poreal. Corporeal consist of such as affect the senses; such as may be seen and handled: incorporeal are not the object of sensation, can neither be seen nor handled, and exist only in contemplation of law.

I. Corporeal hereditaments may thus be comprehended under the denomination of land, which legally signifies any ground, or earth whatsoever; arable, meadow, wood, water, marsh, heath. Water being here mentioned as land, may seem a kind of solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or piece of water; I must sue for the land that lies at the bottom, and call it land covered with water.

Land has also, legally, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad cœlum; therefore no man may erect any building to overhang another's land: and whatever is in a direct line between the surface and the centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. And therefore if a man grants all his lands he grants thereby all his mines, his woods, and his waters, as well as his houses, fields and meadows.

II. An incorporeal hereditament is a right issuing out of a thing corporate, whether real or personal, or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself; but something collateral thereto, as a rent issuing out of land or an office relating thereto. And these incorporeal hereditaments are principally advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.

1. Advowson is the right of presentation to an ecclesiastical benefice. For, when lords of manors first built churches, and appointed the tithes of those manors to be paid to the ministers, the lord had a power annexed of nominating such minister as he pleased to officiate in that church of which he was the founder, endower, or, in one word, the patron.

This instance will illustrate the nature of an incorporeal hereditament. It is not itself the possession of the church, but a right to give some other man a title to such possession. The

advowson is the object of neither sight nor touch; and yet it perpetually exists in contemplation of law. It cannot be delivered by any visible transfer, nor can corporeal possession be had of it. If the patron takes corporeal possession of the church, the glebe, or the like, he intrudes on another's property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, viz., by writing under seal, which is evidence of an invisible mental transfer and being so vested it lies dormant and unnoticed, till occasion calls it forth, when it produces a visible corporeal fruit, by entitling some clerk, whom the patron nominates, to enter, and take possession of the lands and tenements of the church.

2. Tithes are incorporeal hereditaments; being the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock thereupon, and the personal industry of the inhabitants: the first being usually called predial, as of corn, hops, and wood: the second mixed, as of wool, milk, pigs, &c., natural products, nurtured in part by the care of man: the third personal, as of manual occupations, trades, fisheries, and

the like.

I will not put the title of the clergy to tithes upon any divine right; municipal laws have in many cases provided a liberal maintenance for the national clergy; and so does the law of England. At what precise time however tithes were first introduced here cannot be precisely ascertained. They may have been contemporary with Augustin; but the first mention of them in any written law, is in a decree, made in a synod held A.D. 786, wherein their payment is strongly enjoined. The next authentic mention of them is about A.D. 900, in the Anglo-Saxon laws, where this payment is not only enjoined but a penalty added upon non-observance: and this law is seconded by the laws of Athelstan, about the year 930.

Upon their first introduction, every man might give them to what priest he pleased; but, when the country was divided into parishes, the tithes of each were allotted to its own minister; first by common consent, or the appointments of lords of manors, and afterwards by the written law. The first step towards this

result was taken by Innocent III., about 1200, who in an epistle to the Archbishop of Canterbury, enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited. This epistle bound not the lay subjects of this realm; but, being reasonable and just, it was allowed of, and so became lex terræ ; so that tithes are due, of common right, to the parson of the parish, unless there be a special exemption; which may be either by a real composition, or by custom or prescription.

A real composition was when an argreement was made between the owner of the lands, and the parson or vicar, that such lands should for the future be discharged from payment of tithes, by reason of some land or other real recompense given to the parson, in lieu and satisfaction thereof.

