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Bro. Abr.

tit. Warren.

Free fishery.

Salk. 637.

Ibid.

Corodies.

warren; and hence, at this day, it sometimes happens that persons have free warren over the grounds of others.

A free fishery, or exclusive right of fishing in a public river, is also a royal franchise, and differs from a several fishery; in that the latter must be vested in or derived from the owner of the soil, which in a free fishery is not requisite. It differs also from a common of piscary, the free fishery being an exclusive right, whilst the common of piscary is not so. In a free fishery the owner has a property in the fish before they are caught, but in a common of piscary not till afterwards.

Corodies are a right of sustenance or to receive certain allotments of provision, in lieu of which a sum of money is Finch, L. 192. usually substituted. These are not chargeable in the inheritance, but on the person of the owner in respect of it.

Annuities.

Annuities are much of the same nature, only that they arise from temporal, and corodies from spiritual persons. An annuity is a thing distinct from a rent-charge, with which it is frequently confounded; a rent-charge being a burthen upon, Co. Litt. 144. and issuing out of land, whereas an annuity is a yearly sum chargeable upon the person of the grantor (i).

Rents.

Rents are the last species of incorporeal hereditaments. The word rent or render, reditus, signifies a composition or return, being a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; but need not be, as it usually is, a sum of money; for spurs, capons, horses, corn, and other matters may be, and frequently are, rendered by way Co. Litt. 142. of rent; or it may consist of services or manual operations, which in the eye of the law are profits. But there are four requisites to a rent; it must be certain, or that which may be reduced to a certainty by either party; it must issue yearly, though it need not issue every successive year; but may be renewed every second, third, or fourth year; yet it ought to be reserved yearly, because the profits of the lands or tenements out of which it is produced arise annually. It must issue out of the thing granted, and not be part of the land or thing

Ibid. 47.

(i) By 53 Geo. 3, c. 141, repealing 17 Geo. 3, c. 26, a memorial of the date of every deed, bond, instrument, or other assurance, of the names of all the parties and of all the witnesses, and of the party for whose life the annuity shall be granted, and of the party by whom the same is to be beneficially received with the consideration for and the amount of the annuity, must be enrolled as required by the statute.

By 7 Geo. 4, c. 75, it is only necessary, in stating the witnesses' names in the memorial, to give the names of all the witnesses as they appear signed to their attestations.

itself, and it must issue out of lands and tenements corporeal, that is, from some inheritance to which the grantee may have recourse to distrain. It cannot therefore be reserved out of an advowson, a right of common, an office or a franchise. There are at common law three kinds of rents: rent service, Litt. s. 213. rent charge, and rent seck. Rent service is so called because Rent service. it has some corporeal service incident to it, as fealty or the feodal oath of fidelity. If a tenant holds his land by fealty, and 10s. rent, or by a certain service and rent, these pecuniary rents being connected with personal service are called rent service. And for these the lord may distrain of common right without reserving any special power of distress, if he has

in himself the reversion of the lands after the lease or par- Litt. s. 215. ticular estate of the lessee or grantee is expired.

A rent Rent charge.

Co. Litt. 143.

Rent seck.

Rents of as

sise.

charge is where the owner of the rent has no future interest or reversion, as where a man by deed makes over to another his whole estate in fee simple, reserving a rent, and adds to the deed a clause of distress. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed, and therefore it is called a rent charge, because in this manner the land is charged with a distress for the payment of it. Rent seck is in effect a rent reserved by deed, but without any clause of distress. clause of distress. Rents of assise are the certain established rents of the freeholders and ancient copyholders of a manor which cannot be departed from or varied. Those of 2 Inst 19. the freeholders are frequently called chief rents, and both sorts are denominated quit rents, as discharging the tenant from all other services. Rack rent is a rent of the full value of the tenement or near it. A fee farm rent is a rent charge issuing out of an estate in fee, of at least one-fourth of the value of the lands at the time of its reservation. Rent is regularly payable upon the land from whence it issues, if no particular place is mentioned in the reservation; but in case of the king the payment must be either to his officers at the exchequer, or to his receiver in the country; and strictly it is demandable and 4 Rep. 73. payable on the day whereon it is reserved.

Chief. rents and quit rents.

Rack rent.

Fee farm rent.

Co. Litt. 143.

Co. Litt. 201.

Co. Litt. 302. 1 Anders. 253.

I

[merged small][ocr errors]

The feodal

system.

Spelman of feuds. Wright of

tenures.

Wright, 7. Spelm. Gl. 216.

OF THE FEODAL SYSTEM.

THE Constitution of feuds had its original from the military policy of the Northern or Celtic nations, who migrated into all the regions of Europe at the declension of the Roman Empire (a). It was brought by them from their own countries, and continued in their respective colonies as the most likely means of securing 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 allotments to the inferior officers and most deserving soldiers. These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern languages, signifies an additional stipend or reward, the

