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CHAT. I. | —_—
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CHAP. XXII.
Of Titus by TesTAMENT, and ADMIN1- a P j S TRATION. | 489. * | RORORORORODRORORORORORORORERORORORORORORORROROAEE | PPE.N D EX. No. I. Vetus Carta FEOFFAMENTI. 1 8 No. II. A modern Conveyance by LEASE and RELEASE. 1 6. 1. LAS, or BARGAIN and Sal E, for a Year. - ii, - DIES #5 — bo TTY 8 0 §. 2. Deed of RELEASE. „ 111. No. III. An OBLIGATION, or Box D, with ConDITION : | for the Payment of Money. i Sg xiii. De. IV. A Fins of Lands, ſur Cognizance de Droit, e come ceo, &c.
§. 1. Writ of Covenant, or PRAECIPE. xiv. |
= : $.2. The Licence to agree, ibid. vx
; .3. The Concord. 5 mm. . F 8. 4. The Note, or Abſtra®. Fg =
.5. The Foot, Chirograph, or Indentures of the Fix E. "did.
6. Proclamations, endorſed upon the FI 8, according to the —_
Sͤtatutes. „„ %%% ..- "ll
Ne. V. A common RECOVERY of Lands, with double Voucher. © _—_
- F. 1. Writ of Entry ſur Diſſeiſin in the Poſt; or Prazcips. xvii. 22 _—_— | . 2. Exemplification of the Rxcovery Roll. ibid. =
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ON THE
LAWS or ENGLAND.
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*
CHAPTER THE FIRST.
*
—
Or PROPERTY, rN GENERAL.
HE former book of theſe commentaries having treated at large of the jura perſonarum, or ſuch rights and duties as are annexed to the perſons of
men, the objects of our enquiry in this ſecond book will be the jura rerum, or, thoſe rights which a man may ac- quire 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. - Vor. II. h
1 22 rf is Ry
3 ow *
8 7 r 8
The RicuTs Boos II.
= 0 | | | =_ Tu ERx is nothing which ſo generally ſtrikes the imagination, = 0 and engages the affections of mankind, as the right of property;
= or that ſole and deſpotic dominion which one man claims and ex- 1 ecertiſes over the external things of the world, in total excluſion of = !; the right of any other individual in the univerſe. And yet there =” | 55 are very ew, that will give themſelves the · trouble to conſider the
1 ä eriginal and foundation of this right. Pleaſed as we are with the 3 poſſeſſion, we ſeem afraid to look back to the means by which it = : hs 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, with- 1 | - out examining the reaſon or authority upon which thoſe laws =_ | have been built. We think it enough. that our title is derived by —_— RR the grant of the former proprietor, by deſcent from our anceſ- _ tors, or by the laſt will and teſtament of the dying owner; not —_.. _ HO caring to reflect that (accurately and ſtrictly ſpeaking) there is no 3 =. foundation in nature or in natural law, why a ſet of words upon Fn
_—_ et parchment ſhould convey the dominion of land; why the ſon =_—_ | ſhould have a right to exclude his fellow creatures from a deter- = minate ſpot of ground, becauſe his father had done ſo before _ h him; or why the occupier of a particular field or of a Jewel, ” | FITS when lying on his deathzbed: and no longer able to maintain CE poſſeſſion, ſhould be entitled to tell the reſt of the world which HA of them ſhould enjoy it after him. Theſe enquiries, it muſt be 5 owned, would be uſeleſs and even troubleſome in common life. 8 . It is well if the maſs of mankind will obey the laws when made, 3 PLE : without ſcrutiniaing too nicely into the reaſons of making them. 7 91 8 5 But, when law is to be conſidered not only as matter of practice,
f bat alſo as a rational ſcience, it cannot be improper or uſelefs . to examine more deeply the rudiments and grounds of theſe *
| ſitive conſtitutions of aner. A+ 20 8
9 / 1 » 3p
_ Ra | a In ide beginning of the werid, we are Fe by holy
1 n 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 —_— | | _ +508 « earth . EY. -
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Ch. 7. of Tarrxcs. 3 « earth*,” This is the only true and ſolid foundation of man's dominion over external things, whatever airy metaphyſical no- tions may have been ſtarted by fanciful writers upon this ſubject. The earth therefore, and all things therein, are the general pro- perty of all mankind, exclufive of other beings, from the imme- diate 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.
Tus E general notions of property were then ſufficient to anſwer all the purpoſes of human life; and might perhaps till have anſwered them, had it been poſſible for mankind to have remained in a ſtate of primaeval ſimplicity : as may be collected from the manners of many American nations when firſt diſco- vered 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 i in the golden age of the poets, or the uniform aceounts given by hiſtorians of thoſe times, wherein &« erant omnia communia et indiviſa omnibus, veluti unum cunctis pa- « trimonium efſet *.” Not that this communion of goods ſeems ever to have been applicable, even in the earlieſt ages, to ought but the fub/tance of the thing; nor could be extended to the 2 of it. For, by the law of nature and reaſon, he who firſt began _ to uſe it, acquired therein a kind of tranſient Py: that laſted fo long as he was uſing it, and no longer: or, to ſpeak with greater preciſion, the right of poſſeſſion continued for the ſame time only that the ac of poſſeſſion laſted. Thus the ground was in common, and no part of it was the permanent property of any x man in particular: yet whoever was in the occupation of any determinate 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 forces but the inſtant that he quitted the uſe or n of it,
a Gen. 1. 28. = Juſtin. J. 43. C. 1. „ as LJ _ another
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4 iner Boox II. 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 en- titled to it's produce; and yet any private individual might gain the ſole property of the fruit, which he had gathered for his on 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.
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Bur . mankind mee in number, craft, and ambi- 8 tion, it became neceſſary to entertain conceptions of more per- manent dominion; and to appropriate to individuals not the im- mediate z/e 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 variety of perſons were ſtriving who ſhould get the firſt occu- pation of the ſame thing, or diſputing which of them had ac- tually gained it. As human life alſo grew more and more refined, abundance of conveniences were deviſed to render it more eaſy, commodious, and agreeable; as, habitations for ſhelter and ſafety,
and raiment for warmth and decency. But no man would be at
the trouble to provide either, ſo long as he had only an uſufruc- tuary 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, eſ- pecially 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 ſa- crifice 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,
4 Quemadmodum theatrum, cum communs ſit, recte tamen dici poteft, ejus e eum locum quem guifque occuparit. De Fin. I. 3. c. 20. 1 „ Re ſuited
, a Ming Fe N
G.. of TIN OS. 5
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 4 becauſe they were more ſuſeeptible of a long occupancy, which
3 | a might be continued for months together without any ſenſible in- I | . terruption, and at length by uſage ripen into an eſtablilhed right; ; 1 but principally becauſe 4 of them could be fit for uſe, till im-
proved 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 fair- eſt and moſt reaſonable * to an excluſive property therein.
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Tur article of food was a more este call, and there- fore a more early conſideration. Such, as were not contented with the ſpontaneous product of the earth, ſought for a more ſolid re- freſhment in the fleſh of beaſts, which they obtained by hunting. But the frequent diſappointments, incident to that method of pro-
viſion, induced them to gather together ſuch animals as were of \ 1 a more tame and ſequacious nature; and to eſtabliſſ a perma- = nent property in their flocks and herds, in order to ſuſtain them- 1 ſelves in a leſs precarious manner, partly by the milk of the 1 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 hiſ-
tory) will furniſh us with frequent inſtances of violent conten-
tions 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, aſ-
ſerting his right to a well in the country of Abimelech, and ex-
acting an oath for his ſecurity, * becauſe he had digged that well*.”
And Iſaac, about n years afterwards, re- claimed this his fa-
| © Gen. 21. 40. *
ther's
The Rreurs Boon II.
cher 's property ; and, after much contention with the Philiſtines, was ſuffered to enjoy it in peace* ONS
* by . > * 8 6 ; - . N 5 ; " $ £
ALL this while the foil and paſture of the earth remained ſtill common as before, and open to every occupant : except per- in the neighbourhood of owns, where the neceſlity of a fole and excluſivg property in lands {for the ſake of agriculture) was earlier felt, and therefore more readily complied with; Other- wiſe, 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, con- ſpire to retain them ſtill in the ſame ſavage ſtate of vagrant li- berty, which was univerſal in the earlieſt ages; and which Ta- citus informs us continued among the Germans till the decline of the Roman empire *. We wes ame n : Jerk | the e hiſtory 0
ber conveniences grew Andes hs nitainl —— was that a ſtrife aroſe between their ſervants; ſo that it was no longer practicable to dwell together. This contention Abra- ham thus endeavoured to compoſe: © let there be no ſtrife, “ pray thee, between thee and me. 15 not the whole land be- fore 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 acknowleged ght, in either, to occupy what- ever ground he pleaſed, that was not pre- occupied by o
« 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 jou
e neyed eaſt; and Abraham dwelt in the land of Canaan.”
7
Gen. 26. 15. 18, Sc. O42 |» » campus, ut nemus placuit. De mor, Germ, 16. Colunt diſcreti et diverſi; ut — v Get £13. - TT 66 as
- 2 wo 8 > « Sr ce ens g 2 WE ih : 2 — 2 Yu Fa. = 5 1 —_— -
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* * ron dba fame in was fouttded the caht of migration, rho calonies to find out new habitations, when the mother- country was overcharged with inhabitants; which was practiſed as well by the Phaenicians and Greeks, as the Germans, Scy- thians, and other northern people. And, fo long as it was confi-
ned to the ſtocking and cultivation of deſart uninhabited coun- tries, 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 cuſ-
toms, in government, or in colour; how far ſuch a conduct was.
conſonant to nature, to reaſon, or to chriſtianity, deſerved well to.
be conſidered by thoſe, who have rendered their names immortaL by, 2 eliin mankind.
A the world by degrees grew more peo cY it daily became:
ing upon former occupants; and, by conſtantly occupying the-
fame iidividual 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 b neceſſary to pur- ſue ſome regular method of providing a en ſubſiſtence; and this neceſſity produced, or at leaſt promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular con- nexion and conſequence, introduced and eſtabliſhed the idea of a more permanent property in the ſoil, than had hitherto been re-
ceived and adopted. It was clear that the earth would not pro-
duce 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
more difficult to find out new ſpots to inhabit, without encroach-
of his induſtry, art, and labour? Had not therefore a ſeparate |
property in lands, as well as moveables, been veſted in ſome in- . dividuals, the world muſt have continued a foreſt, and men have
been mere animals of prey; which, according to ſome philoſo- Ps is W ſtate 12 nature. Whereas now (fo graciouſly
2 : me oy
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. Re 8 he RicuTs Boox II. = L has providence interwoven: our duty and our happineſs together)
the reſult of this very neceſſity has been the enobling of the h ſpecies, by giving it opportunities of improving it's 2 culties, as well as of exerting it's natural. Neceſſity begat pro- perty; and, in order to inſure that property, recourſe was had to civil ſociety, which brought along with it a long train of inſepa- rable concomitants; ſtates, government, laws, puniſhments, and the public exerciſe of religious duties. Thus connected together, it was found that a part only of ſociety was ſufficient to provide, by their manual labour, for the neceſſary ſubſiſtence of al; and leiſure was given to others to cultivate the human mind, to invent
1 : > uſeful arts, and to lay the toutiations of ſcience. _— . | * |
Tux : only: queſtion remaining is, how this property became + Au, el,. actually veſted; or what it is that gave a man an excluſive ri to retain in a permanent manner that ſpecific land, which * belonged generally to every body, but particularly to nobody. And, as we before obſerved that occupancy gave the right to the temporary 20e of the ſoil, ſo it is agreed upon all hands that oc- —_— — a cupancy gave alſo the original right to the permanent property in _— the ſubſtance of the earth itſelf; which excludes every one elſe 1 but the owner from the uſe of it. There is indeed ſome diffe- rence among the writers on natural law, concerning the reaſon 33 why occupancy ſhould convey this right, and inveſt one with this == abſolute property : Grotius and Puffendorf inſiſting, that this =_ 222 . gueti right of occupancy is founded upon a tacit and implied aſſent of =_ au e. , Lergeall mankind, that the firſt occupant ſhould become the owner; =—_ 4 ee eu. 57 and Barbeyrac, Titius, Mr Locke, and others, holding, that there =_ - eis no ſuch implied aſſent, neither is it neceſſary that there ſhould e. > oh ip be; for that the very act of occupancy, alone, being a degree of - ns, Ah Hat Leber be bodily labour, is from a principle of natural Juſtice, without any „ 3 me ee. conſent or compact, ſufficient of itſelf · to gain a title. A diſpute 1 "== e e. that ſavours too much of nice and ſcholaſtic refinement ! How- ever, both ſides agree in this, that occupancy is the thing by = . which the title was in fact originally gained; every man ſeiſing i” his own continued uſe ſuch ſpots of ground as he found moſt
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ble to his own dere provided he found them un- occupied by any one elſe. 6 0 3 BA
PRO ER x, both in lands and moveables, being thus origi-
nally acquired by the firſt taker, which taking amounts to a de- ; claration that ws intends to appropriate the thing to his own- uſe, e 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 oc- cupant. 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 ſeiſe
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 a& 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 eibee y to Yuit the poſſeffion ; ; and therefore in ſuch caſe the property Milf remains in thie lofer, who may claim it again of the finder. And this, we may remember, is the doc- trine of the law of England, with relation to treaſure trove
1 4 . © * ” K *
Br this method, of Ge id 8 abandoning his property, OY and another's ſeiſing the vacant! 01 1 25 however Well foilnded: ;
in theory, could not long ful merely for the rudiments of cf ſed among th
+ It was calculated 5 ciety „ anck neceſſarily cea- complicated int reſts and Arti ciaF refinements of iblithed governments. In th ſe it was found, that » Inconvenient” or uſclefs too
4 *
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former, proprietor. This mura conyenfer
| "traffic, and e recip grant, "or conveyance : 8657 8.4 RAO OOO Vi a3 802 Y 5:80:29. Ha | 4% a1 0 917 A115 | „ wa „ l. pi i da -— — + Vo I. II. . B tinuance „ * '
10 De Rionr s Boox I.
tinuance 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 proprie- tor. The voluntary dereliction of the owner, and delivering the poſſeſſion to another individual, amount to a transfer of the pro- perty; 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 having abandoned 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.
