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for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part

ment.

Apportion. rent or annuity continues, but the inter- from these sources, are deprived of

est of soine particular person in it ceas- means to satisfy just demands, and othes between two days of payment, and er evils arise from such non-apportionanother person then becomes entitled. ment, which evils require remedy; and In the former case, unless there be an enacts (sect. 2), that all rents service reapportionment, the tenant or grantor is served on any lease by a tenant in fee discharged pro tanto; in the latter case or for any life interest, or by any lease he is not discharged.

granted under any power, and all rent At common law, if an annuity was charge, and other rents, annuities, pengranted for life, or if a lease was made sions, dividends, moduses, compositions, determinable with a life, at a rent, there and all other payments of every descripwas no apportionment upon the dropping tion made payable or becoming due at of the life in the middle of a quarter (10 fixed periods, shall be apportioned, so Rep., 127 ; 1 P. W., 392), except, per that on the death of any person interhaps, in the case of an annuity granted ested in any such rents, &c., or in the by a man for the separate maintenance estate, fund, office, or benefice, from or of his wife. (2 W. Bl., 843, 1016; 2 P. in respect of which the same shall be is. Wms., 502.)

suing or derived, or on the determination By the 15th section of the stat. 11 by any other means whatsoever of the Geo. II., c. 19 (“ an act for the more interest of any such person, he or his ex. effectual securing the payment of rents ecutors, administrators, or assigns, shall and preventing frauds by tenants"), be entitled to a proportion of such rents, where rent has been reserved upon a &c., according to the time which shall lease determinable on the death of a have elapsed from the commencement tenant for life, and the tenant for life or last period of payment (as the case dies on or before the day of payment, may be), with such remedies for recov. the executors or administrators of the ering such apportioned parts, when the tenant for life may, by action on the case, entire portion of which such apportioned recover rent for the time elapsed from parts shall form part shall become due the commencement of the current quar- and payable, and not before, as he or ter or other period. This statute was they would have had for recovering held to extend to leases by tenants in such entire rents, &c., if entitled there tail, but it was doubtful whether leases to; but so that persons liable to pay of tithes granted by parsons, or leases rents reserved by any lease or demise, determinable on the lives of third per- and the lands, &c., comprised therein, sons, were within its operation. (1 shall not be resorted to for such apporSwanst., 347, 356; 2 Ves. & B., 331; 3 tioned parts specifically; but the entire Taunt., 331.)

rents shall be received by the person The statute 4 & 5 W. IV., c. 22, after who, if the act had not passed, would reciting the former act, and that doubts have been entitled to such entire rents, had been entertained whether it applied and who shall be liable for the apporto every case in which the interests of tioned parts. The act concludes with tenants determine on the death of the a saving of express stipulations against person by whom such interests have apportionment, and of annual sums made been created, and on the death of any payable in policies of assurance of any life or lives for which such person was description. entitled to the lands demised, although The language seems so exclusively to every such case is within the mischief contemplate continuing rents, &c., ihat intended to have been remedied, brings there is great reason to doubt whether within the former act all leases determn- it would apply to cases where the rent, inable on the death of the person mak- &c., itself, and the interest of the party ing the same, although he was not strict- in whose favor the apportionment is ly tenant for life thereof, and all leases sought to be made, cease at the same modeterminable with the life or lives for ment; as, for instance, where an annuiwhich the lessor was entitled.

ty is granted to A. during his life, or The same act also recites that, by law, where a tenant in fee makes a lease for rents, annuities, and other payments due life, reserving rent. (See 4 Per. & Dav., at fixed or stated periods, are not appor- 313.) tionable (unless by express provision), Another important question upon the from which it often happens that per- statute is, whether the words “on the sons (and their representatives), whose determination by any other means of income is wholly or principally derived the interest of any such person," so con

