heriots, wardship, and fines. Heriots (a Danish custom, of which we shall say more hereafter) are a render of the best beast or other chattel, as the custom may be, to the lord on the death of the tenant. Wardship, in copyhold estates, partakes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian, but he may assign some relation of the infant to act in his stead; and he, like guardian in socage, is accountable for the profits. Of fines, some are in the nature of primer seisins, due on the death of each tenant, others are mere fines for alienation of the lands; in some manors only one of these sorts can be demanded, in some both, and in others neither; all depends upon the custom.

The tenure described by our ancient writers, under the name of privileged villenage, is such as has been held of the kings of England from the Conquest downwards; being no other than an exalted species of copyhold, subsisting at this day, viz., the tenure in ancient demesne. It applies to those lands or manors, which though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the Confessor, or William the Conqueror; and the tenants therein have some peculiar privileges, now of little if of any value, and which it is consequently unnecessary here to detail. It thus appears, that whatever changes and alterations our tenures have in process of time undergone, from the Saxon era to the 12 Car. II., all lay tenures are now in effect reduced to two species: free tenure in common socage, and base tenure by copy of court-roll.

I say lay tenures, because there is one other species of tenure, reserved by the statute of Charles II., which is of a spiritual nature, and called tenure in frankalmoign, in libera eleemosyna, or free alms; which is that whereby a religious corporation holds lands of the donor to them and their successors for ever. This is the tenure, by which almost all the ancient monasteries and religious houses held their lands; and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this day. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shown to religion and religious men in ancient times. If the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor to correct it. So that I only mention this tenure because frankalmoign is excepted by name in the statute of Charles II., and therefore subsists in many instances at this day.

CHAPTER V.

FREEHOLD ESTATES.

Definition of freehold-Tenancy in fee-simple-Heirs-Qualified fees-Conditional fees or entails-Origin of common recoveries-and of fines-Tenancy for life-Its incidents-Tenant in tail after possibility of issue extinctTenant by the courtesy-Tenancy in dower-Jointures.

THE next objects of our disquisitions are the nature and properties of estates. And to ascertain this with precision, estates may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which the quantity of interest is to be enjoyed; and thirdly, with regard to the number and connections of the tenants.

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

An estate of freehold, liberum tenementum, or frank-tenement, is defined by Britton to be "the possession of the soil by a freeman.” Such estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold : which actual possession could by the common law only be given by livery of seisin, which is the same as the feudal investiture. As, therefore, estates of inheritance and estates for life could not by the common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates were conveyed with the same solemnity, therefore no others are properly freehold estates.

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

I. Tenant in fee-simple is he that hath lands, tenements, or here

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ditaments, to hold to him and his heirs for ever: generally absolutely and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. This is property in its highest degree; and the owner thereof is said to be seised in dominico suo, in his demesne, as of fee. It is his demesne, or property, since it belongs to him and his heirs for ever: yet this dominicum is strictly not absolute, but feudal : it is his demesne, as of fee: that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides.

The word "heirs " is necessary in the grant or donation, in order to make a fee or inheritance. For, if land be given to a man for ever, or to him and his assigns for ever, this vests in him but an estate for life. This rule is no doubt subject to one or two exceptions. Thus it does not extend to gifts by will, or to grants in favour of corporations or to the sovereign; but, subject to these exceptions, the general rule is, that the word "heirs" is necessary to create an estate of inheritance.

II. Limited fees, or such estates of inheritance as are clogged with conditions, are of two sorts:-1. Qualified, or base fees; and 2. Fees conditional, so called at the common law; and afterwards fees-tail, in consequence of the statute De Donis.

1. A base, or qualified, fee is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is entirely defeated. This estate is a fee, because by possibility it may endure for ever in a man and his heirs: yet, as that duration depends upon the concurrence of collateral circumstances which qualify and debase the purity of the donation, it is therefore à qualified or base fee.

2. A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others: as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or to the heirs male of his body, in exclusion both of collaterals, and lineal females also. It was called a conditional fee, by reason of the condition implied in the donation, that, if the donee died without such particular heirs, the land should revert to the donor.

Now, when any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed, becomes wholly unconditional. So that as soon as the grantee had any issue born,

his estate was supposed to become absolute, by the performance of the condition; at least for these three purposes: 1. To enable the tenant to alien the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion. 2. To subject him to forfeit it for treason; which he could not do, till issue born, longer than for his own life; lest thereby the inheritance of the issue, and reversion of the donor, might have been defeated. 3. To empower him to charge the land with rents, commons, and certain other incumbrances, so as to bind his issue. However, if the tenant did not in fact alien the land, the course of descent was not altered; for if the issue had afterwards died, and then the tenant, or original grantee had died, without making any alienation, the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fee-simples took care to alien as soon as they had performed the condition by having issue; and afterwards repurchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course of the common law.

The inconveniences which attended these fettered inheritances were probably what induced the judges to give way to this subtle finesse of construction, for such it undoubtedly was, in order to shorten the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the Second, commonly called the statute de donis conditionalibus, to be made; which enacted that from thenceforth the will of the donor should be observed; and that the tenements so given, to a man and the heirs of his body, should at all events go to the issue, if there were any; or, if none, should revert to the donor.

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

And as the word "heirs" is necessary to create a fee, so in further limitation of the strictness of the feudal donation, the word body, or some other words of procreation, are necessary to make it a fee-tail,

*Feodum talliatum, from the barbarous verb talliare, to cut, i.e., a fee from which the heirs general were cut off.

and ascertain to what heirs in particular the fee is limited. If therefore, either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and his issue of his body, to a man and his children; these are only estates for life, there being no words of inheritance. So a gift to a man, and his heirs male or female, is an estate in fee-simple, and not in fee-tail; for there are no words to ascertain the body out of which they shall issue. In last wills, however, greater indulgence is allowed, and an estate-tail may be created by a devise to a man and his seed, or by other irregular modes of expression.

Thus much for estates-tail: the establishment of which family law occasioned infinite difficulties and disputes. Children grew disobedient when they knew they could not be set aside: farmers were ousted of leases made by tenants-in-tail; for, if such leases had been valid, under colour of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts; for, if a tenantin-tail could have charged his estate with their payment, he might also have defeated his issue by mortgaging it for as much as it was worth. But as the nobility were fond of the statute, because it preserved their estates from forfeiture, there was little hope of procuring a repeal by the legislature; and therefore, by the connivance of an active and politic prince, a method was devised to evade it.

About two hundred years intervened between the making of the statute De Donis, and the application of common recoveries to this intent in the twelfth year of Edward IV., which were then declared by the judges to be a sufficient bar of an estate-tail. For though the courts had, in the reign of Edward III., hinted their opinion that a bar might be effected upon these principles, yet it never was carried into execution; till Edward IV., observing how little effect attainders for treason had on families, whose estates were protected by entails, gave his countenance to this proceeding, and suffered Taltarum's case to be brought before the court: wherein, it was in effect determined, that a common recovery suffered by tenant-in-tail should be an effectual destruction thereof. What common recoveries were, both in their nature and consequences, and why they were allowed to be. a bar to the estate-tail, must be reserved to a subsequent inquiry. At present it need only be said, that they were fictitious proceedings, introduced by a kind of pia fraus, to elude the statute De Donis, which was found intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal; and that these recoveries afterwards became a most common assurance of lands; and were looked upon as the legal mode of conveyance, by which the tenant-in-tail might dispose of his lands and tenements; so that no

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