the land.(n) But these restrictions were in general removed by the statute of quia emptores,(o) whereby all persons, except the king’s tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion.(p) And even these tenants in capite were by the statute 1 Edw. III. c. 12, permitted to aliene, on paying a fine to the king.(q) By the temporary statutes 7 Hen. VII. c. 3, and 3 Hen. VIII. c. 4, all persons attending the king in his wars were allowed to aliene their lands without license, and were relieved from other feodal burdens. And, lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging lands with the debts of the owner, this was introduced so early as stat. Westm. 2, which(r) subjected a moiety of the tenant’s lands to executions, for debts recovered by law: as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatoribus, made the same year, and in a statute staple by statute 27 Edw. III. c. 9, and in other similar recognizances by statute *[*29023 Hen. VIII. c. 6. And now, the whole of them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed till the abolition of the military tenures. The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till at last they were made no longer necessary to complete the grant or conveyance, by statute 4 & 5 Anne, c. 16; nor sliall, by statute 11 Geo. II. c. 19, the attornment of any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice.1

In examining the nature of alienation, let us first inquire, briefly, who may aliene, and to whom; and then, more largely, how a man may aliene, or the several modes of conveyance.

I. Who may aliene, and to whom: or, in other words, who is capable of conveying and who of purchasing. And herein we must consider rather the incapacity, than capacity, of the several parties: for all persons in possession are prima facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities.2 But, if a man has only in him the right of either possession or property, he cannot convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down and the weak oppressed.(s)3 Yet reversions and vested remainders may be granted; because the possession of the particular tenant is the possession of him in reversion or remainder; but contingencies, and mere possibilities, though they may be released, or devised by will,4 or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest.(t)5

Persons attainted of treason, felony, and præmunire are incapable of conveying, from the time of the offence committed, provided attainder follows:(u) for such conveyance by them may tend to defeat the king of his forfeiture, or the *[*291lord of his escheat. But they may purchase for the benefit of the crown, or the lord of the fee, though they are disabled to hold; the lands so purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime.(w) So also corporations, religious or others, may purchase lands; yet, unless they have a license to hold in mortmain, they cannot retain such purchase, but it shall be forfeited to the lord of the fee.

Idiots and persons of non-sane memory, infants and persons under duress, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases are voidable, but not actually void. The king indeed, on behalf of an idiot, may avoid his grants or other acts.(x) But it hath been said that a non compos himself, though he be afterwards brought to a right mind, shall not be permitted to allege his own insanity in order to avoid such grant: for that no man shall be allowed to stultify himself, or plead his own disability. The progress of this notion is somewhat curious. In the time of Edward I., non compos was a sufficient plea to avoid a man’s own bond:(y) and there is a writ in the register(z) for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suæ, ut dicit, &c. But under Edward III. a scruple began to arise, whether a man should be permitted to blemish himself by pleading his own insanity:(a) and, afterwards, a defendant in assize having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus, as the manner then was) that he was out of his mind when he gave it, the court adjourned the assize; doubting whether, as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked how he came to remember the release, if out of his senses when he gave it.(b) Under Henry VI., this way of **292]reasoning (that a man shall not be allowed to disable himself by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument;(c) upon a question, whether the heir was barred of his right of entry by the feoffment of his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason,(d) the maxim that a man shall not stultify himself hath been handed down as settled law:(e) though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it.(f)6 And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant.(g) And so too, if he purchases under this disability, and does not afterwards, upon recovering his senses, agree to the purchase, his heir may either waive or accept the estate at his option.(h) In like manner an infant may waive such purchase or conveyance when he comes to full age; or, if he does not actually agree to it, his heirs may waive it after him.(i) Persons also, who purchase or convey under duress, may affirm or avoid such transaction whenever the duress is ceased.(j)7 For all these are under the protection of the law; which will not suffer them to be imposed upon through the imbecility of their present condition; so that their acts are only binding in case they be afterwards agreed to, when such imbecility ceases. Yet the guardians or committees of a lunatic, by the statute of 11 Geo. III. c. 20, are empowered to renew in his right, under the directions of the court of chancery, any lease for lives or years, and apply the profits of such renewal for the benefit of such lunatic, his heirs or executors.8

The case of a feme-covert is somewhat different. She may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids *[*293it by some act declaring his dissent.(k) And, though be does nothing to avoid it, or even if he actually consents, the feme-covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement.(l) But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable;(m) and therefore cannot be affirmed or made good by any subsequent agreement.9

The case of an alien born is also peculiar. For he may purchase any thing; but after purchase he can hold nothing10 except a lease for years of a house for convenience of merchandise, in case he be an alien friend;11 all other purchases (when found by an inquest of office) being immediately forfeited to the crown.(n)12

Papists, lastly, and persons professing the popish religion, and neglecting to take the oath prescribed by statute 18 Geo. III. c. 60, within the time limited for that purpose, are, by statute 11 & 12 W. III. c. 4, disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void.(o)13

II. We are next, but principally, to inquire how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired; *[*294which, we have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man’s dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would ensue which property was introduced to prevent. For this purpose therefore of continuing the possession, the municipal law has established descents and alienations; the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons to whom the proprietor, by his own voluntary act, should choose to relinquish it in his lifetime. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred; or with regard to the subject-matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man’s estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.

These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is, (according to the old common law,) upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the king’s public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in its order.

CHAPTER XX.

OF ALIENATION BY DEED.

In treating of deeds, I shall consider, first, their general nature; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided.

I. First, then, a deed is a writing sealed and delivered by the parties.(a) It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, ϰατ’ εξοχην, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed.(b) If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on **296]one part and half on the other. Deeds thus made were denominated syngrapha by the canonists;(c) and with us chirographa, or hand-writings;(d) the word cirographum or cyrographum being usually that which is divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose than to give name to the species of the deed. When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed.1

(e)II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with for the purposes intended by the deed: and also a thing, or subject-matter, to be contracted for; all which must be expressed by sufficient names.(f) So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised.

Secondly, the deed must be founded upon good and sufficient consideration. Not upon an usurious contract;(g) nor upon fraud or collusion, either to deceive purchasers bona fide,(h) or just and lawful creditors;(i) any of which bad considerations will vacate the deed, and subject such persons, as put the same in ure, to forfeitures and often to imprisonment. A deed also, or other grant, made without any consideration, is, as it were, of no effect: for it is construed to enure, or to be effectual, only to the use of the grantor himself.(k)2 The consideration may be either *[*297a good or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty; a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant:(l) and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fide purchasers.3

Thirdly, the deed must be written, or I presume printed,4 for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed.(m) Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3 enacts, that no lease estate or interest in lands, tenements, or hereditaments, made by livery of seisin, or by parol only, (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value,) shall be looked upon as of greater force than a lease or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid: unless in both cases the same be put in writing, and signed by the party granting, or his agent lawfully authorized in writing.5

Fourthly, the matter written must be legally or orderly set forth: that is, there must be words sufficient to specify the agreement and bind the parties: which *[*298sufficiency must be left to the courts of law to determine.(n)6 For it is not absolutely necessary in law to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party’s meaning. But, as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity;7 and therefore I will here mention them in their usual(o) order.

1. The premises may be used to set forth the number and names of the parties, with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted.(p)

2, 3. Next come the habendum and tenendum.(q) The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As if a grant be “to A. and the heirs of his body,” in the premises, habendum “to him and his heirs forever,” or vice versa; here A. has an estate-tail, and a fee-simple expectant thereon.(r) But, had it been in the premises “to him and his heirs;” habendum “to him for life,” the habendum would be utterly void;(s) for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or devested by it. The tenendum, “and to hold,” is now of very little use, and is only kept in by custom. It was sometimes formerly *[*299used to signify the tenure by which the estate granted was to be holden; viz., “tenendum per servitium militare, in burgagio, in libero socagio, &c.” But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 Edw. I., it was also sometimes used to denote the lord of whom the land should be holden: but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in ancient charters that the tenements shall be holden de capitalibus dominis feodi;(t) but as this expressed nothing more than the statute had already provided for, it gradually grew out of use.

4. Next follow the terms of stipulation, if any, upon which the grant is made; the first of which is the reddendum, or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted, as “rendering therefore yearly the sum of ten shillings, or a pepper-corn, or two days’ ploughing, or the like.”(u) Under the pure feodal system, this render, reditus, return, or rent, consisted in chivalry principally of military services; in villeinage, of the most slavish offices; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit.(w) To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some or one of them, and not to any stranger to the deed.(x) But if it be of antient services or the like, annexed to the land, then the reservation may be to the lord of the fee.(y)

5. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated: as “provided always, that if the mortgagor shall pay the mortgagee **300]500l. upon such a day, the whole estate granted shall determine;” and the like.(z)

6. Next may follow the clause of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted.(a) By the feodal constitution, if the vassal’s title to enjoy the feud was disputed, he might vouch, or call the lord or donor to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense.(b) And so, by our antient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered.(c) Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage, (which was called homage auncestral,) this also bound the lord to warranty;(d) the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty,(e) because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title.(f) But in a feoffment in fee, by the verb dedi, since the statute of quia emptores, the feoffor only is bound in the implied warranty, and not his heirs;(g) because it is a mere personal contract on the part of the feoffor, the tenure (and of course the antient services) resulting back to the superior lord of the fee. And in other forms of alienation, gradually introduced since that statute, **301]no warranty whatsoever is implied;(h) they bearing no sort of analogy to the original feodal donation. And therefore in such cases it became necessary to add an express clause of warranty to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant.(i)

These express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet if a c’ause of warranty was added to the ancestor’s grant, this covenant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him a recompense in lands of equal value: the law, in favour of alienations, supposing that no ancestor would wantonly disinherit his next of blood;(k) and therefore presuming that he had received a valuable consideration, either in land, or in money which had purchased land, and that this equivalent descended to the heir together with the ancestor’s warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir: and this, whether that warranty was lineal or collateral to the title of the land. Lineal warranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty; as, where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with warranty, this was lineal to the younger son.(l)Collateral warranty was where the heir’s title to the land neither was, nor could have been, derived from the *[*302warranting ancestor; as, where a younger brother released to his father’s disseisor, with warranty, this was collateral to the elder brother.(m) But where the very conveyance to which the warranty was annexed immediately followed a disseisin, or operated itself as such, (as, where a father tenant for years, with remainder to his son in fee, aliened in fee-simple with warranty,) this, being in its original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseisin; and, being too palpably injurious to be supported, was not binding upon any heir of such tortious warrantor.(n)

In both lineal and collateral warranty, the obligation of the heir (in case the warrantee was evicted, to yield him other lands in their stead) was only on condition that he had other sufficient lands by descent from the warranting ancestor.(o) But though, without assets, he was not bound to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for if he could succeed in such claim, he would then gain assets by descent, (if he had them not before,) and must fulfil the warranty of his ancestor: and the same rule(p) was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title; upon the presumption of law that he might hereafter have assets by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtesy took upon them to aliene their lands with warranty; which collateral warranty of the father descending upon the son (who was the heir of both his parents) barred him from claiming his maternal inheritance; to remedy which the statute of Gloucester, 6 Edw. I. c. 3, declared, that such warranty should be no bar to the son, unless assets descended from the father. It was afterwards attempted in 50 Edw. III. *[*303to make the same provision universal, by enacting, that no collateral warranty should be a bar, unless where assets descended from the same ancestor;(q) but it then proceeded not to effect. However, by the statute 11 Hen. VII. c. 20, notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he also be heir to the wife. And by statute 4 & 5 Anne, c. 16, all warranties by any tenant for life shall be void against those in remainder or reversion; and all collateral warranties by any ancestor who has no estate of inheritance in possession, shall be void against his heir. By the wording of which last statute it should seem that the legislature meant to allow, that the collateral warranty of tenant in tail in possession, descending (though without assets) upon a remainderman or reversioner, should still bar the remainder or reversion. For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Gloucester, a lineal warranty by the tenant in tail without assets should not bar the issue in tail, yet they held such warranty with assets to be a sufficient bar:(r) which was therefore formerly mentioned(s) as one of the ways whereby an estate-tail might be destroyed; it being indeed nothing more in effect than exchanging the land: entailed for others of equal value. They also held that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue; and therefore collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of the estate-tail and all remainders and reversions expectant thereon.(t) And so it still continues to be, notwithstanding the statute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases make a good conveyance in fee-simple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion.8

**304]7. After warranty usually follow covenants,9 or conventions, which are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus the grantor may covenant that he hath a right to convey; or for the grantee’s quiet enjoyment; or the like; the grantee may covenant to pay his rent, or keep the premises in repair, &c.(u) If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs; who are bound to perform it, provided they have assets by descent, but not otherwise; if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant a better security than any warranty.10 It is also in some respects a less security, and therefore more beneficial to the grantor; who usually covenants only for the acts of himself and his ancestors, whereas a general warranty extends to all mankind. For which reasons the covenant has in modern practice totally superseded the other.

