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Blackstone: Analysis and Contents of Vol. 1 of Commentaries on the Law of England

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Source: Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. I.

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CONTENTS OF THE ANALYSIS OF BOOK I.

  • Introduction.
  • Of the study of the law.............................. Section I
  • The nature of laws in general.............................. II
  • The grounds and foundation of the laws of England.............................. III
  • The countries subject to those laws.............................. IV
  • The objects of the laws of England, viz.:
    • I. The rights of persons; which are
      • 1. Natural persons; whose rights are
        • 1. Absolute; viz. the enjoyment of
          • 1. Personal security,
          • 2. Personal liberty,
          • 3. Private property.............................. Chapter I.
        • 2. Relative; as they stand in relations
          • 1. Public; as
            • 1. Magistrates; who are
              • 1. Supreme:
                • 1. Legislative; viz. the parliament.............................. II
                • 2. Executive; viz. the king, wherein of his
                  • 1. Title.............................. III
                  • 2. Royal family.............................. IV
                  • 3. Councils.............................. V.
                  • 4. Duties.............................. VI.
                  • 5. Prerogatives.............................. VII.
                  • 6. Revenue:
                    • 1. Ordinary; viz.
                      • 1. Ecclesiastical,
                      • 2. Temporal,
                    • 2. Extraordinary.............................. VIII.
              • 2. Subordinate.............................. IX.
            • 2. People; who are
              • 1. Aliens.............................. X.
              • 2. Natives; who are
                • 1. Clergy.............................. XI.
                • 2. Laity; who are in a state
                  • 1. Civil.............................. XII.
                  • 2. Military,
                  • 3. Maritime.............................. XIII.
          • 2. Private; as,
            • 1. Master and servant.............................. XIV.
            • 2. Husband and wife.............................. XV.
            • 3. Parent and child.............................. XVI.
            • 4. Guardian and ward.............................. XVII.
      • 2. Bodies politic, or corporations.............................. XVIII.
  • II. The Rights of Things.............................. Book II
  • III. Private Wrongs.............................. III.
  • IV. Public Wrongs.............................. IV.

ANALYSIS.

  • INTRODUCTION. Of the Study, Nature, and Extent, of the Laws of England.
    • SECTION I. Of the Study of the Law.............................. Page 6 to 31
      • 1. The general utility of the study of the English common law will principally appear from considering the peculiar situations of, I. Gentlemen of fortune. II. The nobility. III. Persons in liberal professions.............................. Page 6-17
      • 2. The causes of its neglect were, chiefly, the revival of the study of the Roman laws in the twelfth century, their adoption by the clergy and universities, and the illiberal jealousy that subsisted between the patrons and students of each.............................. Page 17-20
      • 3. The establishment of the court of Common Pleas at Westminster preserved the common law, and promoted its study in that neighbourhood, exclusive of the two universities .............................. 22
      • 4. But the universities are now the most eligible places for laying the foundations of this, as of every other liberal accomplishment; by tracing out the principles and grounds of the law, even to their original elements.............................. 31
    • SECTION II. Of the Nature of Laws in general..... 38 to 61
      • 1. Law is a rule of action prescribed by a superior power.............................. 38
      • 2. Natural law is the rule of human action, prescribed by the Creator, and discoverable by the light of reason.............................. 39
      • 3. The divine, or revealed law, considered as a rule of action, is also the law of nature, imparted by God himself .............................. 41
      • 4. The law of nations is that which regulates the conduct and mutual intercourse of independent states with each other, by reason and natural justice .............................. 43
      • 5. Municipal or civil law is the rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.............................. 44
      • 6. Society is formed for the protection of individuals; and states, or government, for the preservation of society .............................. 47
      • 7. In all states there is an absolute supreme power, to which the right of legislation belongs, and which, by the singular constitution of these kingdoms, is vested in the king, lords, and commons .............................. 48-51
      • 8. The parts of a law are, I. The declaratory; which defines what is right and wrong. II. The directory; which consists in commanding the observation of right, or probibiting the commission of wrong. III. The remedial; or method of recovering private rights and redressing private wrongs. IV. The vindicatory sanction of punishments for public wrongs; wherein consists the most forcible obligation of human laws... 58-4
      • 9. To interpret a law, we must inquire after the will of the maker: which may be collected either from the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law .............................. 59-61
      • 10. From the latter method of interpretation arises equity, or the correction of that wherein the law (by reason of its un versality) is deficient.............................. 61
    • SECTION III. Of the Laws of England.............................. 63 to 91
      • 1. The laws of England are of two kinds: the unwritten or common law, and the written or statute law .............................. 63
      • 2. The unwritten law includes, I. General customs. II. Particular customs. III. Particular laws.............................. 67
      • 3. General customs, or the common law properly so called, are founded upon immemorial universal usage, whereof judicial decisions are the evidence; which decisions are preserved in the public records, explained in the year-books and reports, and digested by writers of approved authority .............................. Page 68
      • 4. Particular customs are those which are only in use within some peculiar districts; as gavel-kind, the customs of London, &c.............................. 74
      • 5. These—I. must be proved to exist;—II. must appear to be legal; that is, immemorial, continued, peaceable, reasonable, certain, compulsory, and consistent;—III. must, when allowed, receive a strict construction.............................. 76-79
      • 6. Particular laws are such as, by special custom, are adopted and used only in certain peculiar courts, under the superintendence and control of the common and statute law; namely, the Roman civil and canon laws.............................. 79
      • 7. The written or statute laws are the acts which are made by the king, lords, and commons, in parliament, to supply the defects, or amend what is amiss, of the unwritten law.............................. 85
      • 8. In order to give a more specific relief than can sometimes be had, through the generality of both the unwritten and written law, in matters of private right, it is the office of equity to interpose.............................. 91
    • SECTION IV. Of the Countries subject to the Laws of England .............................. 93 to 113
      • 1. The laws of England are not received in their full extent in any other territories besides the kingdom of England, and the dominion of Wales, which have, in most respects, an entire communion of laws... 93
      • 2. Scotland, notwithstanding the union, retains its own municipal laws, though subject to regulation by the British parliament.............................. 95
      • 3. Berwick is governed by its own local usages, derived from the Scots law, but bound by all acts of parliament.............................. 98
      • 4. Ireland is a distinct subordinate kingdom, governed by the common law of England, but not bound by modern acts of the British parliament, unless particularly named.............................. 99
      • 5. The Isle of Man, the Norman isles, (as Guernsey, &c.,) and our plantations abroad, are governed by their own laws, but are bound by acts of the British parliament, if specially named therein.............................. 104-109
      • 6. The territory of England is divided, ecclesiastically, into provinces, dioceses, archdeaconries, rural deaneries, and parishes .............................. 110-118
      • 7. The civil division is, first, into counties, of which some are palatine; then, sometimes, into rapes, lathes, or trithings: next, into hundreds, or wapentakes; and lastly, into towns, vills, or tithings.............................. 118
  • BOOK I.—OF THE RIGHTS OF PERSONS.