7
Tn E moſt univerſal and effectual way, of abandoning pr 10.
perty, is by the death of the occupant; when, both the actual poſſeſſion and intention of keeping poſſeſſion ceaſing, the pro-
perty, 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 mil- lion of ages after him; which would be highly abſurd and in- convenient. All property muſt therefore ceaſe upon death, eon - ſidering men as abſolute individuals, and unconnected with civil ſociety: for then, by the principles before eſtabliſhed, the next . immediate occupant would acquire a right in all that the deceaſed poſſeſſed. But as, under civilized governments which are ealcu- Jo 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, dy diſpoſing, of his poſſeſſions. by will; or, in caſe he neglects to 9 of it, or is not Le to make any diſpoſition at all, the
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Ch. 1. of Turincs. 11
the municipal law of the country then ſteps i 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 | OY poſſeſſion, in order to avoid that confuſion, which it's becoming ; again common would occaſion '. And farther, in caſe no teſta-
ment 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 ro-
buſt title of occupancy from again taking place, the doctrine of = eſcheats is adopted in almoſt every country; whereby the ſove- _—_ reign of the ſtate, and thoſe who claim under his authority, are | -F
the ultimate heirs, and ſucceed to thoſe WNetitences, to which no other title can be formed.
Tu right of inheritance, or deſcent to the children and re- lations of the deceaſed, ſeems to have been allowed much earlier - than the right of deviſing by teſtament. We are apt to conceive 1 at firſt view that it has nature on it's fide; yet we often miſtake | ” 3 | for nature what we find eſtabliſhed by long and inveterate cuſtom. 8 . 101 It is certainly a wiſe and effectual, but clearly a political, eſtabliſh- ment; ſince the permanent right of property, veſted in the an- —
ceſtor himſelf, was no natural, but merely a civil, right. It is true, that the tranſmiſſion of one's poſſeſſions to poſterity has an e = evident tendency to make a man a good citizen and a uſeful mem
ber of ſociety: it ſets the paſſions on the fide of duty, and
5 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 imme- diate 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 n are ed about him on his death- bed, and are the
11 m5 n to prevent any vacancy the death of either the inkiliance does not of poſſeſſion, that the civil law conſiders ſo properly deſcend, as continue in the
father and ſon as one perſon ; ſo that upon hands of the ſurvivor, FF. 28. 2.11. 29 275 FO =_ | 7 earlieſt | RE.
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eſt witneſſes of his deceaſe. The
rally the next immediate occupants, till at length in | 'proge 5 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 imme- diately on the ſpot when he died. For we find the old Abraham expreſſly declaring, that : ſinee God had given
60 ſeed, his ſteward Eliezer, one born i in his houſe, was his heir“.
Wu L E property continued only i for life, teſtaments were uſe- leſs and unknown; and, when it became inheritable, the inherit- ance was long indefeaſible, and the children or heirs incapable of excluſion by will. Till at length it was found, that ſo ſtrict a rule of inheritance made heirs difobedient and head- ſtron g. 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 one's property, or a part of it, by teſtament; that is, by written or oral inſtructions properly wir- noſed and authenticated, according to the ple re of the deceaſed ;
which we therefore emphatical ſtile his ww. This was - eſta- bliſhed 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 moyeables from his wife and children: and, in ge- neral, no will was permitted of lands till the reign of Henry the
eighth; and then only of a certain portion: for it was not . . £4 . / X E- the reſtoration that the euer of deviſing real prope
# ſucceſſions, are all of them creatures of mw civil or my . SS and accordingly are in all reſpects regulated by, the: int country having different ceremonies and requiſites to m "2 teſtament completely valid: neither does any thing vary more Than the right of inheritance under different national eſtabliſh-
* Gen. 15. 3.
ments.
of THIN OS. 13
ments. 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 fu- tile every claim muſt be that has not it's foundation in the po- ſitive rules of the ſtate. In perſonal eſtates the father BE duc- ceed to his children; in landed property he never can eir, by any the remoteſt poſſibility : in general only the eldeſt Fo on, in ſome places only the youngeſt, in others all he 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 e of mn, is allowed.
Tus one conſideration may kelp 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 juſ- tice : -while-others ſo ſcrupulouſly adhere to the ſuppoſed inten- tion of the dead, that if a will of lands be atteſted by only mos 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 intitled 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 eſ- tate ſhould again become common, and be open to the next oc- cupant, unleſs 'otherwiſe ordered for the fake of civil peace by the _ poſitive law of ſociety. The poſitive law of ſociety, which 1s 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, * from tho reſult of certain local
conſti-
+
- AAS
14 Die Ricurs Boo II. 1
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, a 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. e e
Bo x, after all, there are ſome few things, which notwith- - ſtanding the general introduction and continuance of pro erty, 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, aand other conveniences: ſuch alſo are the generality of thoſe animals which are ſaid to be ferae naturae, or of a wild and un- N 5 tameable diſpoſition; which any man may ſeiſe upon and keep | for his own uſe or pleaſure. All theſe things, ſo long as they re- main in poſſeſſion, every man has a right to enjoy without diſ- turbance ; but if once they eſcape from his cuſtody, or he vo- luntarily abandons the uſe of them, they return to the common Hooks and any man elſe has an equal right to ſeiſe and enjoy them
5 | A
„„ AGAIN; there are other things, in which a permanent pros; - ©, perty may ſubſiſt, not only as to the temporary uſe, but alſo the ſolid ſubſtance ; and which yet would be frequently found with-
out a proprietor, had not the wiſdom of the law provided a re-
medy 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
© OT appellation of game. With regard to theſe and ſome others, as diſtur-
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diſturbances and quarrels would frequently ariſe among indivi-
uals, contending about the acquiſition of this ſpecies of pro- perty by firſt occupancy, the law has therefore witely cut up the root of diſſenſion, by veſting the things themſelves in the ſovereign of the ſtate; or elſe in his repreſentatives, appointed and autho- rized 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..
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14 | The RIoHT S Bo Ok II.
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 folid a foundation, as the right
of the deviſee would have been, ſuppoſing ſuch requiſites were obſeryed. | 1 ID 1 | | |
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Bu x, after all, there are ſome few things, which notwith- ſtanding the general introduction and continuance of property, muſt 5 unavoidably remain in common; being ſuch wherein nothing but an uſufructuary property is capable of being had; and therefore they ſtill belong to the firſt occupant, during the
time he holds poſſeſſion of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: ſuch alſo are the generality of thoſe animals which are ſaid to be ferae naturae, or of a wild and un- tameable diſpoſition; which any man may ſeiſe upon and keep for his own uſe or pleaſure. All theſe things, ſo. long as they re- main in poſſeſſion, every man has a right to enjoy without diſ- turbance ; but if once they eſcape from his cuſtody, or he vo- luntarily abandons the uſe of —— „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 pro- perty may ſubſiſt, not only as to the temporary uſe, but alſo the ſolid . and which yet would be frequently found with- out a proprietor, had not the wiſdom of the law provided a re- medy 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 — ſome others, as
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iſturbances and quarrels would frequently ariſe among indivi- uals, contending about the acquiſition of this ſpecies of pro- perty by firſt occupancy, the law has therefore witely cut up the root of diſſenſion, by veſting the things themſelves in the ſovereign of the ſtate; or elſe in his repreſentatives, appointed and autho-
| rized by him, being uſually the lords of manors. And thus the legiſlature of England has univerſally promoted the grand ends of
70 civil ſociety, the peace and ſecurity of individuals, by. ſteadily purſuing that wiſe and orderly maxim, of aſſigning to every.
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of dominion or property are things, as con- | guiſhed from perſons : and things are by the law. (oo =: and diſtributed into two kinds; things real, and things Co 5 Things real are ſuch as are permanent, fixed, and im- 5 1 mans. which cannot be carried out of their place; as lands LD
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k 5 IN treating of things real, let us conſider, firſt, their ſeveral Wl ſorts or kinds ; ſecondly, the tenures by which they may be hol- Fad] ate den; thirdly, the eſtates which may be had in them; and.
e the title to them, and the manner of acquiring and * Fr in T, with rogerd. to their ſeveral ſorts or kinds 0 things |
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ats. I Land colhprohends all ings bf, a e ene ſubſtantial ; nature; being a word of a very extenſive ſignification, as will | Fr preſently appear more at large. Tenement is a word of ſtill greater 1 ag | extent ; and though in it's vulgar acceptation it is only applied to
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of THrinGs. 2 17 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 Aberum tenementum, . franktenement, or freehold, is applicable not only to lands and other ſolid objects, but alſo to offices, rents, commons, and the like *: 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
them, legally ſpeaking, tenements*. But an hereditament, ſays fir Edward Coke, is by much the largeſt and moſt comprehen- ſive expreſſion ; for it includes not only lands and tenements, but whatſoever may be inherited, be it corporeal, or incorporeal, real, rſonal, or mixed. Thus an heir loom, or implement of furni- ture 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, heredi- tament: and ſo a condition, the benefit of which may deſcend to a man from his anceſtor, is alſo an hereditament . 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 feen 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
e
"6
I
5
CoRPOREAL hereditameits confiſt wholly of ſubſtantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, ſays fir Edward Coke ©, comprehendeth in it's legal fignification foil, or earth whatſoever ; as arable, meadows,
» furzes, and heath. It legally includeth
oy
8 Co. Litt. 6. 5 | 5 | | 4 3 Rep. 2. Co. Litt. 19, 20. e © 1 Inſt. 4. © IInſt. 6. Sz 5
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es, houſes, and other buildings: for faith he, of two things; land, which is the foundation; and ſirutture- thereupon : ſo that, if I convey the land or ground, the - ſtructure or building paſſeth therewith. It is obſervable that water is-here mentioned as a ſpecies of land, which may ſeem a kind of ſoleciſm ; but ſuch is the language of the law: and I cannot bring an action to recover poſſeſſion of a pool or other piece of water; by the name of warer only; either by calculating it's ca- pacity, as, for ſo many cubical yards ; or, by ſuperficial meaſure, for twenty acres of water; or by general deſcription, as for a pond, a watercourſe, or a rivulet: but I muſt bring my action for the land that lies at the bottom, and muſt call it twenty acres of land covered with water*. For water is a moveable, wandering thing, and muſt of neceſſity continue common by the law of na- ture; 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 im- moveable : and therefore in this I may have a certain, ſubſtan- tial property ; of which the law will take notice, and not of the
other. . 5
*
— — 9
Foy
=
1 =
*.
: Me
Land hath alſo, in it's legal fignification, an indefinite ex- tent, upwards as well as downwards. Cujus eft ſolum, ejus eft 1. | que 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 o 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 m and other foffils, his 3 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 # Brownl. 142. |
$6.5 2 *
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HIN OGS. 19 of water; by a grant of which, nothing paſſes but a right of fiſhing ?: 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*. - ap.
s Co. Litt.
> 632 2 x 2 1]
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9
CHAPTER THE
” ——ä—u— ge f & . . f 8 a
x INCORPOREAL HEREDITAMENTS.
N incorppreal hereditament is a right ifſuing out of a thing
(whether real or perſonal) or concerning, or an-
nexed 2 or èxerciſible within, the ſame . It is not the thing
_ corporate itſelf, which may conſiſt in lands, houſes, jewels, or the
ike; but ſomething collateral thereto, as a rent ifluing
thoſe lands or houſes, or an office relating to thoſe jewels. In
ſhort, as the logicians ſpeak, corporeal hereditaments are the ſub-
Nance, 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,
ir exiſtence is merely
plation; though their effects and pro-
fits may be frequently objects of our bodily ſenſes. And indeed,
if we would fix a clear notion of an incorporeal hereditament,
we muſt be carefol 1 not 2; confound together the profits 2 ced, and the t ereditament, which produces thetn'
inſt in incorporeal hereditament : for though
„ which is the fruit or product of this annuity, is
of 7 ture yet. the annuity itſelf, which
ung inviſible, has only a mental exiſ-
1 over from hand to hand. 80 tithes,
— 8 *
*
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> Co. Litt, 19, 20.
Pl L. -
TIO, roxy
Ru . ' SAP . - , 3 — . — — EN
THIN GS. 21
if we conſider the produce of them, as the tenth ſheaf or tenth
lamb, ſeem to be completely corporeal ; yet they are indeed in-
corporeal hereditaments : for they, being merely a contingent
right, collateral to a iſſuing out of lands, can never be the
object of ſenſe: they are neither capable of being ſhewn to the delivered into bodily poſſeſſion.
28 8 NESS. —— 22
[NEORPOREAL hereditaments are principally of ten ſorts; advowiſons, tithes, commons, ways, offices, dignities, franchiſce, corodies or penſions, annuities, and rents. |
I. ADvows0N is the right of preſentation to a church, or ecclefiaſtical benefice. Advowſon, advocatio, fi gnifies 7 in clentelan - ecipere, the taking into protection; and therefore is Te e 4. Js with patronage, patronatus: and he who has the right of ad- vowſon is called the patron of the church. For, when lords, of
manors firſt built e on their own deme! nes, and ap
= — 7 e = he dividon. of ghee)
lord, who thus built a church, and endowed it with glebe or had of common right a power annexed of nominating ſuch miniſter as he pleaſe (provided he were canonically qualifi officiate i in that. church of which he was ue founder, e in one word, the patron *.