8. Lastly, comes the conclusion, which mentions the execution and date of deed, or the time of its being given or executed, either expressly, or by reference to some day and year before mentioned.(w) Not but a deed is good, although it mention no date; or hath a false date; or even if it hath an impossible date, as the thirtieth of February; provided the real day of its being dated or given, that is, delivered, can be proved.(x)11

I proceed now to the fifth requisite for making a good deed; the reading of it. This is necessary wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void; at least for so much as is misrecited: unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party.(y)

*[*305Sixthly, it is requisite that the party, whose deed it is, should seal,12 and now in most cases I apprehend should sign it also.13 The use of seals, as a mark of authenticity to letters and other instruments in writing, is extremely antient. We read of it among the Jews and Persians in the earliest and most sacred records of history.(z) And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase.(a) In the civil law also,(b) seals were the evidence of truth, and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use in England. For though Sir Edward Coke(c) relies on an instance of king Edwin’s making use of a seal about a hundred years before the conquest, yet it does not follow that this was the usage among the whole nation: and perhaps the charter he mentions may be of doubtful authority, from this very circumstance of being sealed; since we are assured by all our ancient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross; which custom our illiterate vulgar do, for the most part, to this day keep up; by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters.(d) In like manner, and for the same insurmountable reason, the Normans, a brave but **306]illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names: which custom continued when learning made its way among them, though the reason for doing it had ceased; and hence the charter of Edward the Confessor to Westminster abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England.(e) At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English method of writing their names and signing with the sign of the cross.(f) And in the reign of Edward I. every freeman, and even such of the more substantial villeins as were fit to be put upon juries, had their distinct particular seals.(g) The impressions of these seals were sometimes a knight on horseback, sometimes other devices: but coats of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard the First, who brought them from the croisade in the holy land; where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every Christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained.14

This neglect of signing, and resting only upon the authenticity of seals, remained very long among us; for it was held in all our books that sealing alone was sufficient to authenticate a deed: and so the common form of attesting deeds, “sealed and delivered,” continues to this day; notwithstanding the statute 29 Car. II. c. 3, before mentioned, revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of deeds: in which therefore signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other.(h)15

A seventh requisite to a good deed is, that it be delivered16 by the party himself or his certain attorney, which therefore is *[*307also expressed in the attestation; “sealed and delivered.”17 A deed takes effect only from this tradition or delivery; for if the date be false or impossible, the delivery ascertains the time of it.18 And if another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing,(i) and by a parity of reason the signing also, and makes them both his own. A delivery may be either absolute, that is, to the party or grantee himself; or to a third person, to hold till some conditions be performed on the part of the grantee: in which last case it is not delivered as a deed, but as an escrow; that is, as a scrowl or writing, which is not to take effect as a deed till the conditions be performed; and then it is a deed to all intents and purposes.(j)19

The last requisite to the validity of a deed is the attestation, or execution of it in the presence of witnesses:20 though this is necessary, rather for preserving the evidence, than for constituting the essence of the deed. Our modern deeds are in reality nothing more than an improvement or amplification of the brevia testata mentioned by the feodal writers,(k) which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture, when grants by parol only became the foundation of frequent dispute and uncertainty. To this end they registered in the deed the persons who attended as witnesses, which was formerly done without their signing their names, (that not being always in their power,) but they only heard the deed read; and then the clerk or scribe added their names, in a sort of memorandum: thus:—“hijs testibus Johanne Moore, Jacobo Smith, et aliis, ad hanc rem convocatis.”(l) This, like all other solemn transactions, was originally done only coram paribus,(m) and frequently when assembled in the court-baron, hundred, or county-court; which was then expressed in the attestation, teste comitatu, hundredo, &c.(n) Afterwards the attestation of other witnesses was allowed, the trial in **308]case of a dispute being still reserved to the pares; with whom the witnesses (if more than one) were associated and joined in the verdict;(o) till that also was abrogated by the statute of York, 12 Edw. II. st. 1, c. 2. And in this manner, with some such clause of hijs testibus, are all old deeds and charters, particularly magna carta, witnessed. And in the time of Sir Edward Coke, creations of nobility were still witnessed in the same manner.(p) But in the king’s common charters, writs, or letters-patent, the style is now altered: for at present the king is his own witness, and attests his letters-patent thus: “Teste meipso, witness ourself at Westminster, &c.,” a form which was introduced by Richard the First,(q) but not commonly used till about the beginning of the fifteenth century; nor the clause of hijs testibus entirely discontinued till the reign of Henry the Eighth:(r) which was also the era of discontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general; and therefore ever since that time the witnesses have usually subscribed their attestations, either at the bottom or on the back of the deed.(s)

III. We are next to consider how a deed may be avoided, or rendered of no effect. And from what has been before laid down, it will follow, that if a deed wants any of the essential requisites before mentioned; either, 1. Proper parties, and a proper subject-matter: 2. A good and sufficient consideration: 3. Writing on paper or parchment, duly stamped: 4. Sufficient and legal words, properly disposed: 5. Reading, if desired, before the execution: 6. Sealing, and, by the statute, in most cases signing also: or, 7. Delivery; it is a void deed ab initio. It may also be avoided by matter ex post facto: as, 1. By rasure, interlining, or other alteration in any material part: unless a memorandum be made thereof at the time of the execution and attestation.(t)21 2. By breaking off, or defacing, the seal.(u)22 3. By delivering it up to be cancelled; *[*309that is, to have lines drawn over it in the form of lattice-work or cancelli: though the phrase is now used figuratively for any manner of abliteration or defacing it.23 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: as the husband, where a feme-covert is concerned; an intant, or person under duress, when those disabilities are removed; and the like. 5. By the judgment or decree of a court of judicature. This was anciently the province of the court of starchamber, and now of the chancery:24 when it appears that the deed was obtained by fraud, force, or other foul practice; or is proved to be an absolute forgery.(w) In any of these cases the deed may be avoided, either in part or totally, according as the cause of avoidance is more or less extensive.

And, having thus explained the general nature of deeds, we are next to consider their several species, together with their respective incidents. And herein I shall only examine the particulars of those which, from long practice and experience of their efficacy, are generally used in the alienation of real estates: for it would be tedious, nay infinite, to descant upon all the several instruments made use of in personal concerns, but which fall under our general definition of a deed; that is, a writing sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements from man to man, are commonly denominated conveyances; which are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses.

I. Of conveyances by the common law, some may be called original or primary conveyances; which are those by means whereof the benefit or estate is created or first arises; other are derivative or secondary; whereby the benefit or estate originally created is enlarged, restrained, transferred, or extinguished.

**310]Original conveyances are the following: 1. Feoffment; 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeazance.

1. A feoffment, feoffamentum, is a substantive derived from the verb, to enfeoff, feoffare or infeudare, to give one a feud; and therefore feoffment is properly donatio feudi.(x) It is the most antient method of conveyance, the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called the feoffor; and the person enfeoffed is denominated the feoffee.

This is plainly derived from, or is indeed itself the very mode of, the antient feodal donation; for though it may be performed by the word “enfeoff” or “grant,” yet the aptest word of feoffment is “do or dedi.”(y) And it is still directed and governed by the same feodal rules; insomuch that the principal rule relating to the extent and effect of the feodal grant, “tenor est qui legem dat feudo,” is in other words become the maxim of our law with relation to feoffments, “modus legem dat donationi.”(z) And therefore, as in pure feodal donations, the lord, from whom the feud moved, must expressly limit and declare the continuance or quantity of estate which he meant to confer, “ne quis plus donasse præsumatur quam in donatione expresserit;”(a) so, if one grants by feoffment lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law being performed) hath barely an estate for life.(b) For as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, the feoffee’s estate ought to be confined to his person, and subsist only for his life; unless the feoffor, by express provision in the creation *[*311and constitution of the estate, hath given it a longer continuance. These express provisions are indeed generally made; for this was for ages the only conveyance, whereby our ancestors were wont to create an estate in fee-simple,(c) by giving the land to the feoffee, to hold to him and his heirs forever; though it serves equally well to convey any other estate or freehold.(d)

But by the more words of the deed the feoffment is by no means perfected: there remains a very material ceremony to be performed, called livery of seisin; without which the feoffee has but a mere estate at will.(e) This livery of seisin is no other than the pure feodal investiture, or delivery of corporal possession of the land or tenement; which was held absolutely necessary to complete the donation. “Nam feudum sine investitura nullo modo constitui potuit:”(f) and an estate was then only perfect, when, as the author of Fleta expresses it in our law, “fit juris et seisinæ conjunctio.”(g)25

Investitures, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord; and that he did not grant a bare litigious right, which the soldier was ill qualified to prosecute, but a peaceable and firm possession. And at a time when writing was seldom practised, a mere oral gift, at a distance from the spot that was given, was not likely to be either long or accurately retained in the memory of bystanders, who were very little interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and testify the transfer of the estate; and that such, as claimed title by other means might know against whom to bring their actions.

In all well-governed nations some notoriety of this kind has been ever held requisite, in order to acquire and ascertain *[*212the property of lands. In the Roman law plenum dominium was not said to subsist, unless where a man had both the right and the corporal possession; which possession could not be acquired without both an actual intention to possess, and an actual seisin, or entry into the premises, or part of them in the name of the whole.(h) And even in ecclesiastical promotions, where the freehold passes to the person promoted, corporal possession is required at this day, to vest the property completely in the new proprietor; who, according to the distinction of the canonists,(i) acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal possession. Therefore in dignities possession is given by instalment; in rectories and vicarages, by induction, without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands by our law, which are cast on the heir by act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised.(k) It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner; so as to transmit the inheritance to his own heirs: non jus, sed seisina, facit stipitem.(l)

Yet the corporal tradition of lands being sometimes inconvenient, a symbolical delivery of possession was in many cases antiently allowed; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was per**313]mitted as equivalent to occupancy of the land itself. Among the Jews we find the evidence of a purchase thus defined in the book of Ruth:(m) “now this was the manner in former time in Israel, concerning redeeming and concerning changing, for to confirm all things: a man plucked off his shoe and gave it to his neighbour; and this was a testimony in Israel.” Among the ancient Goths and Swedes, contracts for the sale of lands were made in the presence of witnesses who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnesses.(n) With our Saxon ancestors the delivery of a turf was a necessary solemnity to establish the conveyance of lands.(o) And to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchaser by re-delivery of the same, in the presence of a jury of tenants.