    • CHAPTER I. Of the Absolute Rights of Individuals.............................. Page 122 to 144
      • 1. The objects of the laws of England are, I. Rights. II. Wrongs.............................. 122
      • 2. Rights are, the rights of persons, or the rights of things.............................. 122
      • 3. The rights of persons are such as concern, and are annexed to, the persons of men: and, when the person to whom they are due is regarded, they are called (simply) rights; but when we consider the person from whom they are due, they are then denominated duties.............................. 123
      • 4. Persons are either natural, that is, such as they are formed by nature; or artificial, that is, created by human policy, as bodies politic or corporations.............................. 123
      • 5. The rights of natural persons are, I. Absolute, or such as belong to individuals. II. Relative, or such as regard members of society.............................. 123
      • 6. The absolute rights of individuals, regarded by the municipal laws, (which pay no attention to duties of the absolute kind,) compose what is called political or civil liberty.............................. 123
      • 7. Political or civil liberty is the natural liberty of mankind, so far restrained by human laws as is necessary for the good of society.............................. 125
      • 8. The absolute rights, or civil liberties, of Englishmen, as frequently declared in Parliament, are principally three: the right of personal security, of personal liberty, and of private property.............................. 129
      • 9. The right of personal security consists in the legal enjoyment of life, limb, body, health, and reputation.............................. 129
      • 10. The right of personal liberty consists in the free power of locomotion, without illegal restraint or banishment.............................. 134
      • 11. The right of private property consists in every man’s free use and disposal of his own lawful acquisitions, without injury or illegal diminution.............................. 138
      • 12. Besides these three primary rights, there are others which are secondary and subordinate; viz. (to preserve the former from unlawful attacks,) I. The constitution and power of parliaments: II. The limitation of the king’s prerogative: and, (to vindicate them when actually violated,) III. The regular administration of public justice: IV. The right of petitioning for redress of grievances: V. The right of having and using arms for self-defence... 140-144
    • CHAPTER II. Of the Parliament.............................. 146 to 189
      • 1. The relations of persons are, I. Public. II. Private. The public relations are those of magistrates and people. Magistrates are supreme, or subordinate. And of supreme magistrates, in England, the parliament is the supreme executive.............................. 146
      • 2. Parliaments, in some shape, are of as high antiquity as the Saxon government in this island, and have subsisted, in their present form, at least five hundred years.............................. Page 147
      • 3. The parliament is assembled by the king’s writs, and its sitting must not be intermitted above three years.............................. 150
      • 4. Its constituent parts are the king’s majesty, the lords spiritual and temporal, and the commons represented by their members: each of which parts has a negative, or necessary, voice in making laws.............................. 153-160
      • 5. With regard to the general law of parliament;—its power is absolute: each house is the judge of its own privileges: and all the members of either house are entitled to the privilege of speech, of person, of their domestics, and of their lands and goods.............................. 160-167
      • 6. The peculiar privileges of the lords (besides their judicial capacity) are to hunt in the king’s forests; to be attended by the sages of the law; to make proxies; to enter protests; and to regulate the election of the sixteen peers of North Britain.............................. 167
      • 7. The peculiar privileges of the commons are to frame taxes for the subject; and to determine the merits of their own elections, with regard to the qualifications of the electors and elected, and the proceedings at elections themselves.............................. 169-180
      • 8. Bills are usually twice read in each house, committed, engrossed, and then read a third time; and when they have obtained the concurrence of both houses and received the royal assent, they become acts of parliament.............................. 182-185
      • 9. The houses may adjourn themselves; but the king only can prorogue the parliament.............................. 186-187
      • 10. Parliaments are dissolved, I. At the king’s will. II. By the demise of the crown; that is, within six months after. III. By length of time, or having sat for the space of seven years.............................. 187-189
    • CHAPTER III. Of the King, and his Title.............................. 190 to 215
      • 1. The supreme executive power of this kingdom is lodged in a single person: the king or queen.............................. 190
      • 2. This royal person may be considered with regard to, I. His title. II. His royal family. III. His councils. IV. His duties. V. His prerogative. VI. His revenue.............................. 190
      • 3. With regard to his title: the crown of England, by the positive constitution of the kingdom, hath ever been descendible, and so continues.............................. 191
      • 4. The crown is descendible in a course peculiar to itself.............................. 193
      • 5. This course of descent is subject to limitation by parliament.............................. Page 195
      • 6. Notwithstanding such limitations, the crown retains its descendible quality, and becomes hereditary in the prince to whom it is limited.............................. 196
      • 7. King Egbert, king Canute, and king William I. have been successively constituted the common stocks, or ancestors, of this descent.............................. 198
      • 8. At the revolution, the convention of estates, or representative body of the nation, declared that the misconduct of king James II. amounted to an abdication of the government, and that the throne was thereby vacant.............................. 213
      • 9. In consequence of this vacancy, and from a regard to the ancient line, the convention appointed the next Protestant heirs of the blood-royal of king Charles I. to fill the vacant throne, in the old order of succession; with a temporary exception, or preference, to the person of king William III.............................. 214
      • 10. On the impending failure of the Protestant line of king Charles I., (whereby the throne might again have become vacant,) the parliament extended the settlement of the crown to the Protestant line of king James I., viz. to the princess Sophia of Hanover, and the heirs of her body, being Protestants; and she is now the common stock, from whom the heirs of the crown must descend.............................. 215
    • CHAPTER IV. Of the King’s Royal Family.............................. 218 to 224
      • 1. The king’s royal family consists, first, of the queen: who is either regnant, consort, or dowager.............................. 218
      • 2. The queen consort is a public person; and has many personal prerogatives and distinct revenues.............................. 218
      • 3. The prince and princess of Wales, and the princess-royal, are peculiarly regarded by the law.............................. 223
      • 4. The other princes of the blood-royal are only entitled to precedence.............................. 224
    • CHAPTER V. Of the Councils belonging to the King.............................. 227 to 232
      • 1. The king’s councils are, I. The parliament. II. The great council of peers. III. The judges, for matters of law. IV. The privy council.............................. 227-230
      • 2. In privy counsellors may be considered, I. Their creation. II. Their qualifications. III. Their duties. IV. Their powers. V. Their privileges. VI. Their dissolution.............................. 230-232
    • CHAPTER VI. Of the King’s Duties.............................. 233 to 235
      • 1. The king’s duties are, to govern his people according to law, to execute judgment in mercy, and to maintain the established religion.............................. 233
      • 2. These are his part of the original contract between himself and the people; founded in the nature of society, and expressed in his oath at the coronation. Page 235
    • CHAPTER VII. Of the King’s Prerogative.............................. 237 to 278
      • 1. Prerogative is that special power and pre-eminence which the king hath above other persons, and of the ordinary course of law, in right of his regal dignity... 237-239
      • 2. Such prerogatives are either direct, or incidental. The incidental, arising out of other matters, are considered as they arise: we now treat only of the direct.... 239
      • 3. The direct prerogatives regard, I. The king’s dignity, or royal character. II. His authority, or regal power. III. His revenue, or royal income.............................. 240
      • 4. The king’s dignity consists in the legal attributes of, I. Personal sovereignty. II. Absolute perfection. III. Political perpetuity.............................. 241-249
      • 5. In the king’s authority, or regal power, consists the executive part of government.............................. 250
      • 6. In foreign concerns, the king, as the representative of the nation, has the right or prerogative, I. Of sending and receiving embassadors. II. Of making treaties. III. Of proclaiming war or peace. IV. Of issuing reprisals. V. Of granting safe-conducts.............................. 253-261
      • 7. In domestic affairs, the king is, first, a constituent part of the supreme legislative power; hath a negative upon all new laws; and is bound by no statute, unless specially named therein.............................. 261
      • 8. He is also considered as the general of the kingdom, and may raise fleets and armies, build forts, appoint havens, erect beacons, prohibit the exportation of arms and ammunition, and confine his subjects within the realm, or recall them from foreign parts.............................. 262-266
      • 9. The king is also the fountain of justice, and general conservator of the peace; and therefore may erect courts, (wherein he hath a legal ubiquity,) prosecute offenders, pardon crimes, and issue proclamations.............................. 266
      • 10. He is likewise the fountain of honour, of office, and of privilege.............................. 271
      • 11. He is also the arbiter of domestic commerce, (not of foreign, which is regulated by the law of merchants;) and is, therefore, entitled to the erection of public marts, the regulation of weights and measures, and the coinage or legitimation of money.............................. 273
      • 12. The king is, lastly, the supreme head of the church; and, as such, convenes, regulates, and dissolves synods, nominates bishops, and receives appeals in all ecclesiastical causes.............................. 278
    • CHAPTER VIII. Of the King’s Revenue.............................. 281 to 330
      • 1. The king’s revenue is either ordinary or extraordinary. And the ordinary is. I. Ecclesiastical. II. Temporal.............................. Page 281
      • 2. The king’s ecclesiastical revenue consists in, I. The custody of the temporalities of vacant bishoprics. II. Corodies and pensions. III. Extraparochial tithes. IV. The first-fruits and tenths of benefices.............................. 282-286
      • 3. The king’s ordinary temporal revenue consists in, I. The demesne lands of the crown. II. The hereditary excise; being part of the consideration for the purchase of his feodal profits, and the prerogatives of purveyance and pre-emption. III. An annual sum issuing from the duty on wine-licenses; being the residue of the same consideration. IV. His forests. V. His courts of justice. VI. Royal fish. VII. Wrecks, and things jetsam, flotsam, and ligan. VIII. Royal mines. IX. Treasure trove. X. Waifs. XI. Estrays. XII. Forfeitures for offences, and deodands. XIII. Escheats of lands. XIV. The custody of idiots and lunatics.............................. 286-306
      • 4. The king’s extraordinary revenue consists in aids, subsidies, and supplies granted to him by the commons in parliament.............................. 307
      • 5. Heretofore these were usually raised by grants of the (nominal) tenth or fifteenth part of the movables in every township; or by scutages, hydages, and talliages; which were succeeded by subsidies assessed upon individuals with respect to their lands and goods.............................. 308
      • 6. A new system of taxation took place about the time of the revolution: our modern taxes are, therefore, I. Annual. II. Perpetual.............................. 308
      • 7. The annual taxes are, I. The land-tax, or the ancient subsidy raised upon a new assessment. II. The malt-tax, being an annual excise on malt, mum, cider, and perry.............................. 308-313
