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(28) Of corporeal inheritance a man shall be said to be seised in his demesne as of fee: of an incorporeal hereditament he shall only be said to be seised as of fee, and not in his demesne, page 106.
The distinction here made is more accurate than that upon page 105, where the king's dominium is opposed to the subject's dominicum or demesne. Closely as the two words are connected in origin and etymology, they have quite different meanings in English law, To say that the owner of property "hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo in his own demesne," is to confound these different meanings. Blackstone and Houard both make this mistake; bnt a glance at Bracton or Fleta should have saved them from it. These always use dominium in the Roman sense, which is appropriate to the king's ownership: but dominicum in one characteristic of the tenant rather than the lordpro repugnantia inter dominicum et dominium quæ sese non compatiuntur; homagium enim cxpellit dominicum quia nullus simul et semel debet esse dominus ct tenens. (Fleta, v. 6, 260, fol. 305.)
The distinction of dominium and dominicum is brought out very clearly here, and also the connection of dominium and homagium. The lord has dominium over the land of which others are tenants, and takes homage from them. Such lands may fall to him by escheat, but never as heir, for the latter would suppose him to be in the same estate with his tenant-a legal absurdity. But dominicum is the land which he occupies by himself-or through base tenants who have no distinct estate - cum homagium expellat dominicum et retineat servitium (Bracton, fol. 24 a); i. e., the reception of homage is a recognition of the fact that the lord has not the freehold or demesne, but only a seignory, to which service is incident. Even if he had previously held the land in dominico this would be true. The homage
accepted is equivalent to an investiture, and places it in the hands of the tenant.
The absence of investiture and the creation of tenancy by a mutual act of lord and tenant is one of the most significant points of difference between the feudal law of England and that of the continent. In some of the forms, the tenant in the very act of performing homage, informs the lord of his claim, and implies that he has received seisin already by the preceding tenant, his feoffor. This would be impossible under continental feudalism, or with an English copyhold tenant. The dominicum or demesne of our early law is a term peculiar, I believe, to English law. It denotes primarily that land which the thane or lord held in his own hands and cultivated for the support of his own household, usually by the labor of unfree tenants. It was gradually extended to embrace all land of which the freehold was in him; but never to land held by free tenants of which he only had the services. The freehold or demesne of these lands was in the free tenants themselves. Hence the limitation of the word to corporeal hereditaments, as here stated by Blackstone. Incorporeal, like easements, rents, seignories, are mere jura in re, and the denial to these of seisin in demesne is correctly explained here by Blackstone. See, also, the instructive definition in Termes de la Ley, verb. Demaines.
(29) We find strong traces of these limited conditional fees. . . . in our earliest Saxon laws, page 110.
There is no doubt much resemblance between fees tail and the "bocland" of the Saxon period, when limited to the kin of the first taker, as in the law of Alfred here cited: c. 41 of the A. S. texts, cited as c. 37 of the Latin version in note ƒ of the author.
But the resemblance must not be mistaken for identity. The "fee" of the later common law is entirely a different institution from any of the earlier forms of
hereditary land, alod, erbeigen, yrfe, hæreditas, proprium, or however it might be called, on the continent or in England. Only error and fallacies result from confusing them or supposing any genetic relation between them. See note 24, ante, page 193, as to the origin of estates, and the lack of any such conception during the Anglo-Saxon period.
CHAPTER THE EIGHTH.
OF FREEHOLDS, NOT OF INHERITANCE
We are next to discourse of such estates of freehold as are not of inheritance, but for life only. And of these estates for life, some are conventional, or expressly created by the acts of the parties; others merely legal, or created by construction and operation of law. note 30, page 230.] We will consider them both in their order.
I. *Estates for life, expressly created by deed or grant, (which alone are properly conventional) are where a lease is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other person, or for more lives than one: in any of which cases he is stiled tenant for life; only, when he holds the estate by the life of another, he is usually called tenant pur auter vie. These estates for life are, like inheritances, of a feodal nature; and were, for some time, the highest estate that any man could have in a feud, which (as we have before seen ) was not in its original hereditary. They are given or conferred by the same feodal rights and solemnities, the same investiture or livery of seisin, as fees themselves are; and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on.*
† Estates for life may be created, not only by the express words before-mentioned, but also by a general grant, without defining or limiting any specific
a Wright. 190.
b Litt. 256.
c pag. 55.
*-* Quoted with omissions, 7 Cowen, 326. Cited, 94 Ill. 93; 2 Tenn. Ch. 611.
estate. As, if one grants to A. B. the manor of Dale, this makes him tenant for life. d* For though, as there are no words of inheritance, or heirs, mentioned in the grant, it cannot be construed to be a fee, it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. Also such a grant at large, or a grant for term of life generally, shall be construed to be an estate for the life of the granice; in case the grantor hath authority to make such a grant: for an estate for a man's own life is more beneficial and of a higher nature than for any other life; and the rule of law is, that all grants are to be taken most strongly against the grantor,' unless in the case of the king.
Such estates for life will, generally speaking, endure as long as the life for which they are granted: but there are some estates for life, which may determine upon future contingencies, before the life, for which they are created, expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gone.s Yet, while they subsist, they are reckoned estates for life; because, the time for which they will endure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And, moreover, in case an estate be granted to a man for his life, generally, it may also determine by his civil death: as if he enters into a monastery, whereby he is dead in law :h for which reason in conveyances the grant is usually made "for the
d Co. Litt. 42.
f Ibid. 36,
g Co. Litt. 42. 3 Rep. 20.
h 2 Rep. 48.
+-* Quoted, 7 Cowen, 326.