Conveyances in writing were the last and most refined improvement. The mere delivery of possession, either actual or symbolical, depending on the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities introduced by the advancement of commerce, required means to be devised of charging and encumbering estates, and of making them liable to a multitude of conditions and minute designations for the purposes of raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere, simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimited dominion. **314]Written deeds were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed; yet still, for a very long series of years, they were never made use of, but in company with the more antient and notorious method of transfer by delivery of corporal possession.

Livery of seisin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impossible to be made; for they are not the object of the senses; and in leases for years, or other chattel interests, it is not necessary. In leases for years indeed an actual entry is necessary to vest the estate in the lessee: for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse termini: and when he enters in pursuance of that right, he is then, and not before, in possession of his term, and complete tenant for years.(p) This entry by the tenant himself serves the purpose of notoriety, as well as livery of seisin from the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence in futuro, because they cannot (at the common law) be made but by livery of seisin; which livery, being an actual manual tradition of the land, must take effect in præsenti, or not at all.(q)26

On the creation of a freehold remainder, at one and the same time with a particular estate for years, we have before seen, that at the common law livery must be made to the particular tenant.(r) But if such a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for years, for then it operates nothing; “nam quod semei meum est, amplius meum esse non potest;”(s) but it must be made to the remainderman *[*315himself, by consent of the lessee for years; for without his consent no livery of the possession can be given;(t) partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before given(u) for introducing the doctrine of attornments.

Livery of seisin is either in deed or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney, (for this may as effectually be done by deputy or attorney as by the principals themselves in person,)27 come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee, all other persons being out of the ground, a clod or turf, or a twig, or bough there growing, with words to this effect: “I deliver these to you in the name of seisin of all the lands and tenements contained in this deed.” But if it be of a house, the feoffor must take the ring or latch of the door, the house being quite empty, and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others.(w) If the conveyance or feoffment be of divers lands, lying scattered in one and the same county, then in the feoffor’s possession, livery of seisin of any parcel in the name of the rest, sufficeth for all;(x) but if they be in several counties, there must be as many liveries as there are counties. For if the title to these lands comes to be disputed, there must be as many trials as there are counties, and the jury of one county are no judges of the notoriety of a fact in another. Besides, antiently this seisin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighbourhood, who attested such delivery in the body or on the back of the deed; according to the rule of the feodal law,(y)pares debent interesse investituræ feudi, et non alii: for which this reason is expressly given: because *[*316the peers or vassals of the lord, being bound by their oath of fealty, will take care that no fraud be committed to his prejudice, which strangers might be apt to connive at. And though afterwards the ocular attestation of the pares was held unnecessary, and livery might be made before any credible witnesses, yet the trial, in case it was disputed, (like that of all other attestations,)(z) was still reserved to the pares or jury of the county.(a) Also, if the lands be out on lease, though all lie in the same county, there must be as many liveries as there are tenants: because no livery can be made in this case but by the consent of the particular tenant; and the consent of one will not bind the rest.(b) And in all these cases it is prudent, and usual, to endorse the livery of seisin on the back of the deed, specifying the manner, place, and time of making it: together with the names of the witnesses.(c) And thus much for livery in deed.

Livery in law is where the same is not made on the land, but in sight of it only; the feoffor saying to the feoffee, “I give you yonder land, enter and take possession.” Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise; unless he dares not enter, through fear of his life or bodily harm: and then his continual claim, made yearly, in due form of law, as near as possible to the lands,(d) will suffice without an entry.(e) This livery in law cannot however be given or received by attorney, but only by the parties themselves.(f)28

2. The conveyance by gift, donatio, is properly applied to the creation of an estate-tail, as feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of an estate passing by it: for the operative words of conveyance in this case are do or dedi;(g) and gifts in tail are equally imperfect without livery or seisin, as feoffments in fee-simple.(h) **317]And this is the only distinction that Littleton seems to take, when he says,(i) “it is to be understood that there is feoffor and feoffee, donor and donee, lessor and lessee;” viz., feoffor is applied to a feoffment in fee-simple, donor to a gift in tail, and lessor to a lease for life, or for years, or at will. In common acceptation gifts are frequently confounded with the next species of deeds: which are,

3. Grants, concessiones; the regular method by the common law of transferring the property of incorporeal hereditaments, or such things whereof no livery can be had.(k) For which reason all corporeal hereditaments, as lands and houses, are said to lie in livery; and the others, as advowsons, commons, rents, reversions, &c., to lie in grant.(l) And the reason is given by Bracton:(m) “traditio, or livery, nihil aliud est quam rei corporalis de persona in personam, de manu in manum, translatio aut in possessionem inductio: sed res incorporales, quæ sunt ipsum jus rei vel corpori inhærens, traditionem non patiuntur.” These therefore pass merely by the delivery of the deed. And in signiories, or reversions of lands, such grant, together with the attornment of the tenant, (while attornments were requisite,) were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate possession. It therefore differs but little from a feoffment, except in its subject-matter: for the operative words therein commonly used are dedi et concessi, “have given and granted.”29

4. A lease is properly a conveyance of any lands or tenements, (usually in consideration of rent or other annual recompense,) made for life, for years, or at will, but always for a less time than the lessor hath in the premises; for if it be for the whole interest, it is more properly an assignment than a lease. The usual words of operation in it are, “demise, grant, and to farm let; demisi, concessi, et ad firmam *[*318tradidi.” Farm, or feorme, is an old Saxon word signifying provision:(n) and it came to be used instead of rent or render, because antiently the greater part of rents were reserved in provisions; in corn, in poultry, and the like; till the use of money became more frequent. So that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme: though at present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent. By this conveyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments; though livery of seisin is indeed incident and necessary to one species of leases, viz., leases for life of corporeal hereditaments; but to no other.

Whatever restriction, by the severity of the feodal law, might in times of very high antiquity be observed with regard to leases; yet by the common law, as it has stood for many centuries, all persons seised of any estate might let leases to endure so long as their own interest lasted, but no longer. Therefore tenant in fee-simple might let leases of any duration; for he hath the whole interest; but tenant in tail, or tenant for life, could make no leases which should bind the issue in tail or reversioner: nor could a husband, seised jure uxoris, make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his interest expired. Yet some tenants for life, where the fee-simple was in abeyance, might (with the concurrence of such as have the guardianship of the fee) make leases of equal duration with those granted by tenants in fee-simple, such as parsons and vicars, with consent of the patron and ordinary.(o) So also bishops and deans, and such other sole ecclesiastical corporations as are seised of the fee-simple of lands in their corporate right, might, with the concurrence and confirmation of such persons as the law requires, have made leases for years, or for life, estates in tail, or in fee, without any limitation or control. And corporations aggregate *[*319might have made what estates they pleased, without the confirmation of any other person whatsoever. Whereas now, by several statutes, this power, where it was unreasonable, and might be made an ill use of, is restrained; and where, in the other cases, the restraint by the common law seemed too hard, it is in some measure removed. The former statutes are called the restraining, the latter the enabling statute. We will take a view of them all, in order of time.

And first, the enabling statute, 32 Hen. VIII. c. 28, empowers three manner of persons to make leases, to endure for three lives or one-and-twenty years, which could not do so before. As first, tenant in tail may, by such leases, bind his issue in tail, but not those in remainder or reversion. Secondly, a husband seised in right of his wife, in fee-simple or fee-tail, provided the wife joins in such lease, may bind her and her heirs thereby. Lastly, all persons seised of an estate of fee-simple in right of their churches, which extends not to parsons and vicars, may (without the concurrence of any other person) bind their successors. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding.(p) 1. The lease must be by indenture; and not by deed-poll, or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time.30 3. If there be any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty-one years, or three lives, and not for both. 5. It must not exceed the term of three lives, or twenty-one years, but may be for a shorter term. 6. It must be of corporeal hereditaments, and not of such things as lie merely in grant; for no rent can be reserved thereout by the common law, as the lessor cannot resort to them to distrein.(q) 7. It must be of **320]lands and tenements most commonly letten for twenty years past; so that if they had been let for above half the time (or eleven years out of the twenty) either for life, or for years at will, or by copy of court-roll, it is sufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here given.

Next follows, in order of time, the disabling or restraining statute, 1 Eliz. c. 19, (made entirely for the benefit of the successor,) which enacts, that all grants by archbishops and bishops, (which include even those confirmed by the dean and chapter; the which, however long or unreasonable, were good at common law,) other than for the term of one-and-twenty years or three lives from the making, or without reserving the usual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this statute, and therefore valid; provided they do not exceed (together with the lease in being) the term permitted by the act.(r)31 But by a saving expressly made, this statute of 1 Eliz. did not extend to grants made by any bishop to the crown; by which means queen Elizabeth procured many fair possessions to be made over to her by the prelates, either for her own use, or with intent to be granted out again to her favourites, whom she thus gratified without any expense to herself. To prevent which(s) for the future, the statute 1 Jac. I. c. 3 extends the prohibition to grants and leases made to the king as well as to any of his subjects.

Next comes the statute 13 Eliz. c. 10, explained and enforced by the statutes 14 Eliz. c. 11 & 14, 18 Eliz. c. 11, and 43 Eliz. c. 29; which extend the restrictions laid by *[*321the last-mentioned statute on bishops, to certain other inferior corporations, both sole and aggregate. From laying all which together we may collect, that all colleges, cathedrals, and other ecclesiastical or eleemosynary corporations, and all parsons and vicars, are restrained from making any leases of their lands, unless under the following regulations: 1. They must not exceed twenty-one years, or three lives, from the making. 2. The accustomed rent, or more, must be yearly reserved thereon. 3. Houses in corporations, or market-towns, may be let for forty years, provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them; and provided the lessee be bound to keep them in repair; and they may also be aliened in fee-simple for lands of equal value in recompense. 4. Where there is an old lease in being, no concurrent lease shall be made, unless where the old one will expire within three years. 5. No lease (by the equity of the statute) shall be made without impeachment of waste.(t) 6. All bonds and covenants tending to frustrate the provisions of the statutes of 13 & 18 Eliz. shall be void.