      • 8. The perpetual taxes are, I. The customs, or tonnage and poundage of all merchandise exported or imported. II. The excise duty, or inland imposition, on a great variety of commodities. III. The salt duty, or excise on salt. IV. The post-office, or duty for the carriage of letters. V. The stamp duty on paper, parchment, &c. VI. The duty on houses and windows. VII. The duty on licenses for hackney coaches and chairs. VIII. The duty on offices and pensions.............................. 313-326
      • 9. Part of this revenue is applied to pay the interest of the national debt, till the principal is discharged by parliament..... 326
      • 10. The produce of these several taxes were originally separate and specific funds, to answer specific loans upon their respective credits, but are now consolidated by parliament into three principal funds, the aggregate, general, and South-Sea funds, to answer all the debts of the nation: the public faith being also superadded, to supply deficiencies and strengthen the security of the whole.............................. 329
      • 11. The surpluses of these funds, after paying the interest of the national debt, are carried together, and denominated the sinking fund; which, unless otherwise appropriated by parliament, is annually to be applied towards paying off some part of the principal.............................. Page 330
      • 12. But, previous to this, the aggregate fund is now charged with an annual sum for the civil list; which is the immediate proper revenue of the crown, settled by parliament on the king at his accession, for defraying the charges of civil government.............................. 330
    • CHAPTER IX. Of Subordinate Magistrates.............................. 338 to 365
      • 1. Subordinate magistrates, of the most general use and authority, are, I. Sheriffs II. Coroners. III. Justices of the peace. IV. Constables. V. Surveyors of the highways. VI. Overseers of the poor...... 338-339
      • 2. The sheriff is the keeper of each county, annually nominated in due form by the king; and is (within his county) a judge, a conservator of the peace, a ministerial officer, and the king’s bailiff.............................. 339
      • 3. Coroners are permanent officers of the crown, in each county, elected by the freeholders; whose office it is to make inquiry concerning the death of the king’s subjects, and certain revenues of the crown; and also, in particular cases, to supply the office of sheriff.............................. 346
      • 4. Justices of the peace are magistrates in each county, statutably qualified, and commissioned by the king’s majesty; with authority to conserve the peace, to hear and determine felonies and other misdemeanours, and to do many other acts, committed to their charge by particular statutes.............................. 349
      • 5. Constables are officers of hundreds and townships, appointed at the leet, and empowered to preserve the peace, to keep watch and ward, and to apprehend offenders.............................. 355
      • 6. Surveyors of the highways are officers appointed annually in every parish; to remove annoyances in, and to direct the reparation of, the public roads.............................. 357
      • 7. Overseers of the poor are officers appointed annually in every parish; to relieve such impotent and employ such sturdy poor as are settled in each parish, by birth;—by parentage;—by marriage;—or by forty days’ residence, accompanied with, I. Notice. II. Renting a tenement of ten pounds’ annual value. III. Paying their assessed taxations. IV. Serving an annual office. V. Hiring and serving for a year. VI. Apprenticeship for seven years. VII. Having a sufficient estate in the parish.............................. 359-365
    • CHAPTER X. Of the People, whether Aliens, Denizens, or Natives.............................. 366 to 375
      • 1. The people are either aliens, that is, born out of the dominions, or allegiance, of the crown of Great Britain; or natives, that is, born within it.............................. 366
      • 2. Allegiance is the duty of all subjects: being the reciprocal tie of the people to the prince, in return for the protection he affords them; and, in natives, this duty of allegiance is natural and perpetual; in aliens, is local and temporary only .............................. Page 366-371
      • 3. The rights of natives are also natural and perpetual: those of aliens local and temporary only; unless they be made denizens by the king, or naturalized by parliament.............................. 371-375
    • CHAPTER XI. Of the Clergy .............................. 376 to 395
      • 1. The people, whether aliens, denizens, or natives, are also either clergy, that is, all persons in holy orders, or in ecclesiastical offices; or laity, which comprehends the rest of the nation .............................. 376
      • 2. The clerical part of the nation, thus defined, are, I. Archbishops and bishops; who are elected by their several chapters, at the nomination of the crown, and afterwards confirmed and consecrated by each other. II. Deans and chapters. III. Archdeacons. IV. Rural deans. V. Parsons (under whom are included appropriators) and vicars; to whom there are generally requisite holy orders, presentation, institution, and induction. VI. Curates. To which may be added, VII. Churchwardens. VIII. Parish clerks and sextons.............................. 377-395
    • CHAPTER XII. Of the Civil State .............................. 396 to 407
      • 1. The laity are divisible into three states: civil, military, and maritime .............................. 396
      • 2. The civil state, which includes all the nation except the clergy, the army, and the navy, (and many individuals among them also,) may be divided into the nobility, and the commonalty .............................. 396
      • 3. The nobility are dukes, marquesses, earls, viscounts, and barons. These had anciently duties annexed to their respective honours; they are created either by writ, that is, by summons to parliament; or by the king’s letters-patent, that is, by royal grant: and they enjoy many privileges exclusive of their senatorial capacity.............................. 396-402
      • 4. The commonalty consist of knights of the garter, knights bannerets, baronets, knights of the Bath, knights bachelors, esquires, gentlemen, yeomen, tradesmen, artificers and labourers.............................. 403-407
    • CHAPTER XIII. Of the Military and Maritime States ... 408 to 417
      • 1. The military state, by the standing constitutional law, consists of the militia of each county, raised from among the people by lot, officered by the principal landholders, and commanded by the lord lieutenant .............................. 408
      • 2. The more disciplined occasional troops of the kingdom are kept on foot only from year to year, by parliament, and, during that period, are governed by martial law, or arbitrary articles of war, formed at the pleasure of the crown.. Page 412
      • 3. The maritime state consists of the officers and mariners of the British navy; who are governed by express and permanent laws, or the articles of the navy, established by act of parliament.............................. 417
    • CHAPTER XIV. Of Master and Servant.............................. 422 to 431
      • 1. The private, economical relations of persons are those of, I. Master and servant. II. Husband and wife. III. Parent and child. IV. Guardian and ward .............................. 422
      • 2. The first relation may subsist between a master and four species of servants, (for slavery is unknown to our laws:) viz. I. Menial servants, who are hired. II. Apprentices, who are bound by indentures. III. Labourers, who are casually employed. IV. Stewards, bailiffs, and factors; who are rather in a ministerial state .............................. 428
      • 3. From this relation result divers powers to the master, and emoluments to the servant.............................. 427
      • 4. The master hath a property in the service of his servant, and must be answerable for such acts as the servant does by his express or implied command.............................. 431
    • CHAPTER XV. Of Husband and Wife.............................. 433 to 442
      • 1. The second private relation is that of marriage: which includes the reciprocal rights and duties of husband and wife... 434
      • 2. Marriage is duly contracted between persons, I. Consenting. II. Free from canonical impediments which make it voidable. III. Free also from the civil impediments,—of prior marriage;—of want of age;—of non-consent of parents or guardians, where requisite;—and of want of reason;—either of which make it totally void. And it must be celebrated by a clergyman in due form and place.............................. 433-440
      • 3. Marriage is dissolved, I. By death. II. By divorce in a spiritual court; not a mensa et thoro only, but a vinculo matrimonii, for canonical cause existing previous to the contract. III. By act of parliament, as, for adultery.............................. 440
      • 4. By marriage the husband and wife become one person in law; which unity is the principal foundation of their respective rights, duties, and disabilities.............................. 442
    • CHAPTER XVI. Of Parent and Child.............................. 446 to 459
      • 1. The third, and most universal, private relation is that of parent and child .............................. 446
      • 2. Children are, I. Legitimate; being those who are born in lawful wedlock, or within a competent time after. II. Bastards, being those who are not so .............................. 44[Editor: Illegible character]
      • 3. The duties of parents to legitimate children are, I. Maintenance. II. Protection. III. Education.............................. Page 447
      • 4. The power of parents consists principally in correction, and consent to marriage. Both may, after death, be delegated by will to a guardian; and the former also, living the parent, to a tutor or master.............................. 452
      • 5. The duties of legitimate children to parents are obedience, protection, and maintenance.............................. 453
      • 6. The duty of parents to bastards is only that of maintenance.............................. 458
      • 7. The rights of a bastard are such only as he can acquire; for he is incapable of inheriting any thing.............................. 459
    • CHAPTER XVII. Of Guardian and Ward.............................. 460 to 464
      • 1. The fourth private relation is that of guardian and ward, which is plainly derived from the preceding; these being, during the continuance of their relation, reciprocally subject to the same rights and duties.............................. 460
      • 2. Guardians are of divers sorts: I. Guardians by nature, or the parents. II. Guardians for nurture, assigned by the ordinary. III. Guardians in socage, assigned by the common law. IV. Guardians by statute, assigned by the father’s will. All subject to the superintendence of the court of Chancery .............................. 461
      • 3. Full age in male or female, for all purposes, is the age of twenty-one years, (different ages being allowed for different purposes;) till which age the person is an infant.............................. 463
      • 4. An infant, in respect to his tender years, hath various privileges, and various disabilities in law; chiefly with regard to suits, crimes, estates, and contracts.............................. 464
    • CHAPTER XVIII. Of Corporations.............................. 467 to 484
      • 1. Bodies politic, or corporations, which are artificial persons, are established for preserving in perpetual succession certain rights; which, being conferred on natural persons only, would fail in process of time.............................. Page 467
      • 2. Corporations are, I. Aggregate, consisting of many members. II. Sole, consisting of one person only.............................. 469
      • 3. Corporations are also either spiritual, erected to perpetuate the rights of the church; or lay. And the lay are, I. Civil; erected for many civil purposes. II. Eleemosynary; erected to perpetuate the charity of the founder.............................. 470
      • 4. Corporations are usually erected, and named, by virtue of the king’s royal charter; but may be created by act of parliament.............................. 472
      • 5. The powers incident to all corporations are, I. To maintain perpetual succession. II. To act in their corporate capacity like an individual. III. To hold lands, subject to the statutes of mortmain. IV. To have a common seal. V. To make by-laws. Which last power, in spiritual or eleemosynary corporations, may be executed by the king or the founder.............................. 475
      • 6. The duty of corporations is to answer the ends of their institution.............................. 479
      • 7. To enforce this duty, all corporations may be visited: spiritual corporations by the ordinary; lay corporations by the founder, or his representatives; viz., the civil by the king (who is the fundator incipiens of all) represented in his court of King’s Bench; the eleemosynary by the endower, (who is the fundator perficiens of such,) or by his heirs or assigns.............................. 480
      • 8. Corporations may be dissolved, I. By act of parliament. II. By the natural death of all their members. III. By the surrender of their franchises. IV. By forfeiture of their charter.............................. 484

CONTENTS OF THE ANALYSIS OF BOOK II. THE RIGHTS OF THINGS.