4 © *
- >
of an advowſon
ut it is a ri
1 alſo to have been allowed i in x the emp ire. 6 This 150 of the jus patronatus, 7 3 10 t. Ia. c. 2. Now, 118, Fr. building and endowing the ch urch, appears | |
n
=
2
*
*. F9
Rr
Ne
+
Te RicuTts® © Boox II.
poſſeſſion be had of it. If the pa- tron takes corporal poſſeſſion of the church, the church- yard , the glebe or the like, he intrudes on another map's property; for to theſe the parſon has an excluſive right. The patronage can there- fore 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 in- titling ſome clerk, whom the patron ſhall þ enter and receive bodily poſſeſſion of the church (1
r * . * eo ADvowsoNs are either advowſons appendant, or adv
5. Lords of manors being originally the only founders, ind of courſe the only” atrons, of churches *, the right of pa- tronage or preſent long as it continues annexed to the
1 as Oe have done ain the foundation
15 ”Y or * — eier with ts manor, as and appendant thereto, by a grant of the manor only, with-
i
out adding any other words . But where the property of the ad-
vowſon has been once ſeparated from the property of yoo manor, | 7 legal conveyance, it is called an advowſon in
and never can be appendant any more; ban is for the future an-
nexed to the per of it's owner, anc
*
*
A vvowSxs are allo either preſentative, co n advowſon preſentative is where the patron hath ari of f preſentation to the EE or ordinary, need > A him to qualified: collative ſon: in
*
a Co. Litt. 119. 0 Lid. 7 53 8 Ilia; oy.
*
. TT I oe, © RR. toc *
”
he does, by the one act of collation, or conferring th
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 or- dains that it ſhall be merely in the gift or diſpoſal of the patron; ſubject to his viſitation only, and not to that of the ordinary; and veſted abſolutely in the clerk by the patron's deed of donation, without preſentation, inſtitution, or induction. This is ſaid to have been antiently the only way of conferring eccleſiaſtical be- nefices in England; the method of inſtitution by the biſhop not being eſtabliſhed more early than the time of arch- biſhop Becket in the reign of Henry II”. *. And therefore though pope Alexan- der III},
ae ene 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 b
as old as the. firſt 3 of chriſianis
h nobility, > recorded by Matthew Paris“, wah 1 = of ot to the biſhop as a'thing immemo-
rial. The truth ſeems to be, that, where the benefice was to be: conferred on a mere layman, he was firſt preſented to the biſhop, in order to receive ordination, who! was at liberty to examine and the clerk was already in orders; the living
m by the ſole donation of the patron ; till
e twelfth l when ope and is
K ou een oder
claim na. ci Fa "right of | inveſtiture. 8
E
*
ot OW.EVE 1 this may de, if,
1 Decretal. I. 3. r. 7 4 5 * 4. D. 1239“
in a letter to Becket, ſeverely inveighs againſt the prava
IE
3 9
. 3
*
1
ere for ever preſentative, and ſhall never be do- rules, and com-
tron, in whom ſuch peculiar right reſides, does once give up that ; right, che law, which loves uniformity, will interpret it ta be an intention of giving it up for ever; and will there-
the tenth part of g and renewing — Goes the Tate we.
4
due.
earth, or is not of annual incr e nor for creatu
Wo * N
# 8
e 9
* of TriNnGes. 2 | =_ that right at preſent ſubſiſts. 3. Who may be diſcharged, either = oe or in Part, from paying them. ee |
. As to their original. I will not put the title of the c clergy 2 . to Ude upon any divine right; though ſuch a right certainly
commenced, and I believe as certainly ceaſed, with the Jewiſh
theocracy. Yet an honourable and competent maintenance for __ the miniſters of the goſpel is, undoubtedly, jure divino; what = =_ ever the particular mode of that maintenance may be. For, be- = fides the poſitive precepts of the new teſtament, natural reafon will tell us, that an order of men, who are ſeparated from the
= | world, and excluded from other lucrative profeffions, for the fake 7,7 "ip ꝓ—u—A pl thereft of mankind, have a right to be furniſhed with the = neceſſaries, conveniences, - and moderate enjoyments of life, at their expenſe, for whoſe benefit they forego the uſual means of 4 roviding them. _ Accordingly all municipal laws have provided = a liberal an decent maintenance for their national prieſts or cler- 10 1 gy : ours in particular have eſtabliſhed this of tithes, probably ©: = 5 imitation of the Jewiſh law: and perhaps, conſidering the —_— | degenerate ſtate of the world in general, it may be more bene _— ficial to the Engliſh clergy to found their title on the law of the —— land, than upon any divine right whatſoever, unacknowleged and : . 1 e by temporal ſanctions. my 1 8
WI cannot preciſely aſcertain the time when tithes were firſt introduced into this country. Poſſibly they were cotem
of. = with the planting « of chriſtianity among the Saxons, by Auguſtin an, front” 7. the monk, about the end of the ſixth century. But the firſt. 66: p. | mention of them, which I have met with in any written Eng- | _—_ | | lith law, is in a conſtitutional decree, *made in a ſynod. held r 9 A. D. 7867, wherein the payment of tithes i in general is ſttong- r 55 ly enjoined. This canon, or decree, which at firſt bound not i! _—_ - the laity, was effectually confirmed by two kingdoms of the hep: — = tarchy, in their parliamentary conventions of eſtates, reſpeaive ne
N
, 1 9 8 * -
St [ © Pe 2 : 1 | 4 * Selden, C. 8. §. 2. ae l
7 1 2 \ 7 7 I 4 /
TO VOI. II „ . . 41. : N . F
The RIGHTS Book II. ly conſiſting of the s 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 pa- rochial clergy *. en ta 6
4
& o
Tux next authentic mention of them is in the faedus Edwar, et Guthruni ; or the laws agreed upon between king Guthrun the Dane, and Alfred and his ſon Edward the elder, ſucceſſive of England, about the year goo. This was a kind of treaty be- tween thoſe monarchs, which may be found at large in the Anglo- axon Jaws*; wherein it was neceſſary, as Guthrun was a pagan, to provide for the ſubfiſtence of the chriſtian clergy under his dominion and, accordingly, we find the payment of LINES not
law is ſeconded by thoſe of Athelftan®, about the year . And
this is as much as can certainly be traced out, with regard to their
_ 3 * 4 * 8 ,
Wx are next to conſider the sto whom they are due.
upon their firſt introduction {as hath formerly e 7)
though every man was obliged to pay tithes in general, yet. he
might give them to what priefts he pleaſed *; which were called
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*. But,
ſes were divided into pariſſies, the tithes of each pa-
riſh were allotted to it's own particular miniſter ; firſt by com—
mon confer or the p ee, ee, ee and after- wards by the written law of the landdꝰ.
— 5
LE D. 978. COR ys ee *** * Book I. ch. 11, Seld. c. 6. f. 7. Sp. Book I. Introd. 9 4. of laws, b. 31. c. 12. 2 2 Inſt. 646. Hob. 296. » Wilkins, Pag. 51. 2 Seld. c. 9. $. 4. cap. 6. 5 LI. Edgar. c. 1 U 2, Cams. c. 11. HOW
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How E v R, arbitrary conſecrations of tithes took place again afterwards, and became in general uſe till the time of king John“.
Which was probably owing to the intrigues of the regular clergy, pa
or monks of the Benedictine and other rules, under arch-biſhop. ? Dunſtan and his ſucceſſors ; who eavoured 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 eceleſiaſtical profits to the coffers of their own ſocieties. And this will naturally enough account for the num- ber and riches of the monaſteries and religious houſes, Which were founded in thoſe days, and which were frequently endowed
or a layman, who was obliged to pay his tithes ſomewhere, might think it 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 g, 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 priefts being ſcandalouſly reduced by theſe arbitrary conſecrations of tithes, it was remedied by pope Innocent the third* about the ye: 1200 in a decretal epiſtle, ſent to the arch-biſhop of Canterb1 and dated from the palace of Lateran : which has occaſioned fir Henry Hobart and others to miſtake it for a decree of the coun- cil-of Lateran held A. D. 12. ;
„which on!) prohibited what was
An
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BO Ok II.
being correſpondent to the antient law) it was allowed of, and ſo became lar ferrae. This put an effectual ſtop to all the arbitrary $i canſecrations of tithes; except ſome footſteps which ſtill continue > e portions of tithes, which the parſon of one pariſh hath, arely, a right to claim in another: for it is now univer-
b, that-tithes are due, of common right, to the parſon - iſh, unleſs there be a ſpecial exemption. This parſon of „ we have formerly ſeen', may be either the actual in- bent, or elſe the appropriator of the beneſice: priations being a method of endowing monaſteries, which ſeems to have
been deviſed by the regular clergy, 7 * of ſubſtitution to ar- bitrary co ſecrations of tithes *.-
7
— Po
3. WIE obſerved that tithes are due to the parſe right, unleſs by be excmption : let us therefore 85 thirdly, may ey from the payment of tithes, and how. may be exempted or diſch: either in part or totally, firſt, by a diy, by cuſtom or preſcription. -
* 8 . . > - —" * k *
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and ſatisfaction 18 Pe that the * would be no bikes hey ko com of whale * it is to
46. Hob. 296. 4 Book I. pag. 372.
* In n extraparochial places the king, by. 2 2Inft., . Regi | 55 | | 25
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29 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 1 Eliz. is good for any longer term than three lives or twenty 77 a I Ms. 715 one years? though made by conſent of the patron and ordinary: w - wY 4 3 E . which has indeed effectually demoliſhed this kind of traffick 27 3 2e. J. Ii ſuch compoſitions being now rarely heard of, unleſs by authority 1 . of prckjaciiate - is e k SECONDLY, a diſcharge by cuſtom or prefcription, is where [--—* 7” time out of mind ſuch perſons or ſuch lands have been, either ; partially or totally, diſcharged from the payment of tithes. And i. 5% this immemorial uſage is binding upon all parties, as it is in it's „eis nature an evidence of univerſal conſent and acquieſcence; and with reaſon ſuppoſes a real compoſition to have been formerly 1 made. This cuſtom or preſcription is either de modo decimandi, or 36 © ff "de non decimando. V „„ .
8
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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
nin kind, which are the actual tenth. part of the annual increaſe.”
This,1s 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
king it for him: ſometimes, in lieu of a large quantity of
ude os; 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 ang V
f
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0 e a good and ſufficient modus, the following rules muſt | be obſerved. 1. It muſt be cerfitihe and ivariab/e®, for payment be no maus, that is, no origi-
* 1 -
Semolument of nd pes tithes, is not 8 only; an -adyarita | be erent from the thing 3 for o, one load of a tithe hay, is no good modus: for no parſon 8 would, bong fide, make a compoſition to receive leſs than his due in the fame ſpecies of tithe ; and therefore. the law will not ſup- © poſe it poſſiBle for ſuch tion t i
3
W Fit
n
OS Rs Sb" =
e of milch kine, but:not of bar-.
for tithe is, of common right, due for both; ebene a | us for one ſhall never be a diſcharge for the other. 5. The recompence muſt be in it's nature as n the tithes e it; r an inheritance certain 1:
e by
* 2
= | 5 be ear and * Madus «cunt not be too large, f the real 1 of 1 5 cithes ; 69% 60
* 1 Roll. Abr. 69. Tm a 2P. Was, . 8 Lev. 179. N | r 11 Mod. 60,
* +
— — —_ —
N 2 enn n
5
Ch. 3. 77 TRIN GB. e 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 reign of Richard the firſt ; and any cuſtom may be deſtroyed by evidence of it's non-exiſtence in any part of the long period from his days to the preſent : * 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 fo rank and large, as that it beyond diſpute exceeds the value of the tithes in the time of Richard the firſt, this madus is fels 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 allo it is deſtroyed by carrying in itſelf this internal evidence of a much later original.
— 3
*
A PRESCRIPTION de nan decimando is a claim to be entire diſcharged of tithes, and to pay no compenſation i in lieu of them. Thus the king by his prerogative is diſcharged from all tithes *. So a vicar ſhall pay no tithes to the rector, nor che rector to the vicar, for ecclefia decimas nom ſoluit erclgiae. But privileg are penſonal to both the king and the clergy ; f for t their t _tenant or
_ leflee ſhall ſhall pay tithes of ahe £ {ame land, t
bliſhed rule, that an — madus de eee nan va-
ler . But ſpiritual perſons ar corporations, as monaſteries, ab- bots, biſhops, and the like, were always capable of having their lands totally diſcharged of tithes, by various Ways *: as, 1. By real compoſition: 2. Ry the pape's bull ef exemption: 3. By unity of poſſeſſion; as when the rectory of a pariſh, and lands in the ſame pariſh, both belonged to a religious e thoſe lands
*
'* This rule was adopted; when by ade memory ould fil continue to be ecken Batute of Weſtm, 1. (3 Edw. I. e. 39- ) the ed from an aera ſo very antiquated. Ser reign of Richard I. was made the time of 2 Roll. Abr. 269. pl. 16. limitation in a writ of right, But, ſince by : ro. Eliz. 511. | the ſtatute 32 Hen. VIII. c. z. this period = :1bid.,479.
(in a writ of right) hath been very rationally id. 511. FF 3 Mon FO reduced to ſixty years, it ſeems unacceunt- 2 Hob. 309. ; Cro. Jac. 30%. able, that the date of legal preſcription. or
8
N R PLE 7 US a 5 1 2
* % f
. (>
=]
*
| R Sal Te Boon II.
were diſc harged of tithes by th poſſeſſion : 4. By pre-
ſcription ; having never.been liable to o tithes} by being always in
ſpiritual hands: 5. By virtue of their order; as the knights tem-
2 ciſterci ns; and others, whoſe lands were privileged by the
a diſcharge of tithes?. Though, upon the diſſolution
of labbeys by Henry VIII, moſt of theſe exemptions from tithes
th, would have fallen with them, and the lands become tithable a-
gain; 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 v
-.,- thould hold them free and diſcharged of tithes, in as large
” ae a manner as the abbeys themſelves formerly held them.
| \nd-from this original have ſprung all the lands, which, being
x in lay hands, do at preſent claim to be tithe-free: for, if a man
* can-ſhew-his lantis to have been ſuch abbey lands, and alſo im-
memorially diſcharged of tithes- by any of the means before-men- tioned, this is now a good preſcription de non decimands. But
muſt ſhew both theſe requiſites: for abbey lands, without a ſpe-
cial ground of diſcharge, are not diſcharged of courſe; neither
will any preſcription de non decimando avail in total diſcharge of
a» ,
85
i 2 WA. 4 ,
x
tithes, unleſs it relates to ſuch Wes 3 .