Concerning these restrictive statutes there are two observations to be made; first, that they do not by any construction enable any persons to make such leases as they were by common law disabled to make. Therefore a parson, or vicar, though he is restrained from making longer leases than for twenty-one years or three lives, even with the consent of patron and ordinary, yet is not enabled to make any lease at all, so as to bind his successor, without obtaining such consent.(u)32 Secondly, that though leases contrary to these acts are declared void, yet they are good against the lessor during his life, if he be a sole corporation; and are also good against an aggregate corporation so long as the head of it lives, who is presumed to be the most concerned in interest. For the act was intended for the benefit of the successor only; and no man shall make an advantage of his own wrong.(w)

*[*322There is yet another restriction with regard to college leases, by statute 18 Eliz. c. 6, which directs that one-third of the old rent, then paid, should for the future be reserved in wheat or malt, reserving a quarter of wheat for each 6s. 8d., or a quarter of malt for every 5s.; or that the lessees should pay for the same according to the price that wheat and malt should be sold for in the market next adjoining to the respective colleges on the market day before the rent becomes due. This is said(x) to have been an invention of lord treasurer Burleigh, and Sir Thomas Smith, then principal secretary of state; who, observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the new-found Indies, (which effects were likely to increase to a greater degree,) devised this method for upholding the revenues of colleges. Their foresight and penetration have in this respect been very apparent: for, though the rent so reserved in corn was at first but one-third of the old rent, or half what was still reserved in money, yet now the proportion is nearly inverted: and the money arising from corn-rents is, communibus annis, almost double to the rents reserved in money.33

The leases of beneficed clergymen are further restrained, in case of their non-residence, by statutes 13 Eliz. c. 20, 14 Eliz. c. 11, 18 Eliz. c. 11, and 43 Eliz. c. 9,34 which direct, that if any beneficed clergyman be absent from his cure above fourscore days in any one year, he shall not only forfeit one year’s profit of his benefice, to be distributed among the poor of the parish, but that all leases made by him of the profits of such benefice, and all covenants and agreements of like nature, shall cease and be void:35 except in the case of licensed pluralists, who are allowed to demise the living, on which they are non-resident, to their curates only; provided such curates do not absent themselves above **323]forty days in any one year. And thus much for leases, with their several enlargements and restrictions.(y)

5. An exchange is a mutual grant of equal interests, the one in consideration of the other. The word “exchange” is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word, or expressed by any circumlocution.(z) The estates exchanged must be equal in quantity;(a) not of value, for that is immaterial, but of interest; as fee-simple for fee-simple, a lease for twenty years for a lease for twenty years, and the like. And the exchange may be of things that lie either in grant or in livery.(b) But no livery of seisin, even in exchanges of freehold, is necessary to perfect the conveyance:(c) for each party stands in the place of the other, and occupies his right, and each of them hath already had corporal possession of his own land. But entry must be made on both sides; for, if either party die before entry, the exchange is void, for want of sufficient notoriety.(d)36 And so also, if two parsons, by consent of patron and ordinary, exchange their preferments; and the one is presented, instituted, and inducted, and the other is presented and instituted, but dies before induction; the former shall not keep his new benefice, because the exchange was not completed, and therefore he shall return back to his own.(e) For if, after an exchange of lands or other hereditaments, either party be evicted of those which were taken by him in exchange, through defect of the other’s title, he shall return back to the possession of his own, by virtue of the implied warranty contained in all exchanges.(f)37

6. A partition is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the *[*324lands so held among them in severalty, each taking a distinct part. Here, as in some instances there is a unity of interest and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates which they are to take and enjoy separately. By the common law, coparceners, being compellable to make partition, might have made it by parol only; but joint-tenants and tenants in common must have done it by deed: and in both cases the conveyance must have been perfected by livery of seisin.(g) And the statutes of 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, made no alteration in this point. But the statute of frauds, 29 Car. II. c. 3, hath now abolished this distinction, and made a deed in all cases necessary.38

These are the several species of primary or original conveyances. Those which remain are of the secondary or derivative sort; which presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. As,

7. Releases; which are a discharge or a conveyance of a man’s right in lands or tenements, to another that hath some former estate in possession.39 The words generally used therein are “remised, released, and forever quit-claimed.”(h) And these releases may enure either, 1. By way of enlarging an estate, or enlarger l’estate:40 as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee.(i) But in this case the relessee must be in possession41 of some estate, for the release to work upon; for if there be lessee for years, and, before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void for want of possession in the relessee.(k)42 2. By way of passing an estate, or mitter l’estate: as when one of two coparceners releaseth all her **325]right to the other, this passeth the fee-simple of the whole.(l)43 And in both these cases there must be a privity of estate between the relessor and relessee;(m) that is, one of their estates must be so related to the other, as to make but one and the same estate in law. 3. By way of passing a right,44 or mitter le droit: as if a man be disseised, and releaseth to his disseisor all his right, hereby the disseisor acquires a new right, which changes the quality of his estate, and renders that lawful which before was tortious or wrongful.(n)45 4. By way of extinguishment: as if my tenant for life makes a lease to A. for life, remainder to B. and his heirs, and I release to A.; this extinguishes my right to the reversion, and shall enure to the advantage of B.’s remainder as well as of A.’s particular estate.(o)46 5. By way of entry and feoffment: as if there be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised, and shall keep out his former companion, which is the same in effect as if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee.(p) And hereupon we may observe, that when a man has in himself the possession of lands, he must at the common law convey the freehold by feoffment and livery; which makes a notoriety in the country: but if a man has only a right or a future interest, he may convey that right or interest by a mere release to him that is in possession of the land: for the occupancy of the relessee is a matter of sufficient notoriety already.47

8. A confirmation is of a nature nearly allied to a release. Sir Edward Coke defines it(q) to be a conveyance of an estate or right in esse, whereby a voidable48 estate is made sure and unavoidable, or whereby a particular estate is increased: and the words of making it are these: “have given, granted, ratified, approved, and confirmed.”(r) An instance of the first branch of the definition is, if tenant for life leaseth for forty years, and dieth during that term: here the lease for years is voidable by him in reversion: yet, if he *[*326hath confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable, but sure.(s) The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release which operates by way of enlargement.

9. A surrender, sursumredditio,49 or rendering up, is of a nature directly opposite to a release; for, as that operates by the greater estate’s descending upon the less, a surrender is the falling of a less estate into a greater. It is defined(t) a yielding up of an estate for life or years to him that hath the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is done by these words: “hath surrendered, granted, and yielded up.”50 The surrenderor must be in possession;(u) and the surrenderee must have a higher estate, in which the estate surrendered may merge; therefore tenant for life cannot surrender to him in remainder for years.(w) In a surrender there is no occasion for livery of seisin;(x) for there is a privity of estate between the surrenderor and the surrenderee; the one’s particular estate and the other’s remainder are one and the same estate: and livery having been once made at the creation of it, there is no necessity for having it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes: since the reversion of the lessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate; and where there is already a possession, derived from such a privity of estate, any further delivery of possession would be vain and nugatory.(y)51

10. An assignment is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied to an estate for life or years. And it differs from a lease only in this: that by a lease one grants an interest less **327]than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place of the assignor.52

11. A defeazance is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated(z) or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void on repayment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law;(a) and therefore only indulged: no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth; though, when uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seisin could be had till the time of payment;) and so also annuities, conditions, warranties, and the like, were always liable to be recalled by defeazances made subsequent to the time of their creation.(b)53

II. There yet remain to be spoken of some few conveyances, which have their force and operation by virtue of the statute of uses.

Uses and trusts are in their original of a nature very similar, or rather exactly the same: answering more to the fidei-commissum than the usus fructus of the civil law: which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance.(c) But the fidei-commissum, which usually was created by will, was the disposal of an inheritance to one, in confidence that he **328]should convey it or dispose of the profits at the will of another. And it was the business of a particular magistrate, the prætor fidei commissarius, instituted by Augustus, to enforce the observance of this confidence.(d) So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which occasioned that known division of rights by the Roman law into jus legitimum, a legal right, which was remedied by the ordinary course of law; jus fiduciarium, a right in trust, for which there was a remedy in conscience; and jus precarium, a right in courtesy, for which the remedy was only by entreaty or request.(e) In our law, a use might be ranked under the rights of the second kind; being a confidence reposed in another who was tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que use, or him to whose use it was granted, and suffer him to take the profits.(f) As, if a feoffment was made to A. and his heirs, to the use of (or in trust for) B. and his heirs; here at the common law A. the terre-tenant had the legal property and possession of the land, but B. the cestuy que use was in conscience and equity to have the profits and disposal of it.

This notion was transplanted into England from the civil law, about the close of the reign of Edward III.,(g) by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to religious houses directly, but to the use of the religious houses:(h) which the clerical chancellors of those times held to be fidei-commissa, and binding in conscience; and therefore assumed the jurisdiction which Augustus had vested in his prætor, of compelling the execution of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, yet if a testator had enfeoffed another to his own use, and so was **329]possessed of the use only, such use was devisable by will. But we have seen(i) how this evasion was crushed in its infancy, by statute 15 Ric. II. c. 5, with respect to religious houses.

Yet, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will, and permitted the owner of lands in his lifetime to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require. Till at length, during our long wars in France, and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal; through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures; when each of the contending parties, as they became uppermost, ulternately attainted the other. Wherefore, about the reign of Edw. IV., (before whose time, lord Bacon remarks,(k) there are not six cases to be found relating to the doctrine of uses,) the courts of equity began to reduce them to something of a regular system.

Originally it was held that the chancery could give no relief, but against the very person himself intrusted for cestuy que use, and not against his heir or alienee. This was altered in the reign of Henry VI. with respect to the heir;(l) and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use.(m) But a purchaser for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And also it was held, that neither the king nor queen, on account of their dignity royal,(n) nor any corporation *[*330aggregate, on account of its limited capacity,(o) could be seised to any use but their own; that is, they might hold the lands, but were not compellable to execute the trust.54 And, if the feoffee to uses died without heir, or committed a forfeiture or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was as signed, were liable to perform the use:(p) because they were not parties to the trust, but came in by act of law; though doubtless their title in reason was no better than that of the heir.

On the other hand, the use itself, or interest of cestuy que use, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities, quæ ipso usu consumuntur:(q) or whereof the seisin could not be instantly given.(r) 2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another, without any consideration, equity presumes that he meant it to the use of himself,(s) unless he expressly declares it to be to the use of another, and then nothing shall be presumed contrary to his own expressions.(t)55 But if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration.(u) 3. Uses were descendible according to the rules of the common law, in the case of inheritances in possession;(w) for in this and many other respects æquitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties,(x) or be devised by last will and testament;(y) for, as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; *[*331and, as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not at common law aliene the legal interest of the lands, without the concurrence of his feoffee;(z) to whom he was accounted by law to be only tenant at sufferance.(a) 5. Uses were not liable to any of the feodal burthens; and particularly did not escheat for felony or other defect of blood; for escheats, &c. are the consequence of tenure, and uses are held of nobody: but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use.(b) 6. No wife could be endowed, or husband have his curtesy, of a use:(c) for no trust was declared for their benefit, at the original grant of the estate. And therefore it became customary, when most estates were put in use, to settle before marriage some joint-estate to the use of the husband and wife for their lives; which was the original of modern jointures.(d) 7. A use could not be extended by writ of elegit, or other legal process, for the debts of cestuy que use.(e) For, being merely a creature of equity, the common law, which looked no further than to the person actually seised of the land, could award no process against it.