  • Which consist in dominion over.............................. Chapter L
    • 1. Things real; in which are considered
      • I. Their several kinds; viz.
        • 1. Corporeal .............................. II.
        • 2. Incorporeal .............................. III.
      • 2. The tenures by which they may be holden; viz.............................. IV.
        • 1. Ancient .............................. V.
        • 2. Modern.............................. VI.
      • 3. Estates therein; with respect to
        • 1. Quantity of interest; viz.
          • 1. Freehold,
            • 1. Of inheritance.............................. VII.
            • 2. Not of inheritance.............................. VIII.
          • 2. Less than freehold.............................. IX.
          • 3. On condition.............................. X.
        • 2. Time of enjoyment; in
          • 1. Possession,
          • 2. Remainder,
          • 3. Reversion.............................. XI.
        • 3. Number and connections of the tenants; who may hold in
          • 1. Severalty,
          • 2. Joint-tenancy,
          • 3. Coparcenary,
          • 4. Common .............................. XII.
      • 4. Title to them; which may be gained or lost by.............................. XIII.
        • 1. Descent.............................. XIV.
        • 2. Purchase; which includes
          • 1. Escheat.............................. XV.
          • 2. Occupancy.............................. XVI.
          • 3. Prescription .............................. XVII.
          • 4. Forfeiture .............................. XVIII.
          • 5. Alienation, by common assurances; which are.............................. XIX.
            • 1. Deed, or matter in pais; wherein of its
              • 1. General nature,
              • 2. Several species.............................. XX.
            • 2. Matter of record.............................. XXI.
            • 3. Special custom .............................. XXII.
            • 4. Devise.............................. XXIII.
    • II. Things personal, or chattels; in which are considered
      • 1. Their distribution.............................. XXIV.
      • 2. Property therein.............................. XXV.
      • 3. Title to them; which may be gained or lost by
        • 1. Occupancy.............................. XXVI.
        • 2. Prerogative,
        • 3. Forfeiture.............................. XXVII.
        • 4. Custom.............................. XXVIII.
        • 5. Succession,
        • 6. Marriage,
        • 7. Judgment.............................. XXIX.
        • 8. Grant,
        • 9. Contract.............................. XXX.
        • 10. Bankruptcy.............................. XXXI.
        • 11. Téstament,
        • 12. Administration.............................. XXXII.

ANALYSIS.

  • BOOK II.—OF THE RIGHTS OF THINGS.
    • CHAPTER I. Of Property in general .............................. Page 2 to 14
      • 1. All dominion over external objects has its original from the gift of the Creator to man in general .............................. 2
      • 2. The substance of things was, at first, common to all mankind; yet a temporary property in the use of them might even then be acquired and continued by occupancy .............................. 3
      • 3. In process of time a permanent property was established in the substance, as well as the use, of things; which was also originally acquired by occupancy only.............................. 4, 5
      • 4. Lest this property should determine by the owner’s dereliction, or death, whereby the thing would again become common, societies have established conveyances, wills, and heirships, in order to continue the property of the first occupant; and where, by accident, such property becomes discontinued or unknown, the thing usually results to the sovereign of the state, by virtue of the municipal law.............................. 9-11
      • 5. But of some things, which are incapable of permanent substantial dominion, there still subsists only the same transient usufructuary property which originally subsisted in all things.............................. 14
    • CHAPTER II. Of Real Property; and, 1st. Of Corporeal Hereditaments .............................. 16 to 18
      • 1. In this property, or exclusive dominion, consist the rights of things; which are, I. Things real. II. Things personal.............................. 16
      • 2. In things real may be considered, I. Their several kinds. II. The tenures by which they may be holden. III. The estates which may be acquired therein. IV. Their title, or the means of acquiring and losing them.............................. 16
      • 3. All the several kinds of things real are reducible to one of these three, viz. lands, tenements, or hereditaments; whereof the second includes the first, and the third includes the first and second .............................. 16
      • 4. Hereditaments, therefore, or whatever may come to be inherited, (being the most comprehensive denomination of things real,) are either corporeal or incorporeal .............................. 17
      • 5. Corporeal hereditaments consist wholly of lands, in their largest legal sense; wherein they include not only the face of the earth, but every other object of sense adjoining thereto, and subsisting either above or beneath it.............................. 17, 18
    • CHAPTER III. Of Incorporeal Hereditaments .............................. Page 20 to 42
      • 1. Incorporeal hereditaments are rights issuing out of things corporeal, or concerning, or annexed to, or exercisable within, the same.............................. 20
      • 2. Incorporeal hereditaments are, I. Advowsons. II. Tithes. III. Commons. IV. Ways. V. Offices. VI. Dignities. VII. Franchises. VIII. Corodies or pensions. IX. Annuities. X. Rents.............................. 21-41
      • 3. An advowson is a right of presentation to an ecclesiastical benefice; either appendant, or in gross. This may be, I. Presentative. II. Collative. III. Donative .............................. 21-23
      • 4. Tithes are the tenth part of the increase yearly arising from the profits and stock of lands and the personal industry of mankind. These, by the ancient and positive law of the land, are due of common right to the parson, or (by endowment) to the vicar; unless specially discharged, I. By real composition. II. By prescription, either de modo decimandi, or de non decimando .............................. 24-31
      • 5. Common is a profit which a man hath in the lands of another; being, I. Common of pasture; which is either appendant, appurtenant because of vicinage, or in gross. II. Common of piscary. III. Common of turbary. IV. Common of estovers, or botes.............................. 32-35
      • 6. Ways are a right of passing over another man’s ground .............................. 35
      • 7. Offices are the right to exercise a public, or private, employment .............................. 36
      • 8. For dignities, which are titles of honour, see Book I. Ch. XII.