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of our Commentaries, which will treat of civil injuries, and the means whereby they are redressed." trol the effect of the preceding general issue in tail, and not the executor, shall Apportion. reference to the death of any other per- have the rent. (Coote, Landl. and Ten., ment. son interested in the rent, &c., as to con- p. 273; 1 Hays, Introd. Conv., 337, 5th fine the meaning of those words to a ed.) On the other hand, it is said that death by which the interest (that is, the the words referred to are not sufficient estate) of such person does not, in a to control the general meaning of the technical sense, continue; and so to ex- word “death ;' and that, even were it clude the death of a person entitled in otherwise, the words “determination of fec-simple, or in tail, because, in such interest” are to be taken in their popucase, the estate or interest of the party lar, and not in the strict feudal sense dying, both in the reversion and in the above referred to. If Mr. Coote's conrent which is annexed to it, does not struction is correct, many cases within determine, but continues in his heir. the mischief contemplated by the act Messrs. Coote and Hayes are of opinion are left unprovided for. (See 2 Jarm., that the words are so controlled, and Conv., p. 336, 3d ed.) consequently, where tenant in fee makes Mr. Coote's position in the page above a lease, reserving rent on a particular referred to, that if a tenant for life make day, and dies upon that day before mid- a lease, under a power which enables night, his heir or devisee, and not his him so to bind his successor in interest, executor, shall have the rent; and sim- and die under the like circumstances, ilarly, that where a tenant in tail dies the remainder-man, and not the execuunder similar circumstances, having tor, shall have the rent, is unquestionably made such a lease as by stat. 32 Hen. erroneous. VIII., c. 28, is binding on his issue, the

(70) The right to mines has been incorporeal hereditament or license is Mines. sometimes treated as an incorporeal her- converted into an actual corporeal eseditament. Mines, whether opened or tate as soon as the mine is taken posnot, belong primâ facie to the owner of session of and worked. (1 W. Bl., 482; the soil (Co. Litt., 4, a); and a copy- 2 B. & Al., 724.) But it seems that an holder, although he can not open mines, actual estate may be had in unopened may bring an action of trespass against mines, being something distinct from, a stranger who enters the sub-soil from and greater than a mere license to search his own mine, without breaking the sur- for and obtain minerals, and that such face. (2 B. & Ad., 437.) Mines of gold estate may be conferred by a feoffment and silver are called royal mines, and with a symbolical livery of seizin on the belong to the queen, as part of her pre- land; and it has been held that a right rogative of coining; and under this de- to an unopened mine can not be prescription are included mines of lead, tin, scribed for, not being an incorporeal herand copper, containing either of these editament (Wilkinson v. Proud, 7 Juprecious metals. (Plowd., 336, 339 ; 16 rist, 284); but the decision in that case Ves., 393.) The hardships consequent seems to have turned on the frame of upon the exercise of this prerogative at the pleadings, for the court seemed to common law have been somewhat alle- admit that the defendant might prescribe viated by the statutes 1 W. & M., st. 1, for a right to take the minerals. c. 20, and 5 & 6 W. & M., c. 6.

A grant or reservation of a right of A tenant for life, or for years, may mining implies every right that is necwork mines already opened, but if he essary for the convenient working of break the surface for the purpose of the mine, a right of entering and breaksearching for minerals, it is waste. ing the surface, a right of way to carry Hence seems to have arisen the doctrine away the ore, &c.; but it implies no that a widow is dowable of open mines more. It allows no use of the surface, only. (1 Taunt., 482.)

no deposit upon it to a greater extent or Mines may be conveyed, excepted, or for a longer duration than is necessary, reserved apart from the right to the sur- no attendance upon the land of unnecesface: mines opened, as corporeal here- sary persons. It is questionable whethditaments (1 Mee. & W., 210; Shepp., er it would allow a deposit upon the Touch., 96); mines unopened, or, rather, land for the purpose of sale, and whetha license to dig for minerals, as incorpo- er it would justify the introduction of real hereditaments. (6 Nev. & M., 441; purchasers to view the minerals. (2 B. see 3 Id., 497, 1. ; 4 Id., 505; 4 Leon., & Cr., 211; 2 Lutw., 1247 ; 6 Mee. & 147; 1 W. Bl., 483; 7 Scott, 855.) This W., 174.)

