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Library of Congress Cataloging-in-Publication Data

Blackstone, William Sir, 1723-1780.

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

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

Includes bibliographical references.

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

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

[347.3] 96-12566

CIP

BLACKSTONE'S COMMENTARIES:

WITH

NOTES OF REFERENCE,

TO

THE CONSTITUTION AND LAWS,

OF THE

FEDERAL GOVERNMENT OF THE UNITED STATES;

AND OF THE

COMMONWEALTH OF VIRGINIA.

IN FIVE VOLUMES.

WITH AN APPENDIX TO EACH VOLUME,

CONTAINING

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

VIEW OF THE LAWS OF VIRGINIA,

AS A MEMBER OF THE FEDERAL UNION.

BY ST. GEORGE TUCKER,

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

PHILADELPHIA:

PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,

NO. 17, SOUTH SECOND-STREET.

ROBERT CARR, PRINTER.

1803.

District of Pennsylvania: to wit.

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

Clerk of the District of Pennsylvania.

COMMENTARIES

ON THE

LAWS OF ENGLAND,

IN FOUR BOOKS.

BY SIR WILLIAM BLACKSTONE, knt.

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

WITH THE LAST CORRECTIONS OF THE AUTHOR,

ADVERTISEMENT.

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

MAY 12, 1803.

TO THE READER.

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

TABLE.

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

DIRECTIONS TO THE BINDER.

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

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

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

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

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

OF THE RIGHTS Of THINGS.

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

CHAP. II.

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

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

CHAP. IV.

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

CHAP. V.

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

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

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

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

CHAP. IX.

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

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

CHAP. XI.

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

CHAP. XII.

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

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

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

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

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

CHAP. XVII.

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

CHAP. XVIII.

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

CHAP. XIX.

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

CHAP. XX.

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

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

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

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

CHAP. XXIV.

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

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

CHAP. XXVI.

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

CHAP. XXVII.

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

CHAP. XXVIII.

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

CHAP. XXIX.

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

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

CHAP. XXXI.

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

CHAP. XXXII.

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

APPENDIX.

FO.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE EDITOR'S APPENDIX.

NOTE A.

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

NOTE B.

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

NOTE C.

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

NOTE D.

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

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

NOTE F.

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

COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE SECOND.

PART THE SECOND.

COMMENTARIES ON THE LAWS OF ENGLAND.

BOOK THE SECOND.

OF THE RIGHTS OF THINGS.

CHAPTER THE FIRST. OF PROPERTY, IN GENERAL.

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

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

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

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

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

a Gen. i. 28.

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

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

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

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

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

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

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

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

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

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

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

h Gen. c. xiii.

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

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

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

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

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

i See Vol. I. p. 295.

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

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

10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER THE SECOND.

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

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

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

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

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

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

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

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

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

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

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

f Brownl. 142.

g Co. Litt. 4.

h Ibid, 4, 5, 6.

CHAPTER THE THIRD.

OF INCORPOREAL HEREDITAMENTS.

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

a Co. litt. 19, 20.

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

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

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

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

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

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

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

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

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

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

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

i Co. Litt. 344.

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

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

k Seld. tith. 12. §. 2. m A. D. 1239.

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

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

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

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

p Ibid.

r 2 Inst. 651.

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

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

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

s Selden, c. 8. §. 2. t A.D. 778.

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

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

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

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

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

y cap. 1. z Book I, Introd. §. 4.

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

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

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

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

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

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

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

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

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

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

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

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

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

o 1 Roll. Abr. 649.

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

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

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

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

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

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

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

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

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

w Ibid. 479. x Ibid. 511.

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

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

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

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

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

a Finch, law. 157.

b Co. Litt. 122.

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

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

c 2 Inst. 86.

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

g Co. Litt. 122.

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

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

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

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

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

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

k 9 Rep. 113.

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

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

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

m Co. Litt. 41

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

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

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

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

n Finch, law 31.

o Finch, law. 63.

p Co. Litt. 56.

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

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

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

8. Herein the common law remains unaltered in Virginia.

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

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

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

r 9 Rep. 97.

t See book I. c. 12.

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

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

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

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

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

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

w2Koll. Abr.I91. Keilw. 196.

x 2 Inst. 220,

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

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

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

y 4 Inst. 314.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

p Ibid. 2. s Ibid. 47.

q Hid. 144.

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

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

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

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

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

w Ibid. 47.

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

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

being connected with personal services, are therefore called rent-service. And for these, in case they be behind, or arrere, at the day appointed, the lord may distrein of common right, without reserving any special power of distress ; provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expired^{z I9}. A rent-charge, is where the owner of the rent hath no future interest, or reversion expectant in the land; as where a man by deed maketh over to others his tvhole estate in fee simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed: and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it^{a 20}. Rent-seek, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but withoutany clause of distress²¹.

z Litt. Sec. 215.

a Co. Litt. 143,

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

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

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

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

b 2 Inst. 19.

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

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

23. There are no copyholds in Virginia.

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

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

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

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

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

d 2 Inst. 19.

e Co. Litt. 143.

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

g Co. Litt. 201.

h 4 Rep. 73.

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

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

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

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

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

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

CHAPTER THE FOURTH.

OF THE FEODAL SYSTEM l.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

q A. D. 1085.

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

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

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

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

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

w Gap- 58. Wilk. 288.

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

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

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

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

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

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

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

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

b Wright, 81. d 9 Hen. IU.

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

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

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

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

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

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

e Lit. Sec. 85.

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

g Feud. I. 2, t. 55.

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

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

h Feud. l.l,t. 1.

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

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

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

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

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

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

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

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

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

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

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

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

t Feud. 2, t. 7-

CHAPTER THE FIFTH.

OF THE ANTIENT ENGLISH TENURES.

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

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

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

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

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

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

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

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

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

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

i • e 1. 4. tr. 1. c. 28.

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

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

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

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

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

U Spelm. Gloss.219.

i c. 2. Sec. 27".

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

1 2 Inst. 596,

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

nn Litt. Sec. 95.

o Co. Litt. 9.

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

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

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

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

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

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

' t

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

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

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

n Ca(i. 12, 15.

w Cap. 15.

x Ibid. 14.

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

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

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

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

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

d Co. I.itt. 77.

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

h Litt. Sec. 103.

e Feud. I. 2, t. 24.

g Staundf. Prerog. 12.

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

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

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

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

1 Ibidem.

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

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

k Co. Lite. 77.

n Hoveden. sub. Sic. I.

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

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

ib Co. Litt. 77.

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

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

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

s Litt. §. 110.

u Litt. §. 110.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a Wright. 122.

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

e Litt. Sec. 97. 120.

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

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

d Commonw. 1. 3, c. 5.

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

c 4 Inst. 202.

f Dalrymp. of feuds, 292.

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

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

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

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

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

CHAPTER THE SIXTH.

OF THE MODERN ENGLISH TENURES.

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

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

1. See the last note on the preceding chapter.

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

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

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

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

d Sec. 118.

fLitt. Sec. 117, 118,119.

h Gavclk. 138.

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

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

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

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

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

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

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

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

o Wright. 211

p Sec. 159.

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

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

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

q Sec. 160.

s lib. 7. cap. 3.

u Lite. Sec- 162, 163.

r cap. 27. t Sec. 162.

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

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

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

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

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

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

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

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

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

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

h Lamb. Peramb. 614. i Lamb. 614

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

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

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

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

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

m Glanvil. /. 7. c. 3.

o Spelm. cod, vet. leg. 355.

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

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

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

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

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

q c. 66.

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

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

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

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

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

r Litt. §. 117,131. s§. 130.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

d Litt. Sec. 123.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

g Co. Cop. Sec. 2 {•)• 10.

h Ibid. Sec. 3.

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

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

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

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

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

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

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

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

p Litt. Sec. 172.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

i Co. Litt. 58.

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

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

k Sec cli. 28.

kk2Ch, Uep.154.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

x Kitchin on courts, 194.

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

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

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

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

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

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

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

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

CHAPTER THE SEVENTH.

OF FREEHOLD ESTATES, OF INHERITANCE.

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

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

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

a Co. Litt. 34$.

b c. 32.

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

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

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

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

d Sec. 59.

f See pages 45, 47.

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

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

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

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

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

k Ibid.

1 of ten. 148,

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

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

%

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

m Co. Litt. 1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

u Lilt. Sec. 1.

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

z Kid. 9.

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

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

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

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

a See Vol. I. page 484

b Ibid. 249.

5. See note 4, page 107.

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

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

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

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

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

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

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

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

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

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

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

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

1 13 Edw. I. c. 1. .

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

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

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

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

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

o Sec. 13. q 7 Rep. 33.

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

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

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

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

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

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

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

t 3 Rep. 8.

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

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

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

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

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

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

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

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

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

xLitt. Sec. 21,22.

y Ibid. Sec. 24.

z Co. Litt. 25.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<1 4 Hen. VII. c. 24.

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER THE EIGHTH.

OF FREEHOLDS, NOT OF INHERITANCE.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

o Feud. I. 2. t. 28.

p 5 Hep. 116.

q Co. Litt. 55,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

c Litt. Sec. 35, 52. d c. 1, S«c. 3.

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

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

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

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

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

m Co. Litt. 30.

o Ibid. 30, Plowd. 263.

n Ibid. 29.

p Dyer, 25, 8 Hep. 34.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

i Co. Litt. 32.

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

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

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

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

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

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

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

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

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

U Litt. Sec. 36,53.

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

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

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

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

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

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

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

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

•

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

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

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

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

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

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

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

d Sec 48, 49. e Litt. §. 37.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

•wife may be endowed.

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

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

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

h Pig. of recov. 66.

i 1 inst. 36.

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

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

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

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

k 4 Rep. 1,2.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32. See note 14. p. 131.

CHAPTER THE NINTH.

OF ESTATES LESS THAN FREEHOLD.

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

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

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

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

b Ibut. 58. <. Ibid. ST.

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

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

d 6 Rep. 61.

e Co. Litt. 135.

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

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

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

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

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

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

k Stat, of mortmain, 7 Edw. I,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

f Co. Litt. 55.

\\Md.S5.

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

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

o Salk. 414. 1 Sid- 339.

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

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

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

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

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

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

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

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

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

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

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

u See page 98, f3"c.

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

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

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

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

•w Co. Litt. 57. y Ibid.

y. Ibid.

i 5 Mod. 384-

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

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

of the tenement.

\

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

CHAPTER THE TENTH.

OF ESTATES UPON CONDITION.

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

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

a" Co. Litt. 201.

b Litt. Sec. 378.

' c Litt. Sec. 379. ,

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

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

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

e 9 Rep. 50.

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

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

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

II. An estate on condition expressed in the grant itself, is where an estate is granted, either in fee-simple or otherwise^ with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition s. .... These conditions are therefore either precedent, or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a precedent condition, and till that happens no estate¹' is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee-simple passeth not till the hundred marks be paid'. But if a man grant an estate in fee-simple, reserving to himself and his heirs a certain -rent; and, that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate: in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed ^k. To this class may also be referred all base fees, and fee-simples conditional at the common law' ⁴. Thus an estate to a man and his heirs tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor.

g Co. Litt. 201. h Show. Parl. Cas. 83, &c.

i Co. Lilt. 217. k Litt. Sec. 325. 1 See pag. 109,110, 111.

3. No forfeiture ensues upon conviction of any felony, nor evei) of treason, in Virginia, or under the federal government. L.V. Edi. 1776, c. 3, Edi. 1794, c. 74, $ 31. C.U. S. Art. 3. L. U. S. 1 Cong. 2. Sess. c.9. .But where the owner of lands neglects to pay the taxes thereon for three years, this operates as a forfeiture under our present laws, 1790, c. 5. Edi. 1794, c. 83. Sec. 34,35, and L. U. S. 5. Cong. c. 92.Sec. 13. And this seems to be upon the principle implied in every government, that those who enjoy property under it, shall contribute to support it.

4. Of this kind were the conditions of seating and planting all lands granted by the crown, within a limited time, inserted formerly in all patents in this country ; such also were the conditions contained

And so, if a personal annuity be granted at this day to a man and the heirs of his bodyj as this is no tenement within the statute of Westminster the second, it remains, as at common law, a fee-simple on condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the eighth chapter: as duran'e viduitate, £s?c. these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of these subsequent conditions, by the failure of these contingencies; by the grantees's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole ; the estates which were respectively vested in each grantee are wholly determined and void.

A distinction is however made between a condition In deed and a limitation, which Littleton ^m denominates also a condition in law. For when an estate is so expressly confined and limited by the words of it's creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation : as when land is granted to a man, so long as he is parson of Dale, or while he continues unmarried, or untill out of the rents, and profits he shall have made 50O/. and the like". In such case the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the 500/.) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 4O/. by the grantor, or so that »the grantee continues unmarried, or provided he goes to York, &?c.°) the law permits it to endure beyond the time when such

m Set. "80. 1 Inst. 234. n 10 Rep. 41. o Kid. 42.

in Lord Fairfax's grants, containing a clause of forfeiture in case the quit-rents should not be paid for two years together. All persons holding lands under grants from tfie crown are .discharged from the former by the act of May 1779, c. 13. Edi. 1785 .... The act of 1? 85, c. 47, likewise declares that the landholders in the northern neck shall be forever thereafter discharged from composition, and quit-rents.

contingency happen?, unless the grantor or his heirs or assigns •take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate ?. Yet, though strict words of condition be used in the creation of the estate, if on breach of the condition the estate be limited over to a third person, and does not, immediately revert to the grantor or his representatives, (as if an estate be granted by A to B, on condition that within two years B intermarry with C, and on failure thereof then to D and his heirs) this the law construes to be a limitation and not a condition 1 : because, if it were a condition, then, upon the breach thereof, only A or his representative* could avoid the estate by entry, and so D's remainder might be defeated by their neglecting to enter ; but, when it is a limitation, the estate of B determines, and that of D commences, and he may enter on the lands, the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he pays a sum of money, and for non payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition' ^J.

In all these instances, of limitations or conditions subsequent, it is to be observed, that so long as the condition, either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in itself of a freehold nature ; as if the original grant express either an estate of inheritance, or for life, or no estate, at all, which is constructively an estate for life. For the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold •; because the estate is capable to last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken.

p Litt. Sec. 347. Sta t. 32 Hen. VIII. c. 34.

q 1 Ventr. 202. r Cro. Eliz. 205. 1 Roll. Abr. 411.

s Co. Litt. 42.

5. The case of Gulliver on the demise of Corrie, alias Wykes vs. Ashby, contains much information on this subject. 4. Burr. 1929. 2. Blacks, rep. 607. See also Co. Litt. 214.

But where the estate is at the utmost a chattel interest, which muit determine at a time certain, and may determine sooner, (as a grant for ninety-nine years, provided A, B, and C, or the survivor of them, shall so long live) this still continues a mere chattel, and is not, by such it's uncertainty, ranked among estates of freehold.

These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself, or if they be contrary to law, or repugnant to the nature of the estate, are void. In any of which cases, if they be conditions subsequent, that is, to be 'performed after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to,a man in fee-simple, on condition that unless he goes to Rome in twenty-four hours; or unless he marries with Jane S. by such a day; (within which time the woman dies, or the- feoffor marries her himself) or unless he kills another; or in case he alienes in fee; that then and in any of such cases the estate shall be vacated and determine: here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant'. Sat if the condition be precedent, or to be performed before the estate vests, as a grant to a man that, if he kills another, or goes to Rome in a day, he shall have an estate in fee ; here, the void condition being precedent, the estate which depends thereon, is also void, and the grantee shall take nothing by the grant: for he hath no estate until the condition be performed °.

There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are

III. Estates held in vadio, in gage, or pledge; which are of two kinds vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage.

Vivum vadium, or living pledge, is when a man borrows a Bum (suppose 200/.) of another; and grants him an estate, as, of t Co. Litt. 206. u Ibid.

201. per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void, as soon as such sum is raised. And in this case the land or pledge is said to be living: it subsists, and survives the debt; and, immediately on the discharge of that, results back to the borrower". But mortuitm vadium, a dead pledge, or mortgage, (which is much more common than the other) is where a man borrows of another a specific sum (e. g. 200/.) and grants him an estate in fee, on condition that if he, the mortgager, shall repay the mortgagee the said sum of 200/.) on a certain day mentioned in the deed, and then the mortgager may re-enter on the estate so ^granted in pledge; or, as is now the more usual way, and then the mortgage .shall re-convey the estate to the mortgagor: in this case the land, which is so put in pledge, is by law, in case of non-payment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but absolute. But, so long as it continues conditional, that is, between the time of lending the money and the time allotted for payment, the mortgagee is called tenant in mortgage*. But, as it was formerly a doubt*, whether, by taking such estate in fee, it did not become liable to the wife's dower, aud other incumbrances, of the mortgagee (though that doubt has been long ago overruled by our courts of equity') it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on re-payment of the mortgage-money: which course has been since pretty generally continued, principally because on the death of the mortgagee, such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.

As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be disposessed, upon performance of the condition by payment of the mortgage-money, at the day limited. And, therefore, the usual way is to agree that the mortgagor shall hold the land till the day assigned for

•w Co. Litt.205.

y Itit!. Sec. 357. Cto. Car. 191.

x Litt. Sec. 532. z Hardt. 466.

payment⁶: when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now forever dead⁷. But here

6. When the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises at will in the strictest sense, and therefore no notice is ever given him to quit, and he is not even entitled to reap the crop, as other tenants at will are, because all is liable for the debt; on payment of which, the mortgagees's title ceases. The mortgagor has no power, express or implied, to let leases, not subject to every circumstance of the mortgage. If by implication, the mortgagor had such a power, it must go to a great extent; to leases where a fine is taken on renewal for lives. The tenant stands exactly in the situation of the mortgagor. Per Lord Mansfield, in the case of Keech vs. Hall .... Douglas's rep. 22.

A mortgagee after giving notice of the mortgage to the tenant in possession under a lease prior to the mortgage, is entitled to the rent in arrear at the time of the notice, as well as to what accrues afterwards, and mayxlistrein for it. after such notice. And in this case Lord Mansfield observed, that since the statute 4. Ann. c. 16. (to

•which our act of 1785, c. 62. Edi. 1794, c. 90, Sec. 17. corresponds) the conveyance is complete without the attornment of the tenant. See the case of Moss v. Galliroore, Doug. rep. 269.

7. Although the estate of the mortgagee is said to be absolute at law after failure in paying the money, yet by a devise of all lands, tenements and hereditaments, made by a mortgage in fee, after the • day of payment and failure,, a mortgage in fee will not pass, unless the equity of redemption be foreclosed ; and if after such devise made, a foreclosure is had, yet such estate does not pass, by those general words,

•because a foreclosure is considered as a new purchase of the land. 1. Atk. 605, 606. The interest of the land must be somewhere; but it is not in the mortgagee, and therefore must remain in the mortgagor. It is certain the mortgagee is not barely a trustee to the mortgagor ; but to some purposes, viz. with regard to the inheritance, he certainljr is, till a foreclosure. 1. Atk. 606.

Therefore, although the mortgagee brings an ejectment and enters into possession, yet until after foreclosure in consideration of a court of equity and notwithstanding the form, the mortgagee is considered as having but a chattel, and the mortgage is only a security ; the morgagor is the real owner. It follows of course that the mortgagee before foreclosure cannot exercise any act of ownership over the property, which may encumber the mortgagor. He can make no lease

•f the lands for years to an under tenant. Powel on Mortgages, 86,

again the courts of equity interpose ; and, though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to recall or redeem his estate*; paying to the mortgagee his principle,interest, and expences : for otherwise, in strictness of law, an estate worth 1OOO/. might be forfeited for non-payment of 100/. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption :⁸ and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest: thereby turning the mortuum. into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or 'else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be

* In general, if the mortgagee has been twenty years in possession, the court of chancery, in conformity'to the time of bringing an ejectment, will not permit the mortgagor to redeem, unless during part of the time the mortgagor has been an infant or a married woman; or unless the mortgagee admits he holds the estate as a mortgage; or he has kept accounts upon it and treated it as redeemable w ithin twenty years; or there is some other special circumstance which forms an exception to the general rule. £7. Ca. Abra. 313. 2 JBro. 399. 2 Ves.jun. 83. Where two different estates are mortgaged by the owner to the same person, one cannot be redeemed without the other. Amb. 733.

Neither can he justify in equity the commission of any act which may injure the estate ; therefore, though at law a mortgagee in fee may commit waste, yet he will be restrained in equity, unless the security be defective ; for in that case the court will not restrain a just creditor from his legal privileges ; but then the timber when cut down must be applied to ease the estate, and not to the mortgagee's benefit. Powel on Mortgages 87, 88.

8. An equity of redemption is considered as an estate in the land, for it may be devised, granted, or entailed with remainders, and such entail and remainders, may be barred by fine and recovery, and there, fore cannot be considered as a mere right, only, but such an estate •whereof there may be seisin; the person therefore intitled to the equity of redemption is considered as the owner of the land, and a mortgage in fee is considered as personal assets. 1. Atk. 605.

forever foreclosed from redeeming the same ; that is, to lose his equity of redemption without possibility of recall. And also, in some cases of fraudulent mortgages³, the fraudulent mortgagor forfeits all equity of redemption whatsoever*. It is not, however, usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small ; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment*, and take the land into his own hands, in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was where the possession of the thing pledged remained with the debtor^bl0 .... But, by statute 7 Geo. II. c. 20, after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to re-assign his securities¹¹. In Glanvil's time, when the universal method of conveyance was by livery of seisin or corporal tradition of the lands, no gage or pledge of lands was good unless possession was

a Stat. 4, and 5. W. and M. c. 16.

b Pignoris appcllatione earn (n-oprie rem contineri dicimus, qaae siinul etiam traditur creditor}. At earn, quae sine traditione nuda conventions tenetur, proprie bypothecae appellatione contineri dicimus. Inst. I. 4. t. 6. Sec. 7.

• The mortgagee is not now obliged to bring an ejectment to recover the rents and profits of th& estate, for it has been determined that where there is a tenant in possession, by a lease prior to the mortgage, the mortgagee may at any time give him notice to pay the rent to him; and he may distrain for all the rent which is due at the time of the notice, and also for all that accrues afterwards. Moss v. Gallimore, Doug. 266. The mortgagor has no interest in the premises, but by the mere indulgence of the mortgagee; he has not even the estate of a tenant at will, for it is held he may be prevented from carrying away the emblements, or the crops which he himself has sown.

¹ Christian.

9. The statute 4, and 5. W. t5*M. c. 16, here referred to, was never in force in Virginia.

10. On this subject the student may consult a very excellent treatise on mortgages, by John Joseph Powel, Esq. c. 3, and 4. See also the cases of Keech v. Hall, Doug. 21, and Moss v. Gallimore, ib. 266. See also 1. Wash. rep. 18, 125,177. 1. Call's rep. 188, and 280, and 2. Call 421, 206.

11. This statute was never in force in Virginia, nor is there any similar provision in our law.

also delivered to the creditor; "«' nonsequater ipsius vadii Iraditto, curia domini regls hujusmodi privatas convent/ones tueri non solct:" for \vhidi the reason given is, to prevent subsequent and fraudulent pledges of the same land: " cum in tali casu fossil caa'ftn res plitribus aliis creditoribus turn prius turn poslerius invadiari*." And the frauds which have arisen, since - the exchange of these public and notorious conveyances for more private and secret bargains¹², have well evinced the wisdom of our antient law*. ^% c /. 10. c. 8. d See book I.e. 8.

* It has been said by a learned judge to be an established rule of equity, that a second mortgagee, who has the title deeds without notice of any prior incumbrance, shall be preferred, because if a mortgagee lend money upon real property without taking the title deeds, he enables the mortgagor to commit a fraud. 1 1'. K. 162. But lord Thurlow afterwards observed upon this, that he did not conceive that the not taking the deeds was alone sufficient to postpone the first mortgagee •, if it were so, there could be no such thing as a mortgage of a reversion j and he held that the second mortgagee in possession of the title deeds, was preferred only in cases where the first had been guilty of fraud or of gross negligence. 3 Bio. 652.

Out I should be inclined to think that fraud or gross negligence would be presumed, unless the first mortgagee could shew that it was impossible for him to obtain the possession of the title deeds, or that he had used all due and neceslary dilligcnce for that purpose.

Whatever may be the value of the estate, it is of great importance to those who lend money upon real security, to be certain that there is no prior mortgage upon the estate; for it has been long settled, that if a third mortgagee, who at the time of his mortgage had no notice of the second, purchases the first mortgage even pending a bill filed by the second to redeem the lirst, both the first and third mortgages shall be paid out of the estate, before any share of it can be appropriated to the second : and the reason assigned is, that the third, by thus obtaining the legal estate, has both law and equity on his side, which snpercede the equity of the second* And even lord Hale held it right, that the third should seize what ho cr.lled the tabula in naiifragio, a plank in the shipwreck, and thus leave the second to perish. But a subbequent mortgagee can obtain no advantage over a prior one, if at the time of lending his money, he had notice of the prior incumbiancc. 1 ?' It. 763. But among mortgagees,

12. All deeds of trust and mortgages (whether of lands, slaves, or chattel:,,) are void as to all creditors and subsequent purchasers, unless they be acknowledged by the parties wproved by three witnesses before the general court or the court of that district, county, city, or corporation in which the lands conveyed, or some part thereof lie, (except in case of persons absent from the commonwealth, tyhose

IV. A fourth species of estates, defeasible on condition subsequent, are those held by statute merchant, and statute staple; which are very nearly related to the vivum vadium before-mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained¹³. For both the statute merchant and

where none has the legal estate, the rule in equity is, jui prior est tempore, potibr tstjure. 2 P. Wm*. 491. 1 Bro. 63.

As this is the equity which is intelligible to ordinary understandings, if it were not presumptuous to reflect a censure upon a doctrine so long sanctioned by illustrious names, it might be observed that the equity of the second ought to have outweighed both the law and the equity of the third; for it can hardly be reconciled with substantial justice, that the third 1>v any contrivance or combination should be permitted to run away with the whole estate, and leave nothing to the second, who had fairly and honestly advanced his property. But this, if wrong, can only be corrected by the authority of the legislature. .... Christ.

deeds maybe proved within two years after execution, and of persons not residing within the district or county, whose acknowledgment may be taken in the court of the district, See. where the party may reside) and recorded within eight months according to the, directions of the several acts of 1748, c. 1. and 1785, c. 62. 1794, c. 90. Or if the mortgage be of slaves or chattels, it would seem that the mortgage should be recorded in the general court, or court of the county, or district in which one of the parties lives .... Edi. 1794, c. 10. But in the case of Clayborne v. Hill, 1. Wash. rep. 177, the court seem to have thought that a mortgage of slaves might be recorded in any other county. If a deed be re-acknowledged within eight months from its date, and recorded within four months from the re-acknowledgment, it is good even as against creditors, from the date of the re-acknowledgment, although there may be more than eight months between the first execution of it, and the time of recording. 2. Call's rep. 183,184. Our laws likewise require that a docket, containing the dates, acknowledgments, and probates, names, surnames, and additions of the parties, in alphabetical order, and the quantities and situation of lands contained in any deed, be transmitted by the clerks of the district and county courts, to the clerk of the general court, annually, to be there recorded. See also p. 309. n. 13.

If A give a mortgage on lands to B, and then the agent of B and A, agree to convey those lands to C, on his securing the mortgage money, and afterwards C gives a deed of trust on sundry slaves, for-that and other debts to a succeeding agent of B, the first mortgage is thereby discharged, though B never conveyed the lands to C. Towler v. Buchanan, &c. 1. Call 187.

13. These estates are unknown in Virginia ; the statutes under which they were created in England, are now repealed in this country. V. L. 1794, c. 147.

statute staple are securities for money; the one entered into before the chief magistrate of some trading town, pursuant to the statute 13 Edw. I. de mcrcatoribus, and thence called a statute merchant; the other pursuant to the statute 27" Edw. III. c. 9, before the mayor of the staple, that is to say, the grand mart for the principle commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns'¹, from whence this security is called a statute staple. They are both, I say, securities for debts acknowledged to be due ; and originally permitted only among traders, for the benefit of commerce ; whereby not only the body of the debtor may be imprisoned, and his goods seised in satisfaction of the debt, but also his lands may be delivered to the creditor, till out of the rents and profits of them the debt may be satisfied: and, during such time as the creditor so holds the lands, he is tenant by statute merchant or statute staple. There is also a similar security, the recognizance in the nature of a statute staple, acknowledged before either of the chief justices, or (out of term) before their substitutes, the mayor of the staple at Westminster and the recorder of London; whereby the benefit of this mercantile transaction is extended to all the king's subjects in general, by virtue of the statute 23 Hen. VIII. c. 6, amended by 8 Geo. I. 9. 25, which direct such recognizances to be enrolled and certified into chancery. But these by the statute of frauds, 29 Car. II. c. 3, are only binding upon the lands in the hands of bonafde purchasers, from the day of their enrollment, which is ordered to be marked on the record.

V. Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an estate by elegit. "\yhat an flegit is, and why so called, will be explained in the third part of these commentaries. At present I need only mention, that it is the name of a writ, founded on the statute* of Westm. 2, by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of one half of the defendant's lands and tenements, to be occupied and enjoyed, until his debt and damages are fully paid: and, during the time

4 See Book I, c. 8.

e 13 Edw. I. c. 18.

he so holds them, he is called tenant by elegit*⁴. It is easy to observe, that this is also a mere conditional estate, defeasible as soon as the debt is levied. But it is remarkable, that the feodal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia cmptoreif, it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them:. the statute therefore of Westm. 2, permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatorihus (passed in the same years) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade: though only half of them was liable to be taken in execution for any other debt of the owner.

I shall conclude what I had to remark of these estates, by statute merchant, statute staple, and elegit, with the observation of sir Edward Coke^h, " These tenants have uncertain interests

in lands and tenements, and yet they have but chattels and no freeholds j" (which makes them an exception to the general rule) " because though they may hold an estate of inheritance, or for life, ut liberum tenementum, until their debt be paid ; yet it shall go to their executors: for ut- is similitudinary ; and though, to recover their estates, they shall have the same remedy (by assise) as a tenant of the freehold, shall have', yet

it is but the similitude of a freehold, and nullum simile est idem.'" This indeed only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold: but it does not assign the reason why these estates,in contradistinction tootheruncertain interests, shall

f 18 Edw. I. gUEdw.I. h 1 Inst, 42,4j. i The words of the statute de inercatoribus are," puisseporter brefde navelc " disseisins,auxi sicnm defrankter.emerit."

14. The provisions of the statute of Westm. 2, were introduced into our code, at least, so long ago as the year 172C, c. 3, and have been continued to this day, 1748, c. 8. 1794, c. 151.

vest in the executors of the tenant and not the heir; which is probably owing to this: that being a security and remedy provided for'personal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in those to whom the debts if recovered would belong. For, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executor^k: because they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund, out of which he has directed them to be paid.

k Co. Litt. 42.

CHAPTER THE ELEVENTH.

OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.

HITHERTO we have considered estates solely with regard to their duration, or the quantity of interest, which the owners have therein. We are now to consider them in another view 4 with regard to the time of their enjoyment, when the ac-~ tual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages, arising therefrom) begins. Estates, therefore, with respect to this consideration, may either be in possession, or in expectancy; and of expectancies there are two sorts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion.

I. Of estates in possession, (which are sometimes called estates executed, whereby a present interest passes to, and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory} there is little, or nothing, peculiar to be observed. All the estates we have hitherto spoken of, are of this kind; for, in laying down general rules, we usually apply them to such estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will, therefore, require a minute discussion, and demand some degree of attention.

II. An estate, then, in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined.) As if a man seised in fee-simple granteth lands to A for twenty years, and, after the determination of the said

term, then to B and his heirs for ever: here A is tenant for years, remainder to B in fee. In the first place an estate for years is created or carved out of the fee, and given to A ; and the residue, or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee*. They are, indeed, different parts, but they constitute only one whole: they are carved out of one and the same inheritance: they are both created, and may both subsist, together: the one in possession, the other in expectancy. So, if land be granted to A for twenty years, and after the determination of the said term to B for life; and after the determination of B's estate for life, it be limited to C and his heirs for ever: this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the estate of inheritance undergoes a division into three portions: there is first A's estate for years, carved out of it; and after that B's estate for life ; and then the whole that remains is limited to C and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance, and if there were a hundred remainders, it would still be the same thing; upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence, also, it is easy to collect, that no remainder can be limited after the grant of an estate in fee-simple ^b: because a fee-simple is the highest and largest estate, that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder, therefore, which is only a portion, or residuary fart of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all the remainders expectant thereon, is only one fee-simple; as 4O/. is part of 100/. and 60/. is the remainder of it: wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than after the whole 100/. is appropriated there can be any residue subsisting.

Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observ-

a Co. Litt. 143. b Plowd. 29. Vaugli. 269.

ed in the creation of remainders, and the reasons upon which those rules are founded.

1. And, first, there must necessarily be some particular estate, precedent to the estate in remainder^c. As, an estate for years to A, remainder to B for life ; or, an estate for life to A, remainder to B in tail. This precedent estate is called the particular estate, as being only a small part, or farticitla, of the inheritance ; the residue or remainder of which is granted over to another. The necessity of creating this preceding particular estate, in order to make a good remainder, arises from this plain reason ; that remainder is a relative expression, and implies that some part of the thing is previously disposed of: for where the whole is conveyed at once, there cannot possibly exist a remainder : but the interest granted, whatever it be, will be an estate in possession.

