his election either to sue a subpoena,1 or an action of trespass against the lord. Time has dealt very favorably with copyholders in divers respects."

It might have been expected that so anomalous a class of rights as that which constitutes copyhold tenure would before the present time have been assimilated to the other forms of property in land. This, however, has not been done. Copyholds might at any period have been enfranchised (or converted into freeholds) by the conveyance of the freehold by the lord to the copyholder, or extinguished by surrender of the copyhold by the tenant to the lord. Various acts have in recent times created facilities for this process by providing means for the assessment and commutation of the lord's rights and otherwise; and at the present day either lord or copyholder may compel enfranchisement by taking the proper steps through the action of the Board of Agriculture.

Where copyholds have not been enfranchised (and there is still a large though gradually decreasing amount of land subject to copyhold tenure) the rights are still regulated entirely by custom. And inasmuch as the characteristics of this form of property depend entirely upon custom, they must have prevailed from a time whereof the memory of man runneth not to the contrary. In practice this means that the customary usages should be shown to have existed as far back as available evidence goes, from which the legal inference arises that they have existed from time immemorial—that is, ever since the first year of Richard I.2

'The technical expression for proceedings in Chancery, see page 151, post.

This date seems to have become fixed as giving a definite meaning to the expression “time whereof the memory of man runneth not to the contrary," in consequence of its having been fixed by the Statute of Westminster I. (3 Edw. I., c. 39) as the period of limitation in the case of a writ of right.

III. Tenure in the United States.

I STORY CONST., § 172. In all the colonies the lands within their limits were by the very terms of their original grants and charters to be holden of the Crown in free and common socage, and not in capite, or by knight's service. They were all holden either as of the manor of East Greenwich in Kent, or of the manor of Hampton Court in Middlesex, or of the castle of Windsor in Berkshire. All the slavish and military part of the ancient feudal tenures was thus effectually prevented from taking root in the American soil; and the colonists escaped from the oppressive burdens which for a long time affected the parent country, and were not abolished until after the restoration of Charles the Second. Our tenures thus acquired a universal simplicity: and it is believed that none but freehold tenures in socage ever were in use among us. No traces are to be found of copyhold or gavel-kind or burgage tenures. In short, for most purposes, our lands may be deemed to be perfectly allodial, or held of no superior at all, though many of the distinctions of the feudal law have necessarily insinuated themselves into the modes of acquiring, transferring and transmitting real estates. One of the most remarkable circumstances in our colonial history is the almost total absence of leasehold estates. The erection of manors, with all their attendant privileges, was, indeed, provided for in several of the charters. But it was so little congenial with the feelings, the wants, or the interests of the people, that after their erection they gradually fell into desuetude; and the few remaining in our day are but shadows of the past, the relics of faded grandeur in the last steps of decay, enjoying no privileges, and conferring no power.

3 KENT COM., 509-514. Most of the feudal incidents and consequences of socage tenure were expressly abolished in New York, by the act of 1787; and they were wholly and entirely annihilated by the New York Revised Statutes, as has been already mentioned. They were also abolished by statute in Connecticut in 1793; and they have never existed, or they have ceased to exist, in all essential respects, in every other State. The only feudal fictions and services which can be presumed to be retained in any part of the United States consist of the feudal principle, that the lands are held of some superior or lord, to whom the obligation of fealty, and to pay a determinate rent, are due. The act of New York, in 1787, provided that the socage lands were not to be deemed discharged of "any rents certain, or other services incident, or belonging to tenure in common socage, due to the people of this State, or any mean lord, or other person, or the fealty or distresses incident thereunto." The Revised Statutes also provide, that "the abolition of tenures shall not take away or discharge any rents or services certain, which at any time heretofore have been, or hereafter may be, created or reserved." The lord paramount of all socage land was none other than the people of the State, and to them, and them only, the duty of fealty was to be rendered; and the quit-rents which were due to the king on all colonial grants, and to which the people succeeded at the Revolution, have been gradually diminished by commutation, under various acts of the legislature, and are now nearly, if not entirely extinguished.

In our endeavors to discover the marks or incidents which with us discriminated socage tenure from allodial property, we are confined to the doctrine of fealty, and of holding of a superior lord. Fealty was regarded by the ancient law as the very essence and foundation of the feudal association. It could not on any account be dispensed with, remitted, or discharged, because it was the vinculum commune, the bond or cement of the whole feudal policy. Fealty was the same as fidelitas. It was an oath of fidelity to the lord, and to

use the words of Littleton, when a freeholder doth fealty to his lord, he shall lay his right hand upon a book, and shall say, "Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear, for the lands which I claim to hold of you, and that I shall lawfully do to you the customs and services which I ought to do at the terms assigned; so help me God and his saints." This oath of fealty everywhere followed the progress of the feuda! system, and created all those interesting ties and obligations between the lord and his vassal, which, in the simplicity of the feudal ages, they considered to be their truest interest and greatest glory. It was also the parent of the oath of allegiance, which is exacted by sovereigns in modern times. The continental jurist frequently considered homage and fealty as synonymous; but this was not so in the English law, and the incident of homage was expressly abolished in New York by the act of 1787, while the incident of fealty was expressly retained. Homage, according to Littleton, was the most honorable and the most humble service of reverence that a frank-tenant could make to his lord; but it is quite too abject and servile a ceremony of submission, allegiance and reverence, to be admissible at this day. .

The New York Statute of 1787 saved the services incident to tenure in common socage, and which it presumed might be due not only to the people of the State, but to any mean lord, or other private person, and it saved the fealty and distresses incident thereunto. But this doctrine of the feudal fealty was never practically applied, nor assumed to apply to any other superior than the chief lord of the fee, or in other words, the people of the State, and then it resolved itself into the oath of allegiance which every citizen, on a proper occasion, may be required to take.

Under the New York Statute, 1787, fealty, in the technical sense of the feudal law, was a dormant and exploded incident of feudal tenure; and by the Revised Statutes, even the fiction has become annihilated, unless it may be supposed to be lurking in the general declaration, that "the

people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to al lands within the jurisdiction of the State."

Thus, 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. Though the doctrine of a feudal tenure by free and common socage may be applicable to the real property in this country, chartered and possessed before our Revolution, and though every proprietor should be considered as holding an estate in feesimple, none of the inconveniences of tenure are felt or known. We have very generally abolished the right of primogeniture, and preference of males, in the title by descent, as well as the feudal services, and the practice of subinfeudation, and all restraints on alienation. Socage tenures do not exist any longer in some of the United States, while they still exist, in theory at least, in others; but where they do exist they partake of the essential qualities of allodial estates. An estate in fee-simple means an estate of inheritance, and nothing more, and in common acceptation it has lost entirely its original meaning as a beneficiary or usufructuary estate, in contradistinction to that which is allodial. It was used even by Littleton and Coke, to denote simply an inheritance; and they are followed by Sir Martin Wright and Sir William Blackstone. Whether a person holds his land in pure allodium, or has an absolute estate of inheritance in fee-simple, is perfectly immaterial, for his title is the same to every essential purpose.

4 ID., 3. It was undoubtedly proper that the tenure of lands should be uniform, and that estates should not in one part of the country be of the denomination of socage tenures, and in another part allodial; but it may be doubted, whether there was any wisdom or expediency in the original statute provision, declaring lands in New York to be allodial, and abolishing the tenure of free and common socage, since