#
o
ars from it's very Jefinition' t to hy: an ee | creditament : : 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. And hence common is chiefly.of four.ſorts ; common of paſture, of :piſcary, -
-
of turbary, and. of eſtovers. | BY W
1. Coax Mo of paſture i 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.
A. Behar: 2 "ws of common 1s either appendant, appurtenant, becauſe
we. r
—_
Ay x : - , 4 2 þ * . , "9D. F 4 . 0 l | | 4 * > bf * : , . L 8 3 " 4 2 & "| * oy
Y 2 Rep. 44 Seld. tith. c, 1 F. 2. = Finch, law. 12 2 —
VS hs Py N : „ ds 4 "2. * "2 «
7 1 * £ 2
2 os n n 85 N 3 04, FE REY! £ * . N 5 8 7, C 2 * $ * Wo, N SEE IN 9
ld
F
8 $82.5 4 ;
VE ke 5 K Aa, 3 % £58 9 125 e e r n g 3 * 2 os 2 25 | nec * . f 7 J » +47; 4 A, AS - o £1 _ x Eg” — FE vy 5 > 8 1 8 7 . L 84 5 . . 0 1 ah ' 3 10 * 3 8 ; N IN 1 is 52 5 . 5 oF TTT A e r a a are ty Wr. 2 . Ot,
k pl %
8
X + 2 * 6 . : \ 4 N * ol "WS f s cs . ps wen 5 * : 8 % 5,020” 1 f e 7 APs * EY £5 | Lo 2 . © 0d de; oY PLN 2 N 3 "WS" "ar 2 FI . GO ts 1 ww, 3 1 * bg *
1 1 1 5 TW
Is
C 3 N * appendant i is a right, belonging to the owners or occupiers of arable land, to put commonable beaſts upon the lord's waſte, and upon the lands of other perſonptwithin the ſame
manor. Commonable beaſts are either beaſts of the plough, or
ſuch as manure the ground. This is a matter of moſt univerſal
1 right; and it was originally permitted *, not only for the encou-
eäZgement of ag iculture, but for the neceſſity of the thing. For,
* when lords of manors granted out parcels of land to tenants, for
3 ſervices either done or to be done, theſe tenants could not my
WM or manure the land without | beaſts 3: theſe beaſts could not be
ſuſtained without paſture. 3 and paſture could not be had but in
the lord's waſtes, and on the unincloſed fallow grounds of them-
ſelves and the other tenants. © The law therefore annexed thi 2
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 kingdems, much in
the fame manner as in England. Common appurtenunt is where Lemm
the owner of land has a Tight to put in other beaſts, beſides'fiich aue 4
as are generally oc commonable?” as hogs, goats, and the like, which _
neither plough nor manure _the-ground. This, not ariſing from
the neceſſity of the thing, like common appendant, is therefore
not of common richts but can only be claimed by immemorial ©
Alge and preſcription*, which the law eſteems ſufficient proof 77
of a ſpecial grant or agreement for this purpoſe. Common be- ee 137 cauſe. of vicinage, or neighbourhood, is Where the inhabitants of two townſhips, Which lie contiguous to each other, have uſually „ intercommoned with one another; the beaſts of the one ſtrayi 5 fot Hef Hee
y into the other's. fields, without any moleſtation from c either. This is indeed only a permiſſive right, intended to ext. Ae 20 3 cuſe what i in ſtrictneſs is a-treſpaſs in both, and to prevent a mul ; 6
_ <tiplicity of ſuits: and therefore either townſh 3. may encloſe and F
bar out the 6ther, though they have intercommoned time out of —
in Nene bath He's xi of one town-a right to Put his. —
*
*
1 e $a + jure rn Semin: fg 4. Ke, | WEBCASTS
originally 1 into the other's common? but if they eſe
mon in groſs, or is ſuch as ig ne urtenant to land, but is annexed. to
. 6 40 "I; *
ton however, and 0
may encloſe ſo much ound, provided. he.
entitled thereto. This encl
FE approving ;* ; ;
.
2
age and
20 Hen. III. c. 4, 29C and 31 Geo. II. C. 41.
—— 8 3
1. Com Mo of eſtovers (from eftoffer, to f rniſh) is a liberty of _ ene — for the uſe or furniture of a houſe or e bende word, Bote, is of the
— 1 if the . leaves I
.
Or
*
> _— s po
o
a N Ie
A way may be alſo all the owners and occupiers of ſ i wed; to Tous another's ground : for this i t, whereby a right Magz clearly be created. A right of | or, if a man
„
”
1 Finch, lw. 5 Ie 3 IN Litt. 56, Lord Raym. 725. 1 x Brown. 212.
office, will by bribery, extagtion} ; or other unlawful means, make. his rr good, to the manifeſt detriment of the public.
A
E Mere 9 7 N 27 7 7 * ö * 5
3
1 - 8 1 f
* Y - * : = 7 ' : : V. 1 I
” FE * # * « 11 a J ord re GH 5 : & "8" * a 3 - « A
A 4 On *
„ DroNLYTES bear a near relation to offices. Of the na-
<
ture of theſe we treated at large im the former book * : it will therefore be here ſufficient to mention them as mers of incor-
Ep XY
VII. FRAncnises are a ſeventh e F F 1 li- mw are uſed: wo. e ng terms: and their definition is“, a. 5 branch of the king's prerogative, ſubſiſting in
Being therefore derived from the crown,
ey 8 arile lem the kin 's grant; or, in ſome caſes; may be
eld by preſcription, which, as has been frequently. ſaid, preſup- t. The kinds of them are various, and almoſt infi- touch upon ſome of the principal; 8 | they may be veſted in either natural perſons or in one man, or in many: but t | identical to one, cannot be beſto ©) former grant. i
= 3 9 1 2 1 .
0 PIC is Y
tine
itic, withia power 402 main- vt "IF corporate acts: and each
*
franchiſes are, to held a court lèet: to
ve a manor or lord ip 3+ or, mount: to have v. fe, wre ks. ein Fs, . for feitures, and deodands: to | ib ty of holding pleas; and tr t 7 "© 55 Dia ot cognigance of pleas ;, which is & ſtill greater liberty, being an excluſive right cauſes ariſing : wit 0 ibert x from t
3 * 75 3
* 1 Einch. L. 164. RAY, : 3 en BE
—
S "1;
WA
* Ee 2
, * . x * — 8 SA 5 * | 1 Wo”, $ that it is not 8
.chaſs;-or royal ga „with —
over a man's Own e „The won 72 ig - | | 2 g eee ole ee d with a wall er paling; ane 800 ſtock with a herd of deer, that is th reby conſtituted a lega 3 |
0, 4. 233. 6 Ing. 799, 0 „ * Theſe are buck, doe, for,
. rk and roe ; but in a common and le-
ſenſe extend likewiſe to all the beafts of cocks and „ be ne , ard ee en herons. -2F 55 . to be hart, hind, hare, boar, nag wr
Wa 2
275 is:
N SOS . * A
„ theſe. animals being looked
'fole property of our ſavage monarchs,
rented to protect them; by
excluſive power of Billing ſuch
nded, on condition of his pre- fore that has the franchi
on Waetpert foil, or enen on «iis if , unleſs This franchiſe 1 is
—
* % 2 =
—
N
2
3 *
wy
N
—
ferved the free-warren, or rig ee | l nung game, to > Ahtmdglves ; "Y by which means it comes 2 oy i th dere and his heirs have
5 ſo a royal fran- in all countries where the feoda
g ſuch grants, and by propri iating What ſcems to be unnatural to reſtrain, 5 of running water, was probibited for the future 1 8
* and 2
e fenced de
Bro. Abr. tit. en geld. Mar. clauſe I 44. —
. 5 * 4 „ 7 * . * SB ea 2
I 5» Jo by . 4 r > 87-5;
* *
to
Pu 870
To 5
£
7 * 758
„
=
2 9
©
mls
— " F 4;
F „5 5 2; Bs . 5 4 bas 3 W
Ky 1 * N ” . N 8. * N /
"0
8 3
”
J N .
, -
*
=
hl
4
. « "
\ b \ *
5
0 4 1 A — P a * x % . - . *
» %
= 2 2 1 1 4
8 which. are much
55
3 *
2,"
8 WIE 2 * * **
332 N »#
„ oF
F. N. B. 88. E 1708 17 i eie. —! I OO Wes
* - o : 1 % x N * %
*
8
8
3 1
] 5 e 2 ** . 5
\ 23+ 4 N. N Gs ONS HS
[
jos; plough ſo many acres to the. wars, and
m. It may 115
3 2% __ CD, * 3 7
r
*
_—_—
1 bs . 7 2 I 8 x "0M 8 25
1 4
—
W rent char , and rent - ſeck 8 e 5 "Beg (5 ot bs Me 81 _ pre REG
1 8. eh a wala EO wen bent f. 8
id. 124. „ „ Oo. Litt. us}
33 ˙ w
Vo I. II.
TA api EE,
*
1 4
1 >.
=» $5: >
aA - Y "WORDS "uf 2 | 1 *
* We I N 4 * I *
0
nt to it, as at the
.
* 4
ttiently called 40477e-rents, or blanch-farms;) reditus albi*; in con- N "Sx | 4 f | : , #0 5 $500 © , Tm » c. w
payments Were re
*
S ., „ V
—
E- | c&-rent is only a rent of
by value of the tenement, or near it. A fegfarm-rent is a ing eſtate in fee ; of at leaſt one fourth
e time of it's reſervation *: : for a
| 3 ſo conſiderable a rent, is indeed only
tmple inſtead of the uſual methods
25
them n reſpect o the x the now totally ; aboliſhed ; and all perſons may have the like remedy di Tents-ſeck, rents of aſſiſe, and chief-rents, as in
on © 0 — 7
FS | EN 5
* 55 *
treat of civil ina
4 _ * Anderl, 25;
*
2 ; V wed LIES 8
or We
1a
* —
5
.
to
*
2
” *
8 8 ; 5 .
*
6
crva
R
Oo
be n
Ao r re. WOE — 1
5
2+ 2
ns of 2 50 D by them, | | t w b
RES . . 4 *
Ripulſted ſervice," or
22
4 * *
ae
3 5 | : * | _ The RionrTs BoaxIl Lame right. of conqueſt, no F rt could ſubſiſt independent of the
*
receivers were mutually. ons. But, as that could not;
We”
thoſe nations w hich 1 barbarous - may
ETD LENS -
K
« 6k , q
* manibus que .
; x 5 4. Se 4 n 2 18 i 5 | * 2 \ Ve & 3 N e * * Reer * k N 0 * : n * 32S BELT ALT. Ba” MM * * * . Y " * > 289 1 , Ge + JF 1 2 NY p 1 * : * 75 / : * 3 * ais . A I N I % # $ N * - ,' F «4 7 C . * 4 N * 5 K a 5 . 4 1 L * 1 " * * Sz. l 4 — . ” - A . *% 4 * 4 - : of bs x *
9 TAHINGs. 47 the Vikigoths 0 on Spain, and the Lombards upon Italy, and intro- &d with themſelves this northern plan of polity, ferving at once to bus, 72 to ol rus po the territories they had newly | able that the emperor Alex- ding lands conquered from among his generals and y ious ſoldier „on condi-
7 ice from them and their heirs for
x
7.
as their parry our; alarmed a 3 of Euro is; of thoſe countries . rt
; ths firm or a "iniilar
- > Sous
Iteration ede out the.
RX" $39...
; ita ut **-rerentur rura ain ; barbariae, -
of man Hle ducebar.” (Ai. Lamprid. . | . Severs.)- OOO "Is
n 1 illoc eee. f etiam fua rura * Wright. 10.
« defenderent. Addidit ſave bis o e's e Crauin. On 11.8 ih v, ut- poffent colere quod acceperant; 1 1 1 Ur
4
»s fy 5 * a "Ie . o . 4 , . 1 W's 1 * * 4 * 7 7 4 * 7 > 4 * p 7 * r of ye” RN, * Y * # 2 1 i 4 1 8 5 a * > 925 : ; 8 * ; 3 r : . ; . 9 * . 1 4 4 3 I 6 * oF { 8 * 1 4, - by I "4, * y , 5 5 5 1 PAT 7 i 5 9 5 * bk : . 3 y : 8 2; oY 8 8 : * =" * 7 2 [1 4+ G 4 * e * „ $2444 0 N 5 14 o * 1 * 5 en * "ME 1 N 82 8 0 . WW wy R ** 4 8. 4 . 2 +. 2 nn 5 5 F Ego ATTY NOS 1 be 44 4 7 5 4 3 7 * — p * 5 F { ” . N L 1 2 " 25.4 N : 2, 3 1 2 k A | 2 | 5
Fa " Py U 8 8 95 . N DA
e 185 bea and as a a part of, abl
YT | , that even i in; the times of the Saxons, Who were a l Hom What fir William Temple calls ae ſame nor-
8 hive, 3 |
1 A* & „
ETSY
7 | * 11 N 72 2 4 TH * © Tar 8 intre p Juction
8
Norman fe owers
3
*%
A — n 4 miſtaken ſenſe. of th e word . which, in Eceptation, fign hes no more than acguiſition 7
*
writers into a ſtrange hk | orical miſtake, and
tam tion 3 be fol r raden . lal law, under wh 1 ich
>
Mais. Brat. hz .
