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the villein including the socmen in the privileged class; and that the franklin or socman has been admitted to feudal privileges, from which on the continent he was jealously excluded. The rule that all feuds which were paid for, or based on mercenary considerations, were improper was characteristic of continental systems, but never was fully accepted in England.



The next objects of our disquisitions are the nature and properties of estates. [See note 24, page 193.] * 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,2 everything that he can possibly grant shall pass thereby. It is called in Latin, status; it signifying the condition, or circumstance, in which the owner stands, with regard to his property. [See note 25, page 196.] And, to ascertain this with proper precision and accuracy, estates may be considered in a three-fold 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 connexions of the tenants.?


First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by it's 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 a Co. Litt. 345.

2 Previously, "to another"; "and his heirs" in the errata.

* Quoted, 3 Peters, 131; 2 Cowen, 301; 5 Denio, 40; 12 N. Y. 527; 1 Munf. 544; 6 Har. & J. 208.

* Quoted, 3 Peters, 131; 41 N. Y. 93, 94; 2 Tenn. Ch. 610.

? Cited, 2 N. H. 151. Estate sometimes signifies the interest in the premises and sometimes the premises themselves. (2 Johns. 260; 3 Am Dec. 419.)

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forever. And this occasions the primary division of [104] estates, into such as are freehold, and such as are less than freehold.

*An estate of freehold, liberum tenementum, or franktenement, is defined by Britton to be "the possession of the soil by a freeman." And St. Germyn tells us, that "the possession of the land is called in the law of England the franktenement 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. [See note 26, page 200.] 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,a 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.

Estates of freehold then are divisible into9 estates of inheritance, and 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.

b c. 32.

c Dr. & Stud. b. 2. d. 22.

d 59.

9 Ninth edition reads, "thus understood are either."

9 Ninth edition reads "or."

- Quoted, 5 Whart. 360; 2 Tenn. Ch. 610; 15 Ind. 354; 53 Ala. 417.

- Quoted, 5 Whart. 360; 2 Tenn. Ch. 610.

Cited and criticised, 35 Miss. 22; 1 Jones (N. C.) 346.

I *Tenant in fee-simple (or, as he is frequently stiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs forever; generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. [See note 27, page 197. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in it's original sense it is [105] taken in 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 Spelmans 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 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 absolutum et directum dominium: but all sub

e Litt. 1.

f See pag. 45. 47.

g of feuds, c. 1.

h Co. Litt. 1.

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

-+ Quoted, 14 Cal. 631.

*- Quoted, 70 Me. 531; 5 Ired. 147.

- Quoted, 9 Cowen, 513 18 Am. Dec. 531.

jects' 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 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 forever: 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.†

[106] This is the primary sense and acceptation of the 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 it's 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 feesimple) it is used in contradistinction to a fee condi*-* Quoted, 70 Me. 531. † Cited, 3 Serg. & R. 530,

k Ibid,

1 of ten, 148,

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