continued under the Norman revolution, through the great respect that was shewn to religion and religious men in ancient times. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions: just as the Druids, among the ancient Britons, had omnium rerum immunitatemd. And, even at present, 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 distress or otherwise to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor to correct ite. Wherein it materially differs from what was cailed tenure by divine service: in which the tenants were obliged to` do some special divine services in certain; as to sing so many masses, to distribute such a sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrain, without any complaint to the visitorf. All such donations are indeed now out of use for, since the statute of quia emptores, 18 Edw. I. none but the king can give lands to be holden by this tenures. So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II, and therefore subsists in many instances at this day. Which is all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures.

c Seld. Jan. 1. 42.

d Cesar de bell. Gal, l. 6. c. 13...

e Litt. c. 136.

f Ibid. 137.
g Ibid. 140.

CHAPTER THE SEVENTH.

OF FREEHOLD ESTATES, OF INHE RITANCE.

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

tenants.

FIRST, with regard to the quantity of interest which the tenant has in the tenement, this is measured by 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.

a Co. Litt. 345.

c

AN estate of freehold, liberum tenementum, or franktenement, is defined by Britton b to be "the possession of the soil "by a freeman." And St. Germyn tells us, that "the pos"session of the land is called in the law of England the frank"tenement or freehold." Such estate therefore, and no other, as requires actual possession of the land, is legally speaking freehold: which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seisin, or in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton, that where a freehold shall pass, it behoveth to have livery of seisin. As therefore estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates were conveyed with the same solemnity, therefore no others are properly freehold estates (1).

ESTATES of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail. I. TENANT in fee-simple (or, as he is frequently styled, tenant in fee) is he that hath lands, tenements, or hereditaments,

b e. 32.

c Dr. and Stud. b, 2. d. 22.

d sec. 59.

(1) A freehold estate seems to be any estate of inheritance, or far life, in either a corporeal or incorporeal hereditament, existing in, or arising from, real property of free tenure; that is, now, of all which is not copyhold. And the learned Judge has elsewhere informed us, that "tithes and spiritual dues are freehold estates, whether the land out "of which they issue are bond or free, being a separate and distinct "inheritance from the lands themselves. And in this view they must be "distinguished and excepted from other incorporeal hereditaments "issuing out of land, as rents, &c. which, in general, will follow the "nature of their principal, and cannot be freehold, unless the stock, "from which they spring, be freehold also." 1 Bl. Tracts, 116,

to hold to him and his heirs for evere; generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the same with that of

feud or fief, and in its original sense it is taken in [105] contradistinction to allodium; which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. And therefore sir Henry Spelmang defines a feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services; the mere allodial propriety of the soil always remaining in the lord. This allodial property no subject in England hash; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominiumi : but all subjects' lands are in the nature of feodum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration: for they cannot come to any man by either of those ways, unless accompanied with those feodal clogs, which were laid upon the first feudatory when it was originally granted. A subject therefore hath only the usufruct, and not the absolute property of the soil; or, as sir Edward Coke expresses it, he hath dominium utile, but not dominium directum. And hence it is that, in the most solemn acts of law, we express the strongest and highest estate that any

e Litt. sec. 1.

f' See p. 45. 47.

g of feuds, c. 1.

h Co. Litt. P.

i Praedium domini regis est directum dominium, cujus nullus est author nisi Deus. Ibid.

k Ibid

subject can have, by these words; "he is seised thereof in "his demesne, as of fee." It is a man's demesne, dominicum, or property, since it belongs to him and his heirs for ever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee; that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides.

THIS is the primary sense and acceptation of the [106] word fee. But (as sir Martin Wright very justly observes1) the doctrine, "that all lands are holden," having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this its primary original sense, in contradistinction to allodium or absolute property, with which they have no concern; but generally use it to express the continuance or quantity of estate. A fee therefore, in general, signifies an estate of inheritance; being the highest and most extensive interest that a man can have in a feud: and when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it, (as a fee, or a fee-simple,) it is used in contradistinction to a fee conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man ".

TAKING therefore fee for the future, unless where otherwise explained, in this its secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal". But there is this distinction between the two species of hereditaments; that, of a corporeal inheritance a man shall be said to be seised in his demesne, as of fee; of an incorporeal one, he shall redibus suis, sive sit tenementum, sive redi. n Foodum est quod quis tenet sibi et hae- tus, etc. Flet. 1, 5. c. 5. sec. 7.

I of ten. 148.

m Co. Litt. 1.