*
8 <> 1 * of; a, 8 * * 9 f p F A 2 by n n 43d 8 5 — re =". 8 — 2 N A N 2 5 ien 4 LA) LY TWatk © of Wo” * 1 9 * . * * » Cx es Y 5 * 5.8 \ 0 — . = 8 1 * n LATE 4 pdt > by. | . ̃ ²— TN OI we on a P * 2 74 L wy og * 3 7 = % 9 © we X . 5 c d 8 . ' | l 4k * \ Mae 4 008 * 9 293 8 . N 5 * . , 548k 1-4 \ 18 . ns " " . A 8 \ J -< 7 a; - : 6 ; - hp: x 4 : 0 £ % * * vl - — *% : 1 * 1 * , * Fo; - — * 4 — / - [i E % p „ c þ | — * * f * — „ a *% * ,
1 Ch. 4. 00 of © THIiNGs:
with king s recommendation of this policy to the Engliſh, as the beſt way to put themſelves on a mi footing, and thereby
to prevent any future attempts from the continent, were probably the reaſons that preyailed to effect it's. eſtabliſhment here. And perhaps we may be able to aſcertain-the time of this great revo- * lution in our landed property with a talerable degree of exactneſs. For we learn from the Saxon Chronicle e, that in the nineteenth king William's reign an invaſion was apprehended from rk ; and the military conſtitution: of the Saxons being 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. is apparent weakneſs, togetl her with the er occaſioned by la foreign force, migl 8, and the
*
s for putting ure of defence. Fe or, as ſoon as the danger was 3 held a great council to inquire into the ſtate of the n uence of which was the compiling Uurvey called | ch was fihiſhed in br and in the latter end of that very year the |
| all the prin- d their lands. to the yoke of military g's vaſals, and did homage and fealty to his
1s to. have been: the aerg of formally. int
= them i in 2
<
- 2 of Sarum, is couched in theſe rem:
*
JJC 2124. 728. r Rex tenuit magnum nie et graves unt, et omnes fe illi ſabaidere, 3 — Jermones habuit cum /uis froceribus de hac terra, unt waſalli, ac ei ; fdeclitatis ne 5 0 quo modo inceleretur, er 4 a quibus bominibur. terunt, ſe" contra aliog r Clves. SPINE PO ER Ra gn,” Chron. Sax. A. D. 1086. e
. tenentes, guotquet Ie, vas t: cap, 52, Wilk. 10 580250
28 5 N 3 ce < . oY * a | F : 5 N * 9 3 « „ . Th ” 7 22 - * - * ” b n * 8 r & * * 4 7 7 * * 9 2K * 4 : 888 £ Wt 2 39 7 . N 5 „ * 25 Fg ; \ 0 I 3 Wok _ 2 LT = 8 1 ; $ * A Fe: N Why 1 8 £85 [ey $75.6 75 PPPs + 8 Nn 9 ELSE 3 % ao by * F. 8 0 N Ne Fa vg a 2 67 3 Ys & . F : * 0 "Rp 7 K abr 3 oY, 75 N 3 * „Wes 1 8
e e " b OA WH 7 *
(phenom + 4
The RIGHTS Boon II.
. o "7
«contre inimicos et alienigenas dgfendere. The terms of this law
ir Martin Wright has obſerved *) are plainly feodal: for, firſt, oath of fealty, which made in the ſenſe of the feu-
it a tenant or vaſal; and, ſecon their lard's territories
'titles againſt al ener foreign and domeſtic... But what te i of the ſame col-
x
all the lands in Egype, and zranted them aut to the Egyptians, reſerving an annual
,
I Monteſg. Sp. L. b, 31. K. B. . > render of the fifth part of their y ue. (Gen, dominion of C. | 4 In
| = "NS 2 94 {7 x
— x: 75 nd "pi
3
5 My 5
on + — — i
oY
of THiNGs.
| Is conſequence of this change, it became a fundamental maxim and neceflaty principle (though in reality a mere fiction) of our
tenures, that the king is the univerſal lord and original
| dom; and that no man
at has ately or
him, to be held upon |
in pure, original,
mY
whatever their meaning w | | rent conſtruction to this proceeding to introduce not only the rigorous the duchy of Normandy, * ſuch hardſhips' and ſervices, as we her na- tions; as if the Engpliſ} inn fact, as well as wens owed | of their ſovereign lord. :
a by no m | but had barely conſented to this fi n of tenure from | as the baſis bf a military diſcipline, with reaſon loo
«ay.
1 uctions as grievous impoſitions, and arbitrary concluſions from Principles t them, had no foundation in truth *. However, R 4a" ET OP nn PS © + 0 9 OE 8 1 FS
= Spelm, of feuds, e. 45.
*
1 *. [ok a P. e
I ttat the acquiſitions under
| 82 {_-- „Adu Boox II.
a high hand all the rigours of the feõdal doctrines: but their
ſucceſſor, Henry I, found it expedient, when he ſet up his pre-
= _ tenſions to the crown, to promiſe a reſtitution of the laws of king Edward the « , or antient Saxon ſyſtem ; and accordingly, 1850 in the firſt year of his reign, granted a charter*, 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 broke through,
and the former grievances were revive and aggravated, by him-
8 "ij in 10 intolerable, th
barons, or prin-
aipal feudatories, to 1 2 which at length produced the. mous great charter. at Runing-mead, which, with
| dered, will ſhew, not were ſmall, but that thoſe under Charles were greater. And from hence alſo
e rence/ rties of Engliſhmen are not (as ſome arbitrary urriters would repreſent them) mere infringements of the king's
7
| prerogative, extorted from our princes by taking” advantage of
ut a reſtoration of that antient conſtitution; | rs had been defrauded by the art and fineſſe of
a their weakneſs ; . which our anc 5 the Norman lawyers, r Nay |
> JJ ins ᷣ ¼dũ... 8
** % *
5 * 1 - > py x - n * . - 4 « . ” ? Fa 3 "I, ö £ 2 „ a 6 - ax . Wy -
8 5 15 . , * 1 Y ”
Haie given this ſhort hiſtory of their riſe and progreſs, | | we will next conſider the nature, dodtrine, and principal laws of 3 ſeuds ; wherein we Gall Lan: trace the groundwork of many
. parts of our public and alſo the original of ſuch of our
j . : ; iv r 7
7. 5 | CU BL PPT SS OI 8 | „
—
* | 8 | 1 5 r THINGS. . 63 - _— | own tenures, as were either aboliſhed in the laſt century, ge ſtill 1 = Tux grand ànd fundamental maxim of all feodal tenure. is this {On all lands were or y the foyere! gn, B he Santo ee calls he propril 2 he wt tithe dominion-or ultimate property EE 1 fee: 1 this grantee, who had only the ufe and poſſeſſion, „ = ' cording to the terms af the grant, was ſtiled the feudatory or - e vaſal, which was only another name for the tenant or holder of 1 the lands; though, on account of the prej judices we have Juſtly conceived. the doctrines that were 4 8 0 N 8 this ſyſtem, we now uſe. the word vaſal opprobriouſly, as yno- 1 nymous to lave or an. The manner of the grant was by s . words Sx gia and * e 25 et conceſſi; which are =_— | Sent or deeds of _ | d by the ceremony of « | „ = hve |
of the new acquiſition, at a time when tl ks of nt Was 0 1
7 ani therefore the evidence of property was : q e 1 2 memory of the neighbourhood; Who, in caſe of © - „ diſputed title, were afterwards called upon to decide the
according to external proofs, adduced = litigant,, but alſo by the inte
*
4 7 A is * _ * bas #- of S . * + - ' f n 8 pO * 3 .% - a j : — { s A. OY BR, hr f.$ OP : A . Ne ; by F +
s an oath of fealty;: or
= 5 which was the ing of. our bath. e vaſal or te: I EE ww 2
penly and. - = 45 12 and holding up his. _ 1 hands both togetn een of the lard, who' fate before him; and there prpfeſſing that he did become his man, from f 1 that day forth, of life im hly —_ N de received a kiſs from his lord 4. ; deno- 5 1
d. Litt. 8. 85. :
a
'Whi
. OR 898 W Lhd
- ”
_ = * * on a * ” 5 * * Kt * * — ww * ” o 8 . * — * 4 8 - > *%. * * - r * - . * bh Os 2 v # : ri * N ant * DB - * * N \ : * 2 —— Y — % we o i 8 * bo a 15 2 . 1 & x - - 24 \ . 4 k LE * 4* 4 As £ * 1 * 5 2 * 4 * - - — — 0 * * — 1 1 - ; r > - 4 * * A ” E > y : * * oy » o * * . 2 * 8 * 8 # 7 *
*
form of words,
2
by
*
W
pure 15 Incorrupt | as Among
agium, ot man
preferyed fo children;
1 8
ood, by the feudiſts, from io wveſter homo.
thus. profeſſed deration was concerning the
1s armies or
The 10
1545 of Julias
effectual juſtice to all t to anſwer ſuch complaints as
s Pollux, Onemanſtic. I. 9. c. 7.)
fe udatories: : and therefore
into . courts
s court ſtill reſerving to them- t every feodal government) the ri
of appeal
ate courts i in the . reſort. The military Hiſted ir the lord ** the e 1
| whoſe games and plays ave delivered dow the ceremonies and language of feodal ho-
invariably from one generation to another. mage are p (Warburton's notes on Pope. vi. 134. $9. 1 it may be thought puerile to ob-
*
, *
reſerved * great exactneſs. eud. .
„*. ve by 1 2 b 8
——
= — =
— — - a
— 4 1 32
N. 2 RES
*
ol
*
2 -
* R
" > of THINGS. 55 i | EO as were 2 12 at the firſt donation, i in proportion to the quan- 1 81 Ar the firſt introduction of feuds, as they were gratuitous, ſo __ 43 alſo they were precarious and held at the / of the lord ®, 'who © | A was the ſole judge whether his vaſal performed his ſervices faith- _ | - ll fully. Then they became certain, for one or more years. Among N 8 =_— | the antient Germans they continued only from year to year ; an _— annual diſtribution of lands being made by their leaders in their k 0 general councils or aſſemblies *. This was rofeſſedly done, leſt 1 be their thoughts ſhould be diverted from wif to agriculture ; leſt” — - the ſtrong ſhould incroach upon the poſſeſſions of the weak; and e 55 | leſt luxury and avarice ſhould be encouräged by the erection of _ anent houſes, and too curious an attention to convenience „ 1 and the elegant ſuperfluities of life. But, when the general mi- | - = 2 | gration was pretty well over, and à peaccable poſſeſſion of their | - b new - acquired ſettlements had introduced new cuſtoms and man- 3 ners; when the fertility of the foil had encouraged the ſtudy of | _ _ Iry, and an affeQion for the ſpots they had cultivated be- —_— bn * gan naturally to ariſe in the tillers; a more permanent degree of 8 _
property was introduced, and feuds began now to be granted for 5 +7 33 4
the lie of the feudatory*.. But ſtill feuds were not yet hertul rary; 1 5 1 | though frequently. granted, by the fa he lord, to the r children of the tor 51 3 till in . 5 wn
© unuſual, and was t erefore thou,
be were capable to perform the ſervices ** 199 Fon 1
| women, J profeſſed. monks, Who were incapable. f bearing . = ; _ arms, were alſo incapable of ſucceeding to a genuine feud. But = the heir, when admitted to the feud 1 hich his anceſtor poſſeſſed, | | _
8
uſed N to Pay a fine or "acknowlege ment to the lord, in * =
8 Fead. L1 „„ | © ann0s ; fagabes nah er cognationibus 3 2 1 > Thus Tacitus: (dt mor, Germ. c. 26.) . © minum qui uma coier unt, quantum tis et 7 ; 5 | E454 ͤ -
| Laer. ab univerſis per wicts occupantur.; arva leg ellen oft, attribuunt” pri, aque as — oe per annos mulant. „ And Caeſar yet more *pof alid traufire cg. Ks : =
| fully; (d bell. Gall. 1.6. c. 21.) *Negue Fund. I. 1. f. 1. V 5 EE. = | « quiſquam agri modum certum, aut fines. pro» * Wright. 14. ; | mn. 8
«pris: habet; fed magiftraturet princiger, is 999
*
e sur; Boox Ik
6 horſes, arms, nioiſtys and the like, for ſuch renewal of the fe which was called a fxelief, becate it re-eſtabliſhed the inheri | ance, or, in the words. of Ya — 4 writers, 00 incertam et cadu e hereditatem re s afterwards, when;
N feuds became N on the death of the
> * - -
4 0 ©
A ” "vx Ke * . *
8 :
grees to be univer- of the firſt vaſal, .to his ſons, or ze lord ſhould name; and in © this caſe, the form of | he d bon ictly obſerved: for if a | feud was given to a man $ ſons, all his ſons ſucceeded him 7 as they died off, their ſhares reverted to d not deſcend to their children, or. even to their | ſurviving brothers, as not being ſpecified in the donation '. But 91 a feud was given to 4 man, and his heirs, in general
X 09g then, a more extended rule of fücceſſion took place; and
wa
ed, his male deſcendants in inſinitum were ad-
*
- —
en any ſuch deſcendant, who thus eeded, died; -his male deſcendants were alſo admitted i in 5 the firſt place; and, in defect of them, ſuch of his male collateral ed as were of the blood or lineage of the firſt feudatory, 8 s Was a rable m in feodal ſuc- © feud, but ſuch ended from, the __ , *< firſt Teun And the de being thus confined to - - males,” oxigindllly extended to all the males alike ; all th. without ut any diſtinction of primogeniture,® ſuccee: lin
N he St th xEr's feud. But this beine upon many EE inconvenient, (particularly, by dividing the ſervices, and
4 antes the ſtrength of the feödal union) and honorary
5 nob bility) being now introduced, which were e f a Avifibl only be "It aherited by the „ ation Military feuds (or thoſe we RT, are oy ek wy beg in alſo in moſt countries to deſcend ac-
: ; 7 3 1 Wright. 17. | Fig 0 5 a Feud, 4.785. X SCRE „„ TT 9 „%%% 3 e N cording
\
ch 4. 85 1 Tü net 1 8 57
cording to the ſame rule of primogeniture, to the eldeſt ſon, in excluſion of all the eſt. bh
- {5
OrTurr thnaliches of feuds were; «hae the feudatory could not aliens 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 his poſ-
terity 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 pro- tection, 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 con- ſent of his lord 4: it being equally unreaſonable, that the lord ſhould extend his protection to a perſon to whom he had excep- tions, and that the vaſal thould owe hooked wings to a 9 not of his own chooſing, _ LEVY .
IT ESsE were the principal, 44 very Supi qualities of the genuine or original feuds; being then 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 redi-
tus, were the original of rents. And by this means the feoda!l
polity was greatly extended; theſe inferior feudatories (wha held what are called in the Scots law © rere- fiefsꝰ) 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 in-
mediate ſuperiors or lords. But this at che ſame time demoliſhed „ Wright, 32. „ ; q 2 30.