It is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties which the ingenuity of the times (abounding in subtle disquisitions) deduced from this child of the imagination; when once a departure was permitted from the plain simple rules of property established by the antient law. These principal outlines will be fully sufficient to show the ground of lord Bacon’s complaint,(f) that this course of proceeding “was turned to deceive many of their just and reasonable rights. A man that had cause to sue for land knew not against whom to **332]bring his action, or who was the owner of it. The wife was defrauded of her thirds; the husband of his curtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; and the poor tenant of his lease.” To remedy these inconveniences, abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestuy que use,(g) allowed actions for the freehold to be brought against him if in the actual pernancy or enjoyment of the profits;(h) made him liable to actions of waste;(i) established his conveyances and leases made without the concurrence of his feoffees;(k) and gave the lord the wardship of his heir, with certain other feodal perquisites.(l)

These provisions all tended to consider cestuy que use as the real owner of the estate; and at length that idea was carried into full effect by the statute 27 Hen. VIII. c. 10, which is usually called the statute of uses, or, in conveyances and pleadings, the statute for transferring uses into possession. The hint seems to have been derived from what was done at the accession of king Richard III.; who, having, when duke of Gloucester, been frequently made a feoffee to uses would upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use. But to obviate sonotorious an injustice, an act of parliament was immediately passed,(m) which ordained, that where he had been so enfeoffed jointly with other persons, the land should vest in the other feoffees, as if he had never been named; and that, where he stood solely enfeoffed, the estate itself should vest in cestuy que use in like manner as he had the use. And so the stat. of Henry VIII., after reciting the various inconveniences before mentioned, and many others, enacts, that “when any person shall be seised of lands, &c., to the use, confidence, or trust of any other person or body **333]politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life, or years, or otherwise, shall from thenceforth stand and be seised or possessed of the land, &c. of and in the like estates as they have in the use, trust, or confidence; and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use, in such quality, manner, form and condition, as they had before in the use.” The statute thus executes the use, as our lawyers term it; that is, it conveys the possession to the use, and transfers the use into possession; thereby making cestuy que use complete owner of the lands and tenements, as well at law as in equity.

The statute having thus not abolished the conveyance to uses, but only annihilated the intervening estate of the feoffee, and turned the interest of cestuy que use into a legal instead of an equitable ownership; the courts of common law began to take cognizance of uses, instead of sending the party to seek his relief in chancery. And, considering them now as merely a mode of conveyance, very many of the rules before established in equity were adopted with improvements by the judges of the common law. The same persons only were held capable of being seised to a use, the same considerations were necessary for raising it, and it could only be raised of the same hereditaments, as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents, that formerly attended it in its fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor be aliened to any purchaser discharged of the use, nor be liable to dower or curtesy on account of the seisin of such feoffee; because the legal estate never rests in him for a moment, but is instantaneously transferred to cestuy que use as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seisin of cestuy que use, who was now become the terre-tenant also; and they likewise were no longer devisable by will.

*[*334The various necessities of mankind induced also the judges very soon to depart from the rigour and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyances to uses than upon others. Hence it was adjudged that the use need not always be executed the instant the conveyance is made: but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the mean while the antient use shall remain in the original grantor: as, when lands are conveyed to the use of A. and B., after a marriage shall be had between them,(n) or to the use of A. and his heirs till B. shall pay him a sum of money, and then to the use of B. and his heirs.(o) Which doctrine, when devises by will were again introduced, and considered as equivalent in point of construction to declaration of uses, was also adopted in favour of executory devises.(p) But herein these, which are called contingent or springing uses,56 differ from an executory devise; in that there must be a person seised to such uses at the time when the contingency happens, else they can never be executed by the statute; and therefore if the estate of the feoffee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed forever:(q) whereas by an executory devise the freehold itself is transferred to the future devisee. And, in both these cases, a fee may be limited to take effect after a fee;(r) because, though that was forbidden by the common law in favour of the lord’s escheat, yet when the legal estate was not extended beyond one fee-simple, such subsequent uses (after a use in fee) were before the statute permitted to be limited in equity; and then the statute executed the legal estate in the same manner as the use before subsisted. It was also held, that a use, though executed, may change from one to another by circumstances ex post facto;(s) as, if A. makes a feoffment **335]to the use of his intended wife and her eldest son for their lives, upon the marriage the wife takes the whole use in severalty; and upon the birth of a son, the use is executed jointly in them both.(t) This is sometimes called a secondary, sometimes a shifting, use. And, whenever the use limited by the deed expires, or cannot vest, it returns back to him who raised it, after such expiration, or during such impossibility, and is styled a resulting use. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the use of her first-born son in tail; here, till he marries, the use results back to himself; after marriage, it is executed in the wife for life: and, if she dies without issue, the whole results back to him in fee.(u) It was likewise held, that the uses originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow, was a deed of defeazance coeval with the grant itself, and therefore esteemed a part of it, upon events specially mentioned.(w) And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead.(x) And this was permitted, partly to indulge the convenience, and partly the caprice, of mankind; who (as lord Bacon observes)(y) have always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards.

By this equitable train of decisions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminished.57 But one or two technical scruples, which the judges found it hard to get over restored it with tenfold increase. They held, in the first place, that “no use could be limited on a use;”(z) and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a further use to another person is repugnant, and therefore **336]void.(a) And therefore on a feoffment to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting, that the instant the first use was executed in B. he became seised to the use of C., which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down through a hundred uses upon uses, till finally executed in the last cestuy que use.58 Again; as the statute mentions only such persons as were seised to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the termor is not seised but only possessed;(b) and therefore, if a term of one thousand years be limited to A., to the use of (or in trust for) B., the statute does not execute this use, but leaves it as at common law.(c) And lastly, (by more modern resolutions,) where lands are given to one and his heirs, in trust to receive and pay over the profits to another, this use is not executed by the statute; for the land must remain in the trustee to enable him to perform the trust.(d)59

Of the two more antient distinctions the courts of equity quickly availed themselves. In the first case it was evident that B. was never intended by the parties to have any beneficial interest; and, in the second, the cestuy que use of the term was expressly driven into the court of chancery to seek his remedy: and therefore that court determined, that though these were not uses which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed.(e) To this the reason of mankind assented, and the doctrine of uses was revived under the denomination of trusts; and thus, by this strict construction of the courts of law, a statute, made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance.(f)

*[*337However, the courts of equity, in the exercise of this new jurisdiction, have wisely avoided in a great degeee those mischiefs which made uses intolerable. The statute of frauds, 29 Car. II. c. 3, having required that every declaration, assignment, or grant of any trust in lands or hereditaments (except such as arise from implication or construction of law) shall be made in writing signed by the party, or by his written will: the courts now consider a trust-estate (either when expressly declared or resulting by such implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity which the other is subject to in law: and by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, without their inconvenience or frauds. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchaser without notice;(g) which, as cestuy que use is generally in possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to executions on judgments, statutes, and recognizances, (by the express provision of the statute of frauds,)60 to forfeiture, to leases, and other encumbrances, nay, even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subjected to dower, more from a cautious adherence to some hasty precedents,(h) than from any well-grounded principle.61 It hath also been held not liable to escheat to the lord in consequence of attainder or want of heirs:(i) because the trust could never be intended for his benefit. But let us now return to the statute of uses.

The only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only antient conveyance of corporal freeholds; the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one’s stead. But this now has given way to

**338]12. A twelfth species of conveyance, called a covenant to stand seised to uses:62 by which a man, seised of lands, covenants in consideration of blood or marriage that he will stand seised of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land,(k) without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate when made upon such weighty and interesting considerations as those of blood or marriage.

13. A thirteenth species of conveyance, introduced by this statute, is that of a bargain and sale of lands; which is a kind of real contract, whereby the bargainor, for some pecuniary consideration, bargains and sells, that is, contracts to convey, the land to the bargainee; and becomes, by such a bargain, a trustee for, or seised to the use of, the bargainee: and then the statute of uses completes the purchase;(l) or, as it hath been well expressed,(m) the bargain first vests the use, and then the statute vests the possession. But as it was foreseen that conveyances, thus made, would want all those benefits of notoriety which the common-law assurances were calculated to give; to prevent, therefore, clandestine conveyances of freeholds, it was enacted in the same session of parliament, by statute 27 Hen. VIII. c. 16, that such bargains and sales should not enure to pass a freehold, unless the same be made by indenture, and enrolled within six months in one of the courts of Westminster hall, or with the custos rotulorum of the county. Clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regarding, as such interests were very precarious, till about six years before:(n) which also occasioned them to be overlooked in framing the statute of uses: and therefore such bargains and sales are not directed to be enrolled. But how impossible is it to *[*339foresee, and provide against, all the consequences of innovations! This omission has given rise to.

14. A fourteenth species of conveyance, viz., by lease and release; first invented by sergeant Moore, soon after the statute of uses, and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr. Noy, attorney-general to Charles I.) have formerly doubted its validity.(o) It is thus contrived. A lease, or rather bargain and sale, upon some pecuniary consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Now, this, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the use of the term for a year; and then the statute immediately invests the possession. He therefore, being thus in possession,63 is capable of receiving a release of the freehold and reversion; which, we have seen before,(p) must be made to a tenant in possession: and, accordingly, the next day a release is granted to him.(q) This is held to supply the place of livery of seisin: and so a conveyance by lease and release is said to amount to a feoffment.(r)64

15. To these may be added deeds to lead or declare the uses of other more direct conveyances, as feoffments, fines, and recoveries: of which we shall speak in the next chapter: and

16. Deeds of revocation of uses, hinted at in a former page,(s) and founded in a previous power, reserved at the raising of the uses,(t) to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocation.(u) And this may suffice for a specimen of conveyances founded upon the statute of uses: and will finish our observations upon such deeds as serve to transfer real property.65

*[*340Before we conclude, it will not be improper to subjoin a few remarks upon such deeds as are used not to convey, but to charge or encumber, lands, and to discharge them again: of which nature are obligations or bonds, recognizances, and defeazances upon them both.66

1. An obligation, or bond, is a deed(v) whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio: but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one-half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor, while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the lands.67 How it affects the personal property of the obligor will be more properly considered hereafter.68

If the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single, and unconditional; for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se, the obligation itself is void: for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And if the condition be possible at the time of making it, and afterwards *[*341becomes impossible by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved; for no prudence or foresight of the obligor could guard against such a contingency.(w) On the forfeiture of the bond, or its becoming single, the whole penalty was formerly recoverable at law: but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz., his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon non-performance of covenants and the like. And the like practice having gained some footing in the courts of law,(x) the statute 4 & 5 Anne, c. 16, at length enacted, in the same spirit of equity, that, in case of a bond conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge.69

2. A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorized,(y) with condition to do some particular act; as to appear at the assizes, to keep the peace, to pay a debt, or the like. It is in most respects like another bond: the difference being chiefly this: that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowledgment of a former debt upon record; the form whereof is, “that A. B. doth acknowledge to owe to our lord the king, to the plaintiff, to C.D., or the like, the sum of ten pounds,” with condition to be void on performance of the thing stipulated: in which case the king, the plaintiff, C. D., &c. is called the recognizee, “is cui cognoscitur;” as he that enters into the recognizance is called the cognizor, “is qui cognoscit.” This, being either certified to or taken by the officer of some court, is witnessed only by the record of that court, and not by the party’s seal: so that it is not in strict propriety a deed, though the effects of it are greater than a **342]common obligation,70 being allowed a priority in point of payment, and binding the lands of the cognizor, from the time of enrolment on record.(z)71 There are also other recognizances, of a private kind, in nature of a statute staple, by virtue of the statute 23 Hen. VIII. c. 6, which have been already explained,(a) and shown to be a charge upon real property.

3. A defeazance, on a bond, or recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate before mentioned. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent, deed.(b) This, like the condition of a bond, when performed, discharges and disencumbers the estate of the obligor.

These are the principal species of deeds or matter in pais, by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any: though in these there is certainly one palpable defect, the want of sufficient notoriety; so that purchasers or creditors cannot know, with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the antient feodal method of conveyance, (by giving corporal seisin of the lands,) this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and encumbrances, since the disuse of the old Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastery;(c) and the failure of the general register established by king Richard the First, for the starrs or mortgages made to *[*343Jews, in the capitula de Judæis, of which Hoveden has preserved a copy. How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record.(d) And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature(e) to erect such register in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omissions of parties, than prevented by the use of registers.72

CHAPTER XXI.