An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no remainder : it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the antient law ^d, to be executed either now or hereafter, as the contracting parties should agree i but an estate of freehold must be created to commence immediately. For it is an antient rule of the common law, that an estate of freehold cannot be created to commence in futuro ; but it ought to take effect presently either in possession or remainder^e : because at common law no freehold in lands could pass without livery of seisin; which must operate either immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which, imports an immediate possession. Therefore though a lease to A for seven years, to commence from next Michaelmas, is good; yet a conveyance to B of lands, to hold to him and his heirs for ever from the end ot three years next ensuing, is void. So that'when it is intended to grant an estate of freehold, whereof the enjoyment shall be defered till a future time, it is necessary to create a previous pnrti-

c Co. Litt. 49. Plowd. 25. d Raym, 151. c S Rep 94.

cular estate, which may subsist till that period of time is completed ; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be given possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A for three years, with remainder to B in fee, and makes livery of seisin to A ; here by the livery the freehold is immediately created, and vested in B, during the continuance of A's term of years. The whole estate passes at once from the grantor to the grantees, and the remainder-man is seized of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in praesenti, though to be occupied and enjoyed in futuro.

As no remainder can be created, without such a precedent particular estate, therefore the particular estate is said to support the remainder. But a lease at will is not held to be such a particular estate, as will support a remainder over^f. For an estate at will is of a nature so slender and precarious, that it is not looked upon as a portion of the inheritance; and a portion must first be taken out of it, in order to constitute a ren-ainder. Besides, if it be a freehold remainder, livery of seisin must be given at the time of it's creation; and the entry of the grantor, to do this, determines the estate at will in the very instant in which it is madeS; or, if the remainder be a chattel interest, though perhaps the deed of creation might operate as & future contract, if the tenant for years be a party to it, yet it is void by way of remainder : for it is a seperate independent contract, distinct from the precedent estate at will; and every remainder must be part of one and the same estate, out of which the preceding particular estate is taken¹¹. And hence it is generally true, that if the particular estate is void in it's creation, or by any means is defeated afterwards, the remainder supported thereby shall be defeated also¹: as where the particular estate is an estate for the life of a person not in esse^k ; or an estate>for life upon condition, on

f 8 Rep. 75. g Dyer. 18. h Raym. 151. i Co. Litt. 298. k 2 Roll. Abr. 413.

breach of which condition the grantor enters and avoids the estate¹ ; in either of these cases the remainder over is void.

2. A second rule to be observed is this; that the remainder must commence or pass out of the grantor at the time of the creation of the particular estate"¹. As, where there is an estate to A for life, with remainder to B in fee: here B's remainder in fee passes from the grantor at the same time that seisin is delivered to A of his life estate in possession. And it is this, which induces the necessity at common law of livery of seisin being made on the particular estate, whenever a freehold remainder is created. For, if it be limited even on an estate for years, it is necessary that the lessee for years should have livery of seisin, in order to convey the freehold from and out of the grantor; otherwise the remainder is void". Not that the livery is necessary to strengthen the estate for years; but, as livery of the land is requisite to convey the freehold, and yet cannot be given to him in remainder without infringing the possession of the lessee for years, therefore the law allows such livery, made to the tenant of the particular estate, to relate and inure to him in remainder, as both are but one estate in law⁰.

3. A third rule respecting remainders is this; that the remainder must vest in the grantee during the continuance of the particular estate or eo instanti that it determines!". As, if A be tenant for life, remainder to B in tail; here B's remainder is vested in him, at the creation of the particular estate to A for life: or, if A and B be tenants for their joint-lives, remainder to the survivor in fee ; here, though during their joint-lives the remainder is vested in neither^ yet, on the death of either of them the remainder vests instantly in the survivor: wherefore, both these are good remainders. But, if an estate be limited to A for life, remainder to the eldest son of B in tail, and A dies before B hath any son; here the remainder will be void, for it did not vest in any one during the continuance, nor at the determination, of the particular estate: and, even supposing-that B

1 IJon. 58:

n Litt. Sec. 60.

p I'lowd. 25. 1 Hep. 66.

m Litt. Sec. 671. Plowd. 25. o Co. Litt. 49.

should afterwards have a son, he shall not take by this remainder ; for, as it did not vest at, or before the end of the particular estate, it never can vest at all, but is gone for ever'. And this depends upon the pihiciple before laid down, that the precedent particular state, and the remainder, are one estate in law; thty must, therefore, subsist and be in ease at one and the same instant of time, either during the continuance of the first estate or at the very instant when that determines, so that no other estate can possibly come between them. For there can be no intervening estate between the particular estate, and the remainder supported thereby^r: the thing supported must fall to the ground, if once its support be severed from it.

It is upon these rules, but principally the last, that the doctrine of contingent remainders depends. For remainders are either vested or contingent. Vested remainders (or remainders executed, whereby, a present interest passes to the party, though to be enjoyed in futuro} are, where the estate is invariably fixed to remain to a determinate person, after the particular estate is spent. As if A be tenant for twenty years, remainder to B in fee; here B's is a vested remainder, which nothing can defeat, or set aside.

Contingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take effect'.

First, they may be limited to adubious and uncertain person. As if A be tenant foiylife, with remainder to B's eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B will have a son or no : but the instant that a son is born, the remainder is no longer contingent, but vested. Though, if A had died before the contingency happened, that is, before B's son was born, the remainder would have been absolutely gone ; for the particular estate was determined before the remainder could vest. Nay, by the strict rule of law, if A

q 1 Kep. 138.

r 3 Rep. 21.

I Ibid. 20.

were tenant for life, remainder to his own eldest son in tail, and A died without issue born, but leaving his wife enseint or big with child, and after his death a posthumous son was born, this son could not take the land, by virtue of this remainder ; for the particular estate determined before there was any person in esse, in whom the remainder could vest'. But, to remedy this hardship, it is enacted by statute 1O and 11 W. III, c. 16, that posthumous children shall be capable of taking in remainder, in the same manner as if they had been boni in their father's lifetime: that is, the remainder is allowed to vest in them, while yet in their mother's womb ^{u l}.

This species of contingent remainders, to a person not in being, must however be limited to some one, that may by common possibility, or potentia propinqna, be in esxe at or before the particular estate determines ^w. As if an estate be made to A for life, remainder to the heirs of B : now, if A dies before B, the remainder is at an end ; for during B's life he has no heir, nemo est haeres viventis : but if B dies first, the remainder then immediately vests in his heir, who will be entitled to the land on the death of A. This is a good contingent remainder, for the possibility of B's dying before A is potentia propinqua, and therefore allowed in law ^x. But a remainder to the right heirs of B (if there be no such person as B in esse) is void t. For here there must two contingencies happen ; first, that such a person as B shall be born ; and, secondly, that he shall also die during the continuance of the particular estate ; which make it potentia remotessimd, a most improbable possibility. A remainder to a man's eldest son, who hath none (we have seen) is good; for by common possibility he may have one ; but if it be

t Salk. 228. 4 Mod. 282. w 2 Rep. 51. y Hob. 33.

u See Vol. I. page 130. x Co. Litt. 578.

1. The act of 1785, c. 62. Edi. 1794. c. 90. $. 13, accordant : it took effect January 1, 1787. And it has been decided in England tl\at such posthumous child, by virtue of the statute, is entitled to the intermediate profits from the death of the father, 3 Atk. 203. It is otherwise in the case of a descent divided by the birth of a posthumous child. 3 Wilson 526.

limited in particular to his son John, or Richard, it is bad, if he have no son of that name; for it is too remote a possibility, that he should not only have a son, but a son of a particular name ". A limitation of a remainder to a bastard before it is born, is not good ^a: for though the law allows the possibility of having bastards, it presumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the person who is to take it.

A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with remainder to B in fee : here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A and B it is contingent; and if B dies first, it never can vest in his heirs, but is for ever gone : but if A dies first, the remainder to B becomes vested.

Contingent remainders of either kind, if they amount to a freehold, cannot be limited on an estate for years, or any other particular estate, less than a freehold. Thus if land be granted to A for ten years, with remainder in fee to the right heirs of B, this remainder is void ^b : but if granted to A for life, with a like remainder, it is good. For, unless the freehold passes_|Out of the grantor at the time when the remainder is created, such freehold remainder is void: it cannot pass out of him, without vesting somewhere ; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest no where : unless therefore the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him, and consequently the remainder is void.

Contingent remainder may be defeated, by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested⁰. There-

z 5 Rep. 51. b 1 Rep. 130.

a Cro. Eliz. 509. c 1 Hep. 66, 135.

fore when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation², surrender, or other methods, destroy and determine his own life-estate, before any of those remainders vest; the consequence of which is that he utterly defeats them all. As if there be tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son is born, surrenders his life-estate, he by that means defeats the remainder in tail to his son : for his son not being in esse, when the particular estate determined, the remainder could not then vest: and, as it could not vest then, by the rules before laid down, it never can vest at all. In these cases therefore it is necessary to have trustees appointed to preserve the contingent remainders; in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his estate determines. If therefore his estate for life determines otherwise than by his death, the estate of the trustees, for the residue of his natural life, will then take effect, and become a particular estate in possession, sufficient to support the remainders depending in contingency. This method is said to have been invented by sir Orlando Bridgman, eir Geoffrey Palmer, and other eminent council, who betook themselves to conveyancing during the time of the civil wars; in order thereby to secure in family settlements a provision for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for life ^d : and d See Moos. 486. 2 Roll. Abr. 797. pi. 12 2. Sid. 159. 2 Chan. Rept. 170.

2. Quaere, how far the law in this case may be altered by the provisions contained in the act of 1785, c. 67, concerning wrongful alienations, Edi. 1794, c. 13, which declares that all alienations or warranties of lands, tenements and hereditaments made by any, purporting to pass or assure a greater right or estate than such person may lawfully pass or assure, shall operate as alienations or warranties of so much of the right and estate M such lands, &c. as such person might lawfully convey ; but shall not pass, or bar, the residue of the said right or estate purported to be conveyed or assured.

But a conveyance of a greater estate than he has, by bargain and sale or by lease and release, is no forfeiture, and will not defeat a contingent remainder, 2 Leon. CO. 3. Mod. 151. But it is otherwise, if the conveyance be made by feoffment, or by a fine, or by a rcco\ ery, 1. Co. 66. Cro. Eliz. 630.1. Salk. 224.

when, after the restoration, those gentlemen came to fill the first offices of the law; they supported this invention within reasonable and proper bounds, and introduced it into general use *.

* We have seen before, in chapter vii. that, in a grant of a fee-simple to A, it is necessary to give it to A and his heirs; of a fee-tail, to A and the heirs of his body; and that a grant to A, without any additional words, gives him only an estate for life. Hence the word heirs in the first case, and the words heirs of the body in the second, are said to be words of limitation, because they limit or describe what interest A takes by the giant, viz. in one case, a fee-simple, in the other, a fee-tail: and the heirs in both instances take no interest any farther than as the ancestor may permit the estate to descend to them. But if a remainder is granted, orestate devised to the heirs of A, where no estate of freehold is at the same time given to A, the heir of A cannot take by descent from A j but he takes by purchase, under the grant, in the same manner as if the estate had been given to him by his proper name. Here the word heirs is called a word of purchase. Having premised the distinction between words of limitation and words of purchase, I may observe, that the much-talked-of rule in Shelly's case, \Co. 104 is this, viz. " when theancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, that always in such cases the heirs are words of limitation, and not words of purchase :" and the remainder is said to be executed in the ancestor, where there is no intermediate estate; or vested, when an estate for life or in tail intervenes.

As if an estate be given to A for life, and after his death to the heirs of his body; this remainder is executed in A, or it unites with his estate for life; and the effect is the same as if the estate had at once been given to A and the heirs of his body ; which expression limits an estate tail to A, and the issue have no indefeasible interest conveyed to them, but can only take by descent from A. So also if an estate be given to A for life, with remainder to B for life or in tail, remainder to the heirs, or the heiis of the body, of A .... A takes an estate for life, in this case, <yith a vested remainder in fee or in tail; and his heir under this grant can only take by descent at his death. Fearne, 21. But when the estate for life, and the remainder in tail or in fee unite and coalesce, and heirs is a word of limitation, the two estates must be created by the same instrument, and must be either both legal, or both trust estates. Doug. 490. 2 f. S. 444, But an appointment in pursuance of a power, when exe. cuted, is to be considered as if it had been inserted in the original deed by which the power of appointment was created. 7 f. R. 347. The rule with regard to the execution or coalition of such estates seems now to be the same-in equitable as in legal estates. 1 Bra. 206. And in all these cases where a person has an estate tail or a vested remainder in tail, he can cut off the expectations or inheritance of his issue, by a fine, or a recovery. Daug. 32J. In order, therefore, to secure a certain provision for childien, the method was invented of granting the estate to the father fur life, and, after his death, to his first and other son*

Thus the student will observe how much nicety is required in creating and securing a remainder ; and I trust he will in some measure see the general reasons, upon which this nicety is founded. It were endless to attempt to enter upon the parti-

in tail j for the words ton or daughter were held to be words of purchase, and the remainder to them did not, like the remainder to heirs, unite with the prior estate of freehold. But if the son was unborn, the remainder was contingent, and might have been defeated by the alienation of the father by feoffmerit, fine, or recovery: to prevent this, it was necessary to interpose trustees, to whom the estate is given upon such a determination of the life-estate, and in whom it rests, till the contingent estate, if at all, comes into existence; and thus they are said to support and preserve the contingent remainders. Thisiscalled a strict settlement, and is the only mode (executory devises excepted) by which a certain and indefeasible provision can be secured to an unborn child. But in the case of articles or covenants before marriage, for making a settlement upon the husband and wife, and their offspring, if there be a limitation to the parents for life, wilh a remainder to the heirs of their bodies, the latter words are generally considered as words of purchase, and not of limitation j and a court of equity will decree the articles to be executed in strict settlement. See Fearne, 124, and examples there cited. It being the great object of such settlements to secure fortunes for the issue of the marriage, it would be useless to give the parents an estate tail, of which they would almost immediately have the absolute disposal. And, therefore, the courts of equity will decree the estate to be settled upon the parent or parents for life; and upon the determination of that estate by forfeiture, to trustees to support contingent remainders for their lives; and after their decease, to the first and other sons successively in tail, with remainder to all the daughters nvtail as tenants in common, with subsequent remainders or provisions according to the occasions and intentions of the parties. In these strict settlements, the estate is unalienable till the first son attains the age of 21, who, if his father is dead, has then, as tenant in tail, full power over |he estate j or if his father is living, he then can bar his own issue, by a fine, independent of the father. Cruise, 161. But the .father, and the sou at that age, can cut off all the subsequent limitations, and dispose of the estate in any manner they please by joining in a common rccoveiy. This is the origin of the vulgar error, that a tenant of an estate.tail must havethe consent of Ins eldest son to enable him to cut off the entail; for that is necessary where the father has only a life-estate, and his eldest son has the remainder in tail. But there is no method whatever of securing an estate to the grandchildren of a person, who is without children at the time of the settlement; for the law will not permit a perpetuity; and Lord Thurlow has defined a perpetuity to be " any extension of an estate beyond a life in being, and 21 years after." 2 Bro. 30. See n. 4. Hence, wherein a settlement the father has a power to appoint an estate to or amongst hiSjdiildren, he cannot afterwards give this to his children in strict settlement, or give any of his sons an estate for life, with a iemainder in tail to His eldest son; for if he could do this, a perpetuity wouU be created by the original settlement. 2 T. R. 241. The,

172

THE RIGHTS

BOOK II.

cular subtilties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries, has been spun out and subdivided: neither are they consonant to the design of these elementary disquisitions. I must not however omit, that in devises by last will and testament, (which, being often drawn up when the party is inops consilii, are always more favoured in construction than formal deeds, which are presumed to be made with great caution, forethought, and advice) in these devises, I say, remainders may be created in some measure contrary to the rules before laid down: though our lawyers will not allow such dispositions to be strictly remainders; but call them by another name, that of executory devises, or devises hereafter to be executed.

An executory devise of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points : 1. That it needs not any particular estate to support it. 2. That by it a fee-simple or other less estate, may be limited after a fee-simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same.

1. The first case happens when a man devises a future estate to arise upon a contingency; and, till that contingency happens, does not dispose of the fee-simple, but leaves it to descend to his heir at law. As if one devises land to a feme-sole and her heirs, upon her day of marriage : here is in effect a contingent remainder without any particular estate to support it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, byway of executory devise⁸. ....

e 1 Sid. 153.

The student, who -wishes to obtain a dear and comprehensive knowledge of this abstruse branch of legal learning, cannot bestow too great attention upon Mr. Fearne's treatise upon Contingent Remainders and Executory Devises, where itislearnedl) and pel spicuoiibly'discussed and methodized. I have thought it proper to select and to subjoin here these important distinctions, as in innumerable instances, from the ignorance of the persons employed, family settlements, particularly in wills, have pi oved abortive, and the intentions of parents and testaters have been unhappily disappointed .... Chnttian.

CHAP. XI.

OF. THINGS.

175

For, since by a devise a freehold may pass without corporal tradition or livery of seisin, (as it must do, if it passes at all) therefore it may commence in- futuro: because the principal reason why it cannot commence in futuro in other cases,-is the necessity of actual seisin, which always operates in praesenti. And, since it may thus commence in futuro, there is no need of a particular estate to support tit; the only use of which is to make the remainder, by it's unity with the particular estate, a present interest. And hence also ir. follows, that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences^f.

2. By executory devise a fee, or other less estate, may be limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to commence in a future contingency. As if a man devises land to A and his heirs: but, if he dies before the age of twenty-one, then to B and his heirs: this remainder though void in a deed, is good by way of executory devise^. But, in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a moderate term of years; for courts of justice will not indulge even wills, so as to create a perpetuity, which the law abhors¹*: because by perpetuities, (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation') estates are made incapable of answering those ends, of social commerce, and providing for the sudden contingencies of private life, for which property was at first<established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards. As when lands are devised to such unboni son of a feme-covert, as shall first attain the age of twenty-one, and his heirs ; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise^k.

f Cro. Jac. 593.

h 12 Mod. 287. 1 Vern. 164.

g 2 Mod. 289 i Salk. 229.

Ic Forr. 233

3. By executory devise a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed: for by law the first grant of it, to a man for life, was a total disposition of the whole , term ; a life estate being esteemed of a higher and larger nature than any term of years¹. And, at first, the courts were tender, even in the case of a will, of restraining the devisee for life from aliening the term; but only held, that in case he died without exerting that act of ownership, the remainder over should then take place*" : for the restraint of the power of alienation, especially in very long terms, was introducing a species of perpetuity. But, soon afterwards, it was held", that the devisee for life hath no power of aliening the term, so as to bar the remainder-man : yet in order to prevent the danger of perpetuities, it was settled⁰, that though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be in esse during the life of the first devisee ; for then all the candles are lighted and are consuming together, and the ultimate remainder is iii reality only to that remainder-man who happens to survive the rest: and it was also settled, that such remainder may not be limited to take effect, unless upon such contingency as must happen (if at all) during the life of the first deviseei"*.

Thus much for such estates in expectancy, as are created by the express words of the'parties themselves; the most intri-

1 8 Uep. 95.

n Dyer. 358. 8 Rep. 96.

pSkinn. 341. 3 P. Wms. 358.

• m Bvo. tit. chattelcs. 23. Dyer. 74. o 1 Sid. 451.

* It has long been fully settled that a tei-m for years, or any chattel interest, may be given by an executory devise to an unborn child of a person in existence, when it attains the age of twenty-one j and that the limits of executory devises of real and personal property are precisely the same. Fearr.e, 320. It is very common to bequeath chattel interests to A and his issue, and if he dies without ibsue, to B. It seems now to be determined, that where the words are such as would have given A an estate-tail in real property, in personal property the subsequent limitations are void, and A has the absolute interest: but if it appears from any clause or circumstance in the will, that the testator intended togiveit over only incase A had no issue living at the time of his death, upon that event the subsequent limitation will be good as an executory devise. See Fcanie, 371, and cases referred to in 3 Coxe's P. Wms. ^<282..,.Ckristian.

cate title in the law'. There is yet another species, which is created by the act and operation of the law itself, and this is called a Reversion.

III. An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by hiini. Sir Edward Coke^r describes a reversion to be the returning of land to the grantor, or his heirs after the grant is over. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law : and so also.the reversion, after an estate ,for life, years, or at will, continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is never therefore created by deed or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But both are equally transferrable, when actually vested, being both estates in praesenti, though taking effect in futuro.

The doctrine of reversions is plainly derived from the feocldal constitution. For, when a feud was granted to a man for

q Co. Litt. 22.

r 1 Inst. 142.

3. The doctrine of contingent remainders and executory devises is well illustrated in an essay on the subject by Charles Fearne, Esq. to which I must refer the student for further information upon this nice and intricate subject. See also, p. 119, note 14.

The court, will not construe a devise of lands, which before the act for docking estates tail (V. L. 1776, c. 26.) would have been construed as a contingent remainder, after an estate tail, to be an 'executory devise, after njee-simfile, in virtue of that act. For such a construction would probably frustrate the intention of the act, which was to defeat all perpetuities. 1 Call. 165. Carter v. Tyler.

A man devises his whole estate to his son, and if he die before twenty.-one or lawful heirs, then to be equally divided between the children of B and C. This is good by way of executory devise, for the death of A, before twenty-one determines both events. But only the children of B and C, who were in esse, at the time of the testators death are entitled under this devise, and they take per capita, and not jier stirjicn. Brewer v. Opie, 1 Call. 214.

life, or to him and his issue male, rendering either rent, or other services; then, on his death or the failure of issue male, the feud was determined and resulted back to the lord or proprietor, t<5 be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty however results of course, as an incident quite inseparable, and may be demanded as a badge of tenure, or acknowledgment of superiority j being frequently the only evidence that the lands are holden at all. .... Where rent is reserved, it is also incident; though not inseparably so, to the reversion*. The rent may be granted away, reserving the reversion ; and the reversion may be granted away, reserving the rent; by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converse: for the maxim of law is, " accessorium non ducit, sect " sequitur^ suumprincipale*"

These incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, however inaccurately the parties themselves may describe them. For if one, seised of a paternal estate in fee, makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion", to which rent and fealty shall be incident; and which shall only descend to the heirs of his father's blood, and not to his heirs general, as a remainder limited to him by a third person would have done^w: for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A, reserving rent, with reversion to B and his heirs, 'B hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A's estate*.

g Co. Litt. 143. u Cro.Eliz. 3^1. x 1 And, 23.

t Co. Litt. 151, 152. w:, Lev. 40".

In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their deaths, it is enacted by the statute 6 Ann. c. 18, that all persons, on whose lives any lands or tenements are holden, shall (upon application to the courtof chancery and order made thereupon) once in every year, if required, be produced to the court, or it's commissioners ; or, upon neglect or refusal, they shall be- taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements, till the party shall appear to be living*.

Before we conclude the doctrine of remainders and rever* sions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate *, the less is immediately annihilated ; or, in the law phrase, is said to be merged, that is, sunk or drowned in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another (en outer droifj there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge ; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife¹. An estate-tail is an .exception to this rule: for a man may have in his own right both an estate tail and a reversion in fee ; and the estate tail, though a less estate, shall not merge in the fee ^a. For estates-tail are pro-

> 3 Lev. 437. z flaw. 418. Cro. Jac. 275. Co. Litt. 338. a 2 Rep. 61. 8 Rep. 74.

4. There is no provision similar to this in the laws of Virginia: but the act of 1786, c. 67, declares, that any person absenting himself beyond sea, or elsewhere, for seven years successively, shall be presumed dead, unless-proof be made that he was alive within that time, fcdi. 1794, c. 26. This act, in some measure, answers the purposes o{ the statute of Anne, which was never in force in Virginia.

tected and preserved from merger by the operation and construction, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion ; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate ^b. But, in an estate-tail, the case is otherwise : the tenant for a long time had no power at all over it, so as to bar or to destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like^c: it would therefore have been strangely improvident, to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue: and hence it has become a maxim, that a tenancy in tail which cannot be surrendered, cannot also be merged in the fee.

b Cro. Eliz. 302. c See page 116.

CHAPTER THE TWELFTH.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON.

WE come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in co-parcenary, and in common.

I. He that holds lands or tenements in severally, or is sole tepant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate ; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise ; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severally. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants.

II. An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grant*

an estate is called an estate in joint-tenancy*, and sometimes an estate in jointure, which word as well as the other signifies an union or conjunction of interest; though in common speech the term jointure is now usually confined to that joint -estate, which by virtue of the statute 27 Hen. VIII. c. 10, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower ^b *.

In unfolding this title, and the two remaining ones in the present chapter, we will first inquire, how these estates may be created; next, their propertied and respective incidents ; and lastly, how they may be severed or destroyed,

1. The creation of an estate in joint-tenancy depends on the wording of the deed or devise, by which the tenants claim title; for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A and B and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As, thierefoie, the grantor has thus united their names, the law gives them a thorough union in all other respects*. For,

2. The properties of a joint estate are derived from it's unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession: or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. aLitt.§. 277. b See page 137.

1. See V. L. 1794, c. 94, and page 138, note 28, ante.

2. If A, B, and C, be severally seised of 400 acres of land each, and afterwards procure an inclusive patent, comprehending those three several parcels of lands, and other lands thereto adjoining, they are joint-tenants of the whole lands comprehended within the bounds of such inclusive patent. Jones v. Jones. Call's Reports, 458.

First, they must have one and the same interest. One joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life, and the other for years : one cannot be tenant in fee, and the other in tail^c. But, if land be limited to A and B for their lives, this makes them joint-tenants of the freehold j if to A and B and their heirs, it makes them joint-tenants of the inheritance ^d. If land be granted to A and B for their lives, and to the heirs of A j here A and B are joint-tenants of the freehold during their respective lives, and A has the remainder of the fee in severally: or, if land be given to A and B, and the heirs of the body of A; here both have a joint estate for life, and A hath a several remainder in tail^e. Secondly, joint-tenants must also have an unity of title: their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the same disseisin ^f. Joint-tenancy cannot arise by descent or act of law ² ; but-tnerely by purchase, or acquisition by the act of the party: and, unless that act be one and the same, the two tenants would have different titles ; and if they had different titles, one might prove good, and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be an unity of time: their estates must be vested atone and the same period, as well as by one and the same title. As in case of a present estate made to A and B; or a remainder in fee to A and B after a particular estate ; in either case A and B are joint-tenants of this present estate, or this vested remainder. But, if after a lease for life, the remainder be limited to the heirs of A and B; and during the continuance of the particular estate A dies, which vests the remainder of one moiety in his heir ; and then B dies, whereby the other moiety becomes vested in the heir of B: now A's heir and B's heir are not joint-tenants of this remainder, but tenants in common; for one moiety vested at one time, and the other moiety vested at another 8. Yet, where a feoffment was made to the use of a man, and such wife as he

c Co. Litt. 188. e Litt. Sec. 285. g Co. Litt. 188.

d Litt. Sec. 277. f Ibid. Sec. 278.

(2) For where lands descend to several person*, at once, this is •what the law calls an estate in parcenary.

should afterwards marry, for term of their lives, and he afterwards married ; in this case it seems to have been held that the husband and wife had a joint-estate, though vested at different times b : because the use of the wife's estate was in abeyance and dormant till the intermarriage ; and, being then awakened, had relation back, and took effect from the original time of creation. Lastly, in joint-tenancy, there must be an unity of possession. Joint-tenants are said to be seised per myetpcr tout, by the half or moiety, and by all; that is, they each of them have the entire possession, as well of every parcel as of the whole \ They have not, one of, them a seisin of one half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another ; but each has an undivided moiety of the whole, and not the whole of an undivided moiety'. And, therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common : for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et nonper my; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor ^{k 3}.

g Dyer. 340. 1 Kep. 101. h Litt. Sec. 288. 5 Rep. 10.

i §>uilibet totum tenet et nibil tenet t tilicet, totum in communi,' et nibil teparatimfer se. Bract..1.5. tr. S. c. 36.

k Litt. Sec. 665. Co. Litt. 187. Bro. Abr. t. cui in vita. 8. 2 Vern. 120. 2 Lev. 39.

3. Although, as judge Blackstone here observes, this estate is neither properly a joint-tenancy, nor a tenancy in common; and although, according to his doctrine, they cannot take the estate by moieties, but both are said to be seised of the entirety, fier tout, et non fiermy, yet I conceive, that the doctrine of survivorship is completely done away by the act concerning partitions, and joint rights, Edi. IT'94, c. 24, for that act expressly declares, that if partition be not made between joint-tenants, whether they be such as might have been compelled to make partition, or not, or of whatever kind the estate, or thing holden or possessed, be, the parts of those who die first shall not accrue to the survivor, but shall descend or pass by devise, in the same manner as if such joint-tenants had been tenants in common. But, quaere, as to this point: for, by the common law, if a grant is made of a joint-estate to husband and wife, and a third person, the husband and wife

Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the joint-tenant's estate. If two joint-tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint reversion'. If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate¹". On the same reason, livery of seisin, made to one joint-tenant, shall enure to both of them ⁿ: and the entry, or re-entry, of one joint-tenant is as effectual in law as if it were the act of both °. In all actions also relating to their joint estate, one joint-tenant cannot sue or be sued without joining the other v. But if two or more joint-tenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either; because neither joint-tenant hath a several right of patronage, but each is seised of the whole: and, if they do not both agree within six months, the right of presentation shall lapse. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine service may be regularly performed; which is no more than he otherwise would be entitled to do, in case their disagreement continued, so as to incur a lapse: and, if the clerk of one joint-tenant be so admitted, this shall keep up the title in both of them; in respect of the privity and union of their estate 1 *. Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land ^r ; for each has an equal right to enter on any part of it. But one joint-tenant is not capable by himself to do any act, which may tend to defeat or injure the estate of the other; as to let leases, or to grant copyholds •: and if any waste be done, which tends to the destruction of the iij-

1 Co. Litt. 214. n Ibid. 49. p Ibid. 195. r 3 I.eon. 262.

m Ibid. 192. o Ibid. 319, 364, q Ibid. 185. s 1 Leon. 234.

shall have one moiety, and the third person the other moiety, in the same manner as if it had been granted only to two persons. So, if the grant is to husband and wife, and two others, the husband and wife take one-third in joint-tenancy. Litt. §. 291.

4. It seems scarcely necessary to remark that the law in this case is obsolete in Virginia.

heritance, one joint-tenant may have an action of waste against the other, by construction of the statute Westm. 2, c. 22^l *. So too, though at common law no action of account lay for one joint-tenant against another, unless he had constituted him his bailiff or receiver", yet now by the statute 4 Ann. c. 16, joint-tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint-tenancy ⁶.

From the «ame principle, also, arises the remaining grand incident of joint estates: viz. the doctrine of survivorship: by which, when two or more persons are seised of a joint estate, of inheritance, for their own lives, or per outer vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length, to the last survivor; and he shall be entitled to the whole estate whatever it be, whether an inheritance, or a common freehold, only, or even a less estate ^w. This is the natural and regular consequence of the union and entirety of their interest. The interest of two joint-tenants is not only equal or similar, but also is one and the same. One has not originally a distinct moie- • ty from the other; but, if by any subsequent act (as by alienation or forfeiture of either)the interest becomes separate and distinct, the joint-tenancy instantly ceases. But, while it continues, each of two joint-tenants has a concurrent interest in the whole; and, therefore, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest, which the survivor originally had, is clearly not devested by the death of his companion; and no other person can now claim to have a

t 2 Inst. 403.

w Lite. Sec. 280, 281.

u Co. Litt. 200.

5. The statute of Westm. 2, gave one tenant in common an action of waste against another. Under the equity of this statute it is held that joint-tenants may likewise have the same action against their companions. The statute of waste, in Virginia agrees with the statute of Westm. 2. See Edi. ir94, c. 139. $. 3.

6. The provisions of this statute, in this respect, were adopted in

Virginia in 1748, c. 3. $. 37. Edi. 1769 .... Edi. 1794, c. 76. $.24, but

• the usual course is to apply to a court of equity to compel an account.

joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time with his own: neither can any one claim a separate interest in any part of the tenements; for that would be to deprive the survivor of the right which he has in all, and every part. As, therefore, the survivor's original interest in the whole still remains ; and as no one can now be admitted, either jointly or severally, to any share with him, therein; it follows, that his own interest must now be entire and several, and that he shall, alone, be entitled to the whole estate (whatever it be) that was created by the original grant⁷.

This right of survivorship is called by our antient authors *, the jus accrescendi, because the right, upon the death of one joint-tenant, accumulates and increases to the survivors; or, as they themselves express it, " pars ilia communis accrescit supurstitibus, df persona inpersonam^usqueadultimam superstitem." And this jus accrescende, ought to be mutual; which, I apprehend to be one reason why neither the king v, nor any corporation¹, can be a joint-tenant with a private person. For here is

x Bracton. /. 4, tr. 3, c. 9, Sec. 3, Fleta. I. 3, c. 4. y Qo. Litt. 190, Finch. L. 83, z 2 Lev. 12.