      • 9. Franchises are a royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject .............................. 37
      • 10. Corodies are allotments for one’s sustenance; which may be converted into pensions. (See Book I. Ch. VIII.) .............................. 40
      • 11. An annuity is a yearly sum of money, charged upon the person, and not upon the lands, of the grantor.............................. 40
      • 12. Rents are a certain profit issuing yearly out of lands and tenements, and are reducible to, I. Rent-service. II. Rent-charge. III. Rent-seek.............................. 41-42
    • CHAPTER IV. Of the Feodal System .............................. 44 to 53
      • 1. The doctrine of tenures is derived from the feodal law; which was planted in Europe by its Northern conquerors at the dissolution of the Roman empire .............................. 44-45
      • 2. Pure and proper feuds were parcels of land allotted by a chief to his followers; to be held on the condition of personally rendering due military service to their lord .............................. Page 45
      • 3. These were granted by investiture; were held under the bond of fealty; were in heritable only by descendants, and could not be transferred without the mutual consent of the lord and vassal .............................. 53-57
      • 4. Improper feuds were derived from the other, but differed from them in their original, their services and renders, their descent, and other circumstances .............................. 58
      • 5. The lands of England were converted into feuds, of the improper kind, soon after the Norman conquest: which gave rise to the grand maxim of tenure; viz. that all lands in the kingdom are holden, mediately or immediately, of the king .............................. 48-53
    • CHAPTER V. Of the Ancient English Tenures .............................. 61 to 77
      • 1. The distinction of tenures consisted in the nature of their services: as, I. Chivalry, or knight-service; where the service was free, but uncertain. II. Free socage; where the service was free, and certain. III. Pure villenage; where the service was base, and uncertain. IV. Privileged villenage, or villein socage; where the service was base, but certain 61-78
      • 2. The most universal ancient tenure was that in chivalry, or by knight-service; in which the tenant of every knight’s fee was bound, if called upon, to attend his lord to the wars. This was granted by livery, and perfected by homage and fealty; which usually drew after them suit of court.............................. 62
      • 3. The other fruits and consequences of the tenure by knight-service were, I. Aid. II. Relief. III. Primer seisin. IV. Wardship. V. Marriage. VI. Fines upon alienation. VII. Escheat.............................. 63-72
      • 4. Grand serjeanty differed from chivalry principally in its render, or service, and not in its fruits and consequences .............................. 73
      • 5. The personal service in chivalry was at length gradually changed into pecuniary assessments, which were called scutage or escuage.............................. 74
      • 6. These military tenures (except the services of grand serjeanty) were, at the restoration of King Charles, totally abolished, and reduced to free socage, by act of parliament.............................. 77
    • CHAPTER VI. Of the Modern English Tenures .............................. 78 to 101
      • 1. Free socage is a tenure by any free, certain, and determinate service.............................. 78
      • 2. This tenure, the relic of Saxon liberty, includes petit serjeanty, tenure in burgage, and gavelkind.............................. 81
      • 3. Free-socage lands partake strongly of the feodal nature, as well as those in chivalry; being holden subject to some service,—at the least, to fealty and suit of court; subject to relief, to wardship, and to escheat, but not to marriage; subject also formerly to aids, primer seisin, and fines for alienation .............................. Page 86-88
      • 4. Pure villenage was a precarious and slavish tenure, at the absolute will of the lord, upon uncertain services of the basest nature.............................. 93
      • 5. From hence, by tacit (consent or encroachment, have arisen the modern copyholds, or tenure by copy of courtroll; in which lands may be still held at the (nominal) will of the lord, (but regulated) according to the custom of the manor .............................. 95
      • 6. These are subject, like socage lands, to services, relief, and escheat; and also to heriots, wardship, and fines upon descent and alienation .............................. 97
      • 7. Privileged villenage, or villein socage, is an exalted species of copyhold tenure, upon base but certain services; subsisting only in the ancient demesnes of the crown; whence the tenure is denominated the tenure in ancient demesne .............................. 98
      • 8. These copyholds of ancient demesne have divers immunities annexed to their tenure; but are still held by copy of court-roll, according to the custom of the manor, though not at the will of the lord .............................. 100
      • 9. Frankalmoign is a tenure by spiritual services at large; whereby many ecclesiastical and eleemosynary corporations now hold their lands and tenements: being of a nature distinct from tenure by divine service in certain .............................. 101
    • CHAPTER VII. Of Freehold Estates of Inheritance .............................. 103 to 117
      • 1. Estates in lands, tenements, and hereditaments are such interest as the tenant hath therein; to ascertain which, may be considered, I. The quantity of interest. II. The time of enjoyment. III. The number and connections of the tenants .............................. 103 to 119
      • 2. Estates, with respect to their quantity of interest, or duration, are either freehold or less than freehold .............................. 104
      • 3. A freehold estate, in lands, is such as is created by livery of seisin at common law; or, in tenements of an incorporeal nature, by what is equivalent thereto .............................. 104
      • 4. Freehold estates are either estates of inheritance, or not of inheritance, viz. for life only: and inheritances are, I. Absolute, or free-simple. II. Limited fees .............................. 104
      • 5. Tenant in fee-simple is he that hath lands, tenements, or hereditaments to hold to him and his heirs forever.............................. 104
      • 6. Limited fees are, I. Qualified, or base, fees. II. Fees conditional at the common law .............................. 109
      • 7. Qualified, or base, fees are those which, having a qualification subjoined thereto, are liable to be defeated when that qualification is at an end.............................. 109
      • 8. Conditional fees, at the common law, were such as were granted to the donee, and the heirs of his body, in exclusion of collateral heirs .............................. Page 110
      • 9. These were held to be fees, granted on condition that the donee had issue of his body; which condition being once performed by the birth of issue, the donee might immediately aliene the land; but, the statute de donis being made to prevent such alienation, thereupon, from the division of the fee (by construction of this statute) into a particular estate and reversion, the conditional fees began to be called fees-tail.............................. 111, 112
      • 10. All tenements real, or savouring of the realty, are subject to entails .............................. 113
      • 11. Estates-tail may be, I. general, or special; II. male, or female; III. given in frank-marriage.............................. 113-115
      • 12. Incident to estates-tail are, I. Waste. II. Dower. III. Curtesy. IV. Bar,—by fine, recovery, or lineal warranty with assets.............................. 115
      • 13. Estates-tail are now, by many statutes and resolutions of the courts, almost brought back to the state of conditional fees at the common law .............................. 117
    • CHAPTER VIII. Of Freeholds not of Inheritance .............................. 120 to 136
      • 1. Freeholds not of inheritance, or for life only, are, I. Conventional, or created by the act of the parties. II. Legal, or created by operation of law .............................. 120
      • 2. Conventional estates for life are created by an express grant for term of one’s own life, or pur auter vie; or by a general grant, without expressing any term at all .............................. 120
      • 3. Incident to this, and all other estates for life, are estovers, and emblements; and to estates pur auter vie general occupancy was also incident; as special occupancy still is, if cestuy que vie survives the tenant .............................. 122
      • 4. Legal estates for life are, I. Tenancy in tail, after possibility of issue extinct. II. Tenancy by the curtesy of England. III. Tenancy in dower .............................. 124-129
      • 5. Tenancy in tail after possibility of issue extinct is where an estate is given in special tail, and, before issue had, a person dies from whose body the issue was to spring; whereupon the tenant (if surviving) becomes tenant in tail after possibility of issue extinct.............................. 124
      • 6. This estate partakes both of the incidents to an estate-tail, and those of an estate for life .............................. 125
      • 7. Tenancy by the curtesy of England is where a man’s wife is seised of an estate of inheritance, and he by her has issue, born alive, which was capable of inheriting her estate: in which case, he shall, upon her death, hold the tenements for his own life, as tenant by the curtesy .............................. 126
      • 8. Tenancy in dower is where a woman’s husband is seised of an estate of inheritance, of which her issue might by any possibility have been heir; and the husband dies: the woman is hereupon entitled to dower, or one-third part of the lands and tenements, to hold for her natural life .............................. Page 129
      • 9. Dower is either by the common law; by special custom; ad ostium ecclesiæ; or ex assensu patris .............................. 132-38
      • 10. Dower may be forfeited, or barred; particularly by an estate in jointure .............................. 136
    • CHAPTER IX. Of Estates Less than Freehold .............................. 140 to 150
      • 1. Estates less than freehold are, I. Estates for years. II. Estates at will. III. Estates at sufferance.............................. 140-150
      • 2. An estate for years is where a man, seised of lands and tenements, letteth them to another for a certain period of time, which transfers the interest of the term; and the lessee enters thereon, which gives him possession of the term, but not legal seisin of the land.............................. 140
      • 3. Incident to this estate are estovers; and also emblements, if it determines before the full end of the term.............................. 144-45
      • 4. An estate at will is where lands are let by one man to another, to hold at the will of both parties, and the lessee enters thereon .............................. 146
      • 5. Copyholds are estates held at the will of the lord, (regulated) according to the custom of the manor .............................. 147
      • 6. An estate at sufferance is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all.............................. 150
    • CHAPTER X. Of Estates upon Condition .............................. 152 to 161
      • 1. Estates (whether freehold or otherwise) may also be held upon condition; in which case their existence depends on the happening, or not happening, of some uncertain event.............................. 152
      • 2. These estates are, I. On condition implied. II. On condition expressed. III. Estates in gage. IV. Estates by statute, merchant or staple. V. Estates by elegit 152