OF ALIENATION BY MATTER OF RECORD.

Assurances by matter of record are such as do not entirely depend on the act or consent of the parties themselves: but the sanction of a court of record is called in to substantiate, preserve, and be a perpetual testimony of the transfer of property from one man to another; or of its establishment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king’s grants. 3. Fines. 4. Common recoveries.

I. Private acts of parliament1 are, especially of late years, become a very common mode of assurance. For it may sometimes happen that, by the ingenuity of some, and the blunders of other practitioners, an estate is most grievously entangled by a multitude of contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances; (a confusion unknown to the simple conveyances of the common law;) so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that by the strictness or omissions of family-settlements, the tenant of the estate is abridged of some reasonable power, (as letting leases, making a jointure for a wife, or the like,) which power cannot be given him by the ordinary judges either in common law or equity. Or it may be necessary, in settling an estate, to secure it against the claims of infants or other persons under legal disabilities; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of **345]the like kind, the transcendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to unfetter an estate; to give its tenant reasonable powers; or to assure it to a purchaser, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred.2 This practice was carried to a great length in the year succeeding the restoration; by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as the noble historian expresses it,(a) every man had raised an equity in his own imagination, that he thought was entitled to prevail against any descent, testament, or act of law, and to find relief in parliament: which occasioned the king at the close of the session to remark,(b) that the good old rules of law are the best security; and to wish, that men might not have too much cause to fear that the settlements which they make of their estate, shall be too easily unsettled when they are dead, by the power of parliament.

Acts of this kind are however at present carried on, in both houses, with great deliberation and caution; particularly in the house of lords they are usually referred to two judges to examine and report the facts alleged, and to settle all technical forms. Nothing also is done without the consent, expressly given, of all parties in being, and capable of consent, that have the remotest interest in the matter: unless such consent shall appear to be perversely and without any reason withheld. And, as was before hinted, an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by this act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever; except those whose consent is so given or purchased, and who are therein particularly named: though it hath been holden, that, even if such saving be omitted, the act shall bind none but the parties.(c)

*[*346A law thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not therefore allowed to be a public, but a mere private statute; it is not printed or published among the other laws of the session; it hath been relieved against, when obtained upon fraudulent suggestions;(d) it hath been holden to be void, if contrary to law and reason;(e)3 and no judge or jury is bound to take notice of it, unless the same be specially set forth and pleaded to them. It remains however enrolled among the public records of the nation, to be forever preserved as a perpetual testimony of the conveyance or assurance so made or established.4

II. The king’s grants are also matter of public record. For as St. Germyn says,(f) the king’s excellency is so high in the law, that no freehold may be given to the king, nor derived from him but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the king’s grants must pass, and be transcribed and enrolled; that the same may be narrowly inspected by his officers, who will inform him if any thing contained therein is improper or unlawful to be granted. These grants, whether of lands, honours, liberties, franchises, or aught besides, are contained in charters, or letters-patent, that is, open letters, literæ patentes: so called because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom; and are usually directed or addressed by the king to all his subjects at large. And therein they differ from certain other letters of the king, sealed also with his great seal, but directed to particular persons, and for particular purposes: which therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literæ clausæ, and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls.

Grants or letters-patent must first pass by bill: which is prepared by the attorney and solicitor general, in consequence **347]of a warrant from the crown; and is then signed, that is, subscribed at the top, with the king’s own sign manual, and sealed with his privy signet, which is always in the custody of the principal secretary of state; and then sometimes it immediately passes under the great seal, in which case the patent is subscribed in these words, “per ipsum regem, by the king himself.”(g) Otherwise the course is to carry an extract of the bill to the keeper of the privy seal, who makes out a writ or warrant thereupon to the chancery; so that the sign manual is the warrant to the privy seal, and the privy seal is the warrant to the great seal: and in this last case the patent is subscribed, “per breve de privato sigillo, by writ of privy seal.”(h)5 But there are some grants which only pass through certain offices, as the admiralty or treasury, in consequence of a sign manual, without the confirmation of either the signet, the great, or the privy seal.

The manner of granting by the king does not more differ from that by a subject, than the construction of his grants, when made. 1. A grant made by the king, at the suit of the grantee, shall be taken most beneficially for the king, and against the party; whereas the grant of a subject is construed most strongly against the grantor. Wherefore it is usual to insert in the king’s grants, that they are made, not at the suit of the grantee, but “ex speciali gratia, certa scientia, et mero motu regis;” and then they have a more liberal construction.(i) 2. A subject’s grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingress, egress, and regress, to cut and carry away those profits, are also inclusively granted:(j) and if a feoffment of land was made by a lord to his villein, this operated as a manumission;(k) for he was otherwise unable to hold it. But the king’s grant shall not enure to any other intent than that which is precisely expressed in the grant. As, if he grants land to an alien, it operates nothing; for **348]such grant shall not also enure to make him a denizen, that so he may be capable of taking by grant.(l) 3. When it appears, from the face of the grant, that the king is mistaken, or deceived, either in matter of fact or matter of law, as in case of false suggestion, misinformation, or misrecital of former grants; or if his own title to the thing granted be different from what he supposes; or if the grant be informal; or if he grants an estate contrary to the rules of law: in any of these cases the grant is absolutely void.(m) For instance; if the king grants lands to one and his heirs male, this is merely void: for it shall not be an estate-tail, because there want words of procreation, to ascertain the body out of which the heirs shall issue: neither is it a fee-simple, as in common grants it would be; because it may reasonably be supposed, that the king meant to give no more than an estate-tail:(n) the grantee is therefore (if any thing) nothing more than tenant at will.(o) And to prevent deceits of the king, with regard to the value of the estate granted, it is particularly provided by the statute 1 Hen. IV. c. 6, that no grant of his shall be good, unless, in the grantee’s petition for them, express mention be made of the real value of the lands.

III. We are next to consider a very usual species of assurance, which is also of record; viz., a fine of lands and tenements. In which it will be necessary to explain, 1. The nature of a fine; 2. Its several kinds; and 3. Its force and effect.

1. A fine is sometimes said to be a feoffment of record:(p) though it might with more accuracy be called an acknowledgment of a feoffment on record. By which is to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of lands: though it is one of those methods of transferring estates of freehold by the common law, in which livery of seisin is not necessary *[*349to be actually given; the supposition and acknowledgment thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to be an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices: whereby the lands in question become, or are acknowledged to be, the right of one of the parties.(q) In its original it was founded on an actual suit, commenced at law for recovery of the possession of land or other hereditaments; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were, and continue to be, every day commenced, for the sake of obtaining the same security.

A fine is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. Or, as it is expressed in an ancient record of parliament,(r) 18 Edw. I., “Non in regno Angliæ providetur, vel est, aliqua securitas major vel solennior, per quam aliquis statum certiorem habere possit, neque ad statum suum verificandum aliquod solennius testimonium producere, quam finem in curia domini regis levatum: qui quidem finis sic vocatur, eo quod finis et consummatio omnium placitorum esse debet, et hac de causâ providebatur.” Fines indeed are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvil(s) and Bracton(t) in the reigns of Henry II. and Hen. III. as things then well known and long established; and instances have been produced of them even prior to the Norman invasion.(u) So that the statute 18 Edw. I., called modus levandi fines, did not give them original, but only declared and regulated the manner in which they should be levied or carried on. And that is as follows:

1. The party to whom the land is to be conveyed or assured, commences an action or suit at law against the other, *[*350generally an action of covenant,(v) by suing out a writ of præcipe, called a writ of covenant:(w) the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. On this writ there is due to the king, by antient prerogative, a primer fine, or a noble for every five marks of land sued for; that is, one-tenth of the annual value.(x) The suit being thus commenced, then follows,

2. The licentia concordandi, or leave to agree the suit.(y) For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon suing out the writ, given pledges to prosecute his suit, which he endangers if he now deserts it without license, he therefore applies to the court for leave to make the matter up. This leave is readily granted; but for it there is also another fine due to the king by his prerogative, which is an antient revenue of the crown, and is called the king’s silver, or sometimes the post fine, with respect to the primer fine before mentioned. And it is as much as the primer fine, and half as much more, or ten shillings for every five marks of land; that is, three-twentieths of the supposed annual value.(z)

3. Next comes the concord, or agreement itself,(a) after leave obtained from the court: which is usually an acknowledgment from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the **351]cognizor, and he to whom it is levied the cognizee. This acknowledgment must be made either openly in the court of common pleas,6 or before the lord chief-justice of that court; or else before one of the judges of that court, or two or more commissioners in the country, empowered by a special authority called a writ of dedimus potestatem,7 which judges and commissioners are bound, by statute 18 Edw. I. st. 4, to take care that the cognizors be of full age, sound memory, and out of prison. If there be any feme-covert among the cognizors, she is privately examined whether she does it willingly and freely, or by compulsion of her husband.

By these acts all the essential parts of a fine are completed: and, if the cognizor dies the next moment after the fine is acknowledged, provided it be subsequent to the day on which the writ is made returnable,(b) still the fine shall be carried on in all its remaining parts: of which the next is,

4. The note of the fine;(c) which is only an abstract of the writ of covenant, and the concord; naming the parties, the parcels of land, and the agreement. This must be enrolled of record in the proper office, by direction of the statute 5 Hen. IV. c. 14.

5. The fifth part is the foot of the fine, or conclusion of it: which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowledged or levied.(d) Of this there are indentures made, or engrossed, at the chirographer’s office, and delivered to the cognizor and the cognizee; usually beginning thus, “hæc est finalis concordia, this is the final agreement,” and then reciting the whole proceeding at length. And thus the fine is completely levied at common law.8

By several statutes still more solemnities are superadded, in order to render the fine more universally public, and less liable to be levied by fraud or covin. And, first,9 by 27 Edw. I. *[*352c. 1, the note of the fine shall be openly read in the court of common pleas, at two several days in one week, and during such reading all pleas shall cease. By 5 Hen. IV. c. 14, and 23 Eliz. c. 3, all the proceedings on fines, either at the time of acknowledgment, or previous or subsequent thereto, shall be enrolled of record in the court of common pleas. By 1 Ric. III. c. 7, confirmed and enforced by 4 Hen. VII. c. 24, the fine, after engrossment, shall be openly read and proclaimed in court (during which all pleas shall cease) sixteen times; viz., four times in the term in which it is made, and four times in each of the three succeeding terms; which is reduced to once in each term by 31 Eliz. c. 2; and these proclamations are endorsed on the back of the record.(e) It is also enacted by 23 Eliz. c. 3, that the chirographer of fines shall every term write out a table of the fines levied in each county in that term, and shall affix them in some open part of the court of common pleas all the next term: and shall also deliver the contents of such table to the sheriff of every county, who shall at the next assizes fix the same in some open place in the court, for the more public notoriety of the fine.

