CHAPTER X.

ANCIENT TENURES.

§ 93. Tenure.-Before quitting this branch of the subject, and proceeding to a consideration of modern English tenures, and the law of tenures as it prevails in the United States, let us by way of summary or recapitulation give the nature and definitions of the ancient English tenures, as they existed under the laws of feudalism.

§ 94. All real property was holden of some superior, in consideration of certain services to be rendered to the lord by the tenant or possessor of the property. The thing holden was a tenement. The possessor was a tenant. The manner of possession was tenure.

§ 95. Lord paramount.-The king, because all land was holden mediately or immediately of him, was lord paramount.

§ 96. Middle lords and tenant paravail.-Persons who held immediately of the king, and granted portion of their lands to others, were called middle lords. The grantee of the middle lord was called tenant paravail, or the lowest tenant.

§ 97. Free and base tenure.-These tenures were held by four different kinds of service. As to quality they were free or base, as to quantity certain or uncertain. Free services were such as were not unbe

coming to a soldier, such as fighting for his lord, or paying a sum of money. Base services were servile, plowing, making hedges and the like. Certain services were fixed in quantity, as to days of military service or payment of a fixed sum. Uncertain services depended on unknown contingencies.

§ 98. Frank-tenement and villenage.-From these services arose four kinds of tenure. Tenements were of two kinds, frank-tenement and villenage. Some frank-tenements were held in consideration of homage and knight service; others in free-socage, with the service of fealty only. Of villenage, there was pure villenage and privileged villenage. A tenant by pure villenage was bound to do whatever was commanded him, and he was bound to an uncertain service. A tenant by villein socage was bound to do villein service, but it was certain.

§ 99. Knight service. Of these, knight service was the most honorable. For a knight's fee, estimated at twelve plowlands (about one hundred and twenty acres) each tenant must attend his lord. to the wars for forty days in every year, if called upon; if he held less than a knight's fee, his service was to be in proportion. These were the original services, and the other incidents grew up by a series of fraudulent impositions.

§ 100. Aids.-Aids were at first mere benevolences granted by the tenant to his lord in time of difficulty and distress, but in time they grew to be matters of right. There were three, viz., to ransom the lord, to make his eldest son a knight, and to marry his eldest daughter.

§ 101. Relief.-Relief was a fine or sum of money

exacted by the lord from the new tenant when the estate lapsed by the death of a former tenant.

§ 102. Primer seizin.-Primer seizin was a sum of money equal to a year's profits of the lands from the heirs of a tenant in capite (one holding immediately of the king), which the king exacted.

§ 103. Wardship.-Wardship gave the lord the custody of the lands and person of the tenant under age without being compelled to account for profits.

§ 104. Marriage.-Marriage was the right of the lord to select a husband or wife for his ward, and if his selection was rejected, he could recover whatever a jury would assess as damages, or as much as any one would bona fide give for the alliance.

§ 105. Fines.-Fine was a sum exacted from a tenant for a license to sell part of his holding.

§ 106. Escheat.-Escheat was the resumption of the fee by the lord, when issue failed or where the estate was lost by the crime of the tenant.

Brave and spirited people became restive under these onerous burdens, and but for the statute of Charles II, above quoted, which abolished these exactions, the monarchy itself might have been subverted.

CHAPTER XI.

MODERN TENURES.

§ 107. Influence of feudal system.-Judge Cooley, speaking of tenures in America, says: "Although the feudal system never obtained much foothold in this country, there are many things in our law of real estate which require for their understanding that we bear in mind the fact that the American system is based upon the common law of England, and that that law grew up while the feudal system was in force. As lands in England were held under that system, and its maxims thoroughly pervaded the law of real estate, it was not to be expected that when grants of land were made in this country under circumstances unknown in England, a new system of law with new terms and maxims would at once spring into existence to provide for the new condition of things and bearing no trace of the system which it supplanted."

§ 108. As a matter of fact, however, the early grants in America were made with a reference to a continuation of something like a feudal tenure, and many incidents of that system attached themselves to these grants. The tenure prescribed was tenure in free and common socage, to be held of the king, as of some manor in England. When the colonies threw off allegiance to the crown, and became inde

pendent states, each of them succeeded to all the rights of the crown within its limits, while the United States as a sovereignty succeeded to all the rights of the crown to unoccupied territory not within the limits of any of the states and not previously conveyed.

§ 109. Revival of allodial tenure.-Being thus possessed of the vacant lands, the United States and the several individual states have proceeded to make sale and conveyance thereof and to give titles which, though called fees, are in truth allodial. At the same time the states by statutory and constitutional provisions have gradually abolished such of the feudal incidents as still attached to the estates previously granted by the crown, until, as Chancellor Kent says, 3 Com. 513, "By one of those singular revolutions incident to human affairs, allodial estates once universal in Europe, and then almost universally exchanged for feudal tenures, have now after the lapse of many centuries regained their primitive estimation in the minds of freemen."

§ 110. In America as in England the sovereignty is recognized as the source of all title, and the state succeeds thereto in default of heirs; but this right is not peculiar to the feudal system; neither is eminent domain, which is sometimes referred to as a remaining incident of the feudal system.

§ 111. Estates.-An estate in lands, tenements and hereditaments signifies such interest as the tenant has therein. An estate is either for an uncertain period, as for life, for a certain period of years, or unlimited, as when it is vested in a man and his heirs forever, without mentioning what heirs. This