7. The right of survivorship between joint-tenants, as well of personal chattels, as of lands, was abolished in Virginia, by the act of

1786. c. 60. Edi. 1794, c. 24. This important act, took effect July 1,

1787 .... This can only be discovered by recurring to the Sessions Acts

of 1786, c. 115, in which the commencement of the acts of that session of a general nature, is particularly limited.. .... The act declares... ....

That if partition be not made between joint-tenants, whether they be such as might have been compelled to make partition, or not, or of whatever kind the estate or thing holden or possessed be, the parts of those who die first shall not accrue to the survivors, but shall descend, or pass by devise, and shall be subject to debts, charges, curtesy, or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose, in the same manner as if such deceased joint-tenants had been tenants in common." See Edi. 1794, c. 24 .... And where one or more slaves

descend from a person dying intestate, if an equal division cannot be made thereof, in kind, the high court of chancery, or county, or corporation court granting the administration may direct a sale of the slave, or slaves, and a distribution of the money according to the rights of each claimant. V. L. 1790, c. 13, Edi. 1794, c. 103, $. 46.

no mutuality: the private person has not even the remotest chance of being seised of the entirety, by benefit of survivorship, for the king and the corporation can never die *.

3. We are, lastly, to inquire, how an estate in joint-tenancy may be severed and destroyed. And this may be done by destroying any of it's constituent unities. 1. That of time, which respects only the original commencement of ihe joint-estate, can not, indeed, (being now past) be affected by any subsequent transactions. But, 2. The joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seised per my et per tout, every thing that tends to narrow that interest, so that they shall not be seised throughout the whole, and throughout every part, is a severance or destruction of the jointure. And, therefore, if two joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants; for they have now no joint-interest in the whole, but only a several interest, respectively, in the several parts. And for that reason, also, the right of survivorship is by such separation destroyed ^a. By common law, all the joint-tenants might agree to make partition of the lands, but one of them could not compel the other so to do ^b: for, this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession, without a similar universal consent. But now, by the statutes 31 Hen. VIII, c. 1, and 32 Hen. VIII, c. 32, joint-tenants, either of inheritances or other less estates, are compellable by writ of partition to divide their

a Co. Litt. 188, 193.

b Litt. Sec. 290.

* But lord Coke says expressly, " there may be joint-tenants, though there " be not equal benefit of survivorship; as if a man let lands to A and B during " the life of A ; if B dio, A shall have all by survivorship; but if A die, B " shall have nothing." Co. Litt. 181. The mutuality of survivorship does not therefore appear to be the reason why a corporation cannot be a joint-tenant with a private person; for two corporations cannot be joint-tenants together; but whenever a joint-estate is granted to them, they take as tenants in common. Co. Litt. 190. But there is no survivorship of a capital, or a stock in trade, among merchants and traders j for this would be ruinous to the family of the deceased partner; and it is a legal maxim,_;'iw accrescendi inter mercatores pro tensficio ccnmnercii locum non babet. Co. Litt. 182. See p. 399. fast .... Christian.

lands ^c. 3. The jointure may be destroyed by destroying the unity of title. As if one joint-tenant alienes and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common ^d; for the grantee and the remaining joint-tenant hold by different titles, (one derived from the original, the other from the subsequent, grantor) though, till partition made, the unity of possession continues. But a devise of one's share by will is no severance of the jointure: for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has, therefore, a priority to the other⁶) is already vested ^{f 8}. 4. It may also be destroyed, by destroyiflg'the unity of interest. And, therefore, if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointures: though if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one, and the same conveyance, they are not separate estates, (which is requisite in order to a merger) but branches of one entire estate ^h. In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure^l; for it destroys the unity both of title and of interest. And, whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it^k. Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship •: and, if one of three joint-tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts

c Thus, by the civil law, nemo invitus compellitur ad eommunionem. (Ff. 12, 6, 26, Set. 4.J And again; ti non omnes qui i em communem habcnt, xd certiext>is,dimderedesideranti boc judicium inter eos accipi potest. fff.W, 3, B.J d Litt. Sec. 292.

e Jut accrescendi praefertur ultirnae voluntati- Co. Litt. 185.

f Litt. Sec. 287. g Cro. Eliz. 470.

h 2 Rep. 60, Co. Litt. 182. i Litt. Sec. 30J, 303.

k Nibil de re accrescit ei, qui nibil in re ejuando jus accrescrret babet. Co,' Litt. 188. I Litt. Sec. 294.

8. But, herein the law is now altered in Virginia. See note 7, p. 184, and V. L. Edi. 1794, c. 24.

are still held in jointure ^m ; for they still preserve their original constituent unities. But when, by any act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensible properties, a sameness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant; the jointure is instantly dissolved.

In general it is advantageous for the joint-tenants to dissolve the jointure j since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs. Sometimes however it is disadvantageous to dissolve the joint-estate : as if there be joint-tenants for life, and they make partition, this dissolves the jointure; and, though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely; and, on the death of either, the j reversioner shall enter on his moiety". And therefore, if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture °: for in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; arid then he grants the same land for the life of another: which grant, by a tenant for his, own life merely, is a forfeiture of his estate p ; for it is creating an estate which may by possibility last longer than that which he is legally entitled to».

III. An estate held in coparcenary is where lands of inheritance descend from the ancestor to two or more persons. It arises either by common law, or particular custom¹⁰. By common law: as where a person seised in fee-simple, or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, m Litt. Sec. 304. n,l Jones. 55. o 4 Leon. 23?. p Co. Litt. 252.

9. Quere, how far the law in this case may be altered in Virginia by the act concerning wrongful alienations. Edi. 1794, c. 13, as also, by the act abolishing the right of survivorship between two or more joint-tenants, ibid. c. 24. See note 2. p. 171, and note 7. p. 184.

10. Parceners are now also by statute. V. L. 1785, c. 60. Edi. 1794, c. 93.

aunts, cousins, or their representatives ; in this case they shall all inherit, as will be more fully shewn, when we treat of descents hereafter: and these co-heirs are then called coparceners; or, for brevity, parceners onlyi. Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &fc^r '*. And in either of these cases, all the parceners put together make but one heir; and have but one estate among them*.

The properties of parceners are in some respects like those of joint-tenants : they having the same unities of interest, title, and possession. They may sue and be sued jointly for matters relating to their own lands^l: and the entry of one of them shall in some cases enure as the entry of them all^u. They cannot have an action of trespass against each other: but herein they differ from joint-tenants, that they are also excluded from maintaining an action of waste*; for coparceners could at all times put a stop to any waste by writ of partition^l2, but till the statute of Henry the eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points: 1. They always claim by descent, whereas joint-tenants always claim by purchase. Therefore if two sisters purchase lands, to ' hold to them and their heirs, they are not parceners, but joint-

q Litt. Sec. 241,2*2. t Co. Litt. 164.

r Ibid. Sec. 265. u Ibid 188,243.

b Co. Litt. 163. w 2-Inst. 403.

11. Parceners by statute are, where all the children or other descendants of a person dying intestate come into partition for his estate; or where his mother, brothers, sisters, or their descendants ; or his grandmother, uncles and aunts, and their descendants ; or any other lineal female ancestor, and collateral kindred ; or collateral kindred, alone, come into the inheritance, together, by virtue of the statutes prescribing the course of descents, above referred to ; in these cases all the parceners in equal degree of consanguinity to the deceased shall come into the partition together, without regard to sex or primogeniture, except where the lands descended from an infant dying without issue, as will be more fully explained hereafter. The lineal male ancestors of the deceased, (except the father, who shall take the whole estate in severally) if there be more than one of thefn living at the time of the intestate's death shall be parceners, one with another. V. L. Edi. 1794, c. 93.

12. The act of 1790, c. 13. Edi. 1794, c. 93. Sec. 21, gives par•eners an action of waste against each other.

tenants": and hence it likewise follows, that no lands can be held in coparcenary, but estates of inheritance, which are of a descendible nature ; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time necessary to an estate in coparcenary. For if a man hath two daughters, to whom his estate descends in coparcenary, and one dies before the other ; the surviving daughter and the heir of the other, or, when both are dead, their two heirs are still parceners f ; the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have an unity, have not an entirety, of interest. They are properly entitled each to the whole of a distinct moiety^z; and of course there is no jus accrescendi, or survivorship between them :' for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in possession, so long are the tenants therein, whether male or female, called parceners. But if the possession be once severed by partition, they are no longer parceners, but tenants in severally ; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in common *.

Parceners are so called, saith Littleton ^b, because they may be constrained to make partition. And he mentions many methods of making it^c ; four of which are by consent, and one by compulsion. The first is, where they agree to divide the lands into equal parts in severally, and that each shall have such a determinate part. The second is, when they agree to chuse some friend to make partition for them, and then the sisters shall chuse each of them her part according to seniority of age¹³; or otherwise, as shall be agreed. The privilege of seniority is in this case personal; for if the eldest sister be dead, her issue shall not chuse first, but the next sister. But, if an advowson descend in

x Litt. Sec. 254. y Co. Litt. 164,174. z Hid. 163, 164. a Litt. Sec. 309. b Sec. 241. c Sec. 243 to 264.

13. No parcener shall have or possess any privilege over another in any election, division, or other matter concerning lands descended to them. V. L. 1790, c. 13. Edi. 1794, c. 93. }. 21.

coparcenary, and the sisters cannot agree in the presentation, the eldest and her issue, nay her husband, or her assigns, shall present alone, before the younger ^d. And the reason given is that the former privilege, of priority in choice upon a division, arises from an act of her own, the agreement to make partition ; and, therefore, is merely personal: the latter, of presenting to the living, arises from the act of the law, and is annexed not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall chuse last; for the rule of law is, cujus est divisio, alterius est electio. The fourth method is, where the sisters agree to cast lots for their shares. And these are the methods by consent. That by compulsion is, where one or more sue out a writ of partition against the others ; whereupon the sheriff shall go to the lands, and make partition thereof by the verdict of a jury there impanneled, and assign to each of the parceners her part in severally ^e #. But there are some things which are in their nature impartible. The mansion-house, common of estovers, common of piscary uncertain, or any other common without stint, shall not be divided: but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance ¹⁴ : or, if

d Co. Litt. 166. 3 Rep. 22.

e By statutes 8 and 9 W. III, c. 31, an easier method of carrying on the proceedings on a writ of partition, of lands held either in joint-tenancy, parcenary, or common, than was used at the common law, is chalked out and provided.

* Another, and the most usual mode of compulsion, is by a decree of a court of equity- Seep. 183, n. 2, ante. .... Christian.

14. This, and every other preference, which the common law gave to one parcener over another, is now abolished. V. L. 1790, c. 13. But where lands descend in parcenary, if one of the parceners he an infant, feme covert, nan comfws mentis, or beyond sea, and the dividend of each heir shall not exceed one hundred dollars in value, in the opinion of the high court of chancery, or of the county or corporation court where the lands lie, such court may direct the sale of the lands, and a distribution of the money according to the rights of each claimant : but every heir residing within the commonwealth must be first summoned to shew cause, if he can, against such sale. Edi. 1794, c. 93. The same law, where one or more slaves descend to several persons, andan equal division thereof cannot be made in kind. V. L. 1790, c. 13. Edi. 1794, c. 103.

that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take the advowsen ^f.

There is yet another consideration attending the estate in coparcenary ; that if one of the daughters has had an estate given \vith her in frankmarriage by her ancestor, (which we may remember was a species of estates-tail, freely given by a relation for advancement of his kinswoman in marriage s) in this case, if lands descend from the same ancestor to her and her sisters in fee-simple,-she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage in equal proportion with the rest of the lands descending^h ". This mode of division was known in the law of the Lombards«, which directs the woman so preferred in marriage, and claiming her share of the inheritance, mittere in eonfusumcum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad marilum. With us it is denominated bringing those lands into hotchpot ^k: which term I shall explain in the very words of Littleton¹: it seemeth that this word, hotchpot, is in English a pudding; for in a pudding is not commonly put one thing alone, but one thing with other things together." By this housewifely metaphor our ancestors meant to inform us^m, that the lands, both those given in frankmarriage, and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions am$ng alHhe daughters. But this was left to the choice of the donee in frankmarriage j and if she did not chuse to put her lands into hotchpot, she was presumed to be sufficiently provided for, and the rest of die inheritance was divided among her other sisters. The law of hotchpot took place then only, when the other lands descending from the ancestor were fee-simple ; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given

f Co. Litt. 164, 165. h Bracton, /. 2. c. 34. i/.2. <.14. c.15. 1 Sec. 207.

g See page 115. Litt. Sec. 26Sto 273.

k Britton, c. 72. m Litt. Sec. 268.

15. It -will be remembered, that every species of estates-tail was abolished in Virginia immediately after the revolution. See note 14, page 119.

into hotchpotⁿ. And the reason is, because lands descending in fee-simple are distributed by the policy of law, for the maintenance of all the daughters; and, if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more : but lands, descending in tail, are not distributed by the operation of the law, but by the designation of the giver, performamdoni; it matters not, therefore, how unequal this distribution may be. Also, no lands, but such as are given in frankmarriage, shall be brought into hotchpot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage-portion °. And, therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotchpot, had not this method of division been revived and copied by the statute for distribution of personal estates, which we shall hereafter consider at large ¹⁶.

The estate in coparcenary may be dissolved, either by partitition, which disunites the possession; by alienation of one parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severally.

I-V, Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severally, and therefore they all occupy promiscuously'. This tenancy, therefoi e, happens, where there is a unity of possession merely, but perhaps an entire disunion of interest, of title,

n Litt. Sec. 274. o Ibid. 275. p Ibid 292.

16. The law of hotchfiot is expressly adopted in our code. For •where any of the children of a person dying intestate, or their issue, .shall have received from the intestate, in his life-time, any real estate by way of advancement, and shall choose to come into partition with the other parceners, such advancement shall be brought into hotchfiot, with the estate descended. V. L. 1785, c. 60. Edi. 1794, c. 93. The same law, with regard to the distribution of the personal estate, (except in the case of the heir at law) was established in 1705, c. 7. Edi. 1769. And the same law, without any exception, is now also established as tothe personal estate. 1785, c. 61. Edi. 1794, c. 92. }. 27.

and of time. For, if there be two tenants in common of lands, one may hold his part in fee-simple, the other in tail, or for life j so that there is no necessary unity of interest: one may hold by descent, the other by purchase; or the one by purchase from A, the other by purchase from B ; so that there is no unity of title : one's estate may have been vested fifty years, the other's but yesterday ; so there is no unity of time. The only unity there is, is that of possession: and for this Littleton gives the true reason, because no man can certainly tell which part is his own : otherwise even this would be soon destroyed.

Tenancy in common may be created, either by the destruction of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest: As, if one of two joint-tenants in fee, aliene,s his estate for the life of the alienee, the alienee, and the other joint-tenant, are tenants in common; for they now have several titles, the other joint-tenant by the original grant, the alienee by the new alienation 1; and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A in tail, and the other gives his to B in tail, the donees are tenants in common, as holding by different titles and conveyances ^r. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common • ; because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of the life-estate, but they shall have several inheritances ; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten*: and in this, and the like cases, their issues shall be tenants in common; because they must claim by different titles, one as heir of A, and the other as heir of B ; and those too not titles by purchase, but descent. In short, whenever an estate in joint-tenancy, or co-

Litt. §. 293. s Ibid. 309.

r Ibid. 295. t Ibid. 283:

parcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common.

A tenancy in common may also be created by express limitation in a deed: but here care must be taken not to insert words which imply a joint estate; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But'the law is apt in it's constructions to favour joint-tenancy rather than tenancy in common"; because the divisible services issuing from land (as rent, &?c.) are'not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily be upon a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common*; and, if one grants to another half his land, the grantor and grantee are also tenants in common³¹: because, as has been before* observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severally of the estate is so plainly expressed, that it is impossible they should take a joint interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, is'saidto be a joint-tenancy *; because that is necessarily implied in the word "jointly," the word " se-' verally" perhaps only implying the power of partition: and an estate given to A and B, equally to be divided between them, though in deeds it hath been said to be a joint-tenancy", (for it implies no mor,e than the law has annexed to that estate, viz. divisibility¹") yet in wills it is certainly a tenancy in common⁰; because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed. And this nicety in the wording of grants makes it the most usual as well as the safest way, when a tenancy in common is meant to be created, to add express words of exclusion as well as description, and limit the estate to A and B, to hold as tenants in common, and not as joint-tenants.

u Satk. 392.

jt Litt. Sec. 298.

z Poph. 52

b 1 P. Wms. 17.

w Litt. Sec, 298.

y See p. 182.

a 1 Equ. Cas. Abr. 291.

c 3 Rep. 39. 1 Vemr. 32.

As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable by the statutes of Henry VIII and William III, before-mentioned¹¹, to make partition of their lands; which they were not at common law¹⁷. They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common. Their other incidents are such as merely arise from the unity of possession ; and are therefore the same as appertain to joint-tenants merely upon that account: such as being liable to reciprocal actions of waste¹⁸, and of account¹⁹, by the statutes of Westm. 2. c. 22, and 4 Ann c. 16. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate⁵; though, if one actualjy turns 'he other out of possession, an action of ejectment will lie against him^f. But, as for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined inactions^²⁰, unless in the case where some entire or indivisible thing is to be recovered¹¹) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several²¹.

dp. 185. and 189. f Co. Litt. 200.

e Co. Litt. 199. g Litt. Sec. 311.

h Co. Litt. 19r.

17. Tenants in common are compellable to make partition of their hinds, by the act of 1786, c. 60. Edi. 1794, c. 24.

18. One tenant in common may have an action of waste against another. V. L. 1794, c. 139.

19. One joint tenant, or tenant in common, his executors or administrators, may have an action of account against another, his executors or administrators, as bailiff, for receiving more than his just share. V. L. 1748, c. 3. Edi. 1794, c. 76. '

20. Tenants in common can not join in a writ of ejectment, for they cannot make a joint demise of their interests, which are several, and distinct, and there is no privity between them. Co. Litt. 200. 2 Wilson, 232. This is an important distinction between tenants in common, and joint-tenants, or parceners. For the two latter may, and regularly ought to join, and be joined, in all actions respecting their joint possession in lands, although tenants in common dan not.

21. In right of land holden byi parceners, joint-tenants, or tenants in common, but one vote shall be given by all the holders capable of voting, unless the quantity of land, in case of partition be sufficient to entitle every holder present to vote separately. V. L. 1785, c. 55. Edi. 1794, c. IT.

Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise²²; which brings the whole to one severally : 2. By making partition between the severaj tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature of estates.

22. Adrerse possession, or the uninterupted receipts of rents and profits, is held to be evidence of an actual ouster, by which among other modes, a tenancy in common, may, in process of time be destroyed. And where one tenant in common has been in undisturbed possession for twenty years, in an ejectment brought against him by the co-tenant, the jury ought to presume an actual ouster, and find a verdict for the defendant. Cowper's Rep. 217. And our law seems to favor this construction, by declaring that possession of part shall not be construed a possession of the whole, where an actual adverse possession can be proved. L. V. Edi. 1794, c. 76. Sec. 28.

If a lessee of two tenants in common pay the whole of the rent to one, after notice from the other to pay them each'a moiety, the tenant in common, who gave such notice, may distrein for his share_f 5 Durn* ford and East. 246,.,.C/irittian.

CHAPTER THE THIRTEENTH.

OF THE TITLE TO THINGS REAL, IN GENERAL.

THE foregoing chapters having been principally employed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein; I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it.

A title is thus denned by Sir Edward Coke⁸, titullus est justa causa possidendi id quod nostrum est; or, it is the means whereby the owner of lands hath the just possession of his property.

There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.

I. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprize turns him out of the occupation of his lands ; which is termed a disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of the heir, or after the death of a particular tenant and before the entry of him in remainder or reversion, a

a 1 Inst. 345.

stranger may contrive, to get possession of the vacant land, and hold out him that had a right to enter. In all which cases, and many, others that might be here suggested, the wrongdoer has only a mere naked possession, which the rightful owner may put an end to, by a variety of legal remedies, as will more fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to devest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title. And, at all events, without such actual possession no title can be completely good.

II. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself but in another. For if a man be disseised, or otherwise kept out of possession, by any of the means before-mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the disseisor, and turning him out of that occupancy which he has so illegally gained. But this right of possession is of two sorts: an apparent right of possession, which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents. Thus if the disseisor, or other wrongdoer, dies possessed of the land whereof he so became seised by his own unlawful act, and the same descends to his heir; now by the common law the heir hath obtained an apparent right, though the actual right of possession resides in the person disseised; and it shall not be lawful for the person disseised to devest this apparent right by mere entry or other act of his own, but only by an action at law ^b: For, until the contrary be proved by legal demonstration, the law will rather presume the right to reside in the heir, whose ancestor died seised, than in one who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feodal law, which, after feuds became hereditary, much

a 1 Inst. 345.

k Litt. Sec. 38S.

favoured the right of descent; in order that there might be a person always upon the spot to perform the feodal duties and services^c: and therefore, when a feudatory died in battle, or otherwise, it presumed always that his children were entitled to the feud, till the right was otherwise determined by his fellow-soldiers and fellow-tenants, the peers of the feodal court. But if he, who has the actual right of possession, put in his claim and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became seised, he will then by sentence of law recover that possession, to which he hath such actual right. Yet, if he omits to bring this his possessory action within a competent time, his adversary may imperceptibly gain an actual right of possession, in consequence of the other's negligence. And by this, and certain other means, the party kept out of possession may have nothing left in him, but what we are next to speak of; viz.

III. The mere right of property, the jus proprietatis, without either possession or even the right of possession. This is frequently spoken of in our books under the name of the mere right, jus merum; and the estate of the owner is in such cases said to be totally devested, and put to a right^d. A person in this situation may have the true ultimate property of the lands in himself: but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is strongly in favour of his antagonist: who has thereby obtained the absolute right of possession. As, in the first place, if a person disseised, or turned out of possession of his estate, neglects to pursue his remedy within the time limited by law : by this means the disseisor or his heirs gain the actual right of possession : for the law presumes that either he had a good right originally, in virtue of which he entered on the lands in question, or that since such his entry he has procured a sufficient title ; and, therefore, after so long an acquiescence, the law will not suffer his possession to be disturbed without inquiring into the absolute right of property. Yet, still, if the person disseised or his heir hath the true right

c Gilb. Ten. 18.

<J Co. Litt. 345.

of property remaining in himself, his estate is indeed said to be turned into a mere right; but, by proving such his better right he may at length recover the lands. Again, if a tenant in tail discontinues his estate-tail, by alienating the lands to a stranger in fee, and dies ; here the issue in tail hath no right of possession, independent of the right of property: for the law presumes prima facie that the ancestor would not disinherit, or attempt to disinherit, his heir, unless he had power so to do,; and therefore, as the ancestor had in himself the right of possession, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by shewing the absolute right of property to reside in another person. The heir therefore in this case has only a mere right, and must • be strictly held to the proof of it, in order to recover the lands. Lastly, if by accident, neglect, or otherwise, judgment is given for either party in any possessory action, (that is, such wherein the right of possession only, and not that of property is contested) and the other party hath indeed in himself the right of property, this is now turned to a mere right; and upon proof thereof in a subsequent action, denominated a writ of right, he shall recover his seisin of the lands.

Thus, if a disseisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right ofpossession,andright of properly.- If the disseisordies,and the lands descend to his son, the son gains an apparent right of possession; but I still retain the actual right both of possession and property. If I acquiesce for thirty years, without bringing any action to recover possession of the lands, the son gains the actual right of possession, and I retain nothing but the mere right of property. And even this right of property will fail, or at 'least it will be without a remedy, unless I pursue it within the space of sixty years '.. So also if the father be tenant in tail,

1. By the act of 1710, c. 13. Edi. 1733, all writs of right were limited to be prosecuted upon the seisin of the demandant, or his ancestors within thirty years next before the test of the writ. But the act 1734, c, 6, extended the period to fifty years, which remains unaltered. Nor is there any saving in this case, in favour of infants, femes-covert, &c. A writ offormedon, must be brought within twenty years,

and alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the son hath only the mere right or right of property. And hence it will follow, that one man may have dispossession, another the right of possession, and a third the right of property. For if tenant in tail infeoffs A in fee-simple, and dies, and B disseises A ; now B will have the possession, A the right of possession, and the issue in tail the right of property: A. may recover the possession against B; and afterwards the issue in tail may evict A, and unite in him* self the possession, the right of possession, and also the right of property. In which union consists,

IV. A complete title to lands, tenements, and hereditaments. For it is an antient maxim of the law^e, that no title is completely good, unless the right of possession be joined with the right of property; wljich right is then denominated a double right, yuo Juplieatum, or droit droit^f. And when to this double right, the actual possession is also united, when there is, according to the expression of Fleta f, juris etseisinae conjunctio, then, and then only, is tb<; tide completely legal².

e Mirr. /. 2. s. 27.

f Co. Litt. 266. Bract. /. 5. tr. 3. c. 5.

g /. 3. c. 15. Sec. 5.

and no^ntry into lands shall be made but within that period after the right or title shall accrue. Any action possessory, other than a writ of right, may be brought upon the seisin or possession of the demandants ancestor or predecessor within forty years; but no person can maintain any real action upon his own possession, or seisin of lands in Virginia, but within thirty years, next before the test of the writ, 1748, c. 1. Edi. 1769, Edi. 1794, c. 76. .... By the-last mentioned act it is declared, that actual possession need not be proved to maintain a writ of right. Sec. 29. This perhaps may operate to repeal the clause of limitation, since it seems difficult to reconcile the two clauses together.

2. Since actual possession need not be proved to maintain a writ of right, which is the highest real action that can be brought for the recovery of lands, it seems questionable whether the legislature have not altered this rule of the common law. Seisina facit stifiitem, is another correlative rule of the common law... A. obtains a patent for lands, and dies, and by his will devises them to B, having in his lifetime saved them from forfeiture by cultivating them agreeably to the terms of his

patent, and afterwards left them uncultivated .... B survives A thirty years, and dies; C, his eldest son never enters or is possessed of the lands, and fifteen years after the death of his father B, he brings a writ of right. Will the seisin of A, who was no ancestor of C. entitle C. to recover these lands, although the tenant should prove a possession in himself, or those under whom he claims as far back as the life of A; though not so far back as fifty years, or the date of A's patent ? perhaps it may be answered, that A was the predecessor * of C as to the title to the lands though not his ancestor. Suppose then that A hath been dead above fifty years: that no evidence of a possession in B can be proved ; and that the tenant pro\ e a possession in himself and those under whom he claims for more than forty years next before the writ purchased, but not as far back as fifty years, can C recover upon this evidence ? If he can the clause of limitation seems to be altogether a nullity.

* Note, this mm predecessor seems rather to apply to corporation, than to natural persons, and probably ought to be so construed.

CHAPTER THE FOURTEENTH.

OF TITLE BY DESCENT.

THE several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of propriety) may be reciprocally lost and acquired : whereby the dominion of things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an .estate, by that same method, or it's correlative, some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his death : where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an antient and now forgotten grant, or has forfeited it by the supine-, ness or neglect of himself and his ancestors for ages: and so, in case of forfeiture, the tenant, by his own misbehaviour or neglect, has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default : and, in alienation by common assurances, the two considerations of loss and acquisition are so intenvoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of _t the grantor as the grantee.

The methods therefore, of acquiring, on the one hand, and of losing on the other, a title to estates in things real, are reduced

by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement*.

Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance.

The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance ; and is indeed the principal object of the laws of real property in England. AH the rules relating to purchases, whereby the legal course of dements is broken and altered, perpetually refer to this settled law of" inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Tims a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in it's descent to such heirs alone of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children, both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heir; this is a point, that we must result back to the standing law of descents in fee-simple to be informed of.

In order, therefore, to treat a matter of this universal consequence, the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall, therefore, decline considering at present who are, and who are not, capable of being heirs ; reserving that lor the chapter of escheats. I shall also pass over the frequent division of descents, in those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to a Co. Litt. 18.

th* youngest in borough-english, have already been often^b hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already⁰ copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain.

And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood^d.

Consanguinity, or kindred, is defined by the writers on these subjects to bu " vinculum personarum ab eodem stifite descendentium;" the connexion or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral.

Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles (\\tepropositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards, in the direct ascending line ; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second j his great-grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and, therefore, universally obtains, as well in the civil^e, and canon^f, as in the common lawe.

b See Vol. I. p. 74,75. Vol. 11. p. 83, 85. c See p. 112.

d Fora fuller explanation of the doctrine of consanguinity, and the conseque nccs resulting from a right apprehension of it's nature, see An Essay on Collateral Consanguinity. (Law Tracts, Oxon. 1762. 8vo. or 1771, 4to.

e Ff. 38. 10.10. f Decretal. 1.4. tit. 14. g Co. Lite. 23.

The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees: and so many different bloods'¹ is a man said to contain in his veins, as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents ; he hath four in the second, the parents of his father and the parents of his mother; he hath eight in the third, the parents of his two grandfathers and two grandmothers ; and by the same rule of progression, he hath an hundred and twenty-eight in the seventh ; a thousand and twenty-four in the tenth ; and at the twentieth degree, or the distance of twenty generations, every man hath above a: million of ancestors, as common arithmetic will demonstrate'. This lineal consanguinity, we may observe, falls

h Ibid. 12.

i This will seem surprising to those who are unacquainted with the encreasing power of progressive numbers: but is palpably evident from the following table of a geometrical progression, in which the first term is 2, and the denominator also 2: or, to speak more intelligibly, it is evident, for that each of us has two ancestors in the first degree ; the number of whom is doubled at every remove because each of our ancestors has also two immediate ancestors of his own.

A shorter method of finding the number of ancestors at any even degree, is by squaring the number of ancestors at half that number of degrees,. Thus 16 (the

strictly within the definition of vinculum persdnarutn ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both of course from the same common ancestor.

Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; hut differing in this, that they do not descend one from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stiffs, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who have each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.

We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related ; why ? because both are derived from one father: Titius and his first cousin are related; why ? because both descend from the same grandfather ; and his second cousin's claim to consanguinity is this, that they both are derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we are taught by holy writ, that there is one couple of ancestors belonging to us all, from whom the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other. For indeed, if we only suppose each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more : (and, without such a supposition, the human species must be daily di-

numberof ancestors at four degrees) is the square of 4, the number of ancestors at two; 256 is the square of 16; 65536 of 2j6; and the number of ancestors at 40 degrees would be the square of 1048576, or upwards of a million millions.

mini' • ig) we shall find that all of us have now subsisting near two h .dred and .seventy millions of kindred in the fifteenth degree, at the same distance from the several common ancestors as ourselves are , besides those that are one or two descents nearer to or farther from the common stock, who may amount to as many more ^k. And if this calculation should appear in-

k This will swell more considerably than the former calculation j for here though the first term is but 1, the denominator is4; that is, there is one kinsman (a brother) in the first degree, who makes, together with theprojiositus, the two descendants from the first couple of ancestois; and in every other degree the number of kindred must be the quadruple of those in the degree which immediately precedes it. For, since each couple of ancestors has two descendants, who encrease in a duplicate ratio, it will follow that the ratio, in which all the descendants encrease downwards, must be double to that in which the ancestors encrease upxvards: but we have seen that the ancestors encrease uj>wards in a duplicate ratio: therefore the descendants must encrease downwards in a double duplicate, that is, in a quadruple ratio.

This calculation may also be formed by a more compendious process, viz. br squaring the couples, or half the number, of ancestors at any given degree ; which will furnish us with the number of kindred we have in the same degree, at equal distance with ourselves from the common stock, besides those at unequal distances. Thus, in the tenth lineal degree, the number of ancestors is 1024; it's half, or the couples, amount to 512, the number of kindred in the tenth collateral degree amounts therefore to 2(52144, or the square of 512. And if we will be at the trouble to recollect the state of the seveial families within

compatible with the number of inhabitants on the earth, it is because, by intermarriages among the several descendants from the same ancestor, a hundred or a thousand modes of consanguinity may be consolidated in one person, or he may be related to us a hundred or a thousand different ways.

The method of computing these degrees in the canon law ', which our lav/ has adopted ^m, is as follows. We begin at the common ancestor, and reckon downwards ; and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the first degree ; for from the father to each of them is counted only one ; Titius and his nephew are related in the second degree ; for the nephew is two degrees removed from the common ancestor ; viz. his own grandfather, the father of Titius. Or, (to give a more illustrious instance from our English annals) King Henry the seventh, who slew Richard the third in the battle of Bosworth, was related to that prince in the fifth degree. Let the propositus therefore in the table of consanguinity represent king Richard the third, and the class marked (t) king Henry the seventh. Now their common stock or ancestor was king Edward the third, the abavus in the same table: from him to Edmond duke of York, theproavus, is one degree; to Richard earl of Cambridge, the auw.«,two; to Richard duke of York, the pater, three ; to king Richard the third, the propositus, four: and from king Edward the third to John of Gant (a) is one degree; to John earl of Somerset (Ji) two; to John duke of Somerset (C) three ; to Margaret countess of Richmond (n) four ; to king Henry the seventh (e) five. Which last mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though according to the computation of the civilians, (who count upwards, from either of the persons related, to the

our own knowledge, and observe how far they agree with this account; that is, whether, on an average, every man has not one brother or sister, four first cousins, sixteen second'cousins, and so on; we shall find that the present calculation is very far from being overcharged.