A discharge by custom or prescription, was where time out of mind such persons or such lands had been, either partially or totally, discharged from the payment of tithes. And this immemorial usage or prescription, was either de modo decimandi, or de non decimando. A modus decimandi, commonly called by the simple name of a modus, was where there was by custom a particular manner of tithing allowed, different from the general law of taking tithes in kind; such as a pecuniary compensation, as twopence an acre, or a compensation in labour, as, that the parson should have only the twelfth cock of hay, and not the tenth, in consideration of the owner's making it for him. A prescription de non decimando was a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them; whence have sprung all the lands which, being in lay hands, do at present claim to be tithe-free: for if a man can show his lands to have been immemorially discharged of tithes, this is a good prescription de non decimando.

Tithes, however, have already to a considerable extent, and will very soon indeed become mere matter of history, through the operation of the statutes, which have been passed for their commutation into rent-charges. These are payable half-yearly, and are recoverable by distress and sale, like ordinary rents.

3. Common, or right of common, appears from its very definition to be an incorporeal hereditament: being a profit which a man has in the land of another; as, to feed his beasts, to catch

fish, to dig turf, to cut wood, or the like; and is chiefly of four sorts: common of pasture, of piscary, of turbary, and of estovers.

Common of pasture is a right of feeding one's beasts on another's land: for in those waste grounds, which are called commons, the property of the soil is generally in the lord of the manor. Common of piscary is a liberty of fishing in another man's water; as common of turbary is a liberty of digging turf upon another's ground. There is also a common for digging for coals, minerals, stones, and the like. Common of estovers, or estouviers, that is, necessaries, from estoffer, to furnish, is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another's estate. The Saxon word bote, is used by us as synonymous to the French estovers: and therefore house-bote is a sufficient allowance of wood to repair or to burn in the house; plough-bote and cart-bote are to be employed in making and repairing instruments of husbandry; and hay-bote, or hedgebote, is wood for repairing of hays, hedges, or fences.

4. Ways, or the right of going over another man's ground, are a fourth species of incorporeal hereditament. I speak not here of the public highways, nor yet of common ways, leading from a village into the fields; but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil.

5. Offices, which are a right to exercise an employment and to take the emoluments thereunto belonging, are also incorporeal hereditaments; whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like; for a man may have an estate in them. A judicial office cannot be granted in reversion; because, though the grantee may be able to perform it at the time of the grant; yet before the office falls, he may become unable. Ministerial offices may be so granted; for those may be executed by deputy. But no public office can be sold; for the law presumes that he who buys an office will by bribery, extortion, or other unlawful means, make his purchase good, to the detriment of the public.

6. Dignities bear a near relation to offices, being incorporeal hereditaments, wherein a man may have a property or estate.

7. Franchises or liberties are synonymous; their definition being a royal privilege or branch of the prerogative, in the hands of a subject; and there are various kinds of them. To be a county palatine is a franchise, vested in a number of persons.

So

it is to be incorporated and subsist as a body politic. Other franchises are to have a manor or lordship; to have estrays or royal fish; to have a fair or market; or to have a forest, warren, or fishery.

8. Corodies are a right of sustenance, or to receive victual and provision for one's maintenance, in lieu of which a sum of money is sometimes substituted. To these may be added,

9. Annuities, which are very distinct from rent-charges, with which they are frequently confounded; for a rent-charge issues out of lands; an annuity is a yearly sum chargeable only upon the person of the grantor. Finally,

10. Rent is an incorporeal hereditament, and signifies an acknowledgment given for the possession of some corporeal inheritance, being defined a profit issuing yearly out of lands and tenements corporeal. It must be a profit; yet it need not be money: for capons, corn, and other matters may be rendered by way of rent. It must issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner of the rent may have recourse to distrain, and therefore a rent cannot regularly be reserved out of an advowson, an office, or the like. Rent is payable upon the land whence it issues, and strictly it is demandable before sunset of the day whereon it is reserved, though not absolutely due till midnight.

CHAPTER III.

OF THE FEUDAL SYSTEM.

It is impossible to understand, with any accuracy, either our civil constitution, or the laws which regulate our landed property, without some acquaintance with the feudal law: a system universally received throughout Europe upwards of twelve centuries ago. It had its origin in the military policy