2. Fines, thus levied, are of four kinds. 1. What in our law French is called a fine “sur cognizance de droit, come ceo que il ad de son done;” or a fine upon acknowledgment of the right of the cognizee, as that which he hath of the gift of the cognizor.(f) This is the best and surest kind of fine; for thereby the deforciant, in order to keep his covenant with the plaintiff, of conveying to him the lands in question, and at the same time to avoid the formality of an actual feoffment and livery, acknowledges in court a former feoffment, or gift in possession, to have been made by him to the plaintiff. This fine is therefore said to be a feoffment of record; the livery, thus acknowledged in court, being equivalent to an actual livery: so that this assurance is rather a confession of a former conveyance, than a conveyance now originally made; for the deforciant or cognizor acknowledges, *[*353cognoscit, the right to be in the plaintiff, or cognizee, as that which he hath de son done, of the proper gift of himself, the cognizor. 2. A fine “sur cognizance de droit tantum,” or upon acknowledgment of the right merely; not with the circumstance of a preceding gift from the cognizor. This is commonly used to pass a reversionary interest which is in the cognizor. For of such reversions there can be no feoffment, or donation with livery, supposed; as the possession during the particular estate belongs to a third person.(g) It is worded in this manner: “that the cognizor acknowledges the right to be in the cognizee; and grants for himself and his heirs, that the reversion, after the particular estate determines, shall go to the cognizee.”(h) 3. A fine “sur concessit” is where the cognizor, in order to make an end of disputes, though he acknowledges no precedent right, yet grants to the cognizee an estate de novo, usually for life or years, by way of supposed composition. And this may be done reserving a rent, or the like; for it operates as a new grant.(i) 4. A fine “sur done, grant, et render” is a double fine, comprehending the fine sur cognizance de droit come ceo &c., and the fine sur concessit; and may be used to create particular limitations of estate: whereas the fine sur cognizance de droit come ceo, &c. conveys nothing but an absolute estate, either of inheritance or at least a freehold.(j) In this last species of fine, the cognizee, after the right is acknowledged to be in him, grants back again, or renders to the cognizor, or perhaps to a stranger, some other estate in the premises.10 But, in general, the first species of fine, sur cognizance de droit come ceo, &c., is the most used, as it conveys a clean and absolute freehold, and gives the cognizee a seisin in law, without an actual livery; and is therefore called a fine executed, whereas the others are but executory.

3. We are next to consider the force and effect of a fine. These principally depend, at this day, on the common law, and the two statutes 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36. The antient common law, with respect to this point, **354]is very forcibly declared by the statute 18 Edw. I., in these words:—“And the reason, why such solemnity is required in the passing of a fine, is this; because the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those which are parties and privies to the fine, and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied; unless they put in their claim on the foot(k) of the fine within a year and a day.” But this doctrine, of barring the right by non-claim, was abolished for a time by a statute made in 34 Edw. III. c. 16, which admitted persons to claim, and falsify a fine, at any indefinite distance;(l) whereby, as Sir Edward Coke observes,(m) great contention arose, and few men were sure of their possessions, till the parliament held 4 Hen. VII. reformed that mischief, and excellently moderated between the latitude given by the statute and the rigour of the common law. For the statute, then made,(n) restored the doctrine of non-claim, but extended the time of claim. So that now, by that statute, the right of all strangers whatsoever is bound, unless they make claim, by way of action or lawful entry, not within one year and a day, as by the common law, but within five years, after proclamations made: except feme-coverts, infants, prisoners, persons beyond the seas, and such as are not of whole mind; who have five years allowed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind.11

It seems to have been the intention of that politic prince, king Henry VII., to have covertly by this statute extended fines to have been a bar of estates-tail, in order to unfetter the more easily the estates of his powerful nobility, and lay *[*355them more open to alienations; being well aware that power will always accompany property. But doubts having arisen whether they could, by mere implication, be adjudged a sufficient bar, (which they were expressly declared not to be by the statute de donis,) the statute 32 Hen. VIII. c. 36 was thereupon made; which removes all difficulties, by declaring that a fine levied by any person of full age, to whom or to whose ancestors lands have been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail:12 unless the fine be levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestors, assigned to her in tail for her jointure;(o) or unless it be of lands entailed by act of parliament or letters-patent, and whereof the reversion belongs to the crown.

From this view of the common law, regulated by these statutes, it appears, that a fine is a solemn conveyance on record from the cognizor to the cognizee, and that the persons bound by a fine are parties, privies, and strangers.

The parties are either the cognizors, or cognizees, and these are immediately concluded by the fine, and barred of any latent right they might have, even though under the legal impediment of coverture. And indeed, as this is almost the only act that a feme-covert, or married woman, is permitted by law to do, (and that because she is privately examined as to her voluntary consent, which removes the general suspicion of compulsion by her husband,) it is therefore the usual and almost the only safe method whereby she can join in the sale, settlement, or encumbrance, of any estate.13

Privies to a fine are such as are any way related to the parties who levy the fine, and claim under them by any right of blood or other right of representation. Such as are the heirs general of the cognizor, the issue in tail since the statute of Henry the Eighth, the vendee, the devisee, and all others who must make title by the persons who levied the fine. For the act of the ancestor shall bind the heir, and the act **356]of the principal his substitute, or such as claim under any conveyance made by him subsequent to the fine so levied.(p)

Strangers to a fine are all other persons in the world, except only parties and privies. And these are also bound by a fine, unless, within five years after proclamations made, they interpose their claim; provided they are under no legal impediments, and have then a present interest in the estate. The impediments, as hath before been said, are coverture, infancy, imprisonment, insanity, and absence beyond sea; and persons, who are thus incapacitated to prosecute their rights, have five years allowed them to put in their claims after such impediments are removed. Persons also that have not a present, but a future interest only, as those in remainder or reversion, have five years allowed them to claim in, from the time that such right accrues.(q) And if within that time they neglect to claim, or (by the statute 4 Anne, c. 16) if they do not bring an action to try the right within one year after making such claim, and prosecute the same with effect, all persons whatsoever are barred of whatever right they may have, by force of the statute of non-claim.14

But, in order to make a fine of any avail at all, it is necessary that the parties should have some interest or estate in the lands to be affected by it. Else it were possible that two strangers, by a mere confederacy, might without any risk defraud the owners by levying fines of their lands; for if the attempt be discovered, they can be no sufferers, but must only remain in statu quo; whereas if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainderman or reversioner,(r) if claimed in proper time. It is not therefore to be supposed that such tenants will frequently run so great a hazard; but if they do, and the claim is not duly made within five years after their respective terms expire,(s) the estate is forever barred by it. Yet where a stranger, whose presumption cannot be thus punished, officiously interferes in an estate which in no wise belongs to him, *[*357his fine is of no effect, and may at any time be set aside (unless by such as are parties or privies thereunto)(t) by pleading that “partes finis nihil habuerunt.” And, even if a tenant for years, who hath only a chattel interest, and no freehold in the land, levies a fine, it operates nothing, but is liable to be defeated by the same plea.(u) Wherefore when a lessee for years is disposed to levy a fine, it is usual for him to make a feoffment first, to displace the estate of the reversioner,(v) and create a new freehold by disseisin.15 And thus much for the conveyance or assurance by fine: which not only, like other conveyances, binds the grantor himself, and his heirs; but also all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted by law.16

IV. The fourth species of assurance, by matter of record, is a common recovery. Concerning the original of which it was formerly observed,(w) that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the finesse of the courts of law in 12 Edw IV. in order to put an end to all fettered inheritances, and bar not only estates-tail, but also all remainders and reversions expectant thereon. I am now, therefore, only to consider, first, the nature of a common recovery; and, secondly, its force and effect.

1. And, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it is a suit of action, either actual or fictitious: and in it the lands are recovered against the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror. A recovery therefore being in the nature of an action at law, not immediately compromised like a fine, but carried on through every regular stage of proceeding, I am greatly apprehensive that its form and method will not be easily understood by the student who is not yet acquainted **358]with the course of judicial proceedings; which cannot be thoroughly explained till treated of at large in the third book of these commentaries. However, I shall endeavour to state its nature and progress, as clearly and concisely as I can; avoiding, as far as possible, all technical terms and phrases not hitherto interpreted.

Let us, in the first place, suppose David Edwards(x) to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Golding. To effect this, Golding is to bring an action against him for the lands; and he accordingly sues out a writ, called a præcipe quod reddat, because those were its initial or most operative words when the law proceedings were in Latin. In this writ the demandant Golding alleges that the defendant Edwards (here called the tenant) has no legal title to the land; but that he came into possession of it after one Hugh Hunt had turned the demandant out of it.(y) The subsequent proceedings are made up into a record or recovery-roll,(z) in which the writ and complaint of the demandant are first recited: whereupon the tenant appears, and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays, that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding the demandant desires leave of the court to imparl, or confer with the vouchee in private: which is (as usual) allowed him. And soon afterwards the demandant Golding returns to court, but Morland the vouchee disappears, or makes default. Whereupon judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in question against the tenant, Edwards, who is now the recoveree; **359]and Edwards has judgment to recover of Jacob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default; which is agreeable to the doctrine of warranty mentioned in the preceding chapter.(a) This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the crier of the court, (who, from being frequently thus vouched, is called the common vouchee,) it is plain that Edwards has only a nominal recompense for the land so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail, to Golding the purchasor.

The recovery, here described, is with a single voucher only; but sometimes it is with double, treble, or further voucher, as the exigency of the case may require. And indeed it is now usual always to have a recovery with double voucher at the least: by first conveying an estate of freehold to any indifferent person, against whom the præcipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee.(b) For, if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seised; whereas if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered.(c) If Edwards therefore be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards doth first vouch Barker, and then Barker vouches Jacob Morland the common vouchee; who is always the last person vouched, and always makes default: whereby the demandant Golding recovers the land against the tenant Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee; who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ultimately awarded.17

**360]This supposed recompense in value is the reason why the issue in fail is held to be barred by a common recovery. For if the recoveree should obtain a recompense in lands from the common vouchee, (which there is a possibility in contemplation of law, though a very improbable one, of his doing,) these lands would supply the place of those so recovered from him by collusion, and would descend to the issue in tail.(d) This reason will also hold with equal force, as to most remaindermen and reversioners; to whom the possibility will remain and revert, as a full recompense for the reality, which they were otherwise entitled to: but it will not always hold: and therefore, as Pigot says,(e) the judges have been even astuti in inventing other reasons to maintain the authority of recoveries. And, in particular, it hath been said, that, though the estate-tail is gone from the recoveree, yet it is not destroyed, but only transferred; and still subsists, and will ever continue to subsist, (by construction of law,) in the recoveror, his heirs and assigns: and, as the estate-tail so continues to subsist forever, the remainders or reversions expectant on the determination of such an estate-tail can never take place.18

To such awkward shifts, such subtle refinements, and such strange reasoning, were our ancestors obliged to have recourse, in order to get the better of that stubborn statute de donis. The design for which these contrivances were set on foot was certainly laudable; the unriveting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth: but, while we applaud the end, we cannot admire the means. Our modern courts of justice have indeed adopted a more manly way of treating the subject; by considering common recoveries in no other light than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands. But, since the ill consequences of fettered inheritances are now generally seen **361]and allowed, and of course the utility and expedience of setting them at liberty are apparent; it hath often been wished, that the process of this conveyance was shortened, and rendered less subject to niceties, by either totally repealing the statute de donis; which, perhaps, by reviving the old doctrine of conditional fees, might give birth to many litigations: or by vesting in every tenant in tail of full age the same absolute fee-simple at once, which now he may obtain whenever he pleases, by the collusive fiction of a common recovery; though this might possibly bear hard upon those in remainder or reversion, by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which sometimes continue for near five months together: or lastly, by empowering the tenant in tail to bar the estate-tail by a solemn deed, to be made in term-time, and enrolled in some court of record: which is liable to neither of the other objections, and is warranted not only by the usage of our American colonies, and the decisions of our own courts of justice, which allow a tenant in tail (without fine or recovery) to appoint his estate to any charitable use,(f) but also by the precedent of the statute(g) 21 Jac. I. c. 19, which, in case of the bankrupt tenant in tail, empowers his commissioners to sell the estate at any time, by deed indented and enrolled. And if, in so national a concern, the emoluments of the officers concerned in passing recoveries are thought to be worthy attention, those might be provided for in the fees to be paid upon each enrolment.