\Decretal. 4. 14. 3^9.

m Co, Litt. 23.

common stock, and then downwards again to the other; reckoning a degree for each person both ascending and descending) these two princes were related in the ninth degree: for from king Richard the third to Richard duke of York is one degree ; to Richard earl of Cambridge, two; to Edmond duke of York, three; to king Edward the third, the common ancestor, four; to John of Gant, five ; to John eaH of Somerset, six ; to John duke of Somerset, seven j to Margaret countess of Richmond, eight; to king Henry the seventh, nine".

The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules, or canons of inheritance, according to which estates are transmitted from the ancestor to the heir > together with an explanatory comment, remarkingtheir original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations.

I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised, in injtnitum ; but shall never lineally ascend¹.

To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead.. Nemo eat haeres viventis. Before that time, the person who is next in the line of 'succes-

n See the table of consanguinity annexed j wherein all the degrees of collateral kindred to the propositut are computed, so far as the tenth of the civilians and the seventh of the canonists inclusive; the former being distinguished by the numeral letters, the latter by the common cyphers.

1. The latter part of this rule, viz. that inheritances shall never lineally ascend, was altered by theact of 1785, c. 60. Since, in default of lineal descendants, the inheritance is directed to go to the father, or other lineal male ancestor, in preference to the collateral relations in the same degree of consanguinity to the intestate. And where the intestate is not an Infant, it seems presumable chat the law still remains the same, notwithstanding the words introduced into the seventh section. See appendix, note B. Sec, also, Edi. 1794, c. 93. Also^S Call's Rep. 390.

sion, is called an heir apparent, or heir presumptive. Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor ; as the eldest son or his issue, who must by the course of the common law be heir to the father whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would, in the present circumstances of things, be his heirs ; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child ; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter; in the former cases, the estate shall be devested and taken away by the birth of a posthumous child ; and, in the latter, it shall also be totally devested by the birth of a posthumous son °.

We must also remember, that no person can be properly such an ancestor, as that an inheritance of'lands or tenements can be derived from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold f ² : or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson 1, and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter, or be otherwise seised (²). And, therefore, all the cases which will

o Bro. til. descent, SB.

p Co. Litt. IS.

q Ibid. 11.

2. But see Havg. Co. Litt. 14. a. n. 6.

(2.) Here it will be proper to call the attention of the student to the first clause of our law of descents, the words of which are," that henceforth, when any person having title to any real estate of inheritance, shall die intestate, &c." Whether, by this word title is meant a complete title, only, juris et seisinae conjunctio; or such a title as required only an actual entry, or some other act which the law deems equivalent thereto, to render it a complete title, seems well worthy of consideration. " victual possession need not be proved to maintain a writ of right." Edi. 1794, c. 74. $. 29. Perhaps it was intended by

be mentioned in the present chapter, are upon the supposition that the deceased (-whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir. Which notoriety had succeeded in the place of the antient feodal investiture, whereby, while feuds were precarioijs, the vasal on the descent of lands was formerly admitted in the lord's court (as is still the practice in Scotland) and there received his seisin, in the nature of a renewal of his ancestor's grant, in the presence of the feodal peers: till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county (which, if disputed, was afterwards to be tried by those peers) or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisitl, therefore, of any person,thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived : which is very briefly expressed in this maxim, seisina facit stipitem ^T.

Flet. /. 6. c. 2. §. 2.

the legislature, that actual possession should not thereafter be necessary to transmit an inheritance. If there be a father and son, and the father die, leaving lands which ought to descend to his son, and before entry the son die, leaving his wife ensient of child ; this child, when born, shall not succeed to the land as heir to the son, by the common law, for he must claim as heir to the person last actually seised, and the son was never seised ; therefore,his posthumous child cannot have the land as his heir ; but he shall have it as heir to the father, (that is, as heir to his own grandfather) who was last actually seised. But now, in this case, the posthumous cfiild of the son can never inherit the lands of his grandfather, as heir to his grandfather, under the act of 1785, c. 60. J. 11, because he was not in being, and capable in law to take as heir, at the time of his grandfather's death ; nor can he succeed thereto, according to the rules of the common law, as heir to his father," because the father was never actually seised thereof, but had only a bare title to enter. But if it be supposed to be the intent of the law to transmit a title, though not completed by actual, seisin, then he may inherit the land as heir to his father. See Edi. 1794, c. 93. $. 13. See, also, p. 312, post, and appendix, note (B).

When, therefore, a person dies so seised, the inheritance first goes to his issue: as if there be Geoffrey, John, and Matthew, grandfather, father, and son ; and John purchases lands, and dies; his son Matthew shall succeed him as heir, and not the grandfather Geoffrey j to whom the land shall never ascend, but shall rather escheat to the lord'³.

This rule, so far as it is affirmative, and relates to lineal descents, is almost universally adopted by all nations; and it seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possessions of the parents should go, upon their decease, in the first place to their children, as those to whom they have given being, and for whom they are therefore bound to provide. But the negative branch, or total exclusion of parents and all lineal ancestors, from succeeding to the inheritance of their offspring, is peculiar to our own laws, and such as have been deduced from the same original. For, by the Jewish law, on failure of issue, the father succeeded to the son, in exclusion of brethren, unless one of them married the widow, and raised up seed to his brother '. And, by the laws of Rome, in the first place, the children or lineal descendants were preferred; and, on failure of these, the father and mother, or lineal ascendants, succeeded together with the brethren and sisters ^v j though, by the law of the twelve tables, the mother was originally, on account of her sex, excluded ^u. Hence this rule of our laws has been censured and declaimed against, as absurd and derogating from the maxims of equity and natural justice ^w. Yet, that there is nothing unjust or absurd in it, but that on the contrary it is founded upon very good legal reason, may appear from considering as well the nature of the rule itself, as the occasion of introducing it into our laws.

We are to reflect, in the first place, that all rules of succession to estates are creatures of the civil polity, and juris positivi merely. The right of property, which is gained by occupancy,

s Litt §. 3. t Selden. detuccest. Ebraeor. c. 12. u Inst. 3, 3, 1. v Ff. 38,15. 1 Nov. 118, 127. •vrCra.ig.dejur.feu(I.t. 2 t. 13. Sec. 15. Locke on Gov. part 1. Sec. 90:

3. See note 1, page 208.

extends naturally no farther than the life of the present possessor: after which, the land, by the law of nature, would again become common, and liable to be seised by the next occupant: but society, to prevent the mischiefs that might ensue from a doctrine so productive of contention, has established conveyances, wills, and successions ; whereby the property originally gained by possession is continued and transmitted from one man to another, according to the rules, which each state has, respectively, thought proper to prescribe. There is, certainly, therefore, no injustice done to individuals, whatever be die path of descent marked out by the municipal law.

If we next consider the time and occasion of introducing , this rule into our law, we shall find it to have been grounded upon very substantial reasons. I think there is no doubt to be made, but that it was introduced at the same time with, and in consequence o£, the feodal tenures. For it was an express rule of the feodal law ^x, that successionii feudi tails est natura, quod asccndente.v non succedunt; and, therefore, the same maxim obtains also in the French law, to this day ?. Our Henry the first, indeed, among other restorations of the old Saxon laws, restored the right of succession, in the ascending line^z: but this soon fell again into disuse ; for so early as Glanvil's time, who wrote under Henn the second, we find it laid down as established law³, that haereditas nunquam ascendit; which has remained an invariable maxim ever since. These circumstances evidently shew this rule to be of feodal original; and, taken in that light, there are some arguments in it's favour, besides those, which are drawn merely from the reason of the thing. For, if the feud of which the son died seised, was really feudum antiquum, or one descended to him from his ancestors, the father could not possibly succeed to it, because it must have passed him in the course of descent, before it could come to the son; unless it were fendum maternum, or one descended from his mother, and then for other reasons (which will appear hereafter) the father could, in no wise inherit it. And if it were fendum no'Jitw,

x 2 Feud. SO.

y Domat. p. 2, /. 2, t. 2, Moutesq. £sj>. L. I. 31, c. 33

z LL. Hen. I, c. 70. a /. 7, c. 1.

or one newly acquired by the son, then only the descendants from the body of the feudatory, himself, could succeed, by the known maxim of the early feodal constitutions^b; which was founded as well upon the personal merit of the vasal, which might be transmitted to his children, but could not ascend to his progenitures, as also upon this consideration of military policy, that the decrepit grandsire of a vigorous vasal would be but indifferently qualified to succeed him in his feodal services. Nay, even \ft\\\sfeudum novum were held by the son ut feudum aritiquum, or with all the qualities annexed of a feud descended from his ancestors, such feud must, in all respects, have descended as if it had been really an antient feud; and, therefore, could not go to the father, because, if it had been an antient feud, the father must have been dead before it could have come to the son. Thus, whether the feud was strictly novum, or strictly antiquum, or whether it was novum held ut antiquum, in none of these cases the father could possibly succeed. These reasons, drawn from the history of the rule, itself, seem to be 'more satisfactory than that quaint one of Bracton⁰, adopted by Sir Edward Coke ^d, which regulates the descent of lands according to the laws of gravitation.

II. A second general rule or canon is, that the male issue shall be admitted before the female ⁴.

Thus sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred^e. As if John Stiles hath two sons, Matthew and Gilbert, and two daughters, Margaret

b 1 Feud. 20.

c Oescendit itaqne jus, quasi pondenaum quid cavgns deorsum recta linea, et nuiKfitam reasccndit. I. 2, c. 29.

d 1 Inst. 11. e Hal. H. C. L. 2.15.

4. No preference whatsoever, is now given to males, among the lineal descendants, or collateral heirs of the intestate, over the females. They come into the inheritance at the same time, and take equal portions. But where, for want of issue, the inheritance is directed to ascend, the nearest lineal male ancestor, shall be preferred to the female ancestors, and collateral relations in the same degree. Edi. 1794, c. 93.

and Charlotte, and dies; first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession in preference to both the daughters.

This preference of males to females is entirely agreeable to the law of succession among the Jews^f, and also among the states of Greece, or at least among the Athenians « ; but was totally unknown to the laws of Rome ^h, (such of them, I mean, as are at present extant) wherein brethren and sisters were allowed to succeed to equal portions of the inheritance. I shall not here enter into the comparative merit of the Roman and the other constitutions in this particular, nor examine into the greater dignity of blood in the male or female sex: but shall only observe, that our present preference of males to females seems to have arisen entirely from the feodal law. For though our British ancestors, the Welsh, appear to have given a preference to males¹, yet our Danish predecessors (who succeeded them) seem to have made no distinction of sexes, but to have admittted all the children at once to the inheritance¹⁵. But the feodal law of the Saxons on the continent (which was probably brought over hither, and first altered by the law of king Canute) gives an evident preference of the male to the female sex. " Pater aut mater,defuncti,Jilio non filiae haereditatem relinquent. .... .... ....

S^tii defunctus non filios sed filias reliquerit, ad eas omnis haereditas pertineat'." It is possible, therefore, that this preference might be a branch of that imperfect system of feuds, which obtained here before the conquest; especially as it subsists among the customs of gavelkind, and as, in the charter or laws of king Henry the first, it is not (like many Norman innovations) given up, but rather unforced¹". The true reason of preferring the males must be deduced from feodal principles : for, by the genuine and original policy of that constitution, no female could ever succeed to a proper feud ", inasmuch as they were incnpr.ble of performing those military services, for the suke of >vhichthat system was established. But our law does not extend to a total

f Numb. c. 2r. h Inst. 5, 1, 6. k LL. Camit. r. 68. m c. TO.

g Pitit. LL. Attic, t. fi, (. 6. i Stat.l\^rall.l21LAv.:l. 1 lit. 7, Sec. 1 & 4. n 1 ttid. 8.

exclusion of females, as the Salic law, and others, where feuds were most strictly retained : it only postpones them to males ; for, though daughters are excluded by sons, yet they succeed before any collateral relations: our law, like that of the Saxon feudists before-mentioned, thus steering a middle course,'between the absolute rejection of females, and the putting them on a footing with males.

III. A third rule, or canon of descent, is this j that where there are two or more males in equal degree, the eldest only shall inherit; but the females all together⁵.

As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew his eld. est son shall alone succeed to his estate, in exclusion of Gilbert the second son and both the daughters; but, if both the sons die without issue before the lather, the daughters Margaret and Charlotte shall both inherit the estate as coparceners °.

This right of primogeniture in males seems antiently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance p ; in the same manner as with us, by the laws of king Henry the first«, the eldest son had the capital fee or principal feud of hisfather's posessions, and no other pre-eminence ; and as the eldest daughter had afterwards the principal mansion, when the estate descended in coparcenary^r (⁵)- The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some among

o Litt. Sec. 5, Hale. H. C. L. 233. p Selden. dc succ. Ebr. c. 5. 1 c. 70. r Glanvil. /. 7, c. 3.

5. This rule, also, was changed by the act of 1785, c. CO. The right of primogeniture, was abolished, together with the preference to the male stocks. All the sons and daughters, brothers and sisters, and other collateral kindred in the same degree, now come into the partition together, and inherit equal portions. Edi. 1794, c. 93.

(5). We must remember that this rule is abolished in Virginia, br the act of 1790, c. 13. Edi. 1794, c. 93. See note p. 190.

the males only.. .This is certainly the most obvious and natural way j and has theappearance, at least in the opinion of younger brothers, of the greatest impartiality and justice. But when the emperors began to create honorary feuds, or titles of nobility, it was found necessary (in order to preserve their dignity) tp make them impartible', or, (as they stiled them) feuda individua, and in consequence descendible to the eldest son alone. This example was farther enforced by the inconveniencies that attended the splitting of estates ; namely, the division of the military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life, instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments¹, These reasons occasioned an almost total change in the method of feodal inheritances abroad ; so that the eldest male began universally to succeed to th$ whole of the lands in all military tenures: and in this condition the feodal constitution was established in England by William the conqueror.

I

Yet we find, that socage estates frequently descended to all the sons equally, so lately as when Glanvil^u wrote, in the reign of Henry the second: and it is mentioned in the mirror ^w as a part of our antient constitution, that knights' fees should descend to the eldest son, and socage fees should be partible among the male children. However, in Henry the third's time we find by Bracton" that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands : except in Kent, where they gloried in .the preservation of their antient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons v ; and except in some particular manors and townships, where their local custonis continued the descent, sometimes to all, sometimes to the youngest son only, or in other more singular methods of succession.

s 2 Feud. 55. t Hale. H. C. L. 221.

u /. 7. c. 3. . w c. 1. Sec. 3.

x 1. 2. c. 30, 31. y Somner. Gavclk. 7.

As to the females, they are still left as they were by the antient law : for they were all equally incapable of performing any personal service ; and therefore one main reason of preferring the eldest ceasing, such preference would have been injurious to the rest; and the other principal purpose, the prevention of the too minute subdivision of estates, was left to be considered and provided for by the lords, who had the disposal of these female heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown^z ; wherein the necessity of a sole and determinate succession is as great in the one sex as the other. And the right of sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honour. For if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters ; the eldest shall not of course be countess, but the dignity is in suspence or abeyance till the king shall declare his pleasure ; for he, being the fountain of honour, may confer it on which of them he pleases ^a. In which disposition is preserved a strong trace of the antient law of feuds, before their descent by primogeniture even among the males was established; namely, that the lord might bestow them on which of the sons he thought proper..,.^uprogressum est, ut adflios deveniret, in quern scilicet dominus hoc vellet beneficlum coiifirmare^w'''.

IV. A fourth rule, or canon of descents, is this; that the lineal descendants, in hifinitum, 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 ⁶.

x Co Litt. 165.

a Ibid.

b 1 Feud. 1.

6. This rule also, hath been altered, in some measure, by the act of 1785, c. 60. For, only the issue of a lineal descendant, or collateral kinsman of the intestate, who are in being at the time of the intestates death, shall represent their deceased ancestor: but the issue of such lineal descendant or collateral kinsman, as are unborn at the time of the intestate's death can in no case succeed to the inheritance. Thus if J. S. die, leaving two daughters, and his wife ensient of a son, and then the father or other kinsman of J. S. die, leaving an inheritance which would have descended to him, if living; and after-

Thus the child, grandchild, or great grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infmitum ^c. And these representatives shall take neither more nor less, but just so much as their principles would have done. As if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters ; and then John Stiles the father of the two sisters dies, without other issue: these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary -. so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the surviving sister shall have six, and her six nieces, the daughters of Margaret, one apiece.

This taking by representation is called succession in stirpes according to the roots ; since all the branches inherit the same share that their root, whom they represent, would have done,

c Hale. H. C. L. 236, 237. •

wards the son of J. S. is born; this posthumous son shall not have any portion of the inheritance, because he was not in being at the time of the death of the-person from whom such inheritance descended ; but his sisters shall have the whole. But, by the common law, this posthumous son of J. S. should have had the whole inheritance as representing his father. .... Yet, by our law this posthumous son shall inhe • rit an equal portion of the whole estate which descended from his father, at his death. Edi. 1794, c. 93. $. 13,16.

Secondly; the collateral kinsman of the intestate, who are descended from the same common ancestor with the intestate, do not represent such common ancestor. Thus the brothers and sisters of J. S. do not represent their deceased father, because his mother, if living, comes into the inheritance with them. Nor do the uncles and aunts of J. S. represent the grandfather, deceased, because the grandmother, if living, comes into the inheritance with them. Whereas ,if they had respectively represented the father and grandfather, they would in the former case have taken the whole inheritance, and in the latter the entire moiety, would have deseeded to the grandfather, if living, in exclusion of the mother, and grandmother, respectively. These collateral relations, therefore do not represent their immediate ancestor, but come into the inheritance.//*)'*? ftrofiinyuitatis^ or, by proximity of blood to the intestate himself. Ibid. §. 4, and 9. See, also Appendix note ft.

And in this manner also was the Jewish succession directed ^d: but the Roman somewhat differed from it. In the descending line the right of representation continued in infinititm, and the inheritance still descended in stirpes : as if one of three daughters died, leaving ten children, and then the father died: the two surviving daughters had each one third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still subsisting, (as if the deceased left one brother, and two nephews the sons of another brother) the succession was still guided by the roots : but, if both the brethren were dead leaving issue, then (I apprehend) their representatives in equal degree became themselves principals, and shared the inheritance per capita, that is, share and share alike ; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation ^e. So if the next heir of Titius be six nieces, three by one sister, two by another, and one by a third ; his inheritance by the Roman law was divided into six parts, and one given to each of the nieces: whereas the law of England in this case would still divide it only into three parts, and distribute it per stirpes, thus; one third to the three children who represent one sister, another third to the two who represent the second, and the remaining third to the one child who is the sole representative of her mother^r.

This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, d Sclclcn. He succ. Ebr. c. 1. e Nov 110. c. 3. Intt. 3.1. 6.

7. The rule of partition established by our law is exactly conformable to the rule,of the Roman law, as here illustrated: for, where the children of the intestate, or his mother, brothers, and sisters, or his grandmother, uncles and aunts, or any of his female lineal ancestors living, with the children of his deceased lineal ancestors, male and female, in the same degree come into the partition, they shall take jicr cajiita, that is to say by persons ; and where a part of them being dead, and a part living, the issue of those dead have right to partition, such issue shall take Jier stirfes, or by stocks ; that is to say the share of their deceased parent." L. V. ir85, c. 60. Edi. 1794J c. 93. §. 16.

and next to the firstborn among the males, to both which the Koman law is a stranger. For if all the children of three sisters were in England to claim per capita, in their own right as next of kin to the ancestor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female ; then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters ; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the firstborn, among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform and steady: the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done ; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same : nnd among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. As if a man hath two sons, A and B, and A dies leaving two sons, and then the grandfather dies ; now the eldest son of A shall succeed to the whole of his grandfather's estate: and if A had left only two daughters, they should have succeeded also to equal moities of the whole, in exclusion of B and his issue. But if a man hath only three daughters, C, D, and E ; and C dies leaving two sons, D leaving two'daughters, and E leaving a daughter and a son who is younger than his sister : here when the grandfather dies, the eldest son of C shall succeed to one third, in exclusion of the younger; the two daughters of D to another third in partnership; and the son of E to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in injinitwn.

Yet this right does not appear to have been thoroughly established in the time of Henry the second, when Glanvil wrote : and, therefore, in the title to the crown especially, we find frequent contests between the younger (but surviving) brother and

his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor: for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew : though the nephew, by representing his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief: and besides had frequently superior interest and strength, to back his pretensions and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture ; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburg, Schwerin and Strelitz, in I682^f. Yet Glanvil, with us, even in the twelfth century, seems * to declare for the right of the nephew by representation ; provided the eldest son had not received a provision in lands from his fadier, (or as the civil law would call it) had not been foris-familiated, in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm ^h: hut in the time of his son, king He.nry the third, we find the rule indisputably settled in the manner we have here laid it down *, and so it has continued ever since. And thus much for lineal descents.

V. A fifth rule is, that on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser⁸ ; subject to the three preceding rules.

f Mod. Un. Hist. xlii. 334. h Hale. H.C.L. 217,223.

g /. 7. c. 3.

i Bracton. 1.'2. c. 30, See. 2.

8. This regard to the blood of the first purchaser, that is to say, the person from whom the land originally descended, was intended to have been wholly abolished by the act of 1785, c. 60. For, according to that act, it was of no importance from whom a person dying intestate acquired his lands, whether from his father, or his mother, or a remote ancestor, or collateral kinsman of either, or by his own act as a purchaser, since by whatever mode it was acquired, it was now absolutely and indefeasibly his, and he might dispose of it as he thought

Thus if Geoffrey Stiles purchases lands, and it descends to John Stiles his son, and John dies seised thereof without issue ; whoever succeeds, to this inheritance must be of the blood of Geoffrey the first purchaser of this family ^k. The first purchaser perqiiisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any. other method, except only that of descent.

This is a rule almost peculiar to our own laws, and those of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans ; none of whose laws looked any farther than the person himself who died seised of the estate : but assigned him an'heir, without considering by what title he gained it, or from what ancestor he derived it. But the law of Normandy¹ agrees with our law in this respect: nor indeed is that agreement to be wondered at, since the law of descents in both is of feodal original; and this rule or canon cannot otherwise be accounted for than by recurring to feodal principles.

When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is lineally descended from, the feudatory or purchaser. In consequence whereof, if a vassal died seised of a feud of his own acquiring, orfeudum novum, it could not descend to any but his own offspring; no, not even to k Co. Litt. 12. . 1 Gr. Constant, c. 25.

proper, and to whom he thought proper. And it seems to have been the opinion of the framers of that act, that if he neglected to make any disposition thereof, in his lifetime, the law ought to give it- to those persons whom he would most naturally have preferred if he had made such a disposition. But subsequent legislatures have seen this matter in a different light, at least so far as relates to the lands of infants dying without issue, which it appears to have been the policy of the legislature to retain in the blood of that parent from whom the land was derived, at least for one generation, ascending and descending, as will be more fully noticed hereafter.

But in the case of all others except infants, it is now settled that no regard ought to be had from whom the lands of a person dying intestate are derived, or how acquired by him ; but that all his lands howsoever acquired, shall descend in the course prescribed by the act of 1785, c. 60. See Edi. IT'94, c. 9, 3. See 2 Call's Rep. 390..

221

THE RIGHTS

BOOK II.

his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then his" brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule: frater fratri, sine ligitimo haerede defuncto, in benejicio quod eorilm patris fuit succedat: sin autem unus efratribus a domini feudum acceferit, eo defuncto sine legitimo haerede, frater ejus infeudumnonsuccedit^m." The true feodal reason for which rule was this ; that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And, therefore, as in estates-tail, (which a proper feud very much resembled) so in the feodal donation, nomen haeredis, in prima investitura expressum, tantum ad descendentes ex corf ore primi vasalli extenditur; et non ad collaterales, nisi, ex corf ore primi vas&alli sive stifitis descendant" :" the will of the donor, or original lord, (when feuds were turned from life estates into inheritances) not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo ; not hereditary to the collateral relations, or lineal ancestors, or husband, or wife of the feudatory, but to the issue descended from his body only.

However, in process of time, when the feodal rigour was in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is, with all the qualities annexed of a feud derived from his ancestors : and then the collateral relations were admitted to succeed even in infnitum_t because they might have been of tne blood of, that is, descended from, the first imaginary purchaser. For since it is not ascertained in such general grants, whether this feud shall be held ut feudum faternum or feudum avitum, but ut feudum antiquum merely ; as a feud of indefinite antiquity ; that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended; the law will not ascertain it, but will suppose any of his ancestors, fro re nata, to have been the first purchaser: and, therefore,

~ m IFeud. 1. Sec. 2- n Crag. /. 1.1. 9- Sec. 36.

CHAP. XIV.

OF THINGS.

222

it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.

Of this nature are all the grants of fee-simple estates of this kingdom; for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut uovum; unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or.purchasor) are admitted; but every grant of lands in fee-simple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite: and, therefore, the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance.

Yet, when an estate hath really descended in a course of inheritance to the person last seised, the strict rule of the feodal law is still observed; and none are admitted, but the heirs of those through whom the inheritance hath passed : for all others have demonstrably none of the blood of the first purchaser in them, and therefore shall never succeed. As, if lands come to John Stiles by descent from his mother, Lucy Baker, no relation of his father (as such) shall ever be his heir of these lands ; and vice-versa, if they descended from his father Geoffrey Stiles, no relation of his mother (as such) shall ever be admitted thereto; for his father's kindred have none of his mother's blood, nor have his mother's relations any share of his father's blood. And so, if the estate descended from his father's father, George Stiles; the relations of his father's mother, Cecilia Kempe, shall for the same reason never be admitted, but only those of his father's father. This is also the rule of the French law⁰, which is derived from the same feodal fountain.

Here we may observe, that so far as the feud is really antiquum, the law traces it back, and will not suffer any to inherit but the blood of those ancestors, from whom the feud was conveyed

o Domat. fa>! 2 pr.

to the late proprietor. But when, thrtmgh length of time, it can trace it no farther ; as if it be not known whether his grandfather, George Stiles, inherited it from his father Walter Stiles, or his mother Christian Smith, or if it appear that his grandfather was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity j in either of these cases the law admits the descendants of any ancestor of George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this estate : because in the first case it is really uncertain, and in the second case it is supposed to be uncertain, whether the grandfather derived his title from the part of his father or_this mother.

This then is the great and general principle, upon which the law of collateral inheritances depends ; that, upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser; or, that it shall result back to the heirs of the body of that ancestor, from whom it either really has, or is supposed by fiction of law to have originally descended : according to the rule laid down in the year books?, Fitzherberti, Brook^r, and Hale'," that he who would have been heir to the father of " the deceased" (and, of course, to the mother, or any other real or supposed purchasing ancestor) " shall also be heir to the " son ;" a maxim, that will hold universally, except in the case of a brother or sister of the half blood, which exception (as we shall see hereafter) depends upon very special grounds.

The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor was ; which infeudls vere antiquis has in process of time been forgotten, and is supposed so to be in feuds that are held nt an' tiquis.

VI. A sixth rule or canon therefore is, that the collateral heir of the person last seised must be his next collateral kinsman, of the whole blood⁹.

p M. 12 Edw. IV. 14. r Abr. t. disccnt. 2.

q Abr. t. ditcent, 2. s H. C. L. 243.

9. By the act of 1785, c. 60, the half blood, had the same capacity to inherit to each other, as the whole blood, the law declaring, " that " where the inheritance is directed to pass to the ascending and colla-

First, he must be his next collateral kinsman, either personally or jure representations ,• which proximity is reckoned according to the canonical degrees of consanguinity before-mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, \v ho is only in the second. And herein consists the true reason of the different methods of computing the degrees of consanguinity, in the civil law on the one hand, and in the canon and common laws en the other. The civil law regards consanguinity principally with respect to successions, and therein very naturally considers only the person deceased, to whom the relation is claimed :, it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him ; and makes not only his great nephew but also his first cousin to be both related to him in the fourth degree ; because there are three persons between him and each of them. The canon law regards consanguinity principally wi h a view to prevent incestuous marriages, between those who have a large portion of the same blood running in their respective veins; and, therefore, looks up to the author of that blood, or the common ancestor, reckoning the degrees from him: so that the great nephew is related in the third canonical degree to the person proposed, and (he first-cousin in the second; the former being distant three

teral kindred of the intestate, if part of such collaterals be of the whole blood to the intestate, and the other part of the half blood only, those of the half blood shall inherit only half so much as those of the whole blood : but if all be of the half blood, they shall have whole portions, only giving to the ascendants, if any there be, double portions."

But now', " where an infant shall die without issue having title to any real estate of inheritance derived by purchase or descent from the mother [or father] neither the father [or, in the other case the mother] nor any issue which he [or she] may have by any person other than the mother [or father] of such infant, shall succeed to, or enjoy the same or any part thereof, if there be living any brother or sister of such infant on the part of the mother, [or father,] or any brother or sister of the mother [or father], or any lineal descendant of cither of them." Edi. 1794, c. 93. $. 5 and 6. In all other

cases,, it seems to be now settled that the half blood may still inherit as

under the act of 17S5. See 2 Call's Rep. 390.

degrees from the common ancestor, (the father of fa propositus) and therefore deriving only one fourth of his blood from the same fountain ; the latter, and also the propositus himself, being each of them distant only two degrees from the common ancestor, (the grandfather of each) and therefore having one half of each of their bloods the same. The common law regards consanguinity principally with respect to descents; and, having therein the same object in view as the civil, it may seem as if it ought to proceed according to the civil computation. But as it also respects the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore counts it's degrees in the same manner. Indeed the designation of person, in seeking for the next of kin, will come to exactly the same end (though the degrees will be differently numbered) whichever method of computation we suppose the law of England to use ; since the right of representation, of the parent by the issue, is allowed to prevail in infinitum. This allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degree of kindred, as (for instance) uncles and nephews of the deceased; which multiplicity, though no material inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion where the right of sole succession, as with us, is established. The issue of descendants therefore of John Stiles's brother are all of them in the first degree of kindred with respect to inheritances, those of his uncle in the second, and those of his great uncle in the third ; as their respective ancestors, if living, would have been ; and are severally called to the succession in right of such their representative proximity¹⁰.

The right of representation being thus established, the former part of the present rule amounts to this ; that, on failure of issue of the person last seised, the inheritance shall descend to the other subsisting issue of his next immediate ancestor. Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, or his representatives; he being lineally descended from Geoffrey Stiles, John's next immediate ancestor, or father. On failure of brethren, or sisters, and their issue, it

10. See note 6. p. 217.

shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infinitum. Very similar to which was the law of inheritance among the antient Germans, our progenitors: " haeredes successoresque, sui cuique liberi, et

ntillum testamentum: si liberi non sunt, proximus gradus in/ios-

sessioneifratres, patrui, avunculi¹"

Now here it must be observed, that the lineal ancestors, though (according to the first rule) incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring. And therefore in the Jewish law, which in this respect entirely corresponds with ours", the father or other lineal ancestor is himself said to he the heir, though long since dead, as being represented by the persons of his issue; who are held to succeed not in their own rights, as brethren, uncles, fc?c. butin right of representation^ the offspring of the father, grandfather, &?c. of the deceased". But, though the common ancestor be thus the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent. For the descent between two brothers is held to be an immediate descent; and therefore title may be made by one brother or his representatives to or through another, without mentioning their common father*. If Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey; 'and so the son of Francis may claim as cousin and heir to Matthew the son of John, without naming the grandfather ; viz. as son of Francis, who was the brother of J ohn, who was the father of Matthew. But though the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood: and therefore, in order to ascertain the collateral heir of John Stiles, it is first necessary to recur to his ancestors in the first degree ; and if they have left any other issue besides John, that issue will be his heir. On default of such, we must ascend one step higher, to the ancestors in the second degree, and then to those in the third, and

t Tacitus demor. Germ, 21. u Numb. c. 27.

w Selclen. ilemcc. El».c. 12.

x 1 Sid. 196. IVemr. 423. 1 Lev. 60. 12 Mod. 619.

fourth, and so upwards in infnitum; till some couple of ancestors be found, who have other issue descending from them besides the deceased, in a parallel or collateral line. From these ancestors the heir of John Stiles must derive his descent; and in such derivation the same rules must be observed, with regard to sex, primogeniture, and representation, that have before been laid down wfth regard to lineal descents from the person of the last proprietor.

But, secondly, the heir need not be the nearest kinsman absolutely, but only sub modo; that is, he must be the nearest kinsman of the -whole blood; for, if there be a much nearer kinsman of the Aa^blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded: nay, the estate shall escheat to the lord, sooner than the half blood shall inherit.

A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For, as every man's own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who hath (so far as the distance of degrees will permit) all the same ingredients in the composition of his blood that the other hath. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, hath entirely the same blood with John Stiles; or he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and hath issue by him; the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that of Lewis Gay (instead of Geoffrey Stiles) on the other part, it hath therefore only half the same ingredients with that of John Stiles; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A and B, by different venters or wives j now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A,

who enters thereon, and dies seised without issue; still B shall not be heir to this estate,,because he is only of the half blood to A, the person last seised: but it shall descend to a sister (if any) of the whole blood to A : for in such cases the maxim is, that the seisin or possesaio fratris facit sororem esse haeredem. Yet, had A died without entry, then B might have inherited ; not as heir to A his half brother, but as heir to their common father, who was the person last actually seised * *.