      • 3. Estates on condition implied are where a grant of an estate has, from its essence and constitution, a condition inseparably annexed to it; though none be expressed in words .............................. 152
      • 4. Estates on condition expressed are where an express qualification or provision is annexed to the grant of an estate.............................. 154
      • 5. On the performance of these conditions, either expressed or implied, (if precedent,) the estate may be vested or enlarged, or, on the breach of them, (if subsequent,) an estate already vested may be defeated .............................. 54-56
      • 6. Estates in gage, in vadio, or in pledge, are estates granted as a security for money lent; being, I. In vivo vadio, or living gage; where the profits of land are granted till a debt be paid, upon which payment the grantor’s estate will revive. II. In mortuo vadio, in dead or mort gage; where an estate is granted on condition to be void at a day certain if the grantor then repays the money borrowed; on failure of which, the estate becomes absolutely dead to the grantor .............................. Page 157
      • 7. Estates by statute merchant or statute staple are also estates conveyed to creditors, in pursuance of certain statutes, till their profits shall discharge the debt 160
      • 8. Estates by elegit are where, in consequence of a judicial writ so called, lands are delivered by the sheriff to a plaintiff till their profits shall satisfy a debt adjudged to be due by law .............................. 161
    • CHAPTER XI. Of Estates in Possession, Remainder, and Reversion .............................. 163 to 177
      • 1. Estates, with respect to their time of enjoyment, are either in immediate possession, or in expectancy: which estates in expectancy are created at the same time, and are parcel of the same estates, as those upon which they are expectant. These are, I. Remainders. II. Reversions.............................. 163
      • 2. A remainder is an estate limited to take effect and be enjoyed after another particular estate is determined .............................. 164
      • 3. Therefore, I. There must be a precedent particular estate, in order to support a remainder. II. The remainder must pass out of the grantor, at the creation of the particular estate. III. The remainder must vest in the grantee, during the continuance, or at the determination, of the particular estate.............................. 165-68
      • 4. Remainders are, I. Vested—where the estate is fixed to remain to a certain person after the particular estate is spent. II. Contingent—where the estate is limited to take effect, either to an uncertain person, or upon an uncertain event .............................. 168-69
      • 5. An executory devise is such a disposition of lands, by will, that an estate shall not vest thereby at the death of the devisor, but only upon some future contingency; and without any precedent particular estate to support it.............................. 172
      • 6. A reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted; to which are incident fealty, and rent .............................. 176
      • 7. Where two estates, the one less, the other greater, the one in possession, the other in expectancy, meet together in one and the same person and in one and the same right, the less is merged in the greater.............................. 177
    • CHAPTER XII. Of Estates in Severalty, Joint-Tenancy, Coparcenary, and Common .............................. 179 to 195
      • 1. Estates, with respect to the number and connections of their tenants, may be held, I. In severalty. II. In joint-tenancy. III. In coparcenary. IV. In common .............................. 179
      • 2. An estate in severalty is where one tenant holds it in his own sole right, without any other person being joined with him.............................. Page 179
      • 3. An estate in joint-tenancy is where an estate is granted to two or more persons; in which case the law construes them to be joint-tenants, unless the words of the grant expressly exclude such construction 180
      • 4. Joint-tenants have a unity of interest, of title, of time, and of possession: they are seised per my et per tout: and therefore, upon the decease of one joint-tenant, the whole interest remains to the survivor.............................. 182
      • 5. Joint-tenancy may be dissolved, by destroying one of its four constituent unities 185
      • 6. An estate in coparcenary is where an estate of inheritance descends from the ancestor to two or more persons; who are called parceners, and all together make but one heir.............................. 187
      • 7. Parceners have a unity of interest, title, and possession; but are only seised per my, and not per tout: wherefore there is no survivorship among parceners.............................. 188
      • 8. Incident to this estate is the law of hotchpot.............................. 190
      • 9. Coparcenary may also be dissolved by destroying any of its three constituent unities .............................. 191
      • 10. An estate in common is where two or more persons hold lands, possibly by distinct titles, and for distinct interests, but by unity of possession, because none knoweth his own severalty.............................. 191
      • 11. Tenants in common have therefore a unity of possession, (without survivorship; being seised per my, and not per tout, ) but no necessary unity of title, time, or interest.............................. 191
      • 12. This estate may be created. I. By dissolving the constituent unities of the two former; II. By express limitation in a grant; and may be destroyed, I. By uniting the several titles in one tenant; II. By partition of the land.............................. 191-194
    • CHAPTER XIII. Of the Title to Things Real, in General .............................. 195 to 199
      • 1. A title to things real is the means whereby a man cometh to the just possession of his property.............................. 195
      • 2. Herein may be considered, I. A mere or naked possession. II. The right of possession; which is, 1st, an apparent, 2dly, an actual, right. III. The mere right of property. IV. The conjunction of actual possession with both these rights; which constitutes a perfect title .............................. 195-199
    • CHAPTER XIV. Of Title by Descent .............................. 200 to 234
      • 1. The title to things real may be reciprocally acquired or lost, I. By descent. II. By purchase .............................. 200
      • 2. Descent is the means whereby a man, on the death of his ancestor, acquires a title to his estate, in right of representation, as his heir-at-law.............................. 201
      • 3. To understand the doctrine of descents, we must form a clear notion of consanguinity; which is the connection or relation of persons descended from the same stock or common ancestor; and it is, I. Lineal, where one of the kinsmen is lineally descended from the other. II. Collateral, where they are lineally descended, not one from the other, but both from the same common ancestor. Page 203-204
      • 4. The rules of descent, or canons of inheritance, observed by the laws of England, are these:
        • Inheritances shall lineally descend, to the issue of the person last actually seised, in infinitum; but shall never lineally ascend.............................. 208
        • The male issue shall be admitted before the female.............................. 212
        • Where there are two or more males of equal degree, the eldest only shall inherit; but the females all together.............................. 214
        • The lineal descendants, in infinitum, of any person deceased, shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living.............................. 216
        • On failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to the blood of the first purchasor; subject to the three preceding rules. To evidence which blood, the two following rules are established.............................. 220
        • The collateral heir of the person last seised must be his next collateral kinsman of the whole blood .............................. 224
        • In collateral inheritances, the male stock shall be preferred to the female; that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female; unless where the lands have in fact descended from a female.............................. 234
    • CHAPTER XV. Of Title by Purchase; and, first, by Escheat .............................. 241 to 257
      • 1. Purchase, or perquisition, is the possession of an estate which a man hath by his own act or agreement, and not by the mere act of law, or descent from any of his ancestors. This includes, I. Escheat. II. Occupancy. III. Prescription. IV. Forfeiture. V. Alienation.............................. 241-244
      • 2. Escheat is where, upon deficiency of the tenant’s inheritable blood, the estate falls to the lord of the fee.............................. 244
      • 3. Inheritable blood is wanting to, I. Such as are not related to the person last seised. II. His maternal relations in paternal inheritances, and vice versâ. III. His kindred of the half-blood. IV. Monsters. V. Bastards. VI. Aliens, and their issue. VII. Persons attainted of treason or felony. VIII. Papists, in respect of themselves only, by the statute law.............................. 246-257
    • CHAPTER XVI. Of Title by Occupancy .............................. 258-261
      • 1. Occupancy is the taking possession of those things which before had no owner.............................. Page 258
      • 2. Thus, at the common law, where tenant pur auter vie died during the life of cestuy que vie, he who could first enter might lawfully retain the possession; unless by the original grant the heir was made a special occupant.............................. 259
      • 3. The law of derelictions and alluvions has narrowed the title by occupancy.............................. 261
    • CHAPTER XVII. Of Title by Prescription .............................. 261
      • 1. Prescription (as distinguished from custom) is a personal immemorial usage of enjoying a right in some incorporeal hereditament, by a man, and either his ancestors or those whose estate of inheritance he hath; of which the first is called prescribing in his ancestors, the latter, in a que estate .............................. 263
    • CHAPTER XVIII. Of Title by Forfeiture .............................. 267 to 286
      • 1. Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of things real; whereby the estate is transferred to another, who is usually the party injured.............................. 267
      • 2. Forfeitures are occasioned, I. By crimes. II. By alienation contrary to law. III. By lapse. IV. By simony. V. By non-performance of conditions. VI. By waste. VII. By breach of copyhold customs. VIII. By bankruptcy.............................. 267
      • 3. Forfeitures for crimes, or misdemeanours, are for, I. Treason. II. Felony. III. Misprision of treason. IV. Præmunire. V. Assaults on a judge, and batteries, sitting the courts. VI. Popish recusancy, &c.............................. 267
      • 4. Alienations or conveyances which induce a forfeiture are, I. Those in mortmain, made to corporations contrary to the statute law. II. Those made to aliens. III. Those made by particular tenants, when larger than their estates will warrant .............................. 268-274
      • 5. Lapse is a forfeiture of the right of presentation to a vacant church, by neglect of the patron to present within six calendar months .............................. 276
      • 6. Simony is the corrupt presentation of any one to an ecclesiastical benefice, whereby that turn becomes forfeited to the crown.............................. 278
      • 7. For forfeiture by non-performance of conditions, see Ch. X.