P Thid. 29. | r Wright. 20. 885
+ Los * 93
* * 8 * 7 N " * 0 | : « terns Af, 8 * % wx 7 NR 35 . F ** > er A a 6 N of 5 0 * 1 ' i A * 8 J.. AA . 3 as N 8 3 AR e 6 * xs N 1 S * * x IS . * 4 * aff 14 1 * „ a * * 4 r UT v * » o \ . CCC oo nn RE Ee — F VIS TW N 5. 25 9 * 7 . I 9 3 5 n e . * FELL 8 wa = CRISS Fa wo 9 1 n AY 9 4 N 8 8 n 2 * 0
n
by Le n * 1 = 1 n 8 BLESS an bet Sg * 83 FN s. -» r * 1 : a 11 + L * de 6 * 74 6 Fre N K 4 by e TY 2 © A - . * * . * * 1 . 2 3 F 2 * * ** OLE ab a N * 0 Fa» F343 ne 282 Y a * 4 2 1 * N N 8 „ 3 Ie "i N N 28 r 7 0 q |. G f 4 7 —% . : * 8 ö KH, N 0 : = * * n fn — * * _ v * * 1 * „ - . * * * * F Re * n * £ ; N - 5 8 WITS, Fo. a 5 9 - ol” « WE 2 — * : - 8 8 44 -
Is : : 2 ; & : . 2 1 ; IS * of * . P W. f —— Fl F 41 * * - ? 65 R 0
. the antient ſimplicity of feu inroad being once made 5 N upon their conſtitution, it 3 them, in a cou of time, - 8 to EE varieties and i : 4 * Hence theſe te in, now. to be 1 inte 6 . | et i OPS feuds ; under the former of E 0 erer and fuch os of which 5 | er. | . ch as were "held, upon b | „or upon a rent, in ee, themſelves à : 7 28 05
rent e 3 oduced on the landed-property following chapters.
9 5 1 * Feud. 2. . 2. . 1598;
=: 55 > nbd: 3 effect it has A uf Eagland w.
*
the lord r Te 13
# 2.
* * bd f * * * F ay * * * 1 2 * T's ” \ N *
* S* ä 8 * . A N * 22 * * * 5 — * Ld * * 1 „ 4 : * * 4 8 5 4 — * . 29» * y * * * * # 3 2 ' Ds 47 N $*...- EE on was 4 ; a 5 Be 94 * *
N this 1 we mall take a ſhort view of the antient tenu tes, or the manner in which lands, tene- been Holden; ; as the ſame
- oz
0 In which we
„ dex endent upon, and in confideration of certain
Ar Mos T all the real pro icy of our laws holden of ſome ſuperior « ſervices to be rendered e thing holden \ tenants, and the
ie
or immediately, TR he king; 2
were Aled 3 or king granted a f the land to B, now B was
% T a ol : * 2 „ ' 5 7 * . * * N . * | F * * . - - * 4 * . * 3 5 25 6 * S — *
C
bio LY
AE
5
— of A,» and A of the king 1 on. in other words, = : 2 of > but 6 e of the king. De —_—_ ee A was bath tenant
92 „
5 | Ir mer are a =_ which are in i - oke, in che law of Engl have 1 which, we have ſeen *, , Is the name 50 .
5 * to ſir 10 at: pro erly. al
1 ſuperior.
* If » 3
8 . - * LY. N j T $$ *
AL L tenures
Y © 3 IL4
ſome. . * inferior Fane #
% * 8 d . & > NN ; r 2 f 4 * * > : « p 2 3 |
x
ibſiſted among our anceſtors four
as *
8 ths grand criteria —_ veral ſervices or renders, =, „ tenants. The
* which were the natures of the ſe⸗ at were due to the lords from their
* Nax 4 "ut;
*
ices, in rel ect of their . valit) „were either
Wo. „ er or baſe ſervices; in reſpect of their. Jual nd. the time —_ exacting them, were either certain or uncertain... Free ſervic 8 „„ | not unb the charaQt ter of A ſoldier, or a free- oy ; g ; 2 , : - | 5 4 i oe, GY . | poi 8 5 £ e | 3 | On”, imperial - cities, Se, which bold ealy - | | | 3 * 1 Inſt. 3 from the emperof, are called the immediate 1 | ET OLE TN "Kites of the empire; | dholders
A An the Germanic conſtitution, the dec- being denominated mediate ones. Mod. Un. op | | | tors, the: biſhops, the ſecular princes, the Hiſt. xlii.
* u + o 7
* 5 TIE — . SN TY,
G i»
cies of lay tenures, to Which all others may be re-
6 ¹ man, to perform; as to ſerve under his lord in the wars, to pay à ſum of money, and the like. B, aſe ſervices were ſuc fit only for peaſants, or pe ons of a ſervile rank;
the lord's land, to, make his hedges, to carry out
as were as to plough
18 5 | | 4 x * 4s #5 8 * $ 7 T3; 9 — | 35 K oY 5 2 « 1 , r * - * ty "I $%q r
* Es Ws 8 r
endious gccoup ©; of ch the e following is
Pf! e nt are of. two, kinds, tr, &-tengment, - and 45 villenage. And, of frank- tenements; ſome. are > held. freely in _ * conſideration of 3 and enight=/ervice
in 5 0 of vilenages
« ſome. are pure, Linn others, d e He that: holds in *
*
: firſt,
a W
- %
0 L 4. tre 1. e. 28. ee f Tenementorain alind — * il quicguid r. 1 er ſemper tenebi- nagium. Tem, Iiberorym aliud tenctur libere tur ad incerta. Aliud genus villenagii di iturs pro homagia et fervitio militari; aliud i in libero villanum focagium; et hujuſmodi wvillani foes - ſocagio cum fidelitate tantum. $. 1. Fo Fe
FP * 1
„ manni-—villana, faciunt ſeruitia certd er. 8 Villenagiorum aliud bern, alum privile- determinata, T4 " pe _ : Ah
-
*
L 22 a+
* perſon, or . . 2 ® f 3: or-to wind a.
K we? * 2 7 * 4 * - . - — * * * o 1 - * K x Bye * ORE. * * | 5x tb I >. 6k : ** * 455 RB —_— + $4 N 9
— £ IJ . y 9 8 4 4 *
* i nn . * 3 «AE . 9 05 * * # *
2 3 \ > \ *% > 6g" — * A tt — \ 2 } ns — 2 |
3 3 — 8 = . .
# 2 5 * 4 LIE K * * 1 % — 1 = 5 * * % ab 4 * N 83
o o o * 1 LIN o
A ö run we g
Ty
a
"only free,
-'
62 Wes lt 4 KN ts,” al; 5 mcertarn
tenure was.
IE
2 * -
„ not on
e conqueror, was: 3 l * 3
0
to hold. If he held only half a to attend twenty days, and ſo at this ſer-
3 N
o 4 —
fn e. 2.8. 27. \ 4 * * N 4 15 * 2 7 S's
7 Stat. de milit. 1 Edw. II. Co. Litt.
« —
r 16 A * i. r F 3 F
. *
A
„ 1 „ e e is a
years
| whole that our anceſtors meant to ſubj ect themſclves | = "I
Juences of this tenure A oh frau- | bo
1DS were original s lord, in times 4 es ö
inted by the te- and diſtreſs o; ; but in pro- 28 a matter ft n 5 three: er; a neceſſary
4 2 4p, | vie 22 A
conſe- | quence of the Koda attachment: d fidelity {5 -inforauch that the neglect of doing it, whenever, it was: in the Prue PAs. Was, _—_—
dates. Secondly , to make the lord' ho old elt ſon a knight; a mat- | — ter that was formerly attended with great ceremony, pomp, and _—_ expenſe. This aid could not be demanded till the heir was fifteen . „or capable of bearing arms 1: the intention of it b- - ing to breed up the eldeſt ſon, and heir apparent of the ſeignory, * _- to deeds of arms and chivalry, for the better defence of the na- —_— tion, Thirdly, to marry the lord's eldeſt daughter, by giving __— _— — a ſuitable portion: for daughters' portions were in thoſe days 0 1 extremely ſlender; few lords being able to ſave much out of Po 8
-
Co. Litt. 9. eee ee woluntatem deminorum. Brafton, 1. 2. 1. . | Auxilia fiunt de gratia et non de jure, — c. 16. F. 8. . cum dependeant ex gratia tenentium et non ad P Feud. l. 2, J. 24
1 z lnſt. 233,
—_— ntient ones above- mentioned t this. proviſion was omitted in
_. . Henry III charter, and the ſam oppreſſions were continued till
—_ 25 Edw. I; when he ſtatute called confirmatio chartarum was enacted ; whie D ot tl ie raſpect revived king John's charter, ordaining hat none but
Was thus e eee Jet the we.
*
. 37 1
*
» Philips's life of Pole. I. 22 3. 8 ſluuionem gratuitam pecuniam erogarent ; et ab +», Brat autem haec inter utro/que officiorum hoſtibus in bello captos redimerent, Paul. Ma- viciſſitudo, = — ut clientes ad collocandas ſenato- nutius de ſenatu Romano. c. 1.
in aeris alieni diſ- * cap. 12. 15.
».,
1 — ON — — K ' # | 8 F 1 * A 4 4 WOK, Zen p — ve” © "eg \ * » p de —— 2 * eser Pr ting _ N — en rr a ——ů—
M
——<——_— er-
of x — 8 eat being not in it's nature capable of any cer-
* 2 23 l a en Rall. Abr. 81.
£ 3s 8. J
EIN
* 3 N
Ip
t thoſe who held of inferior or h the had, rh 5 any of the
»
{ iS It
i
—
Pf „ F +. + FI GS PIES * * e 25 8 1 *
a feent- 528 Glanv. FA 9.6. 42, Lit. Fatris mei, ſed hgitima t Co. Litt. 77. juſta relevatione ralvabit cam.” C Tear. * Feud. l. . 4.4. ibid. * "Roffens. cap. 34+ „„ e © Stat, Marlbr. e. dy 17 kay. It; c. 3.
41
or fourteen, | being a fen let, he lord was intitled to t h of the heir, and was cal ed the guardi: in chivalry.
This lands of
* 1 *
*
* by ; 2 b * *
of the ariceſtor
>” M44
*
the heir-ſemale of
F Staundf, Prerog. 42. 5 Litt. $. 10z.
fd. £9. „d.
2 at
—
be of age to perform them
H enry I. Dee which took this c
9 Hen. III. c. 3.
* | 7 *
ſtody from the a * both of the lad and the 1 next of kin! But thi of their Al fekefs,
5 = Hoveden. ub Ric. ue? e „
*
as & ſtipend, fer, or teward
Co. Litt. 77.
11 4 + . „ AS
n
S
'Y or ti je | x y eBuſed, and
4
proceeding that came in proceſs of time 2 8 E at length an intolerable 5 5 z It 71 one 0 accu | ſt Empſon and
ions 8 — 4 "© « eme, who' 15 no means
B 4
-
F f
4
2 "IM 5 8 i *7 2. „
4 «© Ty ipfo concilio wt principui ” vel parer, vel proping 1
4 £ wx 4 F be.
4 1 * 4 0 4, A 1 1 . . . . 4 . # * * 4 37, e $ LY 8 ws " A F - = . 47 * „ 7 2.67 7 | "7% N 8 f 8 1 0 * 17 a”. 2 wg % fl 2 ane ae 2 l . ARES Br . —
725
9
*
*
*
*
7
”*
*
*
th
as bt
rig
vw ”
mean
£
*
*
orĩty
P
>
Se
g - — SE l
OAT —
= 4p-c- 7
Ay Lon dn
* Stat. M
£
H
t. §. 110.
mY
F
%
%
4 4 ; | 1
- 2
- Wag ph 2” Fc
£4
* 3 a -latl
r
—
ns ſtill ontinuing to trary unequal manner, it Was p ter, that heirs ſhould be mn of kin haying previous notice of the preſſed in the firſt draught of Mat ntur, er 2 5 . yr
ds in a very arbi- Jo hn's J great char-
Sie a6. edit; 0 y cap. 3. ibid. A cap. . ; e | Ga
49.0.9. & 1 & 1 „% "5 OF
* * I
. LY — 1 * © * 8 * 23 = . 8 yy” x 8 py 4 . . [x W + War et Fo 4 7
45 * 4 _=_ N,. * 8
hp
Ng a
1 FE my
7
—
EP n
*
out 2 licence: but,
|: \F x
BB
param
"TOY; "IR
lained 455 th ifſion of treaſon or =q 22 every i - heritab ity was int rely blotted out an
: 770 „„ 7. 1. 66. 1. 1. e. 1. 6 ne.
iz ; 6 K 1 n Nr r .
. N .