This total exclusion of the half blood from the inheritance, being almost peculiar to our own law, is looked upon as a strange hardship by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule, which is not so much to be considered in the light of a rule of descent, as of a rule of evidence; an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that the heir to afeudum antiquum must be of the blood of the first feudatory or purchaser, that is, derived in a lineal descent from him; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchaser, and to shew that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages)to be forgotten who was really the first feudatory or purchaser, and thereby the proof of an actual descent from him became impossible; then thelawsubstitutedwhatsirMartinWright* calls a reasona ble, instead of an impossible, proof: for it remits the proof of an actual descent from the first purchaser; and only requires in lieu of it, that the claimant be next of the whole blood to

y Hale. H.-C. L. 238.

z Tenures 186.

* Of some inheritances there cannot be a seisin, or a potsetsio fratrit; as if the eldest brother dies before a presentation to an advowson, it will descend to the half-brother as heir to the person last seised, and not to the. sister of the whole blood. 1. Burn. ec. 11. So of reversions, remainders, and executory deviies, there can be no seisin or posteaiofratrit; and if they are reserved or granted to A and his heirs, he who is heir to A when they come into possession, is entitled to them by. descent; that is, that person who would have been heir to A, if A had lived so long, and had then died actually seised. 2 Wnadd. 255. Fearne, 448. 2 Wils. 29. .... Christian.

the person last in possession, (or derived from the same couple of ancestors) which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchaser.

For he who is my kinsman of the whole blood can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also; and mine are vice versa his: he therefore is very likely to be derived from that unknown ancestor of mine, from whom the inheritance descended. But a kinsman of the half blood has but one half of his ancestors above the common stock the same as mine ; and therefore there is not the same probability of that standing requisite in the law, that he be derived from the blood of the first purchaser.

To illustrate this by example. Let there be John Stiles, and Francis, brothers, by the same father and mother, and another son of the same mother by Lewis Gay a second husband. Now, if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to tie in the line of descent from the first purchaser, whether it were the line of the father or the mother. But if Francis should die before John, without issue, the mother's son by Lewis Gay (or brother of the half blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchaser, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchaser, as to be descended : and therefore the inheritance shall go to the nearest relation possesed of this presumptive proof, the whole blood.

And, as this is the case infeudls anliquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case infeudls novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this natui e are all grants of lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral

kindred of the real modern purchaser (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor: but those of the half blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchaser, though only of the half blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law: since it is only upon a like supposition and fiction, that brethren of purchasers (whether of the whole or half blood) are entitled to inherit at all: for we have seen that in feudis stricte novis neither brethren nor any other collaterals were admitted. As therefore in feudis antiquis we have seen the reasonableness of excluding the half blood, if by a fiction of law zfeudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.

Perhaps, by this time, the exclusion of the half blood does not appear altogether so unreasonable, as at first sight it is apt to do. It is certainly a very fine-spun and subtle nicety: but, consider, ing the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals: and, though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before, i The doctrine of the whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchaser, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose, it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method, answer this purpose entirely. For though all the ancestofs of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree, (that is, unless they have the bame father and mother) there will be intermediate ancestors below the common stock, that belong to either of them

respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors, than what are in common to them both; yet with regard to his uncle, where the common stock is removed one degree higher, (that is, the grandfather and grandmother) one half of John's ancestors will not be the ancestors of his uncle: his patruus, or father's brother, derives not his descent from John's maternal ancestors; nor his avunculus, or mother's brother, from those in the paternallihe. Here then the supply of proof is deficient, and by no means amounts to a certainty: and the higher the common stock is removed, the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, the whole brother of John Stiles is sure to be descended from that unknown ancestor; his half brother has only an even chance, for half John's ancestors are not his. So, in the second degree, John's uncle of the whole blood has an even chance; but the chances are three to one against his uncle of the half blood, for three-fourths of John's ancestors are not his. In like manner, in.the third degree, the chances are only three to one against John's great uncle of the whole blood, but they are seven to one against his great uncle of the half blood, for seven-eighths of John's ancestors have no connexion in blood with him. Therefore the much less probability of the half blood's descent from the first purchaser, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half blood in all.

But) while I thus illustrate the reason of excluding the half blood in general, I must be impartial enough to own, that in some'instances, the practice is carried farther than the principle upon which it goes will warrant. Particularly, when the kinsman of the whole blood in a remoter degree, as the uncle or great uncle, is preferred to one of the half blood in a nearer degree, as the brother: for the half brother hath the same chance of being descended from the purchasing ancestor as the uncle ;

and a thrice better chance than the great uncle, or kinsman in the third degree. It is also more especially overstrained, when a man has two sons by different venters, and the estate on his death descends from him to the eldest, who enters and dies without issue: in which case the younger son cannot inherit this estate, because he is not of the whole blood to the last proprietor¹. This, it must be owned, carries a hardship with it, even upon feodal principles: for the rule was introduced only to supply the proof of a descent from the first purchaser; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half brother must be of the blood of the first purchaser, who was either the father or some of the father's ancestors.,.. When, therefore, there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother indeed been a purchaser, there would have been no hardship at all, for the reasons already given : or had thefrater uterinus only, or brother 'by the mother's side, been excluded from an inheritance which descended from the father, it had been highly reasonable.

Indeed, it is this very instance, of excluding &frater consanguineus, or brother by the father's side, from an inheritance which descended from apatre, that Craig^b had singled out, on which to ground his strictures on the English law of half blood. And, really, it should seem as if originally the custom of excluding the half blood in Normandy* extended only to exclude a

z A^till harder case than this happened M. 10 Eisd. III. On the death of a man, who had three daughters by a first wife, and a fourth by another, his lands descended equally to all four as coparceners. Afterwards the two eldest died without issue; and it was held, that the third daughter alone should inherit their shares,'as being their heir of- the whole blood; and that the youngest daughter should retain only her original fourth part of their common father's lands. (10 Ass. 27.) And yet it was clear la a- in M 19 Eiad. II, that wher* lands had descended to two sistars of half blood, as coparceners, each might b« heir of those lands to the other. (Mayn. Edw. II. 628. Fitzh. abr. tit. quart impedit. 177.)

b /. 2. t. 10. Sec. 14. £ Gr. Cmstum. c. 25.

frater (uterinus, when the inheritance descended a patre, and vice versa: and possibly in England also; as even with us it remained a doubt, in the time of Bracton*¹, and of Fleta", whether the half blood on the father's side was excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly purchased lands. So also the rule of law, as laid down by our Fortescue¹, extends no farther than this; frater fratri uterino non suecedet in haereditate paterna. It is moreover worthy of observation, that by our law, as it now stands, the crown ( which is the highest inheritance in the nation) may descend to the half blood of the preceding sovereigns, so that it be the blood of the first monarch, purchaser, (or in the feodal language) conqueror of the reigning family. Thus it actually did descend from king Edward the sixth, to queen Mary, and from her to queen Elizabeth, who were respectively of the half blood to each other. For, the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock, which was formerly king William the Norman, and is now (by act of parliament¹¹) the princess Sophia of Hanover. Hence also it is, that in estates-tail, where the pedigree from the first donee must be strictly proved, half blood is no impediment to the descent¹: because, when the lineage is clearly made out, there is no need of this auxiliary proof. How far it might be desirable for the legislature to give relief, by amending the law of descents in one or two instances, and ordaining that the half blood might always inherit, where the estate notoriously descended from it's own proper ancestor, and, incases of new purchased lands or uncertain descents, should never be excluded by the whole blood in a remoter degree; or how far a private inconvenience should be still submitted to, rather than a long established rule should be shaken, it is not for me to determine.

The rule, then, together with it's illustration, amounts to this: that in orJer to keep the estate of John Stiles as nearly as

cl /. 2 r. 30. Sec 3- e /. 6. c. 1. Sec. 14.

F dc hind. LL. Aigl. 5. g Plowd. 245. Co Litt. 15.

h 12 Will. III. c. J. i Lit;. Sec. 14,15.

possible in the line of, his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only, are not so likely to be in the line of that purchasing ancestor, as those who are descended from both.

But here another difficulty arises. In the second, third, fourth, and every superior degree, every man has many couples of ancestors, increasing according to the distances in a geometrical progression upwards^k, the descendants of all which respective couples are (representatively) related to him in the same degree. Thus, in the second degree, the issue of George and Cecilia Stiles, and of Andrew and Esther Baker, the two grandsires and grandmother of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of James and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which, therefore, of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance ? In answer t<*this, and likewise to avoid all other confusion and uncertainty that might arise between the several stocks wherein the purchasing ancestor may be sought for, another qualification is requisite, besides the proximity and entirety, which is that of dignity or worthiness, of blood. For,

VII. The seventh and last rule of canon is, that in collateral inheritances the male stocks shall be preferred to the female; (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near) unless where the lands have, in fact, descended from a female¹¹.

k See p. 204.

11. In every case of descents to collateral relations (except in'the case of infant's lands, before noticed) no preference is given to the collaterals in the same degree, over others in the like degree, nor is any regard to be paid to the person from whom the lands descended, whether male or female. See note 8. p. 220. note 9. p. 224,

Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all¹5 and the relations of the father's father, before those of the father's mother; and so on. And in this the English law is not singular, but warranted by the examples of the Hebrew and Athenian laws, as stated by Selden¹", and Petit" ; though among the Greeks in the time of Hesiod⁰, when a man died without wife or children, all his kindred (without any distinction) divided his estate among them. It is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian^ abolished all distinction between them. It is also conformable to the customary laws of Normandy i, which, indeed, in most respects agrees with our English law of inheritance.

However, I am inclined to think, that this rule of our laws does not owe it's immediate original to any view of conformity to those which I have just now mentioned; but was established in order to effectuate and carry into execution the fifth rule, or principal canon of collateral inheritance, before laid down; that every heir must be of the blobd of the first purchasor. For, when such first purchasor was not easily to be discovered-after a long course of descents, the lawyers not only endeavoured to investigate him by taking the next relation of the whole blood to the person lasfin possession, but also, considering that a preference had been given to males (by virtue of the second canon) through the whole course of lineal descent from the first purchasor to the present time, they judged it moi-e likely that the lands should have descended to the last tenant from his male than from his female ancestors; from the father (for instance) rather than from the mother; from the father's father, rather than from the father's mother: and therefore they hunted back the inheritance (if I maybe allowed the expression) through the male line ; and gave it to the next relations on the side of the father, the father's father, and so upwards; imagining, with

1 Litt. Sec. 4.

n LL. Attic. I. 1. t. 6.

p J/OT.J.18,

m de siicc. Ebracor. c. 12.

o tpioytm 606.

q Gi. Coustum. c. 2i.

reason, that this was the most probable way of continuing it in the line of the first purchasor. A conduct much more rational than the preference of the agnati^ by the Roman laws; which, as they gave no advantage to the males in the first instance, or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian.

That this was the true foundation of the preference of the agnati or male stocks, in our law, will farther appear, if we consider, that, whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed; and no relation of his by the father's side, as such, can ever be admitted to them: because he cannot possibly be of the blood of the first purchasor. And so, f converse, if the lands descended from the father's side, no relation of the mother, as such shall ever inherit. So also, if they in fact descended to John Stiles, from his father's mother Cecilia Kempe ; here not only the blood of Lucy Baker, his mother, but also of George Stiles, his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland, the mother of Cecilia Kempe, the line not only of Lucy Baker, and of George Stiles, but also of Luke Kempe, the father of Cecilia, is excluded. Whereas, when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be holden utfeudum antiquttm) here the right of inheritance first runs up all the father's side, with a preference to the male stocks in every instance ; and, if it finds no heirs there, it then, and then only, resorts to the mother's side; leaving no place untried, in order to find heirs that may, by possibility, be derived from the original purchasor. The greatest probability of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females.

This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance j as the ability for personal service was the reason for preferring the males

at first in the direct lineal succession. We see clearly, that, Jf males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line of ancestors, must at last have inevitably brought us up to the first purchaser: but, as males have not been perpetually admitted, but only generally preferred; as females have not been utterly excluded, but only generally pestponed to males; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability of arriving at the first purchaser ; which, joined with the other probability, of the wholeness or entirety of blood, will fall little short of a certainty.

Before we conclude this branch of our inquiries, it may not be amiss to exemplify these rules by a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which, therefore, held as a feud of indefinite antiquity ^r.

In the first place, succeeds the eldest son, Matthew Stiles, or his issue: (n°. l.) .... if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue; (n°. 2.) .... in default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue. (n°. 3.) .... On failure of the descendants of 'John Stiles, himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in: viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue : (n°. 4.). .... then Oliver Stiles, lind the other whole brothers, respectively, in order of birth, or their issue; (n°. 5.) .... then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue. (n°. 6.) .... In defect of these, the issue of George and Cecilia Stiles, his father's parents; respect being still had to their age and sex: (n°. 7.) .... then the issue of Walter and Christian Stiles, the parents of his paternal grandfather: (n°. 8.) -- -then the issue of Richard and Anne Stiles, the parents of his paternal grandfather's father: (n°. 9.) .... and so on in the paternal grandfather's paternal line, or blood of Walter Stiles, in infnitum. In defect of these, the issue of William and Jane Smith, the parents of

r See the Table of Descents annexed.

his paternal grandfather's mother¹²: (n°. 10.) .... and so on in the paternal grandfather's maternal line, or blood of Christian Smith, in infmitum; till both the immediate bloods of George Stiles, the paternal grandfather, are spent .... Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles's paternal grandmother: (n°. 11.) .... then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father: (n°. 12.) .... and so on in the paternal grandmother's paternal line, or blood of Luke Kempe, in injinitum.,.. In default of which, we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother's mother: (n°. 13.) .... and so on in the paternal grandmother's maternal line, or blood of Frances Holland, in infnitum ; till both the immediate bloods of CeciliaKempe,the paternal grandmother, are also spent .... Whereby, the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations ; or the blood of the Bakers, (n°. 14, 15, 16.) Willis's, (n°. 17.) Thorpes, (n°. 18, 19.) and Whites; (n°. 20.) in the same regular successive order, as in the paternal line.

The student should, however, be informed, that the class n°. 1O, would be postponed to n°. 11, in consequence of the doctrine laid down, arguendo, by justice Manwoode, in the case of Clere and Brooke", from whence it is adopted, by lord Bacon', and Sir Matthew Hale ^u : because, it is said, that all the female ancestors on the part of the father are equally worthy of blood ; and, in that case, proximity shall prevail. And yet, notwithstand-

s Plowd. 450.

t Elem. c. 1.

u H. C. L. 240, 244.

12. But here we must remember, that, in defect of the blood of the Stiles's, the next immediate heir is to be sought for in the blood of Ann Godfrey, the paternal grandfather's paternal grandmother, before we resort to the issue of William and Jane Smith, upon the same principlesthat the blood of the Smiths is preferred to the blood of the Kemps; upon the same principle, the blood of the Kings, also, must be preferred to the blood of the Kemps; as also, that of the Browns to the Hollands; and that of the Wilsons to the Bakers. So, also, in the maternal line, the Bates's must succeed to the inheritance before the Willis's; the Carters before the Thorpes ; and the Bishops before the Whites.

ing these respectable authorities, the compiler of this table hath ventured (in point of theory, for the case never yet occurred in practice) to give the preference to n°. 10, before n°. 11; for the following reasons: 1. Because this point was not the principal question in the case of Clere and Brooke : but the law concerning it is delivered obiter, only, and in the course of argument, by justice Manwoode; though afterwards said to be confirmed by the three diher justices in separate, extrajudicial, conferences with the reporter. 2. Because the chief-justice, Sir James Dyer, in reporting the resolution of the court in what seems to be the same ca'se^w, takes no notice of this doctrine. 3. Because it appears from Plowden's report, that very many gentlemen of the law were dissatisfied with this disposition of justice Manwoode ; since the blood of n°. 10, was derived to the purchaser through a greater number of males than the blood of n°. 11, and was, therefore, in their opinion, the more worthy of the two. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table ; wherein n°. 16, which is analagous in the maternal line to n°. 1O in the paternal, is preferred to n°. 18, which is analagous to n°. 11, upon the authority of the eighth rule laid down by Hale himself: and it destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before * given, besides the mere dignity of blood. 5. Because it introduces, all that uncertainty and contradiction, which is pointed out by an ingenious author*; and establishes a collateral doctrine, (viz. the preference of n°. 11 to n°. 10,) seemingly, though perhaps not strictly, incompatible with the principal point resolved in the case of Clere and Brooke, viz. the preference of n°. 11 to n°. 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to clear this difficulty; it is apprehended, that the difficulty may be better cleared, by rejecting the collateral doctrine, which was never yet resolved at all. 6. Because the reason that is given for this doctrine, by lord Bacon, (viz. that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) is directly contrary to many in-

w Dyer. 314. x. Page 235, 6,7.

y Law of Inheritances, second edition, page 30. 38, 61, 62, 66.

stanses g'ven by Plowden and Hale, and every other writer on the law of descents. 7. Because this position seems to contradict the allowed doctrine of Sir Edward Coke ^z ; who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stiles's (alias Fairfields) fail. Now the blood of the Stiles's does certainly not fail, till both n°. 9 and n°. 10 are extinct. Wherefore, n°. 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case, Mich. 12 Edw. IV. 14^a. (much relied on in that of Clere and Brooke) it is laid down as a rule, that " cestuy, que doit inheriter al pere, doit inheritsr al Jit,->^b." And so sir Mathew Hale ^c says, " that though the lav/ excludes " the father from inheriting, yet it substitutes and directs the " descent, as it should have been, had the father inherited." Now it is settled, by the resolution in Clere and Brooke, that n°. 1O should be inherited before n°. 11 to Geoffry Stiles, the father, had he been the person last seised j and, therefore, n°. 1O ought also to be preferred in inheriting to John Stiles, the son.

In case John Stiles was not himself the purchaser, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference: that the blood of that line of ancestors, from which it did not descend, can never inherit: as was formerly fully explained^d. And the like rule, as is there exemplified, will hold upon descents from any other ancestors.

The student should also bear in mind, that, during this whole process, John Stiles is the person supposed to have been last actually seised of -the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir ; since he, by his own seisin, now becomes himself an ancestor or stipes, and must be put in the place of John Stiles. The figures there-

7. Co. Lite. 12. Hawk. abr. in toe. a Fitzh. Abr. tit. disser.t. 2. Bro. Abr, t. discent. 3. b See page 223. c Hist.C. L. 243. d Sec page 2J6.

fore denote the order, in which the several classes would succeed to John Stiles, and not to each other: and before we search for an heir in any of the higher figures (n°. 8)as we must be first assured that all the lower classes (from n°. 1 to n°. 7.) were extinct, at John Stiles's decease ^l3.

13. Here it will be proper to take a view of the several acts establishing the course of descents in Virginia; see Appendix, Note B.

CHAPTER THE FIFTEENTH.

OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT.

PURCHASE, perqulsitio^ taken in it's largest and most extensive sense, is thus denned by Littleton ^a ; the possession of lands and tenements, which a man hath by his own actor agreement, and not by descent from any of his ancestors or kindred. In this sense, it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law ^b.

Purchase, indeed, in it's vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale, for money, or some other valuable consideration. But this falls far short of the legal idea of purchase: for, if I give land freely to another, he is, in the eye of the law, a purchaser ^c j and falls withinLittleton's definition, for he comes to the estate by his own agreement, that is, he consents to the gift. A man, who has his father's estate settled upon him in tail, before he was born, is also a purchaser ; for he takes quite another estate than the law of descents would have given him. Nay, even if the ancestor devises his estate to his heir at law by will, with other limitations, or in any other shape than the course of descents would direct, such heir shall take l>y purchase*¹¹.

a Sec. 12. b Co. Litt. 18. c Co. Litt. 18.' d Lord ka>m. 728.

1. Therefore it would seem, that if a man at this day should devise all his lands to one or more of his children, in exclusion of the rest; or devise several parcels to his several children ; or devise the whole to them in unequal portions; or by metes and bounds; though the por-

But, if a man seised in fee, devises his whole estate to his heir at law, so that the heir takes neither a greater nor a less estate by the devise than he would have done without it, he shall be adjudged to take by descent^e, even though it be charged with incumbrances ^f ; this being for the benefit of creditors, and others, who have demands on the estate of the ancestor. If a remainder be limited to the heirs of Sempronius, here Sempronius himself takes nothing ; but, if he dies during the continuance of the particular estate, his heirs shall take as purchasers s. But, if an estate be made to A for life, remainder to his right heirs in fee, his heirs shall take by descent: for it is an antient rule of law, that wherever the ancestor takes an estate for life, the heir cannot, by the same conveyance, take an estate in fee by purchase, but only by descent¹¹. And, if A dies before entry, still his heir shall take by descent, and not by purchase ; for, where the heir takes any thing that might have vested in the ancestor, he takes by way of descent'. The ancestor, during his life, beareth in himself all his heirs ^k ; and, therefore, when once he is, or might have been seised of the lands, the inheritance so limited to his heirs, vests in the ancestor himself: and the word "heirs" in this case, is not esteemed a word of purchase,b\it a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple. And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchaser originally nominated in the deed, as must have been the case if the remainder had been expressly limited to Matthew or Thomas by name ; then, in the times of strict feodal tenure, the lord would have been defrauded by such

e 1 Roll. Abr.'626. g 1 HoU. Abr. 627. i 1 Rep. 98.

f Salk. 241. Lord Raym. 728. h 1 Rep. 104. 2 Lev. 60. Raym. 334. k Co. Litt. 22.

tions thus devised should be equal, they should take by purchase, and not by descent; for in neither of these cases could they be parceners, and consequently not heirs. But it would seem, that if he devise the whole of his estate, to be equally divided among them, though this would formerly have made them tenants in common, yet they shall now be considered as heirs in parcenary, taking by descent, and not by purchase.

a limitation of the fruits of his signiory, arising from a descent to the heir.

What we call purchase, perquisitio, the feudists called conguest, conquaestus, or conqitisitio^l: both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scotland ^m : as it was among the Norman jurists, who stiled the first purchaser (that is he who brought the estate into the family which at present owns it) the conqueror or conquereiir". Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successor's charters, and by the historians of the times, entitled conquaestus, and himself conquaestur or conquisitor ° ; signifying, that he was the first of his family who acquired the crown of England, and from whom, therefore, all future claims by descent must be derived : though now, from our disuse of the feodal sense of the word, together with the reflexion on his forcible method of acquisition', we are apt to annex the idea of victory to this name of conquest or conquisition : a title which, however just with regard to the crown, the conqueror never pretended with regard to the realm of England; nor, in fact, ever had f,

The difference, in effect, between the acquisition of an estate "by descent and by purchase, consists principally in these two points : 1. That by purchase, the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase, he takes it not utfeudumpaternum or maternum_t which would descend only to the heirs by the father's or the mother's side: but he takes it utfeudum aniiquum, as a feud of indefinite antiquity ; whereby it becomes inheritable to his heirs general, first of the paternal, and then of the maternal line». 2. An estate taken by purchase will not

I Crag. J. 1. t. 10. Sec. 18. m Dalrymple of Feuds, 210.

n Gr. Coustum. Gloti. c. 25.page40. o Spelm.-Gicas. 145.

p See book I. ch. 3.

2. This distinction was abolished by the act of 1785, c. 60, but seems to have been since revived in the case of lands descending from

make the heir answerable for the acts of the ancestor, as an estate by descent will. For, if the ancestor by any deed, obligation, covenant, or the like, bincleth himself and his heirs, and dieth; this deed, obligation, or covenant, shall be binding upon the heir, so far forth only as he (or any other in trust for him«) had any estate of inheritance vested in him by descent from (or any estate pur outer vie coming to him by special occupancy, as heir to^r) that ancestor, sufficient to answer the charge •; whether he remains in possession, or hath aliened it before action brought¹; which sufficient estate is in the law called assets, from the. French word assess, enough ^u. Therefore, if a man covenants, for himself and his heirs, to keep my house in repair, I can then (and then only) compel his heir to perform this covenant, when he has an estate sufficient for this purpose, or assets, by descent from the covenantor : for though the covenant descends to the heir, whether he inherits any estate or no, it lies dormant, and is not compulsory, until he has assets by descent^{v 3}

q Stat. 29 Car. II. c. 3. Sec. 10. s 1 P. Wms. 777. u Finch. Laws, 119.

r Ibid. Sec. 12.

t Stat. 3 and 4 W. and M. c. 14.

v Finch. Rep 86.

infants dying without issue, as was before observed, ante page¹ 224. And the late acts carry the feudal principle of adhering to the blood of the first purchaser, in that case, even further than the common law ;ior it matters not whether the estate came to the infant by descent or fiurc/iase, for it shall continue in the blood of the grantor, equally as if it had descended from him. V. L. 1790, c. 13. Edi. 1794, c. 93. $. 5 and 6.

3. By the act of 1789, c. 39, any creditor, by bond or other specialty, may have an action of debt upon their bonds and specialties against the heir, and heirs at law of the obligor, and also against any devisee or devisees, to whom any such obligor shall have devised any lands, whereof he was seised in fee-simple, in possession, reversion, or remainder, or have power to dispose of by his last will and testament, jointly, by virtue of that act: and such devisees shall be liable and chargeable for any false plea, in the same manner as the heir would have been. Edi. 1794, c. 51. The statute of William and Mary for the relief of creditors against fraudulent devises, from which ours i» borrowed, was declared in force in Virginia, by the act of 1726, c. 3. Edi. 1733, and again, by the act of 1748, c. 8. Edi. 1769.

This is the legal signification of the word perquisitio, or purchase ; and in this sense it includes the five following methods of acquiring a tide to estates: 1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation. Of all these in their order.

I. Escheat, we may remember*, was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman", in which language it signifies chance or accident ; and with us it denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency: in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee r *.

•w See page 72.

x Escbet or ecbet, formed from the verb eteboir or echoir, to happen.

y 1 Feud. 86. Co. Litt. 13-

4. All escheats, penalties, and forfeitures, heretofore going to the king, shall go to the commonwealth, save only such as the legislature may abolish, .or otherwise provide for. C. V. Art. 20. Escheats, have not been abolished.

. If lands be granted by a private person to another, in fee simple, upon condition that the grantee, his heirs and assigns, shall pay to the grantor, his heirs and assigns, a perpetual ground rent, annually, it seems that, upon failure of heirs, of the grantee or his assigns, the lands would be subject to escheat to the grantor, his heirs, or assigns. The grants from the late lord Fairfax, and his ancestors, were of this nature. Such also, I presume, are the grants of town lots, where the proprietor reserves to himself, and his heirs, an annual ground rent. In these cases, there seems no reason to doubt, that upon a general failure of heirs of the grantees, or their assigns, the lands would escheat to the grantor or his heirs. But such a contingency is rendered so remote by our laws, that it is scarcely probable, that a case of the kind will happen twice in a century : for, by the act of 1785, c. 60, not only the heirs of a man's body, but his ancestors, and collateral relations, however remote, shall succeed to his estate, withput regard to sex, primogeniture, stock, or whole, or half blood ; and if there be no relation, in any degree, on the part of either parent, the wife or husband shall be heir ; and if the wife or husband be dead, the relations of such wife or husband shall succeed to the inheritance, however remote they may be. Thus it is scarcely .possible that any person, ex-

Escheat, therefore, being a title frequently vested in the lord by inheritance, as being the fruit of a signiory to which he was, entitled by descent, (for which reason the lands escheating shall attend the signiory, and be inheritable by such only of his heitai as are incapable of inheriting the other ^x) it may sefero, in such, cases, to fall more properly under the former general head of acquiring title to estates, viz, by descent, (being vested in him by act of law, and not by his own act or agreement) than under the .present, by purchase. But it must be remembered that, in. order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or suing out a writ of escheat^a: on failure of which, or by doing any act that amounts to an implied waiver

z Co. Litt. lj

a Bro. Air. tit. escheat.'.

cept a naturalized alien, who has never married, should die without heirs in this country. Edi. 1794, c. 93. $. 14.

Escheats to the commonwealth, notwiths^nding the allodial character which the tenure of lands in Virginia hath assumed, are still considered by our law as liable to happen. And it seems that the doctvine of escheats, in such cases, is founded upon this principle, that all the property in the commonwealth forms a common stock, to which the whole of the community is entitled, if there be not some one member thereof who has acquired an exclusive right thereto: and whenever there ceases to be some one member of the community possessing auch an exclusive right, the property then reverts to the common stock ; and may either be retained by the community, or granted to some other member of it. This differs from the idea of feudal supeviprity which formerly prevailed ; the commonwealth is not the superior, lord of the soil, but is regarded, strictly, as ultimus haeres, only. V. L. Edi. 1785. May 1779, c. 13. And this is, unquestionably, the only light in which escheats can, at this day, be regarded in Virginia. For, as no forfeiture, nor any corruption of blood, is wrought by the cofiviction or attainder of a person for any felony, or treason, escheats firoflter delictum lenentis are entirely abolished. They can therefore neyer happen, but where there is a real, and not an artificial failure of heirs, and those in so remote a degree as, in all probability, will bring the whole doctrine of escheats into absolute disuse. The case of an alien, (not privileged by special circumstanocs, as particular treaties with foi'eign nations) purchasing lands is an exception to this general observation, of which more particular notice will be taken in a. subsequent note. .

•of his 'right, as by accepting homage or rent of a stranger who usurps the possession, ims thle by escheat is barred^b. It is therefore, in some respect, a title acquired by his own act, as Veil as by act of law. Indeed this may also be said of descents themselves, in which an entry or other seisin is required, in order to Make a complete title; and, therefore, this distribution of titles by our legal writers, into those <by descent and by purchase, seems, in this Wspect, rather inaccurate, and not marked with sufficient precision: for, as escheats must follow the nature of the signiory to which they belong, they may vest by either purchase or descent, according as the signiory is vested. And, though sir Edward Coke considers the lord by escheat as in some respects the assignee of the last tenant^c, and therefore taking by purchase; yet, on the other hand, the lord is more frequently considered as being ultimus haeres, and therefore taking by descent in a kind of caducary succession.

The law of escheats is founded upon this single principle, that the blood of the person last seised in fee-simple, is by some means or other, utterly extinct and gone; and since none can inherit his estate but such as are of his blood and consanguinity, it follows as a regular consequence, that when such blood is extinct-*, the inheritance itself must fail; the land must become what the feodal writers denominateyhw^m afertum; and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.

Escheats are frequently divided into those propter defectum sanguinis and those propter delictum tenentis: the one sort if the tenant dies without heirs; the other, if his blood be attainted^d. But both these species may well be comprehended under the first denomination only; for he that is attainted suffers an extinction of his blood, as well as he that dies without rela-

b Bro. Abr. tit. acceptance. 25. Co. Litt. 268.

c 1 Inst. 215. d Co. Lttt. 13. 92.

5. See the preceding note. .... And here it will be proper to notice the act of 1797, c. 13, which authorises the creditors of persons •deceased leaving lands which escheat to the commonwealth, to recover their debts out of the proceeds thereof, in case of a deficfency of personal assets.

tions⁹. The inheritable quality is expunged in one instance, and expires in the other; or, as the doctrine of escheats is very fully expressed in Fleta', " dominus capitalis feodi loco haeredis " habetur, quoties per defectum vel delictum extinguitur sanguis tenentis."

Escheats therefore arising merely upon the deficiency of the blood, whereby the descent is impeded, their doctrine will be better illustrated by considering the several cases wherein hereditary blood may be deficient, than by any other method whatsoever.

1, 2, 3. The first three cases, wherein inheritable blood is wanting, may be collected from the rules' of descent laid down and explained in the preceding chapter, and therefore will need very little illustration or comment. First, when the tenant dies without any relations on the part of any of his ancestors ; secondly, when he dies without any relations on the part of those ancestors from whom his estate descended: thirdly, when he dies without any relations of the whole blood ⁷. In two of these cases the blood of the first purchaser is certainly, in the other it is probably, at an end; and therefore in all of them the law directs, that the land shall escheat to the lord of the fee: for the lord would be manifestly prejudiced, if, contrary to the inherent condition tacitly annexed to all feuds, any person should be suffered to succeed to the lands, who is not of the blood of the first feudatory, to whom for his personal merit the estate is supposed to have been granted *. ' ••

e /. 6. c. I.

* In the great case of Burgess v. Wheate, lord chancellor Northington determined contrary to the learned opinion! of lord Mansfield and of Sir Thomas Clarke master of the rolls, whose assistance he had requestd, that where a cestuy ijue trust dies without heirs, the trust does not escheat to the crown, so that the lands may be recovered in a court of equity by the king, but that the trustee shall hold them for his own benefit. 1 Bl. Sep. 123...Christian.

6. No corruption of blood shall ensue from any attainder of treason, or felony. C. U. S. Art. 3. L. U. S. 1 Cong. 2 Sess. c. 9. L. V. V 1789, c. 30. Edi. 1794, c. 74.