      • 8. Waste is a spoil, or destruction, in any corporeal hereditaments, to the prejudice of him that hath the inheritance.............................. 281
      • 9. Copyhold estates may have also other peculiar causes of forfeiture, according to the custom of the manor .............................. 284
      • 10. Bankruptcy is the act of becoming a bankrupt; that is, a trader who secretes himself, or does certain other acts tending to defraud his creditors. (See Ch. XXII.) .............................. 284
      • 11. By bankruptcy, all the estates of the bankrupt are transferred to the assignees of his commissioners, to be sold for the benefit of his creditors .............................. Page 286
    • CHAPTER XIX. Of Title by Alienation .............................. 287 to 294
      • 1. Alienation, conveyance, or purchase, in its more limited sense, is a means of transferring real estates, wherein they are voluntarily resigned by one man and accepted by another .............................. 287
      • 2. This formerly could not be done by a tenant, without license from his lord; nor by a lord, without attornment of his tenant 287
      • 3. All persons are capable of purchasing; and all that are in possession of any estates are capable of conveying them;—unless under peculiar disabilities by law: as being attainted, non compotes, infants, under duress, feme-coverts, aliens, or papists.............................. 288-293
      • 4. Alienations are made by common assurances; which are, I. By deed, or matter in pais. II. By matter of record. III. By special custom. IV. By devise.............................. 293-294
    • CHAPTER XX. Of Alienation by Deed .............................. 295 to 342
      • 1. In assurances by deed may be considered, I. Its general nature. II. Its several species .............................. 295
      • 2. A deed, in general, is the solemn act of the parties: being, usually, a writing sealed and delivered: and it may be, I. A deed indented, or indenture. II. A deed-poll .............................. 295-296
      • 3. The requisites of a deed are, I. Sufficient parties, and proper subject-matter. II. A good and sufficient consideration. III. Writing on paper, or parchment, duly stamped. IV. Legal and orderly parts; which are usually, 1st, the premises; 2dly, the habendum; 3dly, the tenendum; 4thly, the reddendum; 5thly, the conditions; 6thly, the warranty, (which is either lineal or collateral); 7thly, the covenants; 8thly, the conclusion, (which includes the date.) V. Reading it, if desired. VI. Sealing, and, in many cases, signing it also. VII. Delivery. VIII. Attestation.............................. 296-307
      • 4. A deed may be avoided, I. By the want of any of the requisites before mentioned. II. By subsequent matter: as, 1st, rasure, or alteration; 2dly, defacing its seal; 3dly, cancelling it; 4thly, disagreement of those whose consent is necessary; 5thly, judgment of a court of justice.............................. 308
      • 5. Of the several species of deeds, some serve to convey real property, some only to charge and discharge it .............................. 309
      • 6. Deeds which serve to convey real property, or conveyances, are either by common law, or by statute. And, of conveyances by common law, some are original or primary, others derivative or secondary 309
      • 7. Original conveyances are, I. Feoffments. II. Gifts. III. Grants. IV. Leases. V. Exchanges. VI. Partitions.—Derivative are, VII. Releases. VIII. Confirmations. IX. Surrenders. X. Assignments. XI. Defeazances.............................. Page 310
      • 8. A feoffment is the transfer of any corporeal hereditament to another, perfected by livery of seisin, or delivery of bodily possession from the feoffor to the feoffee; without which no freehold estate therein can be created at common law .............................. 310
      • 9. A gift is properly the conveyance of lands in tail.............................. 816
      • 10. A grant is the regular method, by common law, of conveying incorporeal hereditaments.............................. 317
      • 11. A lease is the demise, granting, or letting to farm of any tenement, usually for a less term than the lessor hath therein; yet sometimes possibly for a greater; according to the regulations of the restraining and enabling statutes.............................. 317
      • 12. An exchange is the mutual conveyance of equal interests, the one in consideration of the other.............................. 323
      • 13. A partition is the division of an estate held in joint-tenancy, in coparcenary, or in common, between the respective tonants; so that each may hold his distinct part in severalty .............................. 323
      • 14. A release is the discharge or conveyance of a man’s right in lands and tenements to another that hath some former estate in possession therein.............................. 324
      • 15. A confirmation is the conveyance of an estate or right in esse, whereby a voidable estate is made sure, or a particular estate is increased.............................. 325
      • 16. A surrender is the yielding up of an estate for life, or years, to him that hath the immediate remainder or reversion; wherein the particular estate may merge 326
      • 17. An assignment is the transfer, or making over to another, of the whole right one has in any estate; but usually in a lease, for life or years.............................. 326
      • 18. A defeazance is a collateral deed, made at the same time with the original conveyance; containing some condition upon which the estate may be defeated .............................. 327
      • 19. Conveyances by statute depend much on the doctrine of uses and trusts; which are a confidence reposed in the terre-tenant, or tenant of the land, that he shall permit the profits to be enjoyed, according to the directions of cestuy que use, or cestuy que trust .............................. 327
      • 20. The statute of uses, having transferred all uses into actual possession, (or, rather, having drawn the possession to the use,) has given birth to divers other species of conveyance: I. A covenant to stand seised to uses. II. A bargain and sale, enrolled. III. A lease and release. IV. A deed to lead or declare the use of other more direct conveyances. V. A revocation of uses; being the execution of a power, reserved at the creation of the use, of recalling at a future time the use or estate so creating. All which owe their present operation principally to the statute of uses.............................. 337-339
      • 21. Deeds which do not convey, but only charge real property, and discharge it, are, I. Obligations. II. Recognizances. III. Defeazances upon both .............................. Page 340-342
    • CHAPTER XXI. Of Alienation by Matter of Record. 344 to 363
      • 1. Assurances by matter of record are, where the sanction of some court of record is called in to substantiate and witness the transfer of real property. These are, I. Private acts of parliament. II. The king’s grants. III. Fines. IV. Common recoveries.............................. 344
      • 2. Private acts of parliament are a species of assurances, calculated to give (by the transcendent authority of parliament) such reasonable powers or relief as are beyond the reach of the ordinary course of law .............................. 344
      • 3. The king’s grants, contained in charters or letters-patent, are all entered on record, for the dignity of the royal person and security of the royal revenue.............................. 346
      • 4. A fine (sometimes said to be a feoffment of record) is an amicable composition and agreement of an actual or fictitious suit; whereby the estate in question is acknowledged to be the right of one of the parties 348
      • 5. The parts of a fine are, I. The writ of covenant. II. The license to agree. III. The concord. IV. The note. V. The foot. To which the statute hath added, VI. Proclamations .............................. 350-352
      • 6. Fines are of four kinds: I. Sur cognizance de droit, come ceo que il ad de son done. II. Sur cognizance de droit tantum. III. Sur concessit. IV. Sur done, grant, et render; which is a double fine .............................. 353
      • 7. The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizee, by barring the respective rights of parties, privies, and strangers .............................. 354
      • 8. A common recovery is by an actual, or fictitious, suit or action for land, brought against the tenant of the freehold; who thereupon vouches another, who undertakes to warrant the tenant’s title; but upon such vouchee’s making default, the land is recovered by judgment at law against the tenant; who, in return, obtains judgment against the vouchee to recover lands of equal value in recompense.............................. 357-359
      • 9. The force and effect of a recovery are to assure lands to the recoveror, by barring estates tail, and all remainders and reversions expectant thereon; provided the tenant in tail either suffers, or is vouched in such recovery.............................. 361
      • 10. The uses of a fine or recovery may be directed by, I. Deeds to lead such uses; which are made previous to the levying or suffering them. II. Deeds to declare the uses; which are made subsequent.............................. 363
    • CHAPTER XXII. Of Alienation by Special Custom .............................. 365 to 371
      • 1. Assurances by special custom are confined to the transfer of copyhold estates.............................. 365
      • 2. This is effected by, I. Surrender by the tenant into the hands of the lord to the use of another, according to the custom of the manor. II. Presentment, by the tenants, or homage, of such surrender. III. Admittance of the surrenderee by the lord, according to the uses expressed in such surrender .............................. Page 368-370
      • 3. Admittance may also be had upon original grants to the tenant from the lord, and upon descents to the heir from the ancestor.............................. 371
    • CHAPTER XXIII. Of Alienation by Devise .............................. 378 to 381
      • 1. Devise is a disposition of lands and tenements, contained in the last will and testament of the owner.............................. 373
      • 2. This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law, under Henry VIII.: since made more universal by the statute of tenures under Charles II., with the introduction of additional solemnities by the statute of frauds and perjuries in the same reign.............................. 375-370
      • 3. The construction of all common assurances should be, I. Agreeable to the intention, II. to the words, of the parties. III. Made upon the entire deed. IV. Bearing strongest against the contractor V. Conformable to law. VI. Rejecting the latter of two totally repugnant clauses in a deed, and the former in a will. VII. Most favourable in case of a devise .............................. 379-381
    • CHAPTER XXIV. Of Things Personal .............................. 384 to 387
      • 1. Things personal are comprehended under the general name of chattels; which include whatever wants either the duration, or the immobility, attending things real.............................. 384
      • 2. In these are to be considered, I. Their distribution. II. The property of them. III. The title to that property.............................. 384-387