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CHAPTER IV.

OF THE FEODAL SYSTEM.

sential.

Knowledge It is impossible to understand, with any degree of accuraof the nature and doctrine cy, either the civil Constitution of this kingdom,' or the laws of feuds es. which regulate its landed property, without some general ac

quaintance with the nature and doctrine of feuds, or the feoda. law: a system so universally received throughout Europe upward of twelve centuries ago, that Sir Henry Spelmana does not scruple to call it the law of nations in our western world. This chapter will be, therefore, dedicated to this inquiry.' And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time misemployed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a scholar-like, scientifical manner, without having recourse to the ancient. Nor will these researches be altogether void of rational entertainment as well as use: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the drafts of the same edi

fices, in their pristine proportion and splendor. [ 45 ) The constitution of feudsb had its original from the military Feudal sys- policy of the northern or Celtic nations, the Goths, the Huns, tem introdu- the Franks, the Vandals, and the Lombards, who all emigranorthern nating from the same officina gentium, as Crag very justly entitles tions into the south. a Of Parliaments, 57.

b See Spelman, of Feuds, and Wright, of Tenures, per tot.

(1) An intimate acquaintance with that my Lord Coke, adorning our law the feodal system is absolutely necessa- with so many flowers of antiquity and ry to the attainment of a comprehensive foreign learning, hath not turned into knowledge of the first principles and this field, from whence so many roots progress of our Constitution. And this of our law have, of old, been taken and subject, in my opinion, might with great transplanted.” (Spelm., Orig., c. viii.) propriety have preceded the chapter -[CHRISTIAN.] upon Parliament.

The authority of Lord Coke upon constitutional ques- (2) Upon the subject of the feodal tions is greatly diminished by his neg- system, in addition to the authorities lect of the study of the feodal law; cited in the text, see Robertson's Histowhich Sir Henry Spelman, who well ry of Charles V., vol. i., and the master. knew its value and importance, feeling- ly essay by Mr. Hallam in his History ly laments: “I do marvel many times, of the Middle Ages, ch. ii., part 2.

it, poured themselves in vast quantities into all the regions of Europe, at the declension of the Roman Empire. It was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure their new acquisitions; and, to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and most deserving soldiers.d These allotments were called feoda, feuds, fiefs, or fees; which last appellation, in the northern language,e signifies a conditional stipend or reward.f* Rewards or stipends they evidently were; and the condition annexed to them was, that the possessor should do service faithfully, both at home and in the wars, to him by whom they were given; for which purpose he took the juramentum fidelitatis, or oath of fealty :: and in case e De Jure Feod., 19, 20.

of these northern syllables, allodh, will & Wright, 7.

give us the true etymology of the alloSpelm., Gl., 216.

dium, or absolute property of the feud. i Pontoppidan, in his History of Nor- ists; as, by a similar combination of the way (page 290), observes, that in the latter syllable with the word fee (which northern languages odh signifies propri- siguifies, we have seen, a conditional etas, and all totum. Hence he derives reward or stipend), feeodh, or feodum, the odhal right in those countries; and will denote stipendiary property. hence too, perhaps, is derived the udal & See this oath explained at large in right in Finland, &c. (See Mac Doual, Feud., l. 2, t. 7. Inst., part 2.) Now the transposition