7. In neither of these cases can an escheat happen in Virginia, if there be any husband, or wife of the person dying, or any relation, however remote, of such husuand, or wife, if dead. V. L. 1785, c. 60. Edi. 1794, c. 93. J. 14.

4. A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage : but, although it hath deformity in any part of it's body, yet if it hath human shape, it may be heir^f. This is a very antient rule in the law of England *; and it's reason is two obvious, and too shocking, to bear a minute discussion. The Roman law agrees with our own in excluding such births from successions ^h: yet accounts them, however, children in some respects, where the parents, or at least the father, could reap any advantage thereby'; (as the jus trium Kberorum, and the like) esteeming them the misfortune, rather than .the fault, of that parent. But our law will not admit a birth of this kind to be such an issue, as shall entitle the husband to be tenant by the curtesy ^k; because it is not capable of inheriting. And therefore, if there appears no other heir than such a prodigious birth, the land shall escheat to the lord.

5. Bastards are incapable of being heirs. Bastards, by our law, are such children as are not born, either in lawful wedlock, or within a competent time after it's determination'. Such are held to be nullius filii, the sons of nobody; for the maxim of law is, qui ex damnato coitu nascuntur, inter Kberos non computantur™. , Being thus the sons of nobody, they have no blood in them, at least no inheritable blood ; consequently, none of the blood of the first purchaser: and therefore, Jf there be no other claimant than'such illegitimate children, the land shall escheat to the lord". The civil law differs from oursin this point, and allows a bastard to succeed to an inheritance, if after it's birth the mother was married to the father ° : and also, if the father had

f Co. Litt. 7. 8.

g §>ui contraformam bumani generis converso more procreantur. vt ti mulier monstrosum vel prodigiosum emixa tit, inter Hbrosnon comptitentur. Portia tamen, cui nature! aliquanttilum addidtrit vel iliminuerit, vt si sex vet trmttimquatuor digitoi bakuerit, tene debet inter liberos connumernri et, si membra tint imiillia out torttiosa, nan tamen estpartus monstrosus. Bract. / 1. c. 6. t3" /. 5. tr, 5. c. 30. h Ff. 1. 5. 14. «

i Ff. SO. 16. 135. Paul 4. seat. 9. Sec. 63.

k Co. Litt. 29. 1 See book 1. ch. 16

m Co. Litt. 8. n.Finch. law. 117.

o Nov. 89. c. 8.

no lawful wife -or child, then, even if the concubine was never married to the father, yet she and herbastard son were admitted each to otic twelfth of the inheritance p : and a bastard was likewise capable of succeeding to the whole of his mother's estate, although she was never married; the mother being sufficiently Certain, though the father is not^. But our law, in favour of marriage, is much less indulgent to bastards *.

There is indeed one instance, in which our law has shewn them some little regard; and thai is usually termed the case of bastard tigne and mulier puisne. This happens when a man has a bastard son, and afterwards marries the mother, and toy her has a legitimate son, who in the language o'f the law fs called a mulier, or, as<51anvil^r expresses it¹ in his Latin, fKus mulieratus; the Woman before marriage being -concubina, and afterwards mulier. Now here the eldest son is bastard, or bastard eigne: and the younger son is legitimate, or mulier puisne. If then the father dies, and the bastard eigne enters upon his land, and enjoys it to his death, and dies seised thereof, whereby the inheritance descends to his issue; in this case the mulier puisne, and all other'heirs, (though minors? feme coverts,' or Under any incapacity whatsoever) are totally barred o'f their i"igh't'. And this, 1. As a punishment oh the mulier for his negligence, in not entering during the bastard's life, and eVicting him. fe. BeWtose the law will not suffer & Man to be baStardized after his death, who entered as heir and died seised, and so passed for legitimate in his lifetime. 3. Because the canon law (following the civil) did allow iuch bastard eigne to be legititnate, on the subsequent marriage of his mother i arid therefore the laws of England (though they would hot admit either the civil or canon law to rule the inheritance of this king-

J> Ibid. c. 1-2. r I. 7. c. 1.

q Cod. 6. 57. 5.

s Litt. Sec. 399. Co. Litt. 244

8. Bastards may inherit, or transmit an inheritance on the part of their mother, as if they had been lawfully begotten of such mother, and if the fa'ther of a bastard marries his mother, if he be recognized by his father, he shall thereby be legitimated. The issue of marriages deemed null in law, are not bastards, but legitimate, V. L. 1785. c 60. Edi. 1794, c. 93.104.

donx, yet) paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they WQuld not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shewn to no other kind of, bastard; for, if the mother was never married to the father, guch bastard could have no colourable title at all ^l.

As bastards cannot be heirs themselves, so neither can they have any heirs but those, of their own bodies. For, as all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred: and, consequently, can have no legal heirs, but such as claim by a lineal descent from himself. .... And therefore if a bastard purchases land and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee" ».

6. Aliens^v also are incapable of taking by descent, or inheriting'" : for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defence of the kingdom, would have been defeated. Wherefore if a man leaves no other relations but aliens, his lands shall escheat to the lord.

As aliens cannot inherit, so far they are on a leval with bastards ; but as they are also disabled to hold by purchase*, they are under still greater disabilities*⁰. And, as they can neither

t Litt. Sec. 400. v See Book I. c. 10. •x. Co. Litt. 2.

u Bract. /. 2. c. 7. Co. Litt. 244. w Co; Litt. 8

9. Herein the law is altered. Edi. 1794, o. 93. See the last note.

10. By the act of May 1779, c. 13, it is declared, that all persons, as well foreigners, as others, shall have a right to assign or transfer warrants, or certificates of survey for lands ; and any foreigner purchasing warrants for lands may locate and have the same surveyed, and after returning a certificate of survey to the land office, shall be

hold by purchase, nor by inheritance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heir to inherit; but so it is expressly holden?, because they have not in them any inheritable blood.

And farther, if an alien be made a denizen by the king's letters patent, and then purchases lands¹¹, (which the law allows such a one to do) his son, born before his denization, shall not (by the common law) inherit those lands ; but a son born afterwards may, even though his elder brother be living; for the father before denization, had no inheritable blood to communicate to his eldest son; but by denization it acquires an hereditary quality, which will be transmitted to his subsequent posterity Yet, if he had been naturalized by act of parliament, such eldest son might then have inherited ; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not¹.

Sir Edward Coke^a also holds, that if an alien cometh into England, and there hath issue two sons, who are thereby natural-born subjects; and one of them purchases land, and dies ; yet neither of these brethren can.be heir to the other. For the commune vincu/um, or common stock of their consanguinity, is the father; and as he had no inheritable blood in him, he could communicate none to his sons; and, when the sons can by no possibility he heirs to the father, the one of them shall not be heir to the other. And this opinion of his seems founded upon solid principles of the antient law; not only from the rule before

y Co Litt. 1. Lev. 33.

zCo. Litt. 1-29,

a rinst. 8.

allowed the term of two years, either to become a citizen, or to transfer his right in such certificate of survey to some citizen of this, or any other of the United States of America. Edi. 1794, c. 86,

As to, -who shall be deemed aliens in Virginia, I must refer the student to Vol. I. part 2. Appendix note L. and appendix to this Vol. note C. '

11. The children of persons naturalized, dwelling in the United States, and being under the age of twenty-one yearsat the time of their father's being naturalized, are also naturalized. L. U. S. 1 Cong. 2 Sess. c. 3. 3 Cong. c. 85. r Cong. 1 Sess c. 28. Sec. 4.

cited^b, that cestuy, que doit inheriter alpere, doit inheriter alfts ; but also because we have seen that the only feodal foundation, upon which newly purchased land can possibly descend to a brother, is the supposition and fiction of law, that it descended from some one of his ancestors: but in this case as the immediate ancestor was an alien, from whom it could by no possibility descend, this should destroy the supposition, and impede the descent, and the land should be inherited ut feuditm stricte novum ; that is, by none but the lineal descendants of the purchasing brother ; and on failure of them, should escheat to the lord of the fee. But this opinion hath been since overruled⁰: and it is now held for law, that the sons of an alien born here, may inherit to each other; the descent from one brother to another being an immediate descent"¹. And reasonably enough upon the whole ; for, as (in common putchases) the whole of the supposed descent from indefinite ancestors is but fictitious, the law may as well suppose the requisite ancestor as suppose the requisite descent.

It is also enacted, by the statute 11 & 12 W. III. c. 6, that all persons, being natural-born subjects of the king, may inherit and make their titles by descent from any of their ancestors lineal or collateral; although their father or mother, or other ancestor, by, from, through, or under whom they derive their pedigrees, were born out of the king's allegiance¹². But inconveniences were afterwards apprehended, in case persons should thereby gain a future capacity to inherit, who did not exist at the death of the person last seised. As, if Francis the elder brother of John Stiles be an alien, and Oliver the younger be a naturalborn subject, upon John's death without issue his lands will descend to Oliver the younger brother: now, if afterwards Francis has a child born in England, it was feared that, under the statute of king William, this new-born child might defeat the estate of his uncle Oliver. Wherefore it is provided, by the statute 25 Geo. II. c. 39, that no right of inheritance shall accrue by virtue of the former statute to any persons whatsoever, unless

b See p. 223 and 239. c 1 Ventr. 413. 1 Lev. 59. 1 Sid. 193.

d See p. 226.

12. V. L. 1705, c. 12. 1785, c. 60. Edi. 1794, c. 93, Accordant.

they are in being and capable to take as heirs at the death of the person last seised¹³: with an exception however to the case, where lands shall descend to the daughter of an alien; which descent shall be divested in favour of an after-born brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual rule ^d of descents by the common law(").

7. By attainder also, for treason or other felony, the blood of the person attainted is so corrupted, as to be rendered no longer inheritable".

Great care must be taken to distinguish between forfeiture of lands to the king, and this species of escheat to the lord ; which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee and therefore entitled to both, have been often confounded together. Forfeiture of lands, and of whatever else the offender possessed, was the doctrine of the old Saxon law', as a part of punishment for the offence; and does not at all relate to the feodal system, nor is the consequence of any signiory or lordship paramount^f: but, being a prerogative vested in the crown, was neither superceded nor diminished by the introduction of the Norman tenures ; a fruit and consequence of which, escheat must undoubtedly be reckoned. Escheat therefore, operates in subordination to this more antient and superior law of forfeiture.

The doctrine'of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony,

d See page 208 and 214. f 2 Inst. 64. Salk. 85.

e LL. Aelfred. c. 4. LL. Canut. c. 54.

13. V. L. 1785, c. 60. Edi. 1794, c. 93. Sec. 13, contains a similar provision, in all cases, except the after born children of the intestate.

(13.) See Appendix, Note C.

14. As no attainder of treason, or felony works any corruption of blood in Virginia, it seems probable that the doctrine concerning this branch of escheats will soon become obsolete here. See C. U. S. art. 3. L. U. S. 1. Con₆. 2. Sess. c. 9. V. L. 1776, c. 3. Edi. 1785, 1789, c. 30. Edi. 1794, c. 74.

(under which denomination all treasons were formerly comprizeds) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vasal on the implied condition of ditm bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out for ever. In this situation the law of feodal escheat was brought into England at the conquest; and in general superadded to the antient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in it's passage: in case of treason, for ever; in case of other felony, for only a year and a day ; after which time it goes to the lord in a regular course of escheat¹¹, as it would have done to the heir of the felon •in case the feodal tenures had never been introduced. And that this is the true operation and genuine history of escheats will most evidently appear from this incident to gavelkind lands, (which seems to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason'.

As a consequence of this doctrine of escheat, all lands of inheritance immediately revesting in the lord, the wife of the felon was liable to lose her dower, till the statute 1 Edw. VI. c. 12, enacted, that albeit any person be attainted of misprision of treason, murder, or felony, yet his wife shall enjoy her dower. But she has not this indulgence where the antient law of forfeiture operates, for it is expressly provided by the statute S and 6 Edw. VI. c. 11, that the wife of one attaint of high treason shall not be endowed at all.

Hitherto we have only spoken of estates vested in the offender, at the time of his offence or attainder. And here the law of forfeiture stops; but the law of escheat pursues the matter

g 3 Inst. 15. Stat. 25 Edw. III. c. 2. Sec 12.

h 2 Inst. 36. i Somner. 53. Wright. Jen. 118.

still farther. For, the blood of the tenant being utterly corrupted and extinguished, it follows, not only that all that he now has shall escheat from him, but also that he shall be incapable of inheriting any thing for the future. This may farther illustrate the distinction between forfeiture and escheat. If therefore a father be seised in fee, and the son commits treason and is attainted, and then the father dies: here the land shall escheat to the lord; because the son, by the corruption of his blood, is incapable to be heir, and there can be no other.heir during his life: but nothing shall be forfeited to the king, for the son never had any interest in the lands to forfeit^k. In this case the escheat operates, and not the forfeiture ; but in the following instance the forfeiture works, and not the escheat. As where a new felon)' is created by act of parliament, and it is provided (as .is frequently the case) that it shall not extend to corruption of blood: here the felon shall not escheat to the lord, but yet the profits of them shall be forfeited to the king for a year and a day, and so long after as the offender lives'.

There is yet a farther consequence of the corruption and extinction of hereditary blood, which is this: that the person attainted shall not only be incapable himself of inheriting, or transmitting his own property by heirship, but shall also obstruct the descent of lands or tenements to his posterity, in all cages where they are obliged to derive their title through him from any remoter ancestor. The channel, which conveyed the hereditary blood from his ancestors to him, is not only exhausted for the present, but totally dammed up and rendered impervious for the future. This is a refinement upon the antient law of feuds, which allowed that the grand-son might be heir to his grandfather, though the son in the intermediate generation was guilty of felony⁰¹. But, by the law of England, a man's blood is so universally corrupted by attainder, that his sons can neither inherit to him nor to any other ancestor ⁿ, at least on the part of their ' attainted father.

This corruption of blood cannot be absolutely removed but by authority of parliament. The king may excuse the public k Co. Litt. 13. . 13 Inst. 47. m Van Lecuwen in 2 Feud. 31. n Co. Litt. 391.

punishment of an offender; but cannot abolish the private right, which has accrued or.may accrue to individuals as a consequence of the criminal's attainder. He may remit a forfeiture, in which the interest of the crown is alone concerned: but he cannot wipe away the corruption of blood; for therein a third person hath an interest, the lord who claims by escheat¹⁵. If therefore a man hath a son, and is attainted, and afterwards pardoned by the king; this son can never inherit to his father, or father's ancestors ; because his paternal blood, being once thoroughly corrupted by his father's attainder, must continue so: but if the son had been born after the pardon, he might inherit; because by the

15. By the act of 1789, c. 30, Edi. 1794, c. 74, $. 31, it is enacted, that, whensoever any person shall happen tobe attainted, convicted, or outlawed of any treason, misprision of treason, murder,-or felony,whatsoever, there shall in no case be ^forfeiture to the commonwealth, of dower, or of lands, slaves, or personalestate,but the same shall descend and pass, in like manner as is by law directed in cases of persons dying intestate; nor shall any attainder work corruption of blood." Here we may ask, whether the lands shall descend and pass immediately upon the attainder, or not till the death of the person attainted ? By the common law, the felon is incapable of holding lands not only from the time of his attainder, but from the time of the offence committed, and the forfeiture to the crown is absolute from the time of the attainder. If this principle be still retained, is it not worthy of inquiry whether the felon's lands do not immediately pass to his heirs, upon the attainder ? For it may be argued, that it was not the intention of the law to favour the felon, but his innocent heirs ; that although the commonwealth hath in their favour, appropriated to their use by a general law, what would otherwise have vested in the public, yet the law, as it relates to the felon himself, still supposes a forfeiture to have been incurred by the attainder, the benefit of which the commonwealth hath justly assigned to those to whom the felons lands would have descended, had he died intestate, according to the course of nature. If then, it should be thought the land passes to the heirs, upon the attainder, can a pardon divest their interest, after it has once vested in them by the attainder ? These doubts were suggested, by what is here said by the commentator, as also, by what follows in the next page, and afterwards in page 290. But perhaps there is no room for any doubt upon the subject, for it seems to have been agreed, that, by the common law, after an attainder for high treason, and until office found, the freehold shall continue in the person attainted, as long as he lives. See Plowden 4S6 .... 5 Co. 52. b.

pardon the father is made a new man, and may convey new inheritable blood to his after-born children °.

Herein, there is, however, a difference between aliens and persons attainted. Of aliens, who could never by any possiblity be heirs, the law takes no notice : and, therefore, we have seen, that an alien elder brother shall not impede the descent to a natural-born younger brother. But in attainders it is otherwise : for if a man hath issue a son, and is attainted, and afterwards pardoned, and then hath issue a second son, and dies ; here the corruption of blood is not removed from the eldest, and therefore he cannot be heir: neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a possibility of being heir: and, therefore, the younger brother shall not inherit, but the land shall escheat to the lord : though had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he hath no corruption of blood p. So if a man hath issue two sons, and the elder in the lifetime of the father hath issue, and then is attainted and executed, and afterwards the father dies, the lands of the father shall not descend to the younger son: for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord 1. Sir Edward Coke in this case allows ^r, that if the ancestor be attainted, his sons bom before the attainder may be heirs to each other; and distinguishes it from the case of an alien, because in this case the blood was inheritable when imparted to them from the father: but he makes a doubt (upon the principles before-mentioned, which are now overruled⁸) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in them.

Upon the whole, it appears, that a person attainted is neither allowed to retain his former estate (¹⁵), nor to inherit any

o Co Litt. 392. p Ibid. 8. q Dyer. 48. r Co. Litt. 8. s 1 Hal. P. C. 357.

(15), It seems to have b.een agreed, in Plowden 486, that by the common law after an attainder for high treason, and until office found, the freehold shall continue in the person attainted as long as he lives. See the last note.

future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished for ever: the consequence of which is, that estates thus impeded in their descent, result back and escheat to the lord.

This corruption of blood, thus arising from feodal principles, but, perhaps, extended farther than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive parts of the feodal tenures being now, in general, abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty, (which, however severe, is sufficiently justified, upon reasons of public policy) but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And, therefore, in most (if not all) of the new felonies created by parliament since the reign of Henry the eighth, it is declared, that they shall not extend to any corruption of blood: and by the statute 7 Ann. c. 21, (the operation of which, is postponed by the statute 17 Geo. II, c. 39), it is enacted, that, after the death of the late pretender, and his sons, no attainder for treason, shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender, himself: which provisions have, indeed, carried the remedy farther, than was required by the hardship above complained of, which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.

Before I conclude this head, of escheat, I must mention one singular instance, in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the case of a corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion¹⁸,

16. It may be worthy of inquiry how far the law, in this instance, is applicable to the case of the donative glebes and churches in Virginia, since the establishment of the commonwealth.

and not the lord by escheat j which is, perhaps, the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law we are told', doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant faileth. This is, indeed, founded upon the self-same principle as the law of escheat: the heirs of the donor being only substituted instead of the chief lord of the fee: .which was formerly very frequently the case in subinfeudations, or alienations of lands by a vasal to be holden as of himself: till that practice was restrained by the statute of quia emptores, 18 Edw. I, st. 1, to which this very singular instance still in some degree remains an exception.

There is one more incapacity of taking by descent, which not being productive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 and 12 Will. III. c. 4, that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent, as well as purchase, any real estates whatsoever; and his next of kin being a protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act¹⁷. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion and became a monk professed was incapable of inheriting lands, both in our own" and the feodal law; eo quod desiit esse miles se-

t Co. Litt. 13.

u Ibid-132.

17. Here it is to be observed that the framers of this statute found it necessary to declare, who should have the lands, during the incapacity of the person, to whom they would have descended, according to the ordinary course of law. But our legislators seem to have paid no regard to this precedent, in framing the additional sections to the law of descents. Edi. 1794, c. 93. §• 5. 6. 7.

cull qui factus est miles Christi; nee beneficium pertinet ad eum qui non debet.gerere officium™. But yet he was accounted only civiliter mortuus ; he did not impede the descent to others, but the next heir was entided to his or his ancestor's estate.

These are the several deficiencies of hereditary blood, recognized by the law of England ; which, so often as they happen, occasion lands to escheat to the original proprietary or lord.

w 2 Feud 12.

CHAPTER THE SIXTEENTH,

OF TITLE BY OCCUPANCY.

OCCUPANCY is the taking possession of those things, which before belonged to nobody. This, as we have seen*, is the true ground and foundation of all property, or of holding those things in severally, ,whkh, by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Rome^b, quod nullius est, id rations naturali occuj,anti conceditur.

This right of occupancy, so far as it concerns real property, (for of personal chattels I am not in this place to sp^ak) hath been confined by the laws of England within a very narrow compass ; and was extended only to a single instance: namely, where a man was tenant pur outer vie, or had an estate granted to himself .only (without mentioning his heirs) for the life of another man, and died during the life ofcestuy que vie, or him by whose life it was holden: in this case, he that could first enter on the land, might lawfully retain the possession so long as cestuij qui vie lived, by right of occupanc) ^c.

This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the

a See p. 3, and 8.

b ff. 41. 1. 3.

c Co. Lite. 41.

grantor, though it formerly^d was supposed so to do; fir he had parted with all his interest, so long as cestuy que vie lived: it did not escheat to the lord of the fee ; for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it; much less of so minute a remnant as this: it did not belong to the grantee ; for he was dead : it did not descend to his' heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the haereditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it during the life of cestuy que vie, under the name of an occupant >. But there was no right of occupancy allowed, where the king had the reversion of the lands ; for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred : against the king therefore 'there could be no prior occupant, because nnllum tempm occurrit regi^M. And, even in the case of a subject, had the estate fur outer vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant ; as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety ^e; and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one, 29 Car. II, c. 3, which enacts (according to the antient rule of law ^f) that where there is no special occupant, in whom the estate may vest, the tenant pur aufer vie may devise it by will, or it shall go to the executors or administra-

d Bract. /. 2. c. 9. /. 4. tr. 3. c. 9. §. 4. Flet. /. 3. c 12. §. 6. /. 5 c. 5. §. 1 j. ddCo. Litt.41. eVaugh, 201. f Bract, ihiif. Flet. luid.

1. It may become a question, whether the omission of the legislature, in declaring to whom the lands of an infant dying without issue, shall in certain cases descend, may not lay the foundation for the right of common occupancy in such cases, where any person whatsoever can obtain the possession .... Sep Appendix nole B.

tors and be assets in their hands for payment of debts: the other that of 14 Geo. II, c. 20, which enacts, that the surplus of such estate pur outer vie^ after payment of debts, shall go in a course of distribution like a chattel interest².

2. The act of 1785, c. 61. Edi. 1794, c. 92. J. 54, agrees with these statutes. A question has lately occurred whether an estate fiur outer vie were devisable in Virginia before the revolution j the decision of which will probably put an end to the general question, how far acts of the parliament of Great Britain, posterior to the fourth year of James the first, extended to the Colonies, although they were not named therein. This subject was shortly touched upon in the last part of note F. Appendix to Vol. L It may not be improper in this place, to say some thing more on the subject.

The general assembly of Virginia, was constituted by letters patent, of March 9, 1607, with the power of establishing laws, and forms of government and magistracy, obligatory, not only within the colony, but also on the seas, in going to and from it*. We have formerly shewn (Appendix to Vol. I. Note E.) that our forefathers migrating to this new country, brought with them all the laws of the parent state which were applicable to their new condition and circumstances :.'tha grant of a legislature, with powers as extensive as those abovementioned, necessarily gave to the colonists a right of judging for themselves, exclusively, as to all laws which might be in future proposed for their own internal convenience ; for, although it should be conceded that they could not make laws contrary to the laws and statutes of England, at the lime of their migration hither ; it does not seem to follow, that when those laws were changed in England, they must also be supposed to have undergone the same change in the colonies; or, that when any new law was made in England, the same law should instantly acquire obligation in the colonies, who then had legislatures of their own. The assembly of Virginia, indeed, in the year 1661, declared, " that they, had endeavoured, in all things, as near as the capacity and constitution of this country would admit, to adhere to those excellent and often refined laws of England, to which they professed and acknowledged all reverence and obedience; and that the laws made by them, were intended by them, but as brief memorials of that which live capacity of the colonial courts was utterly unable to collect out of it's vast volumes, though sometimes perhaps from the difference of condition varying in small things, but far from the presumption of contradicting any thing therein contained." Edi. 1769, p. 1; but still this recognition, it would seem, can only be construed as referring to antecedent laws, and not to such as might thereafter be made. This construction seems to be favoured by the prac-* Jefferson's Notes, Paris Edi. p. 197,240.

By these two statutes the title of common occupancy is utterly extinct and abolished: though that of special occupancy, by the heir at law, continues to this day; such heir being held to succeed to the ancestor's estate, not by descent, for then he must

tice which from time to time prevailed in the legislature, of passing acts upon the same subject as later statutes, either in perfect conformity thereto, or with some variation. The act for distribution of intestates estates, passed in 1705, c. 7, is, in part, a transcript from the statutes of 22 and 23. Car. 2. c. 10, and 1 Ja. 2. c. 17, but with one or more material variations, vi. fiost p. 515, 516, notes 46, and 47. The statute passed in the reign of William and Mary, for relief of creditors against fraudulent devises, was, by an act of assembly, which recites the title only, declared to be in force in Virginia, in the year 1726*. The acts of 1705, c. 8, and of 1748, c. 1, and c. 5, for limitation of actions, Etc. are, in many respects a transcript, with here and there a variation, from the statutes of 21 Jas. 1. c. 16. .... 22 and 23 Car. 2. c .... and 8, and 9 of W. 3. c. 10, and 11. and statute 4 Ann. c. 16. The act of 1748, c. 2, concerning orphans, is nearly a transcript from the stat. 12. Car. 2. c. 24. The act of the same session, c. 3, concerning wills, differs in nothing from the stat. 29. Car. 2. c. 3. $. 5. &c. except that it requires fewer witnesses to a will of lands in Virginia, than the English statute requires : now the words of that statute positively require three witnesses to a will of lands, declaring all wills of lands which shall not be so attested null and void. The act of the Virginia legislature, on the contrary, is satisfied by two witnesses only. Here, then, the statute, and act of assembly, are in direct opposition. If the statute of the British parliament was in force here, it would seem, that it required an act of equal authority to repeal it. Could the colonial legislature be deemed to possess that authority, whilst the parliament of Britain also possessed it ? If the legislature of Virginia did not possess the exclusive power of making laws for the colony, conformably to the authority given by their charter, all the laws made here, which were contradictory to the general principles of an English statute, though posterior to the establishment of the colonial legislature, may be considered as null and void. What then must be the situation of estates of lands in this country, all of which were probably passed by

* The following remarkable clause occurs in the act for establishing the general court, 1705, c. 19. Edi. 1733. " Provided always .that the people commonly called Quakers shall have the same liberty of giving their evidence by way of solemn ailirniatiou, as is prescribed In one act of parliament, septiinoet octavo Guiielmi tertiiregis, entitled an act, " that the solemn affirmation and declaration of the people called Quakers shall be accepted in the usual form ;" which said act of parliamentyjrso much thereof as relates to such affirmation, and for the time of it's continuance in force, anil not cltcraiiie, SH ail be to all iiitents and purposes, mf.illforce in this dominion."

take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like &, (because, with respect to them, there could be no actual entry made, or corporal seisin had; and therefore by the death of the grantee pur outer vie a grant of such hereditaments was entirely determined) so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise ; and the hereditaments would not be deviseable, nor vest in the executors, nor go in a course of distribution #. For these statutes g Co. Litt 41. Vaugh. 201.

* But, by the lord keeper Harcourt, in the case of Rawlin»on v. the dutches of Montague and others, (3 P. Will. 264. in the notes) as to rents, We. granted /wr outer vie, the statute of frauds and perjuries has made an alteration ; for, by that statute, any estate fmrauter vie is made deviseable ; and if not devised away, shall be assets in the hands of the heir, if limited to the heir ; if not limited to the heir, it shall go to the executors or administrators of the grantees, and be .assets in their hands. So that, if since that statute a rent be granted to A for the life of B, and A die living B, A's executors or administrators shall have it during the life of B; for the statute is not only made to prevent the inconvenience of scrambling for estates, and getting the first possession after the death of the grantee, but likewise for preserving and continuing the estate during the life of the centuy aue vie ; and it is reasonable, since the grantee might by deed have disposed of the rent during the life of the cesiuy que vie, that, though by his dying without having made any such disposition, in nicety of law this estate would have determined, yet, by the statute, that interest which passed from the grantor ought to be preserved, and shall go to the executors or administrators of the grantee, during the life of the cestuy guc vie. And the statute, in this case, does not inlargc, but only preserve the estate of the grantee. The law of Virginia p785, c. 61. Edi. IT'94, c. 92. Sec, 54.J agrees '.oitli this statute. The law took effect, January \, 1787.

devise since the commencement of the act of 1748, concerning wills ? On the other hand it is contended, that all the general laws of the British parliament made in aid of the common law, were, until the revolution, regarded as in force here, except where a positive local law,

must not be construed so as to create any new estate, or keep that alive which by the common law was determined, and thereby to defer the grantor's reversion ; but merely to dispose of an interest in bting, to which by law there was no owner, and which therefore was left open to the first occupant. When there is a residue.left, the statutes give it to the executors and administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either^h. They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform: this being the only instance wherein a title to a real estate could ever be acquired by occupancy.

This, I say, was the only instance : for I think there can be no other case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no

h But see now the statute 5 Geo. III, c. 17, which makes leases for one, two or three lives by ecclesiastical persons or any eMinosynarj corporation of tithes or other incorporeal hereditaments, as good and effectual to alliiiteiits and purposes as leases of corporeal possessions.

to which the royal assent was given, was, upon local considerations, admitted to have altered the statute.

In opposition to this latter opinion we are told that the rule in our courts of judicature, was, that the common law of England, and the general statutes/frnwioas to the 4th of James were in force here; but th.it no sub sequent statutes were, unless we were named in them .... Jefferson's Notes, 240. The convention which established the constitution of Virginia, in 1776, declared that the common law of England, and all statute^ or acts of parliament, made in aid of the common law, prior to the fourth year of the reign of James the first, which are of a general nature,not local to that kiugdom,sofar as-tlie same may consist with the laws of the colony, shall be considered as in full force, until altered l>y the legislature. No notice is taken of acts of parliament subsequent to the peri.;d aboveinentior.ed, which seems to imply that they were not then deemed to be in force here. Upon these grounds I have invariably, in the course of these notes, supposed il right to mark all statutes subsequent to the fourth of James, as not in force in Virginia, unless express.!/ adopted by a le_bislative act of the colonial assembly.

actual owner of the land till a successor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the common course of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee, by escheat.

So also in some cases, where the laws of other nations give a right by occupancy, as in lands newly created, by the rising of an island in the sea or in a river, or by the alluvion or derelic? tion of the waters ; in these instances the law of England assigns them an immediate owner. For Bracton tells us *, that if an island arise in the middle of a river, it belongs in common to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore: which is agreeable to, and probably copied from, the civil law ^k. Yet this seems only to be reasonable, where the soil of the river is equally divided between the owners of the opposite shores: for if the whole soil is the freehold of any one man, as it usually is whenever a several fishery is claimed ', there it seems just (and so is the constant practice) that the eyotts or little islands, arising in any part of the river, shall be the property of him who owneth the piscary and the soil. However, in case a new island rise in the sea, though the civil law gives it to the first occupant^m, yet ours gives it to the king". And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra jirma; or by dereliction, as when the sea shrinks back below the usual watermark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining °. For de ninimis non curat lex : and, besides these owners, being often losers by the breaking in of the sea, or at charges to keep it out,

i /. 2. c. 2. . k Inst. 2, 1, 22. 1 Sulk. 637. See page 39. m last. 2,1,18. n Bract. 1.2. c. 2. Callis of sewers, 22. » 2 Roll. Abr. 170. Dyer, 326.

this possible gain is therefore a reciprocal consideration for such possible charge or loss. But, if the alluvion or dereliction be sudden and considerable, in this case it belongs to'the king; for, as the king is lord of the sea, and so owner of the soil while it is covered with water, it is' but reasonable he should have the soil, when the water has left it dry?. So that the quantity of ground gained, and the time during which it is gaining, are what make it either the king's, or the subject's property. In the same manner, if a 'river, running between two lordships, by degrees gains upon the one, and thereby leaves the other dry ; the owner, who loses his ground thus imperceptibly, has no remedy: but if the course of the river be changed by a sudden and violent flood, or other hasty means, and thereby a man loses his ground, it is said that he shall have what the river has left in any other place, as a recompense for this sudden loss 1. And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law ^r ; from whence indeed those our determinations seem to have been drawn and adopted: but we ourselves, as islanders, have applied them to marine increases ; and have given our sovereign the prerogative he enjoys, as well upon the , particular reasons before-mentioned, as upon this other general ground of prerogative, which was formerly remarked', that whatever hath no other owner is vested by law in the king.

p Callis. 24, 28.

r/mr. 2,1,20,21,22,23,24.

q Rid. 28.

s See Vol. I. p. 298.

CHAPTER THE SEVENTEENTH.

OF TITLE BY PRESCRIPTION.

A THIRD method of acquiring real property by purchase is that by prescription; as when a man can shew no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries". At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then shew, what sort of things may be prescribed for.