7 6 {NF es «y Dt 6 . * % N 2 . 1 N * 1 2 - 3 N 25 * 7 a » F FP] 1 £ \ , og A F C is. 4 \ 2 1 A N 5 * R y * * , 7 p 4 D 2 * * "MF "TY F 8 L I " ** 3 Py . 2 8 s ws ib 1 0 „ . „ „„ . 8 > WR ood ty 5 . "Tag P 3 4 N 7 e E e * „ a W. F » i - . * * * o 8 « +» . 1 p 9 as = OE * . me 10 . bo 4 , £ ' x; SEES Fx * by 2 | oC, * 2 . 91 * 1 * 1 # * 8 af kc * * . - : - p 1x
K. * * 3 . ha » k IPL} * P * 14 * * * P ! \ Pp " 7 th . 5 1 | nb 5Y
4
>» EGG *
*
- —
4 8 4
AE. r 5 SIO VEL, Jo revs T6” p OS ”- 5 4.5 ? 2 - of — 1 — 3 Fo ED 2 * . = = fe. 1 y
*
. of Taro. | Fe 73 | | _—_ caſes the land eſcheated; or fell baek, to the lord of the fee i; that is, the tenure was determined by breach of the otigital | g "I condition, ' expreſſed or implied in the feodal donation. In the £ one caſe, there were no heirs ſubſiſting of the blood of the firſt | N 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 4 vaſal, having forgotten his duty as a ſubje ; and therefore for- 1 feited his feud, which he held under the implied condition that «© he ſhould not be a traitor or a felon. The e of which k Wy ., in both caſes was, that the gift, N determined, reſulted back „„ 3 to o the lord . F it“. N 97; 5 | Tu ESE were the oifivelpal cualities, Fats, 104 e ee ; "3 of the tenure by Enight-ſervice : a tenure, by which the greateſt os "M part of the lands in this kingdom were holden, and that princi- „ 4 pally of the king in capite, till the middle of the laſt centuty ; | . * and which was created, as fir Edward Coke expreſily teſtifies !,. — for a military purpoſe ; vis. for defence of the realm by he king Ss own principal ſubjects, which was judged. to be much bet- „ ter than to truſt to hirelings or foreigners. The deſcription here | 1 given is that of knight-ſervice proper; Which was to attend the Z _ +, king in his wars. There were alſo ſome other ſpecies of knight= a | --, ſervice; ſo called, though improperly, becauſe the ſervice or 8 85 * | render was of a free and honourable nature, and equally uncer- 8 1 tain as to the time of rendering as that of knight- ſervice proper, | a and becauſe they were attended with fimilar "Gras and —_— 1 quences. Such was the tenure by grand ferjeanty,” per magnum A. . bu. .. ſervitium, whereby the tenant was bound, inſtead of ſerving —_: ä king gener ally in his wars, to do ſome f pevial honorary ſervice to 7. I Room the king i in perſon; as to carry his barn his ſword; or the like; f 3 or to be his butler, champion, or other officer at his coronation a 5 Rm te ine Other aiporg Hikes e „„ 1
A
* * A WE
—_ * 3
. k Feud. I. 2. F. 86. FEED. | us 13 My 18 5 4 4 8 | 1 > E718) / F 1 os 192. | | 8 . "Ie Pr ng SG "ARTE:
"ey 3X £234 1 4 "38 BS by 1 ä „ 6 a * 0 4 2 3 3 7 0 n * A I! iy 1 4 4 if 2 By L 9 2 5 1 3? 8 8 : | 9 4 70 ** 3 % 5 f A 8 * a N . . * * 4 L oy wth 1 A 3 4 1 > -. EY OE. ; # . OTROS — S — . c 4 I EI 7 A ; 4 : *. ; % | ® f 5 2 , 4 + + 7 *
hart . 3 N 4 F N 28 * 2 3 q * . STATS 4 8 r 72085 , 5 \ 11% þ 4 N 4 3 3 1 * > 8 5 e * 4 N 5 * 2 e $ „ 2 * E 4 3 2 DS 45 ; * A 7 5 ” a: PT bs % oF * BY ** 3 * ; * by 5 A © Had _ * — ke * a % bg Wot Fa N 9, * 1
45 | | f , 7 0 ö 5 Js N 3 — 8 a „ * 1 * + — 4 * %* 3 7 n 4 7 75 { £57 © tle 3 \ * ” . 2 2 2 \ 2 25 : + j * F bY * >" of Fa ade g p 4 4 N | g : a I 3 1 x; 34 F 3 A 2 "1s. AN. 0 <4 7 Fe 3 0 ** 55 ; i ** : Boos? - I + 193 4 #4 ja) 4 * * 2d : | . , 1 f ; ; 3 q 15 1 | Jos ; * * q "4 4 * . a” * . 5 F; A * 'F "Wc 1 A 4 E 2 . - *. e a a % 2 : e 1 ? = N N 3 = « 2 1 [ON *. 2 $ I 0 p 5 * 1 + As * *! . 1 V * p : Sens ot 8 q 4 1 i 4 3 be * ; * od ' 5 4 , * AP 1 ; 7 I % * 4 * 4 oe : 4 IX 9 ; be , 4 | 3 F% | | MM: * * Fa N roy : 4 n » . * ke $4 F $3 4% 4 : \ þ . * 1 x + x b "> * 3 . . 1 vt ® PF 3 1 1 * 8 4 * of * 3 29 * Y ** CM * . | 10 | % N 5 Ko k A ; ö ; . r 3 : e ; * 0 4 F i a 1 gd * 3 ie > | „ | 1 8 7 e 18 * 8 8 „ Mg 9 "a n 2 2 * . ” . 5 TH. ; . ug Oh "3 f 8 * by : þ wet | | 4 2 x N by « | ry - 2 * h — * , 7 4 , 2 5 j 4 7 9 . 75 22 . \ ; 8 8 g 13 ry 2% jb n be et SES VM by = % oth * / $5. * + «OY. p * 1 ; : F * * 1 — 5 * 3 8 FR : , \ n £5 "oo X 5 * 571 ar. 5 , L , : er : Ty * * 4 . 7 4 24 3 1. 8 ; 1 e _—_ J 5 5 ; ; ;
: 4 oy Cad 7 Lo 2 4 4-4 . 2 * £ 94 * ; 2 "oF C ö 8 2 * 5 . 8 15 — - * 1
. th. 4 4 ; 1 5 1 . Ae 2 1 wy —
D p
Ws 8 3 2 1 * Va * 2 5 IS (IDF
enn . 7
=
RO
3
*
.
3 4
| or little \, \ . Tenure by cornage, which was, to wind a horn when
EN NA .
9
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 of it. This
ſeſſments, at ſo much for every knight's fee; and therefore this
in like manner it was
2 Book IE
ſcuage?; and, when tenant by knight- for a relief on every knight's fee, tenant one year's value of his land, were it much
ſerjeanty
the land, in order to warn the ices of the ſame nature) a
Ke
a p * 3 1 . 8 Fe: : : L * N 8 « 5 . Pp 4 8 * 4 W : 5 4 - 4 7 en +34 $ * ? * . L 2 - $, — ” * 2 *
Tu 282 ſervices, both of chivalry and grand ſerjeanty, were Ul, and uncertain as to their quantity or duration. But, attendance in knight · ſervice growing troubleſome
all
ieu came to be levied
iary ſatisfaction at
kind of tenure was called cutagium in Latin, or ſer vitium then a well-known r e of money: and. | French, eſcuage 3 g military, ſervice. n aa Tay the 5
firſt time this appears to have been on account of his e2 tion to qulouſe ; ; | but it ſoon came to be ſo univerſal, that p 1 ze fell quite into diſuſe. | Hence we find i in our antient hiſtories that, from this period, 9 when our kings went to war, they levied ſcutages on their te: nants, that is, on all the landholders of the kingdom, to defray
and to hire troops: and theſe aſfeſſments, in the | yl, ſeem to have be made arbitrarily and at the | ch prerogative being greatly abuſed by his | it became matter of national c r, and king John | was obliged-to-conſent, by his mage carla, that no ſeuta
be impe ed without conſent of parliament. But this clauſe was |
LEY in his ſon Henry IIEs charte , that
9 U Lin 6. . „ wifi per commune confilium regui noftri. .cap.12. | . 1 Litt. $- 154. 8 8 cap. 37 | 8 ‚ |
"$9106. . sss. „ ſcutages
gs - . 1
but by 1 the ine. a tm,
* tenant Is — eee to th
45
e vel. I. pag. : = tit. Baur. : : by 85
raiſing money to pay an ar- he mean time the families of under the intolerable burthens,
fiction adopted after the conqueſt)
. ; g - = y th | Iv 3 1, par i; ng ; — 4 | 8 by the king or lord paramount for aids, whenever his eldeſt ſon a ft not to for-
Pre
.
3 7 ing James 1 e * 75 2 Proper
—— — 5
*
n N : 13 A. - We "ay. 4 * 6 £
B IND} 3 a EC MEGLAIDIOSL {4 Das ne equivalent 1
— —
How
»
. * *
2 Fo x
E >a
—
to
equivalent to aboliſh them all; th to effect: in like manner as he had formed a ſcheme, and began it in execution, for removing the feodal grievance of heret-
77
the plan then proceeded not
able juriſdictions in Scotland i, which has fince been purſued and effected by the ſtatute 20 Geo. II. c. 43. King James s plan for exchanging our military tenures ſeems to have been nearly the ſame as that which has been ſince purſued; only with this diffe- rence, that, by way of compenſation for the loſs which the crown and other lords would ſuſtain, an annual feefarm rent ſhould be- ſettled and inſeparably annexed to the crown, and aſſured to the inferior lords, payable out of every knight's fee within their re-
hereditary
ve ſignories. An expedient, ſeemingly much better than the exciſe, which was after wards made the principal equi-
valent for theſe conceſſions, For at length the military tenures,
Nes all their heavy appendages, were deſtr e ee 12 Car. r 2 5 e
(20 Geo. II. we ah tenure. of werdbold-. 8
1
— 3 Bhi 55 e | dank N even magna carta itſelf: ſin luxuriances that had en out 2
be fame year
are — 46} IR IN
7-45 | ih 12 155 5 5 I. £4 . | ing. (eqninglent to, the. knight-ſervice of England) | 1s for eyer aboliſhed in Scotland.”
" 5
1 * af I * 5
1
1 % OY N Þ K RW 4 $ 74 4 * 2 N
. * $3415
at one redn
Fthis kipg- e that, my Aa abe.
2 * —
i
Lt KI nbd: os;
$a FX 5 . os
\ THz MODERN E
* bers Vw ; 8 8
* \Þ 46 X 415 . EE Pp 2 * 2 N . $4 3 det 2 YL J * it 4 5
tenure, or that it by knight · ſe honourable ſerv
N
or not —_ mhle to this day, but has in à manner ab- nd ſwallowed up (ſince the ſtatute of Charles the ſecond)
* p * 53 +.
* N 1 Le LE UP
2 *
eee * nn 88 —
<« militare.” So tod the author of -Fleta,”; ex donationibus ſer-
en where the ſervices are not only certain, but honour-
£ * J 5 f * 4 4 Ly * 4 . 18 * a 1 — 8 4 = - = FU
ö N 3 * ps *. n 2 *
WA P 4 4 — * M A LAGS N 2 "2"; $4 87
almoſt every other ſpecies of tenure... And to this we are next x to proc. ee ee | _
II. SocAGE, in in it's moſt general ah extenſive fignification; Fox: ſeems to denote a tenure by any certain and determinate ſervice. And in this ſenſe it is by our antient writers conſtantly put in op- poſition to chivalry, or knight-ſervice, where the render was pre- © carious and uncertain. Thus Bra&on *; if a man holds by a rent / et. 72 - in money, without any eſcuage or S ee tenementum dice « poteft ſocagium: but if you add thereto any royal ſervice, or eſcuage to any, a ſmalleſt, amount, allud dic: poterit feodum .
« vitia militaria vel magnae ſerjantiae non continentibus, oritur no-
« bis guoddam nomen generale, quod eft ſocagium. Littleton alſo © | defines it to be, where the tenant holds his. tenement of the lord
any certain ſervice, in lieu of all other ſervices ; fo that they
* not ſervices of chiyalry, ar knight-ſervice. And therefore af-
terwards he tells us, that whatſoever is not tenure in chi! 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 cer | tain, in order to deno it ſocage; as to hold by fealty and
20.5. rent; or, by homage, fealty, and 20 c. rent; or, by homage.
and fealty without rent; or, by fealty and certain corporal ſer-
vice, as ploughing the lord's land for three days; or, by ealty
only without any other. ſervice: for all theſe are tenures in rage” 6
* }. %
* oy N * . — . % 1 + . 4 8 3 4 "Mx. * F 4 " , 5 , 8 * rk; 15 * % * A FA . ay 2 ; 9 % -' of a & 3 8 * } . 1 1
Bur 1 drag as was hinted in the laſt chapter, i is of two ſorts:
able; and villein- ſocage, where the au though certain, are
of a baſer nature. Such as hold by the former tenure are called 1
in Glanvil , and other ſubſequent authors, by the name of lief: okemanni, or tenants in Eo * this tenure we are firſt . |
F * R : : = J " 0 ; 4 + J. 2. c. 16. $.9. AE TEE © 147. | Fo 35 d | I 4. 6. 14. 99 | Liet;- 9. 117, 118, 0 FJ. 117. | | 5 PE 5 . 1. TN, e Yo Ya igt i 8 —— * 7 T ; 1 2 * 4 * T . / / * * a s „ , 0 2 . 7 \ . - o *. 454d >» * . 1 8 be \ 5 3 f 4 ) * 125 * & n 585 % 5 D ; f * | b — TO * k 1 ey 882 3 co . o 12 1 . ; 3 3 : Md 42 Bet GS es TE TT To 8 * * N — A eh 1 1 n 2 N "St ee as , 2 e e eee 4 eee Na — , "
5 5 1 4
. Ba * * e * „ 3 be 7 RT Of - ** 7 1 Et Y r 3 3 hy 1 M4 N * - 77 * * * 55 ws % pint F s * x * Wen +» S i N * 4 : 1 * 1 5 8 * ; * »% 7 * ng * * Py 2 » 4 2 e Lot. & : C A - , * 2 f | - 4 i * * * = * MN * 8 *
e 3 e * *
1 5. .- m Rien B00 l.
*
S by »
to iſp vand this both in dhe nature: of it's ſervioe, and the fruits and conſequences appertaining thereto, was always by much the moſt free: and independent ſpecies of any. And therefore * iſſent to Mr Somner's A of the word b; who 1 Joc, which ſignifies liberty and, being joined to a uſual termination, is called | agium ;" ſignifying th reby a free or privileged s.ctymology ſeems to be much more juſt than that | of our comman, lawyers in nnd derive it from /oca, | cena plough antient time tn vices of buſbandgy, ae IN tenant was: Wr | lough, ſow, or reap for him; but that, i in] | ' 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 ſocage or plough-ſervice*, But this by no means agrees | ) to hold fealty-only, for here i Is
ve” e eat; a 2 _ „ e WING.
= n
* *
* Fo
80 1
2 LES EC OT
on
8 o .