e

(3) This does not appear to have origin. In Scotland, the letting of land been the case; the lands were held in for a long term of years, or in perpetuicommon, and were annually divided ty, subject to the payment of a rent and and allotted, as Montesquieu observes : forfeiture, and therefore upon terms " Chez les Germains, il y avoit des closely resembling those of the original vassaux, et non pas des fiefs. Il n'y benefices or feuds, is to this day called avoit point de fiefs, parce que les feuing, and the rent feu-duty. Erskine princes n'avoient point de terres à (Principles of the Law of Scotland, book donner, ou plutôt les fiefs étoient des ii., tit. 4), speaking of this tenure, says, chevaux de bataille, des armes, des “It has a strong resemblance to the Rorepas. Il y avoit des vassaux, parce man emphyteusis, in the nature of the qu'il y avoit des hommes fidèles, qui right, the yearly duty payable by the étoient liés pas leur parole, qui étoient vassal, the penalty in the case of not engagés pour la guerre, et qui faisoient, punctual payment, and the restraint freà peu près, le même service que l'on quently laid upon the vassal not to alien fit depuis pour les fiefs."-(De l’Esprit without the superior's consent." Ac. des Loix, liv. XXX., chap. iii.)

cordingly, Sir F. Palgrave, with some

probability, derives the word from the (4) This derivation is, perhaps, bet- emphyteusis of the civil law, pronounced ter than that which has been proposed emphytefsis, and gradually shortened from the initial letters of the vassal's aud corrupted into phitef, or fitef, and oath, Fidelis ero ubique domino vero ultimately into fief, fevodium, fevd, or meo;" but a sufficient objection to all feud.—(Rise and Progress of the AnTeutonic derivations of the word feud glo-Saxons, Ilustrations, p. ccy., et seq.) is contained in the observation of Sir F. Emphyteusis was certainly, in the inPalgrave, that the word itself was never fancy of the feudal system, used with used in any Teutonic language, the An- the same meaning as precaria, and præsglo-Saxon or German name for a feud taria, or præstitia (the Latin translation being always læn, or lehn (a loan), and of the Teutonic lehn); and these latter for the feudal system, lehn-wesen." Our words signified the same thing with benown word was adopted from the Nor- eficia, the original feud. man, and was most probably of Latin

lord and vassal.

of the breach of this condition and oath, by not performing the stipulated service, or by deserting the lord in battle, the lands

were again to revert to him who granted them.h Duties of Allotments, thus acquired, naturally engaged such as accept

ed them to defend them; and as they all sprang from the same [ 46 ] right of conquest, no part could subsist independent of the

whole; wherefore all givers as well as receivers were mutually bound to defend each other's possessions. But, as that could not effectually be done in a tumultuous, irregular way, government, and to that purpose subordination, was necessary. Every receiver of lands, or feudatory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewise subordinate to, and under the comnand of, his immediate benefactor or superior; and so upward to the prince or general himself: and the several lords were also reciprocally bound, in their several gradations, to protect the possessions they had given. Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutually prepared to muster, not only in defense of each man's own several property, but also in defense of the whole, and of every part of this their newly-acquired country; the prudence of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their

conquests. The system

The universality and early use of this feodal plan among all among the those nations, which in complaisance to the Romans we still

call barbarous, may appear from what is recordedk of the Cimnations.

bri and Teutones, nations of the same northern original as those whom we have been describing, at their first irruption into Italy about a century before the Christian era. They demanded of the Romans, ut martius populus aliquid sibi terræ daret, quasi stipendium : cæterum, ut vellet, manibus atque armis suis uteretur." The sense of which may be thus rendered: they desired stipendiary lands (that is, feuds) to be allowed them, to be held by military and other personal services, whenever their lord should call upon them. This was evidently the same constitution that displayed itself more fully about seven hundred years afterward; when the Salii, Burgundians, and

Franks broke in upon Gaul, the Visigoths upon Spain, and the ( 47 ] Lombards upon Italy; and introduced with themselves this

northern plan of polity, serving at once to distribute and to protect the territories they had newly gained. And from hence, too, it is probable that the Emperor Alexander Severusl took

universal

barbarous

h Feud., 1. 2, t. 24.

limitaneis ducibus et militibus 'donarit; i Wright, 8.

ita ut eorum ita essent, si haredes illo* L. Florus, l. 3, c. 3.

rum militarent, nec unquam ad privatos 'Sola, que de hostibus capta sunt, pertinerent : dicens attentius illos mili

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