kind; such as a pecuniary compensation, as twopence an acre, or a compensation in work and labour, as, that the parson should have only the twelfth cock of hay, and not the tenth, in consideration of the owner's making it for him. A prescription de non decimando was a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them; whence have sprung all the lands which, being in lay hands, do at present claim to be tithe-free: for if a man can show his lands to have been immemorially discharged of tithes, this is a good prescription de non decimando.

Tithes, however, have already to a considerable extent, and will very soon indeed become mere matter of history, through the operation of the statutes, which have been passed for their commutation into rent-charges. These are payable half-yearly, and are recoverable by distress and sale, like ordinary rents.

3. Common, or right of common, appears from its very definition to be an incorporeal hereditament: being a profit which a man has 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.

Common of pasture is a right of feeding one's beasts on another's land for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. Common of piscary is a liberty of fishing in another man's water; as common of turbary is a liberty of digging turf upon another's ground. There is also a common for digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects; though in one point they go much further; common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and those aftermentioned, are a right of carrying away the very soil itself. Common of estovers, or estouviers, that is, necessaries, from estoffer, to furnish, is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another's estate. The Saxon word bote, is used by us as synonymous to the French estovers: and therefore house-bote is a sufficient allowance of wood to repair or to burn in the house; plough-bote and cart-bote are to be employed in making and repairing instruments of husbandry; and hay-bote, or hedge-bote, is wood for repairing of hays, hedges, or fences.

4. Ways, or the right of going over another man's ground, are a fourth species of incorporeal hereditament. I speak not here of the public highways, nor yet of common ways, leading from a village

into the fields; but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil. This may be grounded on a special permission; as when the owner of the land grants to another a liberty of passing over his grounds; or may exist by prescription, as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground for such a particular purpose; or may arise by operation of law, for if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it, and I may cross his land for that purpose without trespass.

5. Offices, which are a right to exercise a public or private employment and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments; whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like; for a man may have an estate in them. Yet a judicial office cannot be granted in reversion; because, though the grantee may be able to perform it at the time of the grant; yet before the office falls, he may become unable and insufficient: but ministerial offices may be so granted; for those may be executed by deputy. But no public office can be sold; for the law presumes that he who buys an office will by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public.

6. Dignities, which have been already referred to, bear a near relation to offices, being a species of incorporeal hereditaments, wherein a man may have a property or estate.

7. Franchises are a seventh species. Franchise and liberty are used as synonymous terms; and their definition is a royal privilege or branch of the sovereign's prerogative, subsisting in the hands of a subject; the kinds of them are various, and almost infinite. To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise for a number of persons to be incorporated and subsist as a body politic. Other franchises are to have a manor or lordship; to have waifs, estrays, royal fish; to have a fair or market; or to have a forest, warren, or fishery, endowed with privileges of royalty.

8. Corodies are a right of sustenance, or to receive victual and provision for one's maintenance, in lieu of which a sum of money is sometimes substituted. These may be reckoned a species of incorporeal hereditament. To these may be added,

9. Annuities, which are very distinct from rent-charges, with which they are frequently confounded; for a rent-charge issues out

of lands; an annuity is a yearly sum chargeable only upon the person of the grantor. Finally,

10. Rent is an incorporeal hereditament, and signifies a compen sation or acknowledgment given for the possession of some corporeal inheritance, being defined as certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; yet there is no occasion for it to be money: for capons, corn, and other matters may be rendered by way of rent. It must issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrain. Therefore a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like. Rent is regularly due and payable upon the land from whence it issues, if no particular place is mentioned in the reservation. And strictly it is demandable and payable before the time of sunset of the day whereon it is reserved, though perhaps not absolutely due till midnight. And thus much of incorporeal heredita

ments.

CHAPTER III.

OF THE FEUDAL SYSTEM,

Origin of feuds Oath of fealty-Qualities of feuds-Ancient English tenures -Knight-service and its consequences-Aids-Relief-Primer seisin-Wardship-Knighthood-Marriage-Fines for alienation-Escheat-Origin of scutages Abolition of military tenures.

It is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate its landed property, without some general acquaintance with the feudal law: a system universally received throughout Europe upwards of twelve centuries ago, and which Sir Henry Spelman therefore calls the law of nations in our western world. It had its origin in the military policy of the northern nations, who poured themselves over Europe at the declension of the Roman empire, and was introduced by them in their respective colonies as the most likely means to secure their new acquisitions. To that end, large districts were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels to the inferior officers and most deserving soldiers. These allotments were called feoda, fiefs or fees; which last appellation in the northern languages signifies a conditional reward. Rewards they evidently were; and

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

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

Scarce had these northern conquerors established themselves in their new dominions, when the wisdom of their constitutions, as well as their personal valour, alarmed all the princes of Europe; that is, of those countries which had formerly been Roman provinces, but had revolted, or were deserted by their old masters, in the general wreck of the empire, Wherefore most, if not all, of them thought it necessary to enter into a similar policy. For whereas, before, the possessions of their subjects were perfectly allodial, that is, wholly independent, and held of no superior at all, now they parcelled out their royal territories, or persuaded their subjects to surrender up and retake their own landed property, under the feudal obligations, of military fealty. And thus, in the compass of a very few years the feudal system extended itself over all the western world. Which alteration of landed property, in so very material a point, necessarily drew after it an alteration of laws and customs; so that the feudal laws soon drove out the Roman, which had hitherto universally obtained, but now became for many centuries lost and forgotten.

This feudal polity was not, however, received in our island, at least as part of the national constitution, till the reign of William the Norman; and even then it seems to have been introduced, not by

the mere arbitrary will of the Conqueror, but gradually by the Norman barons, and at first in such forfeited lands only as they received from the crown The regard of these nobles for the law under which they had long lived, together with the king's recommendation of this policy to the English, as the best way to put themselves on a military footing, were probably the reasons that prevailed to effect its establishment here by law. For the new polity cannot be said to have been imposed by the Conqueror, but nationally and freely adopted by the general assembly of the whole realm, in the same manner as other nations of Europe had before adopted it, upon the same principle of self-security.

In consequence of this change, it became a fundamental maxim and necessary principle, though in reality a mere fiction, of our English tenures, that all lands were originally granted out by the sovereign, and are therefore holden either mediately or immediately of the crown. The grantor was called the lord, and the grantee was styled the feudatory or vassal, which was only another name for the tenant or holder of the lands; though, on account of the prejudices which we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vassal opprobiously. The grant itself was perfected by the ceremony of corporeal investiture, or open and notorious delivery of possession in the presence of the other vassals; who, in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowledge.

Besides an oath of fealty, which was the parent of our oath of allegiance, the vassal or tenant upon investiture usually did homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sat before him; and there professing, that "he did become his "man, from that day forth, of life and limb, and earthly honour:" and then he received a kiss from his lord. Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words, devenio vester homo.

When the tenant had thus professed himself to be the man of his lord, the next consideration was concerning the service, which, in pure, proper, and original feuds, was only twofold: to follow, or do suit to the lord in his courts in time of peace; and in his armies or warlike retinue when necessity called him to the field. The lord was, in early times, the legislator and judge over all his feudatories; and, therefore, the vassals of the inferior lords were bound to attend their domestic courts-baron, in order, as well to answer such complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellow tenants. In like manner the barons them