(a) The feudal law was established by the nations which overturned the Roman empire. The first of these were the Vandals, the Suevi, and the Alani. They inhabited the countries bordering on the Baltic. About the year 406, they made an irruption into Gaul; from Gaul they advanced into Spain. About 415 they were driven from Spain by the Visigoths, and invaded Africa, where they formed a kingdom. About 431, the Franks, the Allemanni, and the Burgundians, penetrated into Gaul. Of these the Franks became the most powerful, and having either subdued or expelled the others made themselves masters of those extensive provinces which from them received the name of France. Pannonia and Illyricum were conquered by the Huns; Rhotia, Noricum, and Vindelicia, by the Ostrogoths; and these were afterwards conquered by the Franks. In 449, the Saxons invaded Great Britain. The Herulians marched into Italy under the command of their king Odoacre, and in 476 overturned the empire of the west; from Italy, in 493, they were expelled by the Ostrogoths. About 568, the Lombards issuing from the Mark of Brandenburgh, invaded the higher Italy, and founded the kingdom of the Lombards. After this, little remained in Europe of the Roman empire besides the middle and inferior Italy; and, eventually, the remaining possessions of the empire in Italy were conquered by the Lombards. The nations by whom these conquests were made came from different countries at different periods, spoke different languages, and were under the command of separate leaders, yet they appear to have established in almost every state where their polity prevailed nearly the same system of laws, known by the appellation of the feudal law.-Co. Litt. 191 a, note, sect. 1.

This uniformity had induced some authors to believe that all these nations, notwithstanding so many apparent circumstances of distinction, were originally the same people; but it may be ascribed with great probability to the similar state of society and of manners to which they were accustomed in their native countries, and to the similar situations in which they found themselves on taking possession of their new domains. -Robertson's Charles 5, sec. 1.

Brac. 1, 2.

condition annexed to them being that the possessor should do service faithfully, both at home and in the wars to him by whom they were given (b); for which purpose he took the oath of fealty, upon the breach of which the lands reverted to him who granted them. But the feodal polity thus by degrees Feud. 1, 2, established over all the continent of Europe, was not universally t. 24. received in England, as a part of the constitution, till the reign Spelm. Gl. of William the Norman (c). From the prodigious slaughter of 218. the English nobility at the battle of Hastings, and the fruitless insurrections of those who survived, such numerous forfeitures accrued that the Conqueror was able to reward his Norman followers with extensive possessions, which caused him to be represented as having, by right of the sword, seized on all the lands of England, and dealt them out again to his own favourites, a supposition grounded upon a mistaken sense of the word conquest, which, in its feodal acceptation, signifies merely acquisition. Upon the introduction of the feodal system into England, it became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures" that the king is the universal lord and original proprietor of all the lands in his kingdom: and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him to be held upon feodal services."

The Conqueror and his son William Rufus, strictly maintained all the rigours of the feodal doctrines. Their successor Hen. 1, granted a charter, relinquishing the greater grievances; but reserving the fiction of feodal tenure for the same military purposes which engaged his father to introduce

(b) From Tacitus (Tac. Germ. 13, 14), we learn that every chieftain was surrounded by a number of retainers who did him honor in time of peace, and accompanied him to the field in time of war. To fight by his side they deemed an indispensable duty, to survive his fall an indelible disgrace. It was this artificial connexion, this principle which reciprocally bound the lord to his vassal and the vassal to his lord, that held together the northern hordes when they issued forth in quest of adventures. They retained it in their new homes, and its consequences were gradually developed as each tribe made successive advances in power and civilization. Hence sprang the feudal system with its long train of obligations, of homage, suit, service, purveyance, reliefs, wardships, and scutage.-Lingard's England, ch. 7.

(c) That it was introduced into England by the Norman Conqueror is the opinion of respectable writers, and the assertion may be true if they speak of it only in its mature and most oppressive form. But all the primary germs of the feudal services may be descried among the Saxons even in the earlier periods of their government; and many of them flourished in full luxuriance long before the extinction of the dynasty.-Ibid.

it. This charter was however gradually broken through, and the former grievances revived and aggravated both by himself and succeeding princes, till, in the reign of John, they became so intolerable as to occasion his barons or principal feudatories to rise up in arms, which produced the great charter of Runing-mead, afterwards confirmed by Hen. 3. The fundamental principle of feodal tenure is, that as all lands were originally granted out by the sovereign, they are holden either mediately or immediately of the crown. The grantor was the proprietor or lord: being he who retained the dominion or ultimate property of the feud or fee; and the grantee, who had only the use and possession according to the terms of the grant, was styled the feudatory or vassal, being only another name for the tenant or holder of the lands (d). The manner of the grant was by words of gratuitous and pure donation dedi et concessi, which are still the operative words in deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vassals, which perpetuated among them the æra of the new acquisition, at a time when the art of writing was little known; and therefore the evidence of property was reposed in the memory of the neighbourhood, who, in case of a disputed title, were called upon to decide the difference, not only according to external proofs adduced by the parties litigant, but also by the internal testimony of their own private knowledge. Besides, an oath of fealty or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal or tenant, upon investiture, did usually homage to his lord openly, kneeling, being ungirt, uncovered, and holding up his hands together between those of the lord who sat before him, and there professing " that he did become his man from that day forth of life, and limb, and earthly honor," and then he received a kiss from his lord, which ceremony was denominated homagium or manhood by the feudists, from the stated form of words devenio vester homo.

(d) The principle and order of the feudal succession are peculiar to that system of polity. Nothing perhaps will show these in so strong a light as bringing them into contrast with the doctrines of inheritance in the civil law. In the Roman law, real and personal property were equally the subject of inheritance; in the feudal law inheritance was confined to real property. The Roman heir claims as such all from the person last possessed, and nothing from the original donor; the feudal heir claims as such all from the donor, and nothing from the person last possessed.-Co. Litt. 191 a, note, sect. 6.

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