2. The force and effect of common recoveries may appear, from what has been said, to be an absolute bar not only of all estates-tail, but of remainders and reversions expectant on the determination of such estates. So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoveror, his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions. But by statute 34 & 35 Hen. VIII. c. 20, no recovery had against tenant in tail, of the king’s gift, whereof the remainder or reversion is in the king, shall bar such estate-tail, or the remainder or reversion of the crown. And by the statute 11 Hen. VII c. 20, no *[*362woman, after her husband’s death, shall suffer a recovery of lands settled on her by her husband, or settled on her husband and her by any of his ancestors.19 And by statute 14 Eliz. c. 8, no tenant for life, of any sort, can suffer a recovery, so as to bind them in remainder or reversion. For which reason, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is desirous to suffer a valid recoverys either he, or the tenant to the præcipe by him made, must vouch the remainderman in tail, otherwise the recovery is void; but if he does vouch such remaindermen, and he appears and vouches the common vouchee, it is then good; for if a man be vouched and appears, and suffers the recovery to be had against the tenant to the præcipe, it is as effectual to bar the estate-tail as if he himself were the recoveree.(h)20

In all recoveries it is necessary that the recoveree, or tenant to the præcipe, as he is usually called, be actually seised of the freehold, else the recovery is void.(i) For all actions, to recover the seisin of lands, must be brought against the actual tenant of the freehold, else the suit will lose its effect; since the freehold cannot be recovered of him who has it not. And though these recoveries are in themselves fabulous and fictitious, yet it is necessary that there be actores fabulæ, properly qualified. But the nicety thought by some modern practitioners to be requisite in conveying the legal freehold, in order to make a good tenant to the præcipe, is removed by the provisions of the statute 14 Geo. II. c. 20, which enacts, with a retrospect and conformity to the antient rule of law,(j) that, though the legal freehold be vested in lessees, yet those who are entitled to the next freehold estate in remainder or reversion may make a good tenant to the præcipe;—that though the deed or fine which creates such tenant be subsequent to the judgment of recovery, yet, if it be in the same term, the recovery shall be valid in law;—and that, though the recovery itself do not appear to be entered, or be not regularly entered, on record, yet the deed to make a tenant to the præcipe and declare the uses of the recovery shall, *[*363after a possession of twenty years, be sufficient evidence, on behalf of a purchaser for valuable consideration, that such recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurance by matter of record.

Before I conclude this head, I must add a word concerning deeds to lead, or to declare, the uses of fines, and of recoveries. For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them.(k) And if a consideration appears, yet as the most usual fine, “sur cognizance de droit come ceo, &c.” conveys an absolute estate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror; these assurances could not be made to answer the purpose of family settlements, (wherein a variety of uses and designations is very often expedient,) unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular uses can be more particularly expressed. The fine or recovery itself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements in the vast and intricate machine of a voluminous settlement. And if these deeds are made previous to the fine or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As if A., tenant in tail, with reversion to himself in fee, would settle his estate on B. for life, remainder to C. in tail, remainder to D. in fee; that is what by law he has no power of doing effectually while his own estatetail is in being. He therefore usually, after making the settlement proposed, covenants to levy a fine (or, if there be any intermediate remainders, to suffer a recovery) to E., and directs that the same shall enure to the uses in such settlement mentioned. This is now a deed to lead the uses of the fine or recovery; and the fine when levied, or recovery when suffered, shall enure to the uses so specified, and no other. For though E., the cognizee or recoveror, hath a feesimple vested in himself by the fine or recovery; yet, by the operation of this deed, he **364]becomes a mere instrument or conduit-pipe, seised only to the use of B., C., and D. in successive order: which use is executed immediately, by force of the statute of uses.(l) Or, if a fine or recovery be had without any previous settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good as if it had been expressly levied or suffered in consequence of a deed directing its operation to those particular uses. For by statute 4 & 5 Anne, c. 16, indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts that had arisen on the statute of frauds 29 Car. II. c. 3 to the contrary.21

CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

We are next to consider assurances by special custom, obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and such customary estates as are holden in antient demesne, or in manors of a similar nature; which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his seigniory, it is therefore a forfeiture of a copyhold.(a) Nor are they transferable by matter of record, even in the king’s courts, but only in the court-baron of the lord.1 The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds:(b) but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king’s courts, but in the court-baron of the manor, I shall confine myself to conveyances by surrender, and their consequences.

Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A. and his heirs; to the use of his own will; and the like. The process in most manors is, that **366]the tenant comes to the steward, either in court, (or, if the custom permits, out of court,) or else to two customary tenants of the same manor, provided there be also a custom to warrant it; and there, by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate; in trust to be again granted out by the lord to such persons and for such uses as are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then at the next or some subsequent court, the jury or homage must present and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender in court, or upon presentment of a surrender made out of court, the lord by his steward grants the same land again to cestuy que use, (who is sometimes, though rather improperly, called the surrenderee,) to hold by the antient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued.2 And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty.3

In this brief abstract of the manner of transferring copyhold estates we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowledge and consent of the lord. For this purpose it is resigned up, or surrendered into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands; for the alience of a copyhold had merely jus fiduciarium, for which *[*367there was no remedy at law, but only by subpæna, in chancery.(c) When therefore the lord had accepted a surrender of his tenant’s interest, upon confidence to re-grant the estate to another person, either then expressly named or to be afterwards named in the tenant’s will, the chancery enforced this trust as a matter of conscience, which jurisdiction, though seemingly new in the time of Edward IV.,(d) was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowledgment for the license of alienation. Add to this the plain feodal investiture, by delivering the symbol of seisin in the presence of the other tenants in open court; “quando hasta vel aliud corporeum quidlibet porrigitur a domino se investituram facere dicente; quæ saltem coram duobus vasallis solemniter fieri debet:”(e) and, to crown the whole, the oath of fealty is annexed, the very bond of feodal subjection. From all which we may fairly conclude, that, had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestably prove the very universal reception which this northern system of property for a long time obtained in this island; and which communicated itself, or at least its similitude, even to our very villeins and bondmen.

This method of conveyance is so essential to the nature of a copyhold estate, that it cannot properly be transferred by any other assurance. No feoffment or grant has any operation thereupon. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of exchange at the common law, but we must surrender to each other’s use, and the lord will admit us accordingly. If I would devise a copyhold, I must surrender **368]it to the use of my last will and testament;4 and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission.(f) A fine or recovery had of copyhold lands in the king’s court may, indeed, if not duly reversed, alter the tenure of the lands, and convert them into frank fee,(g) which is defined in the old book of tenures(h) to be “land pleadable at the common law;” but upon an action on the case, in the nature of a writ of deceit, brought by the lord in the king’s court, such fine or recovery will be reversed, the lord will recover his jurisdiction, and the lands will be restored to their former state of copyhold.(i)5

In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of its several parts; the surrender, the presentment, and the admittance.

1. A surrender,6 by an admittance subsequent whereto the conveyance is to receive its perfection and confirmation, is rather a manifestation of the alienor’s intention, than a transfer of any interest in possession. For, till admittance of cestuy que use, the lord taketh notice of the surrenderor as his tenant; and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord. Yet the interest remains in him not absolutely, but sub modo; for he cannot pass away the land to any other, or make it subject to any other encumbrance than it was subject to at the time of the surrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trespasser, and punishable in an action of trespass:7 and if he surrenders to the use of another, such surrender is merely void, and by no matter ex post facto can be confirmed. For though he be admitted in pursuance of the original surrender, and thereby acquires afterwards a sufficient and plenary interest as absolute owner, yet his second surrender previous to his own admittance is absolutely void ab initio; because at the time of such surrender he had but a possibility of an interest, and could therefore transfer nothing: and no subsequent admittance can make an act good which was ab initio void. Yet, though upon the original surrender the nominee hath but a possibility, it is however such a possibility as may whenever he pleases be reduced to a certainty; for he cannot either by force or fraud be deprived or deluded of the effects and fruits of the surrender; but if the lord refuse to admit him, he is compellable to do it by a bill in chancery, or a mandamus:(k) *[*369 and the surrenderor can in no wise defeat his grant; his hands being forever bound from disposing of the land in any other way, and his mouth forever stopped from revoking or countermanding his own deliberate act.(l)8

2. As to the presentment; that, by the general custom of manors, is to be made at the next court-baron immediately after the surrender; but by special custom in some places it will be good though made at the second or other subsequent court. And it is to be brought into court by the same persons that took the surrender, and then to be presented by the homage; and in all points material must correspond with the true tenor of the surrender itself. And therefore, if the surrender be conditional, and the presentment be absolute, both the surrender, presentment, and admittance thereupon, are wholly void:(m) the surrender, as being never truly presented; the presentment, as being false; and the admittance, as being founded on such untrue presentment. If a man surrenders out of court and dies before presentment, and presentment be made after his death, according to the custom, that is sufficient.(n) So too, if cestuy que use dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The same law is, if those, into whose hands the surrender is made, die before presentment; for, upon sufficient proof in court that such a surrender was made, the lord shall be compelled to admit accordingly. And if the steward, the tenants, or others into whose hands such surrender is made, refuse or neglect to bring it in to be presented, upon a petition preferred to the lord in his court-baron, the party grieved shall find remedy. But if the lord will not do him right and justice, he may sue both the lord, and them that took the surrender, in chancery, and shall there find relief.(o)9

**370]3. Admittance10 is the last stage, or perfection, of copyhold assurances. And this is of three sorts: first, an admittance upon a voluntary grant from the lord; secondly, an admittance upon surrender by the former tenant; and, thirdly, an admittance upon a descent from the ancestor.

In admittances, even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to him, the lord is considered as an instrument. For though it is in his power to keep the lands in his own hands; or to dispose of them at his pleasure, by granting an absolute fee-simple, a freehold, or a chattel interest therein; and quite to change their nature from copyhold to socage tenure, so that he may well be reputed their absolute owner and lord; yet if he will still continue to dispose of them as copyhold, he is bound to observe the antient custom precisely in every point, and can neither in tenure nor estate introduce any kind of alteration; for that were to create a new copyhold: wherefore in this respect the law accounts him custom’s instrument. For if a copyhold for life falls into the lord’s hands, by the tenant’s death, though the lord may destroy the tenure and enfranchise the land, yet, if he grants it out again by copy, he can neither add to nor diminish the antient rent, nor make any the minutest variation in other respects:(p) nor is the tenant’s estate, so granted, subject to any charges or encumbrances by the lord.(q)

In admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an instrument; and the tenant admitted shall likewise be subject to no charges or encumbrances of the lord; for his claim to the estate is solely under him that made the surrender.(r)

And, as in admittances upon surrenders, so in admittances upon descents, by the death of the ancestor, the lord **371]is used as a mere instrument; and, as no manner of interest passes into him by the surrender or the death of his tenant, so no interest passes out of him by the act of admittance. And therefore neither in the one case nor the other is any respect had to the quantity or quality of the lord’s estate in the manor. For whether he be tenant in fee or for years, whether he be in possession by right or by wrong, it is not material; since the admittances made by him shall not be impeached on account of his title, because they are judicial, or rather ministerial, acts, which every lord in possession is bound to perform.(s)

Admittances, however, upon surrender, differ from admittances upon