ANALYSIS

OF

BOOK II.

OF THE RIGHTS OF THINGS.

CHAPTER I.

OF PROPERTY, IN GENERAL.

1. ALL dominion over external objects has its original from the gift of the Creator to man in general.

Page 2 2. The substance of things was, at first, common to all mankind; yet a temporary property in the use of them might even then be acquired and continued by occupancy.

3 3. In process of time a permanent property was established in the substance, as well as the use of things; which was also originally acquired by occupancy only.

4, 5

4. Lest this property should determine by the owner's dereliction, or death, whereby the thing would again become common, societies have established conveyances, wills, and heirships, in order to continue the property of the first occupant: and, where by accident such property becomes discontinued or unknown, the thing usually results to the sovereign of the state, by virtue of the municipal law.

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5. But of some things, which are incapable of permanent substantial dominion, there still subsists only the same transient usufructuary property, which originally subsisted in all things.

CHAPTER II.

14

OF REAL PROPERTY; AND, First, of CORPOREAL HEREDITAMENTS.

1. In this property, or exclusive dominion, consist the rights of things; which are, I. Things real. II. Things personal. 16 2. In things real may be considered, I. Their several kinds.

II. The tenures by which they may be holden. III. The estates which may be acquired therein. IV. Their title, or the means of acquiring and losing them.

Page 16

3. All the several kinds of things real are reducible to one of these three, viz. lands, tenements, or hereditaments; whereof the second includes the first, and the third includes the first and second. 16

4. Hereditaments therefore, or whatever may come to be inherited (being the most comprehensive denomination of things real), are either corporeal or incorporeal.

17

5. Corporeal hereditaments consist wholly of lands, in their largest legal sense; wherein they include not only the face of the earth, but every other object of sense adjoining thereto, and subsisting either above or beneath it.

17, 18

CHAPTER III.

OF INCORPOREAL HEREDITAMENTS.

1. INCORPOREAL hereditaments are rights issuing out of things corporeal, or concerning, or annexed to, or exercisable within, the same.

20

2. Incorporeal hereditaments are, I. Advowsons. II. Tithes. III. Commons. IV. Ways. V. Offices. VI. Dignities. VII. Franchises. VIII. Corodies or pensions. IX. Annuities. X. Rents. 21-41

3. An advowson is a right of presentation to an ecclesiastical benefice; either appendant, or in gross. This may be, I. Presentative. II. Collative. III. Donative. 21-23

4. Tithes are the tenth part of the increase yearly arising from the profits and stock of lands, and the personal industry of mankind. These, by the antient and positive law of the land, are due of common right to the parson, or (by endowment) to the vicar; unless specially discharged, I. By real composition. II. By prescription, either de modo decimandi, or de non deci

mando.

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5. Common is a profit which a man hath in the lands of another; being, I. Common of pasture; which is either appendant, appurtenant, because of vicinage, or in gross. II. Common of piscary. III. Common of turbary. IV. Common of estovers, or botes.

.

32-35

6. Ways are a right of passing over another man's ground. 35 7. Offices are the right to exercise a public, or private, employment. 36

8. For dignities, which are titles of honour, see Book I. Ch. XII.

9. Franchises are a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject.. Page 37 10. Corodies are allotments for one's sustenance; which may be converted into pensions. (See Book I. Ch. VIII).

40

11. An annuity is a yearly sum of money, charged upon the person, and not upon the lands, of the grantor.

40

12. Rents are a certain profit issuing yearly out of lands and tenements; and are reducible to, I. Rent-service. II. Rent-charge. III. Rent-seck.

CHAPTER IV.

OF THE FEODAL SYSTEM.

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1. THE doctrine of tenures is derived from the feodal law; which was planted in Europe by its northern conquerors, at the dissolution of the Roman empire.

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2. Pure and proper feuds were parcels of land, allotted by a chief to his followers; to be held on the condition of personally rendering due military service to their lord.

54

3. These were granted by investiture; were held under the bond of fealty; where inheritable only by descendants; and could not be transferred without the mutual consent of the lord and vassal. 53-57

4. Improper feuds were derived from the other; but differed from them in their original, their services and renders, their descent, and other circumstances.

58

5. The lands of England were converted into feuds, of the improper kind, soon after the Norman conquest: which gave rise to the grand maxim of tenure; viz. that all lands in the kingdom are holden, mediately or immediately, of the king. 48-53

CHAPTER V.

OF THE ANTIENT ENGLISH TENURES.

1. THE distinction of tenures consisted in the nature of their services: as, I. Chivalry, or knight-service; where the service was free, but uncertain. II. Free socage; where the service was free, and certain. III. Pure villenage; where the service was base, and uncertain. IV. Privileged villenage, or villein socage; where the service was base, but certain. 61-78 2. The most universal antient tenure was that in chivalry, or by knight-service; in which the tenant of every knight's fee was bound, if called upon, to attend his lord to the wars. This was granted by livery, and perfected by homage and fealty; which usually drew after them suit of court.

62

3. The other fruits and consequences of the tenure by knightservice were, I. Aid. II. Relief. III. Primer seisin. IV. Wardship. V. Marriage. VI. Fines upon alienation. VII. Escheat. Page 63-72

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4. Grand serjeanty differed from chivalry principally in its render, or service; and not in its fruits and consequences. 5. The personal service in chivalry was at length gradually changed into pecuniary assessments, which were called scutage

or escuage.

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6. These military tenures (except the services of grand serjeanty) were, at the restoration of king Charles, totally abolished, and reduced to free socage, by act of parliament.

CHAPTER VI.

OF THE MODERN ENGLISH TENURES,

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1. FREE Socage is a tenure by any free, certain, and determi

nate service.

78

2. This tenure, the relic of Saxon liberty, includes petit serjeanty, tenure in burgage, and gavel-kind.

81

3. Free socage lands partake strongly of the feodal nature, as well as those in chivalry: being holden; subject to some service, at the least, to fealty and suit of court; subject to relief, to wardship, and to escheat, but not to marriage; subject also formerly to aids, primer seisin, and fines for alienation. 86-89 4. Pure villenage was a precarious and slavish tenure, at the absolute will of the lord, upon uncertain services of the basest

5. From hence, by tacit consent or encroachment, have arisen the modern copyholds, or tenure by copy of court roll; in which lands may be still held at the (nominal) will of the lord, (but regulated) according to the custom of the manor.

95

6. These are subject, like socage lands, to services, relief, and escheat; and also to heriots, wardship, and fines upon descent and alienation.

97

7. Privileged villenage, or villein socage, is an exalted species of copyhold tenure, upon base, but certain, services; subsisting only in the antient demesnes of the crown; whence the tenure is denominated the tenure in antient demesne.

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8. These copyholds, of antient demesne, have divers immunities annexed to their tenure; but are still held by copy of court roll, according to the custom of the manor, though not at the will of the lord.

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9. Frankalmoign is a tenure by spiritual services at large; whereby many ecclesiastical and eleemosynary corporations now hold their lands and tenements: being of a nature distinct from tenure by divine service in certain.

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