Ng 90 N
fore chat Jenomiriathd it; e tenure; and nothing ſure could be ua greater liberty or 3 than to have the ſervice aſcer- | tained, and not left to the arbitrary calls of the lord, as in the te- f Wherefore alſo Britton, ho deſcribes ſocage N tenure N the name of fraunle ferme, 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 tt reſpect | 40 EY neither homage, ward, marriage, nor relief can ec be Which leads us alſo to another obſervation,
= 9
. 5 Gavelk. 138. „ 3 . us * Litt. C. 119. * 5 E : | » i In like manner 8 in hjs-expoſition 1 e318: BELT i
of the Scots' law, title facage, tells us that © Litt. 9. 98. 120. e ur AM |
it is ** ane kind of holding of lands, quhen e 3 |
2. Oy man is infeft freely, Oe. 1 8 3 that,
$450 1 4 44 9 98 IF 4 a7 2 SEE” D , at ARA -
R 5 — n * — . 3 = 3 n reer oo N ta! * 2 by in 8. = . &,4 4% 8 a3 Wha 7 x 4% p 1 r we" 2 yy Re
uk if W were of weh baſe and ſervile 33 it is hard to account for the very great immunities which the te- nants of them always enjoyed; ſo highly ſuperior to thoſe of the tenants by chivalry, that it was thought, in the reigns of both Edward 1 and Hals I,, a point of the utmoſt importance and value to the tenants, to reduce the tenure by knight- ſervice to
ak ferme or tenure by f fairly conclude in favour of Somner's etymology, and the liberal extraction of the tenure in free et en th, ! even of Littleton himſelf. . e a Þ 5 N
o 7 * IP z
. F * 2 1 — 6 d + "© gen * 4 * * 7 3 £3 ETSY NY \ : * ve
Ta KING 9 to be the meaning of che Re it ferns te that the ſocage tenures were the relicks 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 ſane! time more burthen-
21
ſome, tenure of knight - ſervice. » This is peculiarly remarkable in
OS
the tenure which prevails in Kent, called gavelkind, which is
generally acknowleged to be a ſpecies « of ſocage ſervation whereof. inviolate from the innovations of the Norman oonqueror is a fact univerſally known. And thoſe who thus pre- | n their Ubeceles: were faid Ne in free and nn Poeage.
$5 * Þ 7 i 3 : 3 5 Fi 15 > E 15 2 . ; A +. * N ; , 35 23. 6 4 92 * > 5 Mg, 44 oF „ * | *
As Wan e the Boe cri 14. diſtir ailing K of this ſpecies of tenure are the having it's renders or ſervices aſoer- tained, it will include under it all other methods of holding free lands by certain and invariable rents. and duties : and; P, f han petit Jerjeanty, ter ons in bur gage, and eee, 1 * + . . VVT | Wi may N Pi by the ſtatiite 12 Car. II. cb 0 Jaa is not itſelf totally aboliſhed, but only the Qaviſh appen- dages 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 ferjeanty b bears a tes reſemblance to grand ſerjeanty ; 3 for as the one is a perſonal
**
by | „ Wright. 211. van; -- L
* + wg | 2 lervice, 4%; * *
age. Wie may therefore, 1 think,
e tenure?; the pre-
4.
—
— LE LEN
with 7 title of en ervitium 2 pubs or petit ee
nagna carta 83 it 11 ** N when
8 8
*
© 2 hs 1 5 5 5 EY M , * 2 A y ; : . 4 8 * 8 :
| bed by Glanvil*, and is expreſſly ttleton , to be but tenure i
| ſocage and it is where is lord of an an
ids which were 080046 the h. are held of ſome lord in common focage, nd Fr ſem. to have withſt
together woul# f. 2 ae Ege d: wh
„ bb. 2. cr. 3. $ $. 162.
tt. K. 162, 163.
* 5
225
5
7 Turn ds. 83
eſtabilhment, us che tenure in chivalry was. And here bk alſo we have again an inſtance, where a tenure is confeſſedly i in 7 ſocage, and yet is impoſſible ever to have been held by plough- q ſervice; fince the tenarits. muſt have been citizens or butghers, the ſituation frequently
* walled "town, the tenement a fingle houſe; ſo that none of tlie owners was probably maſter of a = Rh, plough, or was able te uſe one, if he hid it. The free ſocage Bn therefore, in which theſe tenements are held, ſcerns to be plainly f 1 a remnant of Saxon liberty; which may alſo account for the great variety of cuſtoms, affecting theſe tenements ſo held in antient
burgage: the principal and moſt remarkable of which is that 1 called Borough-Engliſb, ſo named in contradiſtinction as it were to _ the Norman cuſtoms, and which is taken notice of by Glanvil “, h ; 3 and by Littleton*; vx. that the youngeſt ſon, and not the eldeſt, | | ſucceeds to the burgage tenement on the death of his father. Hos . For which Litfletoh? gives this reaſon ; becauſe the youngeſt ſdn,
by reaſon of his ten age, is not ſo capable as the reſt of his © R p himſelf. Other authors have indeed given a . much 3 reaſon for this euſtom, as if the lord of the fee
id antiently a ri ght to break che ſeventh Ker ef et ais
was more certainly the offspring of the tenant. But Fo cannot 1 1 learn that ever this'cuſtom prevailed in England, though . yl
tainly did in Scotland, (under the name of merchera or e 1 till aboliſhed by Malcolm III. And perhaps a more rational ac- | 1
count than either may be fetched (thougr at a ſufficient diſtance) | REES from the practice of the Tartars; among whom, according to . e father Duhalde, this cuſtom of deſcent to the youngeſt ſon alſo =_— | prevails. That nation is compoſe ly of ſhepherds and herd. . == men; and the elder Ons, as ſoon as they are capable of leading r a paſtoral life, migrate from their father with a certain allotnent 1 of e cattle; and 80 to Tek a new * The youngeſt ſon _
N * 1 . 2 * vx 4 , ' e 5 $ d c y N = y ; 14 4 8 1 „ .* : 5 i 4 1 bf 4 4 : SY ö * ** 3
@ 1 w 77 | PET” „ * 5 - „„ 8 7585 . ITN e 5 5 tit. of hon, 2. 1. 7. Regs Mag. 1 | | | : ELL _ 00
278 ek? "2
* * 2 1 1 ? 3 8 ; 7 » J * a 7 4 * 6 wy Io
. = 2992 BY . KEE:
4 K L ; % 0 2
* 1 * * — k ; . 5 . 5 : F * 1 1 % 4268 RA Lond . | 2 therefore 8 5 | | p *% 5 * F : 1 N.
* N 4 £
Y * 3 ; L | : . N . 5 7+. , 1 4 * ol 6 * . Nan a a 8 . * £ 2 * * Sa 8 » 4 1 1 1 & x * wn ov * F ? , ? ; V5 F 3 N F 5 2 N r N + N Ka 2 Od he 41 * «i: ud GY N t a „ * * W ER 5 yo OB 3 ä on a [ en 92 1 e f BY 95 8 3 , þ 91 ” te b "a? * w N p # Pr 4 4 * * — 14 2 LO I In dÞ «4.5 * | > r * 1 y 2 a A 6s A — F oy 1 2 2 — D * . 8 1 9 ee 2 — * - £ — 8 . PE) (ove OR. & -
Pb eee be
of Kis houſe; the reſt being already provider fon Af ns
we find. that, among many other northern nations, it was the cuſ- tom for all the ſons but one to migrats from the father, which one became his So that poſſibly this euſtom, wherever it prevails, ma be the remnant of that paſtoral ſtate of our Britiſh and Gertnan anceſtors," which Caeſar and Tacitus deſcribe. Other ſpecial cuſtoms there are in burgage tenures; as that the wife be endowed of a/ her huſband's: tenements*, and not of the third part only, as at the common law and that a man might diſpoſe of his tenements by; will ©, which, in general, was not permitted after. the conqueſt till the reign. of Henry the eighth ; in the Saxon times it was allowable * . A pregnant proof
that theſe Uberties of ſocage tenure were fragments of Saxon
5 N ro *
argument. It is univerfal known what e 0 8 | AA. ſucceſs: n that we mee o and Ih to be 155
ure ** rs \ wad os . princi — | are ae. 10 The t N is of age ſufficient. to aliene his eſtate by feoffment x the age So, Hives”. 2. The e does not eſcheat in caſe of
5 N e | 4 wh wc JEW 7 Ha 2 bi) To e EY 4 25 Pour eundFos filias Fg 4 25 balbor. * is u ne, ate ducis 3 He- gaeter unum quem beredem Ju Juris i: geen, el uſitata alt: poſtes caeteris adempta, . (W, alfingh. We. Neafr. c. 1 * Jed priwaris quorundam breorum conſuetudinibas e Litt. F. 166. N alli poſtea regerminans : Cantianis ſolum inte- a „ Cra itt inviolata remanſit. ( Analees, 1 .. 7.
Wiiche. . Lamb. Peramb,614.
f Stat. 32 Hen. VIII. e. 29. Kitch. of + Lamb, 634.
1
ürts, 200.
. * 1 3
8
—
r
r
Ch. 6. of TriNGs. | 85 he had a power of devifiny lands by will, before the ſtatute for
that purpoſe was made. 4. The lands deſcend, not to the eldeſt, youngeſt, or any one ſon only, but to all the ſons together“;
over England en, though in particular places particular cuſtoms prevailed. Theſe, among other properties, diſtinguiſhed this te- nure in a moſt remarkable manner: and yet it is held to be only
try; being holden by. fait of court and fealty, which is a-ſervice in it's nature certain. Wherefore, by a charter of king John?, Hubert arch-biſhop of Canterbury was authorized to exchange the gavelkind tenures holden of the ſee of Canterbury into te- nures by knight-ſervice.; and by ſtatute 31 Hen. VIII. c. 3. for diſgavelling the lands of divers lords and . in the county of Kent, they are directed to be deſcendible for the future Ie other
munities which the tenants in gayelkind enjoyed were ſuch, as ve cannot conceive ſhould be conferred upon mere ploughmen,
or peaſants : from all which 1 think it ſufficiently, clea?, that te-
nures in free ſocage are in general, of a nobler original than is aſ- ſigned by Ländern, and after bim bas the bulk of our common
Ir ers VV 4 Io rake ** 8 "is e „ Tons TOP BO 185 FA by os os OT Ft
1
ey 5 85 ; Tl we N ; . * 232 , i *
' ” 4 ph 5 av 1 NG dee Si ** diltinguihed the, ſeveral ſpecies
pe tenure. in free ſocage, I proceed next to ſhew that thi partakes very ſtrongly of the feodal nature. "Which r may probably ariſe from it's-antient Saxon original 5.4 nee (as. Was before ob- el 5 feuds. were not unknown a mong the Saxons, though they olicy, not were drawn. out Aude 1 25 5 conſequences as amo the Ne 01 nans. It ſeems therefore reaſonable: to imagine, that ſocage tenure, exiſted, in much the ſame ſtate before the conq ueſt : as a ſeryed, with 2 high 85 as our hiſtories inform u us it Was, ;
r Fe 9 2 1 F. N. B. 195. Tro, Vi 61. N Wright 211. 1 * ho Fn. : 90 14 3 e i n e OP: e see 6,90 4.355. 5 ; = Glanv. J. C. Fo * : F 5 ag 8. ' x $- J % l ; of S : 3 ; 5 8 1 7 4 . s [6 8 "x
*® 4 2 $ 1 1 91 77" 8 ” aa * * *
lands, which were never holden by ſervice of focage. Now the im-
ter; that i in Kent it
x « . X 2 1 z 1 , 1 ON. A k e / * 99 ; : | I an | 4 * b \ . , : 75 7 * 0 8 * 1 3 2 ” 4 „ 1 aß *
which was indeed antiently the moſt uſual courſe of deſcent all
a ſpecies of a ſocage tenure, modified by the cuſtom of the coun-
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WS
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Te Ricurs Book II.
ſocage tenures diſperſed through England
wetory the pho fate of other property, partly out'6F favour and affection to their particular owners, and partly from their own, nificancy ; fince I do not apprehend the number of focage | tenures foon after*the coriqueſt to have been very confiderable, nor their value by any means large ; till by ſucceffive charters of enfranchiſement granted to the tenants, which are particularly mentioned by Britton , their number and value began to ſwell ſo
ar, as te make a diſtin, and juſtly envied, part of our Engliſh 5 ante BY ND ; 4 0, cee -Es
* 1 1 — * * F : 2 *
Thort c of the incidents and ae ee of Wenge ten ure with thoſe of tenure in chivalry ; femarking 1 their agreement or « "differen ve od along.
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1. IN the firſt place, chen,
of the king as lord paramount, and ane meſne lord between i the king and the .
Þ 5 SS * > 3 FD . pt | = #5 ks ES 12 Oh,
their feodal ori original
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ſervice, of ſome ſort or other, which at ; | an i coin grant from the lord to the tenant. In the
ir i key
tain; fixed, and det rminate, (thodgh perhaps nothivg more than bare feal 5) and ſo continues. to | i s da aa.) | * e
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n 8
een NA
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der, payable by th.
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2 it will by long continuance of time grow out of memory (as doubtleſs it Geatently has) whether the land he holden of the lord or not; and ſo he may loſe his ſeignory, apd the profit which Mar accrue to him by eſcheats and other co gences ', .
* en.
4. Tue tenure in ſocage was lubject, of common jog to aids for knighting the. ſon and marrying the eldeſt daughter 4: which were fixed by the ſtatute Weſtm. 1. c. 36. vat 205. for every 20 l. per annum ſo held; as in Enight-ſervice. Theſe aids, tenure by chivalry, were originally mere benevolences,, though 3 75 matter of an but were all aboliſhed by
5, #2 TT ng. 9 f 5 8 K 3 9 +, a7 "us ts ket ; ee wbeage teyure, as well as u
1 chivalry: hut the manner of taking it is very different. The
relief on a knight's; fee was 5 Igor one quarter of the ſuppoſed
value of the land; but a ſocage relief .is one year's rent or ren-
refore e Bracton* will not 1 iy this to be pro- perly a relief, but quaedam pragſtatis loco relevii in recognitionem „ So too the ſtatute 28 Edw. I. c. 1. declares, that a free hi ſhall give no relig but ſhall double his rent after the death f his a ne eſtor; according to that which he hath uſed to pay his lord, and 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, eyen though the heir was unde. age, becauſe the lord has no ward- ſhip over him?. The CY of Charles II reſerves the reliefs i in- cident to ſocage tenures ; and therefore, wherever lands in fee
- ſimple are holden by a rent, relief is ſtill due of common, right upon the death of the tenant *.*
A
a7
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x Fo Maxime pracftandunef, 44 we Litt. 5. 126. „ datur jus dimimi er veluſtate gemporis ob/eurrtar. J. 2%: 37-4. . Rn Corvinus feud, l. 2. f. 7.) f r ve Co. Lite. 91. 7 3 Lev. 14 Uh 5
6. PRIMER
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