And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to any person ; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely & personal usage ; as, that Sempronius, and his ancestors, or those* whose estate he hath, have used time out of mind to have such an advantage or privilege¹¹. As for example: if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation; (which is held* to be a lawful usage) this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription;

a See Vol. I. page 75, life. * 1 Lev. 176,

b Co. Litt. 113.

for this is a usage annexed to the person of fhe owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath ^d: which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended' for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. c. 2, it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within three score years next before such prescription made^f.

Secondly, as to the several species of things which may, or may not, be prescribed for: we may, in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right of way, a common, fcfc. but that no prescription can'give a title to lands, and other corporeal substances, of which more certain evidence may be had*. For a man shall not be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title ; a title by corporeal seisin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be laid in him that is tenant of the fee. A tenent for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates'¹. For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for any thing, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord's estate, and the tenant for life

d 4 Rep. 32. ' e Co. Litt. 113.

f This title, of prescription, was well known in the Roman law by the name of itsucafio i (Ff. 41. 3. 3 ) so called because a man, that gains'a title by prescription, may be said usu rem capeie.

5 Dr.and St. dial. 1. c. 8. Finch. 132. h 4 Rep. 31,32.

under cover of th^tenant in fee-simple. As, if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple ; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with it's appurtenances, to him the said tenant for life. 3. A prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers ; for as such claim could never have been good by any grant, it shall not be good by prescription¹. 4. A fourth'rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands, felons¹ goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, estrays,and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record^k. 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds) nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix, of an estate, with which the thing claimed has no connexion : but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that arc appurtenant, but also such as may be in gross¹. Therefore a man may prescribe, that he and and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor : but, if the advowson be a distinct inheritance, and not appendant,

il Ventr. 38f.

k Co. Litt. 114.

1 Litt. §. 183. Fincli. L. 104.

then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor ; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by prescription are not, of course, descendible¹ to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: and therefore if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes ; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase: for every accessory followeth the nature 'of it's principal¹.

1. The student will recollect, that we have more than once had occasion to' remark that there can be no prescription, at present, in Virginia, for reasons mentioned in note 7. p. 31.

CHAPTER THE EIGHTEENTH.

OF TITLE BY FORFEITURE.

FORFEITURE is a punishment annexed bylaw to some illegal act or negligence, in die owner of lands, tenements, or hereditaments : whereby he loses all his interest therein, and they go to the party injured, as a recompence for the wrong which either he alone, or the public together with himself hath sustained.

Lands, tenements, and hereditaments, may be forfeited in variousdegrees and by various means: l.By crimes and misdemesnors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

I. The foundation and justice of forfeitures for crimes and misdemesnors, and the several degrees of those forfeitures, proportioned to the several offences, have been hinted at in the preceding volume³; but will be more properly considered, and more at large in the fourth book of these commentaries. At present I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the>crown are principally the following six: 1. Treason. 2. Felony. 3 Misprision of treason. 4. Praemunire. 5. Drawing a weapon on a judge, or striking any one in the presence of the king's principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists. But at what time they severally commence, how far they extend, and how long they endure,

aVol'l page 299.

will with greater propriety be reserved as the object of our future inquiries'.

II. Lands and tenements may be forfeited by alienation, or conveying them t<? another, contrary to law. This is either alienation in mortmain, alienation to an alien _t or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.

1. Alienation In mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof, the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations^b, and the religious houses themselves to he principally considered in forming the statutes of mortmain; in deducing the history of which statutes, it will be matter of curiosity to observe the great .address and subtle contrivance of the b See Vol. I. p. 479.

1. By the act of October 1776, c. 3, any person convicted of treason should forfeit his lands, and chattels to the commonwealth, saving to the -widows of the offenders their dower in the lands .... But the act of. 1789, c. 30, declares that there shall in no case be a forfeiture to the commonwealth of dower, or of lands, slaves or personal estate upon, conviction or attainder, of any treason, misprision of treason, murder or felony whatsoever, but the same shall descend and pass in like" manner as is by law directed in cases of persons dying intestate. V. L. Edi. 1794, c. 74. Sec. 31. See note IS p. 254.

No attainder of treason against the United States, shalKwork corruption of blood, or forfeiture, except during the life of the person attainted. C. U. 8. art. 3. But whei»₍congress undertook to declare the punishment of treason, and to pass an act for the punishment of. crimes against the United States, in which act treason, murder, manslaughter, piracy, larceny, and some other crimes, when committed within the jurisdiction of the United States, were comprehended, they subjoined a clause to the act, declaring, that no conviction, or judgment for any of the offences therein mentioned, shall work corruption of blood, or any forfeiture of estate. L. U. S. 1. Cong. 2. Scss. c. 9. Sec. 24.

ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses: how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, hath obtained a decisive victory.

By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feodal restraints of alienation were worn away. Yet, in consequence of these it was always, and is still, necessary^c, for corporations to have a licence in mortmain from the crown, to enable them to purchase lands: for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feodal profits, by the vesting of lands, in tenants that can never be attainted or die. And such licences, of mortmain seem to have been necessary among the $axons, above sixty years before the Norman conquest^d. But, besides this general licence from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence also, (upon the same feodal principles) for the alienation of the specific land. And if no such licence was obtained, the king or other lord might respectively enter on the lands so aliened in mortmain, as a forfeiture. The necessity of this licence from the crown was acknowledged by the constitutions of Clarendon^c, in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations ''. Yet such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a licence could not be obtained) their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands

c F. N. B. 121. d Selden. Jan. Angl. 1. 2. Sec. 45. . e Ecclesiac dejeuiodoniini regit nonpossttnt in pcrpctuum dari, aityttc atsensh ct conseniione If sins, c. 2. A. DllJOI. f See Vol. I, p. 346.

to the religious house, and instantly took them back again, to hold as tenant to the monastery ; which kind of instantaneous seisin was probably held not to occasion any forfeiture: and then by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newly acquired signiory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feodal services, ordained for the defence of the kingdom, were every day visibly withdrawn ; that the circulation of landed property from man to man began to stagnate ; and that the lords were curtailed of the fruits of their signiories, their escheats, wardships, reliefs, and the like: and therefore, in order to prevent this, it was ordered by the second of king Henry III's great charters s, and afterwards by that printed in our common statute-book, that all such attempts should be void, and the land forfeited to the lord of the fee ^h.

But, as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, sir Edward Coke observes', in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bonajide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for. years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edw. I; which provided, that no person, religious or other whatsoever, should buy, or sell, or receive, under pretence of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appro-

g A. D. 1217. cap. 43. edit. Oxoii.

h jfonlicet alicuide caeterodaretenamsuamaUcuidomuireligioiae,itaquod ilium resumat tentndam de eadem darmo ; nee liceat aticuidomui rtligtosaeterrain alicujui sic accipere, quod tradat ilium ei a quo ipsain recipit tenendam: si quis autem tic cactero terram warn domtti religiosae sic deilei it, ut super toe cotmincatur, donum suun: penitus cassetur, ut terra ilia domino tuo illitis feodi incurratur. Mag. Cart. 9. Sea. III. c. 36.

i 2 Inst. 75.

priate to himself, any lands or tenements in mortmain pain that the immediate lord of the fee, or, on his default f year, the lords paramount, and, in default of all of the king, might enter thereon as a forfeiture.

This seemed to be -a sufficient security against all alien in mortmain: but as these statutes extended only to gii conveyances between the parties, the religious houses n( gan to set up a fictitious title to the land, which it was int they should have, and to bring an action to recover it agah tenant; who, by fraud and collusion made no defence, and by judgment was given for the religious house, which th covered the land by sentence of law upon a supposed pno And thus theyliad the honour of inventing those fictitious dications of right, which are since become the great assi of the kingdom; under the name of common recoveries. Bu this the statute of Westminster the second, 13 Edw. I, enacted, that in such cases a jury shall try the true right demandants or plaintiffs to the land, and if the religious or corporation be found to have it, they shall still recover s otherwise it shall be forfeited to the immediate lord of tl or else to the next lord, and finally to the king, upon the i "diate or other lord's default. And the like provision was by the succeeding chapter ^k, in case the tenants set up c upon their lands (the badges of knights templars and hospit in order to protect them from the feodal demands of their by virtue of the privileges of those religious and military o So careful indeed was this provident prince to prevent a ture evasions, that when the statute ofyw/'a emptores, 18 E> abolished all sub-infeudations, and gave liberty for all n alienate their lands to be holden of their next immediate a proviso was inserted^m that this should not extend to : rize any kind of alienation in mortmain. And when after the method of obtaining the king's licence by writ of at damnum was marked out, by the statute 27 Edw. I. st. 2, i farther provided by statute 34 Edw. I. st. 3, that no such li should be effectual, without the consent of the mesne or

Yet still it was found difficult to set bounds to ecclesiastical ingenuity: for when they were driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly,- but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and receiving the actual profits, while the seisin of the lands remained in the nominal feoflee; w,ho was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it is to these inventions that our practisers are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device ; for the statute 15 Ric. II. c. 5, enacts that the lands which had been so purchased to uses should be amortised by licence from the crown, or'else be sold to private persons; and that for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to'churches, and consecrating them by the name of church-yards, such subtile imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those' salutary .laws. And lastly, as during the times of popery, lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain ; therefore at the dawn of the reformation, the statute 23 Hen. VIII. c. 10, declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.

But, during all this time, it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, so far as related to it's own rights; and to enable any spiritual or other corporation to purchase and hold any lands Or tenements in per-

petuity; which prerogative is declared and confirmed by the statute 18 Edw. III. st. 3. c. 3. But, as doubts were conceived at the time of the revolution how far such licence was valid", since the kings had no power to dispense with the statutes of mortmain by a clause of non obstante⁰, which was the usual course, though it seems to have been unnecessary p : and as, by the gradual declension of mesne signiories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass ; it was, therefore, provided by the statute 7' and 8 W. III. c. 37, that the crown for the future at its own discretion may grant licences to aliene or take jn mortmain, of whomsoever the tenements may be holden.

After the dissolution of monasteries under Henry VIII, though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of tfyeir owners, might induce them to part with: the statutes of mortmain were suspended for twenty years by the statute 1 & 2 P. and M. c. 8, and, during that time, any lands or tenements were allowed to be granted to any spiritual corporation without any licence, whatsoever. And, long afterwards, for a much better purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II, c, 3, that appropriates may annex the great tithes to the vicarages ; and that all benefices under 100/. per annum may be augmented by the purchase of lands, without licence of mortmain in either case; and the like provision hath been since made, in favour of the governors of queen Anne's bounty ^. It hath also been held ^r, that the statute 23 Hen. VIII, before-mentioned did not extend to any thing but superstitious uses; and that, therefore, a man may give lands for the maintenance of a school, an hospital, or any other charitablei uses. But as it was apprehended from recent experience, that persons on their ' death-beds might make large and improvident dispositions even for these good purposes, and defeat the political end of the sta-

n 2 Hawk. P. C 391, p Co. Litt. 99, r 1 Rep. 24.

o Stat. 1 W. & M. st. 2, c. 2. q Stat 2, & 3 Ann. c. 11.

tutes of mortmain; it is, therefore, enacted by the statute 9 Geo. II, c. 36, that no lands or tenements, or money to be laid out thereon, shall be given for, or charged with, any charitable uses, whatsoever, unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after it's execution, (except stocks in the public funds, which may be transferred within six months previous to the donor's death) and unless such gift be made to take effect.immediately, and be without power of revocation: and that all other gifts shall be void. The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons, than are equal in number to one moiety of the fellows or students, upon the respective foundations ».

2. Secondly, alienatio'n to an alien, is also a cause of forfeiture to the crown of the lands so alienated: not only on account of his incapacity to hold them, which occasions him to be passed by, in descents of land', but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding volume*³.

i

3. Lastly, alienations by particular tenants, when they are

greater than the law entitles them to make, and devest the remainder 6K reversion ^v, are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee ; these being estates, which either must or may last longer than

s See page 249, 250. t Book I, page 372. v Co. Litt. 251.

2. By the repeal of all British statutes, in Virginia, V. L. Edi. 1794, c. 147, it would seem that gifts to a corporation, of lands, now remain as at the common law, before the making of the statutes of mortmain herein noticed by the commentator.

3. See Volume I, Appendix Note L. ante p. 249, note 10, and p. 251, note 13, and the notes in the Appendix to this Volume, there referred to.

his own, the creating them is not only beyond his power and inconsistent with the nature of his interest, but is also a forfeiture of his¹ own particular estate to him in remainder or reversion ^u. For which there seem to be two reasons. First, because such alienation amounts to a renunciation of the feodal connexion and dependence ; it implies a refusal to perform the due renders and services to the lord of the fee, of which fealty is constantly one; and it tends in it's consequence to defeat and devest the remainder or reversion expectant: as, therefore, that is put in jeopardy, by such act of the particular tenant, it is but just that, upon discovery, the particular estate should be forfeited and taken from him,, who has shewn so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law, which is thus laid.down with regard to tenants for life, holds also with respect to all tenants of the mere freehold or of chattel interests⁴; but if tenant in tail alienes in fee, this is no immediate forfeiture to the remainder-man, but a mere discontinuance (as it is called*) of the estate-tail, which the issue may afterwards avoid by due course of law ^x: for he in remainder or reversion hath only a very remote'and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law *. For the law will not hurt an innocent

u Litt. Sec. 415. w See Book III, c. 10. x Litt. Sec. 595, 6,7. y Col Litt. 233.

4. The act of 1785, c. 67, declares, that all alienations and warranties of lands, made by any purporting to pass, or assure a greater right, or estate than such person may lawfully pass or assure, shall operate as alienations or warranties of so much of the right and estate in such lands, as such person might lawfully convey : but shall not pass' or bar the residue of the said right, or estate, purported to be conveyed or assured. L. V. Edi. 1794, c. 13.

How far this act may have changed the law in respect to forfeiture in such cases, has not yet, I believe, been judicially decided.

lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it, and defeat the interest which he himself has created.

Equivalent, both in it's nature and it's consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; as where a tenant, who holds of any lord, neglects to render hi,m the due services, and, upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord ^z, upon reasons most apparantly feodal. And so likewise, if in any court of record the particular tenant does any act which 'amounts to a virtual disclaimer j if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenants of a superior class *; if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like ^b; such behaviour amounts to a forfeiture of his particular estate.

III. Lapse is a species of forfeiture, whereby the <right of presentation to a cKurch accrues to the ordinary by* neglect of the patron to present, -to the metropolitan by neglect of the ordinary, and to the ling by neglect of the metropolitan. For -it being for the interest of religion, and the good of the public, that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken, the patron; who-might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authority^c) Of the council of Lateran ^d, which was in the reign of our Henry •the second, when the bishops first began to exercise universally the right of institution to churches^e. And therefore, where there is no right of institution, there is no right of lapse: so that no donative can lapse to the ordinary ^f, unless it hath been aug-

z Finch. 270, 271. a Co. Litt. 252.

b Co. Litt. 253. c 2 Roll. Abr. 330. pi. 10.

d Bracton. /. 4. tr. 2. c. 3. e See page 23.

f Bro. Akr. tit §>uar. Imped. 3 Cro. Jac. '518.

mented by the queen's bounty e. But no right of lapse can,accrue, when the original presentation is in the crown ^h.

The term, in which the title to present by lapse accrues from the one to the other successively, is six calender months'; (following in this case the computation of the church, and not the usual one of the common law) and this exclusive of the day of the avoidance ^k. But, if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in'; for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also if the bishop doth .not collate his own clerk immediately to the living, and the patron presents, though after the six months are lapsed, yet his .presentation is good, and the bishop is bound to institute the patron's clerk ^m. For as. the law only gives the bishop this title by lapse, to punish the patron's negligence, there is no reason that, if the bishop .himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan,the patron also has the same advantage if he presents before the arch-bishop has filled up the benefice; and that for the same reason/ Yet the ordinary cannot, after lapse to the metropolitan, collate his pwn clerk to the prejudice of the arch-bishop *. , For he had no permanent right and interst in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of, during the time, he cannot afterwards retrieve it. 'But if the presentation lapses to the king, prerogative here intervenes and makes a difference ; and the patron shall never recover his right till the king has satisfied his turn by presentation: for nullum tempus occurrit regi °. And therefore it may seem, as if the church might continue void for ever, unless the king shall be pleased to present;-and a patron thereby be absolutely defeated of his advowson. But to prevent this inconvenience, the law has lodged a power in the patron's hands, of as it were

g St. 1 Geo. I, st. 2. c. 10.

i 6 Rep 62. Regist. 4.2.

1 Gibs. Cod, 769.

n 2 Roll. Abr. 368.

o Dr. and St. d. 2. t. 36. Cro. Car. 355.

h Stat. 17Edw. Hi c. 8.2 Inst, 273. k 2 Inst. 361. m 2 Inst. 273.

compelling the king to present. For if, during the "delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron's clerk ; or after induction, may remove him by quart impedit : but if he does not, and the patron's clerk dies incumbent, or is canonically deprived, the king hath lost his right, which was only to the next or first presentation p.

In case the benefice becomes void by death, or cession •through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can take no advantage by way of lapse 1. Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the archbishop nor the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months,-and hath exceeded his time : for the first step or beginning faileth, et'quod non habet principium* non habet fnem^r. If the bishop refuse or neglect to examine and admit the patron's clerk, without good reason assigned, or notice given, he is stiled a disturber by the law, and shall not have any title to present by lapse; for no man shall take advantage of his own wrong'. Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decided^r *.

IV. By simony, the right of presentation to a living is forfeited and vested pro hoc vice in the crown. Simony is the cor-

p 7 Rep 28. Cro. Eliz. 44. q 4 Rep. 75. 2 Inst. 632.

t Co. Litt. 344,345. s 2 Roll. Abf. 369.

t Co. Litt. 344. ^J

5. This species of forfeiture is become obsolete in Virginia. Under the regal government the right of presentation to a church was declared to be in the vestry of the parish for twelve months, in which time if they did not present, the right devolved to the governor. L. V. 1748, c. 28; Edi. 1769.

ruption presentation of any one to an ecclesiastical benefice for money, gift, or reward. It is so called from the resemblance it is said to bear to the sin of Simon Magus, though the purchnsing of holy orders seems to approach nearer to his offence. It was by the canon law a very grievous crime: and is so much the more odious, because, as sir Edward Coke observes ^u, it is ever accompanied with perjury; for the presentee is sworn to have committed no simony. However it was not an offence punishable in a criminal way at the common law^w; it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect the simoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, divers acts of parliament have been made to restrain it by means of civil forfeitures; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, ,because they devest the corrupt patron of the right of presentation, and vest a new right in the crown.

By the statute 31 Eliz. c. 6, it is for avoiding of simony enacted, that if any patron for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclesiastical benefice or dignity j such presentation shall be void, and the presentee be rendered incapable of ever enjoying the same benefice: and the crown shall present to it for that turn only ^x. Bu£ if the presentee dies, without being convicted of such simony in his'life-time, it is enacted by stat. 1 W. and M. c. 16, that the simoniacal contract shall not prejudice any other innocent patron, on pretence of lapse to the crown or otherwise. Also, by the statute 12 Ann. stat. 2. c. 12, if any person for money or profit shall procure, in his own name, or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, this is declared to be a simoniacal contract; and the party is subjected to all the ecclesiastical penalties of simony, is disabled from holding the benefice, and the presentation devolves to the crown.

u 3 Inst. 156. w Moor. 564.

s For other penalties inflicted by thK statute, see book IV. ch. 4.

Upon these statutes many questions have arisen, with regard to what is, and what is not simony. And, among others, these points seem to be clearly settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious simony y; this being expressly in the face of the statute. 2. That fora clerk to bargain for the next presentation, the incumbent being sick and about to die, was simony, even before the statute of queen Anne¹: and now, by that statute, to purchase', either in his own name or another's, the next presentation, and be thereupon presented at any future time to the living, is direct and palpable simony. But, 3. It is held, that for a father to purchase such a presentation, in order to provide for his son, is not simony : for the son is not concerned in the bargain, and the father is by nature bound to make a provision for him ^a. 4. That if a simoniacal contract be made with the patron, the clerk not being privy thereto, the presentation for that turn shall indeed devolve to the crown, as a punishment of the guilty patron ; but the clerk, who is innocent, does not incur any disability or forfeiture¹*. S. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal', provided the patron or his relations be not benefited thereby ^d ; for this is no corrupt consideration, moving to the patron. 6. That bonds of resignation, in case of non-residence, or taking any other living, are not simoniacal^e; there being no corrupt consideration herein, but such only as is for the good of the public. So also bonds to resign, when the patron's son comes to canonical age, are legal; upon the reason before given, that the father is bound to provide for his son ^f. 7. Lastly, general bonds to resign, at the patron's request, are held to be legal 8: for they may possibly be given for one of the legal considerations before mentioned; and where there is a possibility that a transaction may be fair, the law will not suppose it iniquitous without proof. But, if the party can prove the contract to have been a corrupt one, such proof will be admitted) in order to shew the bond si-

y Cro. Eliz. 788. Moor. 914.

a Cro. Eliz. 686. Moor. 916.

c Noy. 142.

e Cro. Car. 180.

g Cro. Car. 180, Stra. 227.

7, Hob. 165.

b 3 Inst. 154. Cro.Jac.385.

d Stra. 534.

f Cro. Jac. 248, 274.

moniacal, and therefore void. Neither will the patron be suffered to make an ill use of such a general bond of resignation; as by extorting a composition for tithes, procuring an annuity for his relation, or by demanding a resignation wantonly or without good cause, such as is approved by the law; as, for the benefit of his own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbent^h «. '

V. The next kind of forfeitures are those by breach or non-performance of a condition annexed to the estate, either expressly by deed at it's original creation, or impliedly by law from a principle of natural reason ⁷. Both which we considered at large in a former chapter '.

VI. I therefore now proceed to another species of forfeiture, viz. by waste. Waste,' vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the

h 1 Vcrn. 411. 1 Eqii. Cas. Abr. 86,87. Stra. 534. i See cH. 10, p. 152. -

6. Simony, as a civil offencej is unknown to the laws of Virginia.

7. See note 4, p. 154. In all the patents of land granted under the authority of the crown in Virginia, a condition was inserted that the patentee should seat and plant the land therein granted to him within three years from the date of the patent, and the act of 1710, c. 13, sect. 20. (Edi. 1733.) declared, that if any person should fail to scat and plant any lands, granted to him agreeably to such proviso, or should fail to pay the quit-rents thereon for the space of three years, tl>e person so failing should not only lose the lands granted, but those rights upon which he obtained his patent. The act of 1720, c. 3, declares, that for every three acres of land cleared, and put under a fence for pasturage ; and for every ten pounds expended in buildings or improvements, the patentee should save fifty acres. Lands forfeited for either of the above causes, might be obtained by any person petitioning the general court for the same, in the manner directed by the former act. Nearly the same provisions were re-enacted in 1748, c. 1. Edi. 1769. But the act of May 1779, c. 13, declares all reservations and conditions in the patents granted under the regal government, to be absolutely null and void ; and that no petition for lapsed lands shall be admitted or received on account of any failure or forfeiture whatsoever, since the twenty-ninth day of September, If 75. Edi. 1785, p. 98.

disherison of him that hath the remainder or reversion in fee-simple or fee-tail^k.

Waste is either voluntary, which is a crime of commission, as by pulling down a house ; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necesssry reparations. Whatever does a lasting damage to the freehold or inheritance is waste¹. Therefore, removing wainscot, floors, or other things once fixed to the freehold of a house, is waste⁰¹⁷. - If a house be destroyed by tempest, lightning, or the like, which is the act of providence, it is no waste: but otherwise, if the house be burnt by the carelessness or negligence of the lessee ; though now, by the statute 6 Ann. c. 31^s, no action will lie against a tenant for an accident of this kind *. Waste may also be committed in ponds, dove-houses, warrens, and the like ; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance ". Timber also is part of the inheritance ° (⁸). Such are

k Co. Litt. 53.

m 4 Rep. 64. o 4 Rep. 62.

IHetl.Sj. n Co. Litt. 53.

* But if a lessee covenants to pay rent, and to repair, with an express exception of casualties by fire, he may be obliged to pay rent during the whole term, though the premises are burnt down by accident, and never rebuilt by the lessor. 1 f. JR. 310. Nor can he be relieved by a court of equity, Anst. 687, unless perhaps the landlord has received the value of his premises by insuring, Amb. 621. And if he covenants to repair generally without any express exceptions, and the premises are burnt down, he is bound to rebuild them. 6 T. B 650 .... Christian. •

(7) The law upon this subject, as we are told by Mr. Christian in his note upon this passage, has been relaxed in England; for during the term (it hath been held) the tenant may take away chimney pieces, or wainscot, which he has put up ; but not after the term, for he would then be a trespasser. 1 Atk. 477. See, also, 3 Atk. 13, and 1 Hen. Blacks. "258 .... Christian.

8. The statute of 6 Ann. c. 31, here referred to, was never in force in Virginia, nor is there any similar provision in our laws.

(8) If, during the estate of a mere tenant for life, timber is severed by accident, or by wrong, it belongs to the first person who has a vested estate of inheritance. 3 Cox's, p. Wms. 267. 3 Wood. 400 .... C/Vn'»tian.

oak, ash, and elm in all places ; and in some particular countries, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste ^p. But underwood, the tenant may cut down at any seasonable time that he pleases *; and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions ^r. The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture, into woodland; or to turn arable or woodland into meadow or pasture; are, all of them waste ⁸. For, as sir Edward Coke observes^l, it not only changes the course of husbandry, but the evidence of the estate ; when such a close,'which is conveyed and described as pasture, is found to be arable, and e converse. And the same rule is observed, for the, same .reason, with regard 'to converting one species of edifice into another, even though it is improved in it's value ^u. To open the land to search for mines of metal, coal, &?c. is waste; for that is a detriment to the inheritance ^v: but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use ^w ; for it is now become the mere annual profit of the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value of the inheritance, is considered by the law as waste.

Let us next see, who are liable to be punished for committing waste. And, by the feodal law, feuds being originally granted for life only, we find 'that the rule was general for all vasals or feudatories.; " si vasallusfeudum dissipaverit, out instgnt " detrimento deterius fecerit, privabitur*" But, in our antient common law, the rule was by no means so large: for not only he that was seised of an estate of inheritance might do as'he

p Co. Litt. 53. r Co. Litt. 41. t 1 Inst. S3. v 5 Hep. 12. x Wright.44.

q 2 Roll. Abr. 817. s Hob. 296. u 1 Lev. 309. w Hob. 295.

pleased with it, but also waste was not punishable in any tenant, save only in three persons ; guardian in chivalry, tenant in dower, and tenant by the curtesy^y; and not in tenant for life or years». And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. But, in favour of the owners of the inheritance, the statutes of Marlbridge,52 Hen. III. c. 23, and of Glocester 6 Edw. I. c. 5, provided that the writ of waste shall not only lie against tenants by the law of England, (or curtesy) and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive ; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetre, or sue him, for waste committed. But tenant in tail, after-possibility of issue extinct, is not impeachable for waste; because his estate was at it's creation an estate of inheritance, 'and so not within the statutes ^a. Neither 'does an action of waste lie for the debtor against tenant by statute, recognizance, or eleglt; because against them the debtor may set off the damages in' account^b : but it seems reasonable that it should \\efor the reversioner, expectant onthe determination of the debtor's own estate, or of these estates derived from the debtor ^c.

The punishment for waste committed was, by common law and the statute of Marlbridge, only single damages"¹; except in the case of a guardian, who also forfeited his wardship⁶ by the

y It was, however, a doubt whether waste was punishable at the common law in tenant by the curtesy, Regist, 72. Bro. Abr. tit. waste. 88. 2 Inst. SOI.

z 2 Inst. 299. a Co. Litt. 27. 2 Roll. Abr. SA>, 828.

b Co. Litt. 5i. c F. N. B. 58.

4 2 Inst. 146. e Ibid. 300.

provisions of the great charter*: but the statute of Glocester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages, to him that hath the inheritance. The expression of the statute is, "he shall forfeit the thing which he hath wasted j" and it hath been determined, that under these words the place is also included?. And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a house, the whole house shall be forfeited¹¹; because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood (or perhaps in one room of a house, »f that can be conveniently separated'from the rest) that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner¹⁹.

VII. A seventh species of forfeiture is that of copyhold estates by breach of the customs of the manor¹⁰. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste; whereupon the lord may seize them without any presentment, by the homage^k ; but also to peculiar forfeitures, annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vasals, the marks of feodal dominion continue much the strongest upon this mode of property. Most of the pffences, which occasioned a resumption of the fief by the feodal law, and were denominnledfeloniae,per quas vasallus amitteret feudum¹, still continue to be causes of forfeiture in many of our modern copyholds. As,

f 9 Hen. HI. c. 4.

h Co. Litt. 54.

k 2 Ventr. 3B. Cro. Eliz. 499.

g 2 Inst. 303.

i 2 Inst. 304

1 Feud. I. 2. (.26. in calc.

9. The act concerning waste, Edi. 1794, c. 139, is pretty nearly a transcript from the English statutes, beforementioned. What shall be deemed waste, is not defined. <

10. We have more than once had occasion to remark that there are no copyholds in Virginia.

by subtraction of suit and service"¹: si dominum deservire nolue* ritⁿ : by disclaiming to hold of the lord, or swearing himself not his copyholder⁰ ; si dominum ejuravit, i. e. negavit se a domino feudum habere? : by neglect to be admitted tenant within a year and a day^q: si per annum et diem cessaverit in petenda investitura^r: by contumacy in not appearing in court after three proclamations' ; si a domino ter citatus non comparuerit*: or by refusing, when sworn of the homage, to present the truth according to his oath^u; si pares veritatem noverint, et dicant se nescire, cum sciant^v. In these, and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord's court baron"; per laudamentumparium suorumy : or as it is more fully expressed in another place¹, nemo miles adimatur de possessions sui beneficii, nisi convicta culpa, quae sit laudanda* per judicium parium suorum.

VIII. The eighth and last method, whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined ; a trader, who secretes himself, or does certain other acts, tending to defraud his creditors.

Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter; when we shall endeavour more fully to explain it's nature, as it most immediately relates to personal goods and chattels¹¹. I shall only here observe the

m 3Leon.l88. Dyer. 211. n Feud. I. 1.1. 21.

o Co. Copyh. Sec. 57. p Feud. 1.2. t. 34. and t. 26. Sec. 5.

q Plowd. 372. r Feud. 1.2. t. 24.

s 8 Rep. 99. Co. Copyh. Sec. 57. t Feud. 1.2..«. 22.

u Co. Copyh. Sec. 57. w Feud. I, 2. t. 58.

x Co. Copyh. Sec, 58. y Feud. I, 1. t. 21.

a Feud. I. 1. t. 22.

a i. e. arbitranda, dejinienda. Du Fresne. IV. 79.

11. Congress have power to establish uniform laws on the subject of bankruptcies throughout the United States. C. U. S. Art. 1. J. 8.

manner in which the property of lands and tenements is transferred, upon the supposition that the owner of them is clearly . and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.

By the statute IS Eliz. c. 7, the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in hig own right at the time when he became a bankrupt, or which shall descend or come to him at anytime afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as he may lawfully part with) or purchased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and inrolled, or divide them proportionably among the creditors. This statute expressly included not only free, but customary and copyhold lands: but did not extend to estates-tail, farther than for the bankrupt's life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I. c. 19, enacts, that the commissioners shall be impowered to sell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remainder-men, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged estates, shall be at the disposal of the commissioners ; for they shall have power to redeem the same, as the bankrupt himself might have done, and after redemption to sell them. And also, by this and a former act^b, all fraudulent conveyances to defeat the intent of these statutes are declared void ; but that no purchaser

b 1 Jac. 1. c. 15.

Who may be a bankrupt, in the United States, and what acts are sufficient to denominate him such, will be shewn hereafter,.in the notes,p. 475, and 479. See L. U. S. 6 Cong. c. 19. J. 1.

banafde, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptcy committed(ⁿ.)

By virtue of these statutes a bankrupt may lose all his real estates^lt; which may at once be transferred by his commissioners to their assignees, without his participation or consent".

(11.) The act of congress directs, that the commissioners of bankruptcy as soon as they shall have declared a person a bankrupt, shall have p&wer to take into their possession all the estate real and personal of every nature and description to which the bankrupt may be entitled, either at law, or equity, (necessary wearing apparel, beds, and bedding excepted) and all his deeds, books of acounts, and papers. Sec. 5. And that they shall assign, transfer, or deliver over the same, with all muniments and evidences to the assignees, who may be chosen by the creditors. Sec. 6. That such assignments shall be good, at law or in equity against the bankrupt, and all persons claiming by, from, or under him, by any act done at, or after, committing the act of bankruptcy, with a proviso in favour of bonafide purchases, made for a valuable consideration, by any person without notice of the act of bankruptcy committed, before the issuing the commission. Ibid J. 10. The assignment is moreover a complete bar, both in law and equity, of any estate-tail which the bankrupt may be entitled to, in possession, reversion, or remainder, for the benefit of the creditors. Sec. 11. And avoids all conveyances made prior to his becoming a bankrupt, with intent to defraud creditors. Sec. 17. And, in case of mortgage of any part of the bankrupt's estate, transfers the right of redemption to the assignees, for the benefit of the creditors. Sec. 12. L. U. S. 6 Cong. 1 Sess. c. 19.

