yet with this diftinction, that, in the furrender of these lands in antient demesne, it is not used to say "to hold at "the will of the lord" in their copies, but only, "to hold "according to the cuftom of the manor." THUS have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both antient and modern, in which we cannot but remark the mutual connexion and dependence that all of them have upon each other. And upon the whole it appears, that, whatever changes and alterations these tenures have in procefs of time undergone, from the Saxon aera to the 12 Car. II. all lay tenures are now in effect reduced to two species; free tenure in common foçage, and bafe tenure by copy of court roll. I MENTIONED lay tenures only; because there is still behind one other fpecies of tenure, referved by the ftatute of Charles II, which is of a spiritual nature, and called the tenure in frank-almoign. V. TENURE in frankalmoign, in libera eleemofyna, or free alms, is that, whereby a religious corporation, aggregate or fole, holdeth lands of the donor to them and their fucceffors for every. The service which they were bound to render for these lands was not certainly defined: but only in general to pray for the fouls of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other fervices but this 2) because this divine service was of a higher and more exalted nature. This is the tenure, by which almost all the antient monafteries and religious houses held their lands; and by which the parochial clergy, and very many ecclefiaftical and eleemofynary foundations, hold them at this day; the nature of the service being upon the reformation altered, and made conformable to the purer doctrines Kitchin on courts. 194. y Lit. §. 133. 2 Ibid. 131. a Ibid. 135. Bracton. 1. 4. tr. 1. c. 28. §. 1. of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great refpect that was fhewn to religion and religious men in antient times. Which is alfo the reafon that tenants in frankalmoign were discharged of all other services, except the trinoda neceffitas, of repairing the highways, building caftles, and repelling invafions: juft as the Druids, among the antient Britons, had omnium rerum immunitatem . And, even at prefent, this is a tenure of a nature very distinct from all others; being not in the least feodal but merely spiritual. For if the service be neglected, the law gives no remedy by diftrefs or otherwife to the lord of whom the lands are holden; but merely a complaint to the ordinary or vifitor to correct it . Wherein it materially differs from what was called tenure by divine fervice: in which the tenants were obliged to do fome fpecial divine fervices in certain; as to fing fo many masses, to distribute such a sum in alms, and the like; which, being exprefsly defined and prefcribed, could with no kind of propriety be called free alms; efpecially as for this, if unperformed, the lord might diftrein, without any complaint to the vifitor. All fuch donations are indeed now out of ufe: for, fince the statute of quia emptores, 18 Edw. I. none but the king can give lands to be holden by this tenure. So that I only mention them, becaufe frankalmoign is excepted by name in the ftatute of Charles II, and therefore subsists in many inftances at this day. Which is all that fhall be remarked concerning it; herewith concluding our obfervations on the nature of tenures. CHAPTER THE SEVEN TH. OF FREEHOLD ESTATES, OF INHERITANCE. T HE next objects of our difquifitions are the nature and properties of eftates. An estate in lands, tenements and hereditaments, fignifies fuch intereft as the tenant hath therein fo that if a man grants all his eftate in Dale to A and his heirs, every thing that he can poffibly grant fhall pafs thereby. It is called in Latin flatus; it fignifying the condition, or circumstance, in which the owner ftands, with regard to his property. And, to afcertain this with proper precision and accuracy, eftates may be confidered in a threefold view firft, with regard to the quantity of intereft which the tenant has in the tenement: fecondly, with regard to the time at which that quantity of intereft is to be enjoyed; and, thirdly, with regard to the number and connections of the tenants. : FIRST, with regard to the quantity of intereft which the tenant has in the tenement, this is measured by it's duration and extent. Thus, either his right of poffeffion is to subsist for an uncertain period, during his own life, or the life of another man; to determine at his own decease, or to remain to his defcendants after him: or it is circumfcribed within a certain number of years, months, or days: or, lastly, it is infinite and unlimited, being vested in him and his reprefentatives for ever. And this occafions the primary divifion of estates, into such as are freehold, and fuch as are less than freehold. : с AN eftate of freehold, liberum tenementum, or franktenement, is defined by Britton to be "the possession of the foil "by a freeman." And St. Germyn tells us, that "the "poffeffion of the land is called in the law of England the "franktenement or freehold." Such eftate therefore, and no other, as requires actual poffeffion of the land, is legally fpeaking freehold which actual poffeffion can, by the course of the common law, be only given by the ceremony called livery of feifin, which is the fame as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seifin, or, in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton, that where a freehold fhall pass, it behoveth to have livery of seifin. As therefore estates of inheritance and estates for life could not by common law be conveyed without livery of feifin, these are properly estates of freehold; and, as no other estates were conveyed with the fame folemnity, therefore no others are properly freehold eftates. ESTATES of freehold (thus understood) are either estates of inheritance, or eftates not of inheritance. The former are again divided into inheritances abfolute or fee-fimple; and inherit ances limited, one species of which we usually call fee-tail. I. TENANT in fee-fimple (or, as he is frequently stiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever; generally, abfolutely, and fimply; without mentioning what heirs, but referring that to his own pleasure, or to the difpofition of the law. The true meaning of the word fee (feodum) is the fame with that of feud or fief, and in it's original fense it is b c. 32. d §. 59. taken taken in contradiftinction to allodium; which latter the writers on this fubject define to be every man's own land, which he poffeffeth merely in his own right, without owing any rent or service to any fuperior. This is property in it's highest degree; and the owner thereof hath abfilutum et directum dominium, and therefore is faid to be feifed thereof abfolutely in dominico fuo, in his own demefne. But feodum, or fee, is that which is held of fome fuperior, on condition of rendering him fervice; in which fuperior the ultimate property of the land refides. And therefore fir Henry Spelman & defines a feud or fee to be the right which the vafal or tenant hath in lands, to use the fame, and take the profits thereof to him and his heirs, rendering to the lord his due services; the mere allodial propriety of the foil always remaining in the lord. This allodial property no fubject in England has; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath abfolutum et directum dominium1: but all subjects' lands are in the nature of feodum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable confideration: for they cannot come to any man by either of those ways, unless accompanied with those feodal clogs, which were laid upon the first feudatory when it was originally grantitwas ed. A fubject therefore hath only the ufufruct, and not the abfolute property of the foil; or, as fir Edward Coke expreffes it, he hath dominium utile, but not dominium directum. And hence it is that, in the most folemn acts of law, we exprefs the strongest and highest estate that any subje&t can have, by thefe words; "he is feifed thereof in his demefne, "as of fee." It is a man's demefne, dominicum, or property, fince it belongs to him and his heirs for ever: yet this dominicum, property, or demefne, is ftrictly not abfolute or allodial, but qualified or feodal: it is his demefne, as of fee: that is, it is not purely and fimply his own, fince it is held of a superior lord, in whom the ultimate property refides. dominium, cujus nullus eft author nifi Deus. Ibid. f See pag. 45. 47. g of feuds, c. I. h Co. Litt. 1. į Praedium domini regis ef dire&um Ibid. |