      • 3. As to the distribution of chattels, they are, I. Chattels real. II. Chattels personal.............................. 386
      • 4. Chattels real are such quantities of interest, in things immovable, as are short of the duration of freeholds; being limited to a time certain, beyond which they cannot subsist. (See Ch. IX.).............................. 386
      • 5. Chattels personal are things movable, which may be transferred from place to place, together with the person of the owner .............................. 387
    • CHAPTER XXV. Of Property in Things Personal .............................. 389 to 398
      • 1. Property in chattels personal is either in possession or in action .............................. 389
      • 2. Property in possession, where a man has the actual enjoyment of the thing, is, I. Absolute. II. Qualified.............................. 389
      • 3. Absolute property is where a man has such an exclusive right in the thing that it cannot cease to be his, without his own act or default.............................. 389
      • 4. Qualified property is such as is not, in its nature, permanent; but may sometimes subsist, and at other times not subsist.............................. Page 391
      • 5. This may arise, I. Where the subject is incapable of absolute ownership. II. From the peculiar circumstances of the owners .............................. 391-396
      • 6. Property in action is where a man hath not the actual occupation of the thing; but only a right to it, arising upon some contract and recoverable by an action at law. .............................. 396
      • 7. The property of chattels personal is liable to remainders, expectant on estates for life; to joint-tenancy, and to tenancy in common.............................. 398
    • CHAPTER XXVI. Of Title to Things Personal by Occupancy .............................. 400 to 407
      • 1. The title to things personal may be acquired or lost by, I. Occupancy. II. Prerogative. III. Forfeiture. IV. Custom. V. Succession. VI. Marriage. VII. Judgment. VIII. Gift, or Grant. IX. Contract. X. Bankruptcy. XI. Testament. XII. Administration .............................. 400
      • 2. Occupancy still gives the first occupant a right to those few things which have no legal owner, or which are incapable of permanent ownership. Such as, I. Goods of alien enemies. II. Things found. III. The benefit of the elements. IV. Animals feræ naturæ. V. Emblements. VI. Things gained by accession;—or, VII. By confusion. VIII. Literary property.............................. 400-407
    • CHAPTER XXVII. Of Title by Prerogative, and Forfeiture .............................. 408 to 421
      • 1. By prerogative is vested in the crown, or its grantees, the property of the royal revenue, (see book I., ch. VIII.;) and also the property of all game in the kingdom, with the right of pursuing and taking it.............................. 408-419
      • 2. By forfeiture, for crimes and misdemeanours, the right of goods and chattels may be transferred from one man to another; either in part or totally .............................. 420
      • 3. Total forfeitures of goods arise from conviction of, I. Treason, and Misprision thereof. II. Felony. III. Excusable homicide. IV. Outlawry for treason or felony. V. Flight. VI. Standing mute. VII. Assaults on a judge, and batteries, sitting the courts. VIII. Præmunire. IX. Pretended prophecies. X. Owling. XI. Residing abroad of artificers. XII. Challenges to fight for debts at play.............................. 421
    • CHAPTER XXVIII. Of Title by Custom .............................. 422 to 427
      • 1. By custom, obtaining in particular places, a right may be acquired in chattels; the most usual of which customs are those relating to, I. Heriots. II. Mortuaries. III. Heir-looms.............................. 422
      • 2. Heriots are either heriot-service, which differs little from a rent; or heriot-custom, which is a customary tribute, of goods and chattels, payable to the lord of the fee on the decease of the owner of lands .............................. Page 423
      • 3. Mortuaries are a customary gift, due to the minister in many parishes, on the death of his parishioners .............................. 425
      • 4. Heir-looms are such personal chattels as descend by special custom to the heir, along with the inheritance of his ancestor 427
    • CHAPTER XXIX. Of Title by Succession, Marriage, and Judgment .............................. 430 to 439
      • 1. By succession the right of chattels is vested in corporations aggregate; and likewise in such corporations sole as are the heads and representatives of bodies aggregate.............................. 430
      • 2. By marriage the chattels real and personal of the wife are vested in the husband, in the same degree of property, and with the same powers, as the wife when sole had over them; provided he reduces them to possession.............................. 433
      • 3. The wife also acquires by marriage a property in her paraphernalia .............................. 435
      • 4. By judgment consequent on a suit at law, a man may, in some cases, not only recover, but originally acquire, a right to personal property. As, I. To penalties recoverable by action popular. II. To damages. III. To costs of suit.............................. 436-439
    • CHAPTER XXX. Of Title by Gift, Grant, and Contract .............................. 440 to 470
      • 1. A gift, or grant, is a voluntary conveyance of a chattel personal in possession, without any consideration or equivalent. 440
      • 2. A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing; and by such contract any personal property (either in possession or in action) may be transferred.............................. 442
      • 3. Contracts may be either express, or implied; either executed, or executory .............................. 448
      • 4. The consideration of contracts is, I. A good consideration. II. A valuable consideration; which is, 1. Do, ut des. 2. Facio, ut facias. 3. Facio, ut des. 4. Do, ut facias .............................. 444-5
      • 5. The most usual species of personal contracts are, I. Sale or exchange. II. Bailment. III. Hiring or borrowing. IV. Debt .............................. 446
      • 6. Sale or exchange is a transmutation of property from one man to another, in consideration of some recompense in value 446
      • 7. Bailment is the delivery of goods in trust, upon a contract, express or implied, that the trust shall be faithfully performed by the bailee .............................. 451
      • 8. Hiring or borrowing is a contract whereby the possession of chattels is transferred for a particular time, on condition that the identical goods (or, sometimes, their value) be restored at the time appointed; together with (in case of hiring) a stipend or price for the use.............................. 452
      • 9. This price, being calculated to answer the hazard, as well as inconvenience, of lending, gives birth to the doctrine of interest, or usury, upon loan; and, consequently, to the doctrine of bottomry or respondentia, and insurance. .............................. Page 453-464
      • 10. Debt is any contract, whereby a certain sum of money becomes due to the creditor. This is, I. A debt of record. II. A debt upon special contract. III. A debt upon simple contract; which last includes paper credit, or bills of exchange, and promissory notes .............................. 464-470
    • CHAPTER XXXI. Of Title by Bankruptcy .............................. 471 to 488
      • 1. Bankruptcy (as defined in Ch. XVIII.) is the act of becoming a bankrupt .............................. 471
      • 2. Herein may be considered, I. Who may become a bankrupt. II. The acts whereby he may become a bankrupt. III. The proceedings on a commission of bankruptcy. IV. How his property is transferred thereby.............................. 471
      • 3. Persons of full age, using the trade of merchandise, by buying and selling, and seeking their livelihood thereby, are liable to become bankrupts for debts of a sufficient amount.............................. 473
      • 4. A trader who endeavours to avoid his creditors, or evade their just demands, by any of the ways specified in the several statutes of bankruptcy, doth thereby commit a bankruptcy .............................. 478
      • 5. The proceedings on a commission of bankrupt, so far as they affect the bankrupt himself, are principally by, I. Petition. II. Commission. III. Declaration of bankruptcy. IV. Choice of assignees. V. The bankrupt’s surrender. VI. His examination. VII. His discovery. VIII. His certificate. IX. His allowance. X. His indemnity.............................. 479-485
      • 6. The property of a bankrupt’s personal estate is, immediately upon the act of bankruptcy, vested by construction of law in the assignees: and they, when they have collected, distribute the whole by equal dividends among all the creditors .............................. 485-488
    • CHAPTER XXXII. Of Title by Testament, and Administration .............................. 489 to 520
      • 1. Concerning testaments and administrations, considered jointly, are to be observed, I. Their original and antiquity. II. Who may make a testament. III. Its nature and incidents. IV. What are executors and administrators. V. Their office and duty .............................. Page 481
      • 2. Testaments have subsisted in England immemorially; whereby the deceased was at liberty to dispose of his personal estate, reserving antiently to his wife and children their reasonable part of his effects.............................. 491
      • 3. The goods of intestates belonged antiently to the king, who granted them to the prelates to be disposed in pious uses: but, on their abuse of this trust, in the times of popery, the legislature compelled them to delegate their power to administrators expressly provided by law .............................. 494-496
      • 4. All persons may make a testament, unless disabled by, I. Want of discretion. II. Want of free will. III. Criminal conduct.............................. 496-497
      • 5. Testaments are the legal declaration of a man’s intentions, which he wills to be performed after his death. These are, I. Written. II. Nuncupative.............................. 499-500
      • 6. An executor is he to whom a man by his will commits the execution thereof.............................. 503
      • 7. Administrators are, I. Durante minore ætate of an infant executor or administrator; or durante absentia; or pendente lite. II. Cum testamento annexo; when no executor is named, or the executor refuses to act. III. General administrators; in pursuance of the statutes of Edward III. and Henry VIII. IV. Administrators de bonis non; when a former executor or administrator dies without completing his trust.............................. 503-507
      • 8. The office and duty of executors (and, in many points, of administrators also) are, I. To bury the deceased. II. To prove the will, or take out administration. III. To make an inventory. IV. To collect the goods and chattels. V. To pay debts; observing the rules of priority. VI. To pay legacies, either general or specific; if they be vested, and not lapsed. VII. To distribute the undevised surplus, according to the statute of distributions. 508-520

Last modified April 10, 2014