12. The statutes concerning bankruptcies seem never to have been regarded as in force in Virginia .... If they ever were they were all repealed in 1792. Edi. 1794, c. 147.

13. Under this head of forfeiture it will be proper to notice the laws by which lands are liable to be forfeited for non-payment of taxes. By the act of November 1781, c. 40, and the other revenue laws cited at the foot of this note, the sheriffs were authorised after the tenth day of June annually to collect, and receive from the persons chargeable therewith, the taxes imposed in their counties; and in case payment be not made before the first day of July annually, they might distrain the lands or slaves, goods or chattels found on the land, and in the possession of the person so indebted, or failing, notwithstanding any mortgage thereon : and if the owners should not pay the taxes due within five days, the sheriff might lawfully sell the same, or so much thereof,

as would be sufficient to discharge the taxes, giving at least four weeks notice (in the case of lands) in the public papers before any sale thereof ; which sale should be good and effectual in law against all persons whatsoever: provided, that lands should not be distreined, where other sufficient effects could be had thereon. The act of Oct. 1782, c. 8, seems to dispense with this previous step of advertising the lands in the public papers, authorising a sale after six days notice, by advertising the same at the church, or other public places in the parish on the next Sunday after five days from the time of making the distress: but in such cases the sheriff was required to sell the smallest number of acres, thaff the lowest bidder would pay the taxes for. The act of 1787, c. 42, to remedy the abuses in the manner of selling lands for the payment of public taxes, requires that all sales of lands be made upon the premises ; that no sale of lands shall be made where other sufficient property can be found ; that eight weeks notice shall be given in the gazette of the public printer, and advertised at the court-house of the county on the first day of two several courts, and proclaimed at the court-house door between the hours of twelve and four. That all such sales be conducted by the high sheriff or principal collector,,and not by deputy. That the sheriff shall give notice of the sale thirty days before, to the commissioner of the tax for the county, who shall attend; and if the land will not sell for half the value thereof, in his opinion, he shall purchase it on account of the public; but the owner might redeem it within six months by paying the taxes and charges of selling and twenty five per cent, advance thereon ; or within two years by paying double the taxes and charges; after which period the governor with the advice of council, might appoint some person to sell the land, and convey it to the purchaser ; and if any surplus should remain of the price thereof, after paying the taxes, damages, and charges of sale, the same was to be paid to the former proprietor ; all such sales, where the sheriff, collector, or any deputy, or any person in trust for either of them, is the last bidder, shall be considered as held in trust for the proprietor, who may redeem the same by paying the taxes and charges of sale, with interest and damages thereon : no commissioner was by that act authorised to purchase land to a greater amount than the taxes thereon due. Where a tenant covenants to pay the taxes, his property shall first be liable for the payment .... all the former laws were by this act repealed. The act of 1790, c. 5, repeals all laws directing the sale of lands for payment of the tax thereon, and declares, that in case the tax, on any tract of land within the commonwealth, be not paid for the space of three years, the right to such lands shall be lost, forfeited, and vested in the commonwealth ; and any person may acquire a title to the lands so forfeited, in the same manner as he might in unappropriated lands on the eastern waters, by the act of 11785, c. 42, with a proviso in favour of infants, feme coverts, and persons insane, who are allowed three years after their disabilities are re-

moved, to save their lands from forfeiture. And the sheriffs who had not completed their collections, were directed to conform to the regulations prescribed by thatact; but the act of 1791, c. 5, so far repealed this last clause as to allow sheriffs, in certain cases, to sell the lands seisedby them before the passing of the former act. Another act of the same session, c. 6, directs the manner in which lands purchased by the commissioners of the land tax, pursuant to the act of 1787, c. 42, and which were not redeemed by the former proprietors, should be sold. This act permitted the proprietor to redeem the land before the day ofcsate, by payment of the taxes and damages, and five per cent, commission to the sheriff, such sale to be made within three months after receiving the list of forfeited lands, and after two months notice, at the court house door, and such other public places in the county as the sheriff might think proper : the sheriffs were moreover authorised to convey the lands to the purchasers, or, in case of redemption, to reconvey them to the former proprietor. In the revisal of 1792, which is a transcript from the act of 1790, c. 5, the sheriff, where no distress can be had in his county, to pay the tax of any lands therein, shall return a list thereof to his county court, who shall certify the same to the auditor, with the names and places of abode of the owners of each tract, where such information can be had; and the auditor shall certify the amount to the'sheriff of the county where the owner resides, and such sheriff may distreinfor the same ; and if the taxes cannot be collected, the treasurer shall cause the names of the delinquents, the quantity of land, the situation thereof, and the taxes thereon due, to be three weeks successively published in the Virginia Gazette, and in case the taxes be not paid for the space of three years, the lands shall be forfeited, and may be taken up, and patented in like manner, as waste and unappropriated lands. Edi. 1794, c. 83. }. 34, 35, with the like saving in favour of infants, 8cc. The sessions acts of 1794, c. 21, (omitted in the republication of 1794,) declares, that no lands shall be deemed forfeited, unless the returns and notices required by the 34th section of the former act have been complied with. The act of 1795, c. 9, further provides, that persons desiring tolocate lands forfeited for non-payment of taxes, shall procure from the commissioners of the land tax, a certificate of the price at which the same stands charged, which being paid, and other requisites therein mentioned complied with, the party applying shall be entitled to a grant for the same.

For a more minute account of the various provisions in these acts, I must refer the student to the Edi. 1785. Nov. 1781, c. 40. Oct. 1"82, c. 8. Sessions acts of 1787, c. 42. 1790, c. 5. J791, c. 5, C. Edi.' 1794, c. 83. J. 34, 35, 36. Sessions acts 1794, c. 21. 1795, _c. 9.

By the law of the United States, laying a direct tax within the United States, it is provided, that •when any tax assessed on land;, or

houses, shall have remained unpaid for a year, the collector of the district in which the same may be, having first advertised the same for two months in six different public places within the district, and in two gazettes of the state, if so many, one of which must bte the gazette in which the laws of such state are published by authority, if any such, •hall proceed to sell at public sale under the direction of the inspector of the survey, either the dwelling house, or so much of the land, as may be necessary to satisfy the taxes and charges thereon, not exceeding one per cent per month. But the owner, his heirs or executors may redeem the same at any time within two years from the-time of sale, upon payment or tender of payment of the tax, costs, and charges, with interest at the rate of twelve per cent, per annum, to the collector for the, time being, for the use of the purchaser, his heirs or assigns: and upon such payment, or tender of payment, such sale shall be void. And no deed shall be given in pursuance of any such'sale, until the time of redemption is expired. L. U. S. 5 Cong. c. 92. (. 13.

The same act declares, that the tax shall be a lien upon the lands, for two years after the time that the tax becomes due. Ibid. J. 8, but the act of 7 Cong. c. 12, continues the lien until the tax is collected, or the lands are sold. The same act also allows the delinquent six months after publication, to pay the tax, either to the collector of the division, or the supervisor of the district. L. U. S. 7 Cong.c. 1?.

CHAPTER THE NINETEENTH,

OF TITLE BY ALIENATION.

THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in it's limited sense: under which may be comprized any method wherein estates are voluntarily resigned, by one man, and accepted by another: whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties.

This means of taking estates, by alienation, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law", a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodel services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of alienation would have been easily frustrated and evaded^b..,.. And, as he could not aliene it in his life-time, so neither could he by will defeat the succession, by devising his feud to another family j nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent, or presumtive heir*. And therefore it was very usual

a See page 57.

c Co. Lilt. 94. Wright. 1C8.

b Feud. L 1 t. 27.

in antient feoffments to express, that the alienation was made by consent of the heirs of the feoffor; or sometimes for the heir apparent himself to join with thefeofforinthe grant^d. And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vasal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation ; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seising of his cattle by the lord of a neighbouring clan^e. This consent of the vasal was expressed by what was called attorning¹, or professing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incompletee: which was also an additional clog upon alienations¹.

But by degrees this feodal severity is wornoffj and experience hath shewn, that property best answers the purposes of civil life especially in commercial countries, when it's transfer and circulation are totally free and unrestrained. The road was cleared

d Madox, Format, Angl. no. 316, 319, 427.

eGilb. Ten. 75.

f The same doctrine and the same denomination prevailed in Bretagne .... possessions injurisdictionalibus won aliter-appreliendiposse, quamper attournancet et dvirances, utloqui solcnt; cum. vasallut, ejurato prioris do-mini obsequio etjide, now se Sacramento naoo item domino acquirentiobstringebatt idquejassu auctoris. D'Argentre Antiq, Comuet. Brit, apud Dufresne. i. 819, 820.

g Litt. §. 551.

1. But the law is now altered. V. L. 1785, c. 62. Edi. 1794, c. 90. \. 17, which declares that grants of rents, or reversions, or remainders, shall be good and effectual without attortxments of the tenants; but no tenant who, before notice of the grant, shall have paid the rent to the grajitor shall suffer any damage thereby.

in the first place by a law of king Henry the first, which allowed a man to sell and dispose of lands which he himself had purchaeed; for over these he was thought to have a more extensive power, than over what had been transmitted to him in a course of descent from his ancestors'¹: a doctrine which is countenanced by the feodal constitutions themselves': but he was not allowed tasell the -whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate^k. Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if 'his assigns were not specified in the purchase deed, he. was not empowered to aliene¹: and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heir^m. By the great charter of Henry IIIⁿ, no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to ^be one half or moiety of the land⁰. But these restrictions were in general removed by the statute of quia emptoresf, whereby all persons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion¹!. And even these tenants in capitevrere by the statue 1 Edw. III. c. 12, permitted to aliene, on paying a fine to the king^r. By the temporary statutes 7 Hen. VI.I. c. 3, and 3. Hen. VIII. c. 4, all persons attending the king in his wars were allowed to aliene their lands without licence, and were relieved , from other feodal burdens. And lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging

h Emptionei vel acquisitimes mat del cui magis velit. Terram autem e/uam eiparentes detlenmt, mm mittatextra cognationem tuam, LL. Hen. I. c. 70.

i Feud. I. 2.«. 39.

k Si questum tantum taburrit is, qui partem. terrat iuac donare voluerit, tun? quidem hoc ei licet ,• teJ non totum questum, quia nonpotett Jilium tuum baeredem etcbaeredare. Glanvil./. 7. c-1.

1 Mirr. c. 1. Sec. 3 This-is also borrowed from the feodal law.&»</. /. 2. t. 48. ' m Mirr. ibid.

n 9 Hen. III. c. 32. o Dalrymple of feuds, 95.

p 18 Edw. l.c.l q See page 72, 91-

r 2 Inst. C7.

'lands with the debts of the owner, this was introduced so early as statute Westm. 2, which* subjected a moiety of the tenant's lands to executions, for debts recovered by law²: as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatoribus, made the same year, and in a statute staple by statute 27 Edw. III. c. 9, and in other similar recognizances by statute 23 Hen³. VIII. c. 6. And, now, the whole of them is not only subject to be pawned for the debts •of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy*. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed, till the abolition of the military tenures. The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till at last, they were made no longer necessary to complete the grant of conveyance, by statute 4 & 5 Ann/ c. 16, nor shall, by statute 11 Geo. II. c. 19, the attornment of _t any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice*.

In examining the nature of alienation, let us first inquire, briefly, who may aliene and to whom; and then, more largely, how a man may aliene, or the several modes of conveyance, s 13 Edw. I. c. 18.

2. L. V. 1726, c. 3. 1748. c 8 1794, c. 151, Accordant.

3. These statutes were never practically regarded as in force in Virginia, and are now repealed. Edi. 1794, c. 147.

• 4. These statutes seems never to have been considered as in force in Virginia ; they are now repealed. Edi. 1749, c. 147. See the note 11. p. 286.

But now by the act of 6 Cong. c. 19, they may be sold under a commission of bankruptcy. See note (11.) ante- 286.

S. Grants of rents, or of reversions, or remainders shall be good without the attornment of the tenants; but no tenant who before notice of the grant shall have paid the rent to the grantor, shall be prejudiced thereby. The attornment of a tenant to a stranger shall be void, without consent of the landlord, or pursuant to, or in consequence of the judgment, or decree of a court. V. L. 1785, c. 62. Edi. 1794, c. 90. $. 17,18.

I. Who may aliene, and to whom: or, in other words, who is capable of conveying and who of purchasing. And herein we must consider rather the incapacity, than capacity, of the several parties: for all persons in possession areprima facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities. But, if a man has only in him the right of either possession or property, he cannot convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down, and the weak oppressed •. Yet reversions and vested remainders may be granted; because the possession of the particular tenant is the possession of him in reversion or remainder: but contingencies, and mere possibilities, though they maybe released, or devised by will, or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest '«.

Persons attainted of treason, felony, and praemunire, are incapable of conveying, from the time of the offence committed, provided attainder follows" ^r: for such conveyance by them may

b Co. Lite. 214.

t Sheppard's touchstone, 238, 239, 322,11 Mod. 152,1 P. Wifls.54, Stia. 132. - u Co. Litt. 42.

,6. No person shall convey or take, or bargain to convey or take any pretensed title to lands or tenements, unless he, or those under •whom he claims, shall have been in possession of the same, or of the reversion or remainder thereof, one whole year, next before, under penalty of forfeiting the -whole value thereof. But any person lawfully possessed of lands or tenements, or of the reversion or remainder thereof, may nevertheless take, or bargain to take the pretensed title of any other person, so far only, as it may confirm his former estate. V. L. 1786, c. 51, Edi.'1794, c. 30. This act is nearly a transcript of the statute 32 H. 8, c. 9, which is said to be an affirmance of the common law. An exposition of that statute, will be found in Co. Litt. 369, and Plowden 87,88, 89. A covenant for a valuable consider, ation to settle or convey a possibility, when it arises, will be enforced in equity. Fonbl. Treat, of Equity 202.

7. Here I must refer the student, to the question formerly hinted, p. 254, note 15, whether the lands of felons attainted, pass to their heirs immediately upon the attainder, or not till the death of the felon: and whether, in the former case, a pardon can devest the interest of the heirs, therein. The reasons for which doubt were suggested in that note.

tend to defeat the king of his forfeiture, or the lord of his escheat. But they may purchase for the benefit of the crown, or the lord of the fee, though they are disabled to hold; the lands so purchased, if after attainder, being subject to immediate forfeiture ; if before, to escheat as well as forfeiture, according to the nature of the crime ^Utt. So also corporations, religious or others, may purchase lands ; yet, unless they have a licence to hold in mortmain, they cannot retain such purchase; but it shall be forfeited to the lord of the fee".

Idiots and persons of nonsane memory, infants, and persons under duress, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases art voidable, but not actually void. The king indeed, on behalf of an idiot, may avoid his grants or other acts *. But it hath been said, that a noh compos himself, though he be afterwards brought tov a right m'md, shall not be permitted to alledge his own insanity-in order to avoid such grant: for that no man shall be allowed to stultify himself, or ple^ad his own disability. The progress of this notion is somewhat curious. In the time of Edward I, non compos was a sufficient plea to avoid a man's own bond * : and there is a writ in the register 1 for the alienor himself to recover lands aliened by him during¹ his insanity; dam fuit non compos mentis suae, ul dicit, &?<:•. But under Edward Ilia scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own insanity * : and, afterwards, a defendant in assise having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore terms, as the manner then was) that he was out of his mind when he gave it, the court adjourned the assise; doubting, whether as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation

uu Co. Lilt. 2. w Ibid. 247. x Britton, r. 28,ful. 66

yfol. 228. See also, Memorand. Scaub. 22 Eiksi. I, (prefixed to Maynaird's year book Edw. Il.)/o/. 23. z 5 Edw. III, 70.

8. Qucre, if the law herein, be not altered by the general repeal of all British statutes, in which the statutes of mortmain seem to be Unquestionably comprehended. V. L. 1794, c. 147.

of reason; and the question was asked, how he came to remember the release, if out of his senses when he gave it^a. Under Henry VI, this way of reasoning (that a man shall not be allowed to disable himself, by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument^b ; upon a question, whether the heir was barred of his right of entry by the feoffmentof his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason⁶, the maxim that a man shall not stultify himself hath been handed down as settled law ^d: though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it^e. And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage, of his incapacity and avoid the grant^f. And so too, if be purchases under this disability, and does not afterwards upon recovering his senses agree to the purchase, his heir may either waive or accept the estate at his option b. In like manner, an infant may waive such purchase or conveyance, when he comes to full age j or, if he does not then actually agree to it, his heirs may waive it after him ^h. Persons also, who purchase or convey under duress, may affirm or avqid such transaction, whenever the duress is ceased^!. For all these are under the protection of the law; which will not suffer them to be imposed upon, through the imbecility of their present condition; so that their acts are only binding, in case they be afterwards agreed to, when such imbecility ceases. Yet the guardians or committees of a lunatic, by the statute of 11 Geo. III. c. 26, are-impowered to rene.w in his right, under the directions of the court of chancery, any lease for lives or years, and apply the profits of such renewal for the benefit of such lunayc, his heirs, or executors'.

a 35 Attis.pi. 10. b, 39 Hen. VI, 42.

c F. N. B. 202.

d Litt. Sec. 405, Cro. Eliz. 398, 4 Hep. 123, Jenk. 40.

e Comb. 469, 3 Mod. 310, 311,1 Equ. cas. Abr 279.

f Perfcms, Sec. 21. g Co. Litt. 2.

h Co. Litt. 2. i 2 Inst. 483, 5 Rep. 119.

9. The act of 1785, c. 85, Edi. 1794, c. 120, contains a simUar provision.

The case of a feme-covert is somewhat different. She may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids it by some act declaring his dissent^k. And, though he does nothing to avoid it, or even if he actually consents, the feme-covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement^l. But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable ™ ; and, therefore, cannot be affirmed or made good by any subsequent agreement ^l°. '

The case of an alien bora is also peculiar. For he may purchase any thing; but after purchase he can hold nothing except a lease for years of a house for convenience of merchandize *, in case he be an alien-friend; all other purchases (when found by an inquest of office) being immediately forfeited to the king"¹¹.

v, Papists, lastly, and persons professing the popish religion* and neglecting to take the oath prescribed by statute 18 Geo. III, c. 60, within the time limited for that purpose, are by statute 11 and 12 W. III, c. 4, disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void⁰ #.

k Co. I,itt. 3. . 1 Ibid.

m Perkins, Sec. 154,1 Sid. 120. n Co. Lilt, 9.

o IP.Wms. 354.

* It seems that he has not even this exception in his favour. Harg. Co. ittt. ^...Christian

10. And even if by matter of record, and her privy examination and consent be not recorded, the conveyance shall not bind her, or her heirs. V. L. 1748, c. l .... Edi. -1794, c. 90, Sec. 7.

11. See Vol. 1. Appendix note L .... and this volume ante, p. 249. note iq. p. 251. note (13.) and the Appendix to this volume there referred to.

12. These statutes were never in force in Virginia.

•II. We are next, but principally, to inquire how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired ; which, we have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man's dereliction of the thing he had seised, it would again become common, and all those mischiefs and contensions would ensue, which property was introduced to prevent. For this purpose, therefore, of continuing the possession, the municipal law has established descents and alienations: the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death ; the latter to continue it in those persons, to whom the proprietor, by his own voluntary act, shall choose to relinquish it in his life-time. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred ; or with regard to the subject matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.

These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pats, in the country ; that is (according to the old common law) upon the very spot to be transfer-

red. 2. By matter of record, or an assurance transacted only in the king's public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect, till after his death ; and that is by devise, contained in his last will and testament. We shall treat of each in it's order.

CHAPTER THE TWENTIETH.

OF ALIENATION BY DEED.

IN treating of deeds I shall consider, first, their general nature ; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, it's requisites ; and, thirdly, how it may be avoided.

I. First then, a deed is a writing sealed and delivered by the parties³. It is sometimes called a charter, carta, from its materials ; but most usually, when applied to the transactions of private subjects, it is called a deed, in L>at\nfoctvm, xai' tl-oxw, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his. own deed, ^ or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed^b. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more .concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them ; through which the parchment was cut, either in a strait or indented line, in such a manner as to leave half the word on one -part and half on the other. Deeds thus made were denominated syngrapha by the canonists^c; and ""

a Co. Litt. 171.

b Plowcl. 434.

c L)iidc\v./. 1. /. 10. c. 1.

whh us chlrographa, or hand-writings ^d ; the word cirographum or cyrogropaum being usually that which is divided in making the indenture : and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose, than to give name to the species of the deed». When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterpart.'! : though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one parly only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed«.

II. We are in the next place to consider the requisites of a deed. The first of which is, that there, be persons able to contract and be contracted with, for the purposes intended by the deed j ,and also a thing, or subject matter to be contracted for; all which must be expressed by sufficient names ^f. So as in every grant, there must be a grantor, a grantee, and athing granted : in every lease a lessor, a lessee, and a thing demised.

Secondly ; the deed must be founded upon good and sufficient consideration. Not upon ar. usurious contract*; nor upon fraud or collusion, either to deceive purchasers bona fde ^h, or just and lawful creditors'; any of which bad considerations

d Mirror, c. 2. Sec. 27. e Itid. Litt. Sec. 371, 372.

f Co. Litt. 35. g Stat. 13 Eliz. c. 8.

h Stat. 27 Eliz. c. 4. i Stat. 13 Eliz. c. 5.

1. The act of 1748, c. 1', requires all deeds and conveyances of land to be made in writing indented, sealed, and recorded, pursuant to that act. Quaere, -whether this renders ttje actual indenting necessary ? Sir Edward Coke says, if a deed beginning haec indentura &c. have not the parchment or paper indented, it is no indenture, for

•words can not make an indenture. Co. Litt, 229, a. .... Our courts

•would probably over-rule this distinction, in favour of a fair purchaser. Indenting is not required by our later acts, 1785, c. 62. 1794, c. 90. See, also the case of Currie v. Donald, 2. Wash. rep. 63, in which the court of appeals have decided, that actual indenting is not requisite, under the act of 1748.

will vacate the deed¹, and subject such persons, as put the same inure, to forfeitures, and often to imprisonment. A deed also, or other grant, made without any consideration, is, as it were, of no effect; for it is construed to inure, or to be effectual, only to the use of the grantor himself ^k*. The consideration may may be either a good or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation ; being founded on motives of generosity, prudence, and natural duty : a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant' ; and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fde purchasers ³.

k Perk. Sec. 533.

13 Rep. 83.

* Tlus I conceive is only true of a bargain and sale j for " herein it is said " to differ from a gift, that this may be without any consideration or cause at " all; and that hath always some meritorious cause moving it, and cannot he " without it.", Sbep. Touch. 221. But otherwise a voluntary conveyance is good both in law and equity, ff. ofEq. b. 1. c. S. s. 2. It used to be thought, if a person made a voluntary grant of lands, although he could not resume them himself, yet if he afterwards made another conveyance of them for a valuable consideration, that the first grant would be void'with regard to this purchasor under the 27 Eliz! c. 4. But it was determined by lord Mansfield and the court, that there must be some circumstance of fraud to vacate the first conveyance, the want of consideration alone not being sufficient. Cmvjt. 705. But if a person is indebted at the time of making a voluntary grant, or become so soon afterwards, it will be considered fraudulent and void with respect to creditors, under the 13 Eliz. c. 5.

•And if a person makes a voluntary grant and afterwards becomes bankrupt, whether he was indebted or not at,the time, it will be void by 1 Jac. c. 15 j and the estate granted may be conveyed by the commissioners to the assignees for the benefit of the creditors. 1 Atk. 93...C&/ istian.

2. Herewith agree our acts of 1748, c. 30. 1785, c. 64. 1786, c. 55. Edi: 1794, c. 10. 31. 1796. c. 16...to these we may add, deeds made where the consideration, or any part of it, is founded upon money won, or lost, at play, ov lent to play with, at the titne and place of playing, V. I,. 1748, c. 25. Edi. 1794, c. 96.

3. The act to prevent frauds and perjuries, Edi. 1794, c. 10, doth " not extend to any estate or interest in any lands, goods, or chattels, " or any vents, common, or profit out of the same, which shall be upon

Thirdly ; the deed must be written, or, I presume, printed, for it may be in any character or any language ; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed⁰¹. Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration ; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps, imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence⁴. Formerly many conveyances m Co. Litt. 229. F. N. B. 12.2. •

" good consideration, and bona fide, lawfully conveyed or assured to " any person or persons, bodies politic or corporate."

The late act concerning bankrupts avoids deeds founded upon a good consideration, only, if made at, or at any time after, the act of bankruptcy committed, upon which the commission issues, L. U. S. 6Cong. c. 19. §. 10.

4. Herewith the laws of the United States, 5 Cong. c. 11, and 3T, agree, as to bonds, and some other instruments in writing ; but not as to deeds for land, &c. Quere, ought this act to be interpreted as extending its operation to the state courts ? This is a question of the utmost importance. Those who maintain the affirmative,,may be supposed to argue that congress being invested with power to impose taxes and duties, of whatsoever nature they may judge proper, they are by necessary implication, no less than by the express words of the constitution, authorised to make all laws which may be necessary and proper to carry the powers vested in them into execution : that the prohibiting unstamped papers from being offered in evidence is one necessary means to ensure the collection of the revenue, which might otherwise be defrauded by those unwilling to pay it; the execution of a bond, note, ov deed, being a matter which may be performed so secretly as to elude all the vigilance of revenue officers, who would thus be equally incapable of detecting and punishing the fraud upon the revenue. That although this act in its operation_cmay affect the rules of evidence in the state courts, as well as those of the federal government, yet this extension being necessary to carry the law completely into effect,' there can be no doubt 'that congress possess the right of making it, for the reasons before given; and possessing the right, any law made by them on the subject must be the supreme law of the land, and as such binding upon the judges of the state courts, as well, as all ethers. To

were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3, enacts, that no lease estate or interest in lands, tenements or hereditaments, made by livery of seisin, or by pa-

To these arguments their antagonists might reply, that although congress be authorised to make all laws which may be necessary and proper for carrying into execution the powers confided to them, yet such laws, both according to the spirit, ami-tetter of the constitution must be both necessary and jirojter. Btf which is to be understood, that they must not in any case be unnecessary or improperly exercised, nor extended beyond proper and necessary limits. Congress, for example, have power to impose a tax on a man's head : would it be proper, in case of refusal to pay it, to authorise drawing the delinquent's teeth, until he should comply, as was practised by on6 of the king's of England, upon the Jews, from whom he wanted to extort money ? If congress choose to impose a tax difficult in the collection, this might be a good objection to the measure, but furnishes no reason that they should exceed their just powers, in order to surmount the difficulty. Suppose another case j that congress should think proper to impose a tax similar to that which occasioned Wat Tyler's insur- • rection in England, would they be authorised to enforce it by the same means as were attempted by the collector in that case; The mode of inquiry adopted by the collector in that casei might have been necessary to carry such an infamous tax into complete effect; but will any man contend that such means could be proper, either according to the spirit, or the letter of our constitution ? Every measure therefore must be Jirofier, as well as necessary, which shall be adopted for carrying any law into effect. Those who are disposed to elevate the powers delegated to congress by this clause to a level with British parliamentary omnipotence, would do well to recollect, that these words were meant to restrain, and not to enlarge tlie enumerated powers delegated by the constitution, and as a beacon to warn the states, and the people of an unnecessary or improper exercise of them. If then we must suppose limits to these powers, recourse must be had to sound reason and common sense to point them out, in conformity both to the spirit, and letter of the constitution. _v

Taking these for our guide, it may be observed, that at the moment of adopting the constitution there was reason to apprehend, that too much scope was left for the constructive extension of the powers of the federal government in derogation of those of the state governments. To crush this pregnant evil the twelfth article of the amendments to the constitution declares, that the powers not delegated to the United States by the constitution,nor prohibited by it to the states, are reserved to the states respectively, or to the people. This was necessarily implied in the constitution itself, but the stales und the peo-

rol only, (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value) shall be looked upon as of greater force than a lease or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid; unless in both cases the same be put in v/riting, and signed by the party granting, or his agent lawfully authorised in writing⁵.

pie demanded this explicit declaration that all men might know it was never their intention to surrender all the rights of sovereignty to the federal government. The regulation of their own internal police in its utmost extent; and more especially the constitution of their own courts ; the appointment of their own judges, and the modes of proceeding in those courts; together with the rules of evidence therein, are all subjects, which, without such an explanatory article, must have been considered as exclusively belonging to the state governments. The United States have no cognizance of civil suits at common law between citizen and citizen of the same state, in any supposable case, except where lands are claimed by them under' grants of different states. ' Shall they assume the right of dictating to the state courts, what shall or shall not be evidence between such parties litigant im those courts ? If they can pronounce what shall or shall not be evidence, in such cases, may they not with equal propriety prescribe the mode of trial; whether it shall be by the court, or by a judge ? May they not with equal propriety fix the qualifications, and number of the jnrors ? May they not with equal propriety appoint the. judges, fix the tenure of their office, and ascertain the number requisite to constitute a court? May they not with equal propriety assume any other powers over the state governments ? What then is left to the states, for the twelfth article to operate upon ? See Vol. I. p. 324, note 44,

In a case upon this question from the district court of Prince Edward to the general court, it was decided, November term, 1800, by four judges against two, that the act of congress did extend to the state courts,' and that it was not unconstitutional. But it hath been since repealed, 7 Cong. c. 19.

5. By the act of 1785, c. 64. No action shall be brought whereby to charge any person upon the making any contract for the sale of lands, tenements or hereditaments, or the making any lease thereof, for more than a year, unless the agreement or some memorandum or note thereof, be in writing, and signed by the party to he charged therewith, or some other person authorised by him. And by the act of 1748, c. 1, .confirmed by that of 1785, c. 62, no estate of inheritance, or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one to another, unless the conveyance be -declared by writing, scaled, and delivered. Edi. 1794, c. 10, 90.

Fourthly : the matter written must be legally and orderly set forth; that is, there must be words sufficient to specify the agreement and bind the parties: which sufficiency must be left to the courts of law to determine". For it is not absolutely necessary in law, to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. But as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity ; and, therefore, I will here mention them in their usual" orden

1. The premises may be used to set forth the number and names of the parties, "with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded: and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing grantedP.

2. 3. Next c6me the habendum and tenendumt. The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not' totally contradict, or be-repugnant to, the estate granted in the premises. • As if a grant be " to A and the heirs of his body," in the premises, habendum " to him and his heirs forever," or vice versa; here A has an estate-tail, and a fee-simple expectant thereon^r8. But, had it been in the premises "to him and his

n Co. Litt. 225. o Co. Lilt. 6. 1> See Appendix, No. II. Sec. p. v. q Ibid. r Co. Litt. 21. 2 Roll. Uep. 19. 23. Cro. Jac. 476. s 2 Rep. 23. 8 Uep. 56.

6. The student will recollect that the law, in the case here supposed is now altered, by the act of 1785, c. 62. Edi. 1794, c. 90. See page 107, note 4.

" heirs," habendum " to him for life," the habmdum would be utterly void*; for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away, or devested, by it. The tensndum "and to hold," is now of ver.v little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure, by which the estate granted was to be holden ; viz. " tenendum '•'•per servitiummilitare, in burgagio, inlibero socagio, &?c." But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute olquia emptores, 18 Edw. I, it was also sometimes used to denote the lord of whom the land should be holden⁷: but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in antient charters, that the tenements shall be holden de capitalibwt dominis feodi*; but, as this expressed nothing more than the statute had already provided for, it gradually grew out of use.

4. Next follow the terms of stipulation, if any, upon which the grant is made ; the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new tiling to himself out of what he had before granted. As, " rendering, therefore, yearly the sum of ten shillings, or a pepper " corn, or two days ploughing, or the HkeV Under the pure feodal system, this render, reditus, return, or rent, consisted in chivalry, principally of military services : in villenage, of the most slavish offices: and in socage, it usually consists of momy, though it may still consist of services, or of any other certain profit*. To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed". But if it be of antient services or the like, annexed to the land, then the reservation may be to the lord of the fee?.

t Append. No. I. Madox. Formal, passim.

n Append. No. II. Sec. 1. p. iii. w See page 41.

x Plowd. 13. 8 Rep. 71. y Append. No. I. p. i.

7. This statute is now repealed; it may be considered as having been practically obsolete from the first settlement of the country V. L. 1794, c. 157.

5. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated ; as, " provided " always, that if the mortgagor shall pay the mortgagee 500/, " upon such a day, the whole estate granted shall determine;" and the like*,.

6. Next may follow the clause of warranty; whereby ^he grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted*. By the feodal constitution, if the vasal's title to enjoy the feud was disputed, he might vouch, or call, the lord or donor, to warrant and insure his gift; which, if he failed to do, and the vasal was evicted, the lord was bound to give him another feud of equal value In recompense¹". And so, by our antient law, if before the statute of quiet emptores a man eufeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffbr and his htirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered⁰ (⁷). Or if a man and his ancestors had immemorially holden land of another, and his ancestors by the service of homage (which was called homage auncestrel) this also bound the lord to warraijiy* the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, afier a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warrant) %