modifications of it in the same instrument. This breach of our law presents, perhaps, a solitary instance in modern jurisprudence, where the niceties of the feudal and the civil laws occur in the same system.

The intricacies and burdens of tenure, indeed, were greatly diminished at the Restoration. Much of the original system, however, still remains; together with many theories, built upon it, and fictions, invented occasionally to elude it. The whole tinctures deeply our laws of landed property; though discordant from the sentiments and habits of modern society, and even from that leading maxim of modern law, which wisely regards land as a commercial property, and discountenances all undue restriction on its alienation. When, to the above catalogue, we add the various local customs, (having also their origin, for the most part, in the caprices of tenure,) the inaptitude of such a body of law to the purposes of commerce, and to the rights of creditors; the subtile refinements of uses and trusts; the distinct and intricate laws of tithes, (as they will be noticed hereafter,) and numerous other servitudes on land, of a less ostensible description, we cannot but be sensible of a dense medium interposed between us and the only legitimate qualities of property; namely, its capacities of enjoyment, succession, and alienation; its liability to the debts of the owner, and to his duties to the state.

In the foregoing remarks, I have purposely kept

out of view moveable, or, as our laws term it, personal property; and that for several reasons : it is, in its nature, distinct from land;-it is not the subject of tenure; and, in our law, the mode of succession to it is wholly different from that of land, the latter being regulated by primogeniture among males; but personalty by equal partibility between the nearest relations. These circumstances have generated a distinct body of law, which, though somewhat complex, bears directly upon its objects; and the defects of which might be met by improvements of a much more limited character than those which our code of real property imperatively requires.

8

OF REAL PROPERTY AND ITS ESSENTIAL QUALITIES.

THIS species of ownership is considered, in the laws of England, as comprising, not only land, with the erections and other improvements upon it, all which are called corporeal, but also various rights derived out of it. These consist of privileges for the benefit of strangers; as rights of way, water, and light. These, and their like, are termed incorporeal, in respect of their having no apparent existence but in their enjoyment. In reality, however, instead of constituting property of themselves, they are so many burdens or (as the civilians term them) servitudes on the land.

The three privileges enumerated are universal, wherever land is enjoyed in separate property. A fourth may be added, namely, rents, which the habits and convenience of society render also necessary, where for life, or any more limited period; as during infancy, or marriage.

9

TITLE I.

OF THE ARTIFICIAL DISTINCTIONS OF REAL PROPERTY IN THE LAW OF ENGLAND; AND HEREIN

OF TENURES, USES, AND TRUSTS.

In addition, however, to the simple and essential characters of land, and burdens on land, the system of tenures, and its consequences, together with the subtilties of uses and trusts, already alluded to, have given rise to other distributions, wholly artificial, of landed property, which will be best explained by a brief account of the operations of each of these three causes.

CHAP. I.-Of Tenures.

It was a maxim of tenure, that the tenancy should be always full, that is, there should be always a tenant or a succession of tenants to do the lord's service. Hence land could not be granted, to vest at a future day or on a future event. It was frequently granted, to one for life, with remainder to another in fee. In that case, the immediate tenant, being seised of the property, was intrusted with the protection of the possession. If he

failed in this duty, it was a forfeiture of his estate. It was another rule, that land could only pass by delivery of the possession, or seisin, as it is technically called. This was accompanied by a feoffment, of which the livery of seisin was the essential part, the tenant for life accepting it on behalf both of himself and those in remainder; while the deed only authenticated the transaction. This livery passed a fee, either by right or by wrong; since whoever had the seisin was competent to deliver it over. The same effect was attributed to a fine; a species of assurance, whereby the person seised in possession, acknowledged, in a feigned action at law, the right to be in another. The result of these positions was, that an immediate interest in land could only be transferred on the spot, or by a judicial acknowledgment -that all in remainder took through the medium of the delivery of seisin to the first tenant,-that this tenant, being intrusted with the seisin, was competent, by the same mode of feoffment or fine, to transfer it, not merely for his own rightful interest, but absolutely to another. Such an act, indeed, was a forfeiture of his own estate; and if the grantee in remainder was in existence, and his interest was vested, and not depending on a future event, he might enter, for the forfeiture. If, however, there was no such grantee, then, from the imaginary ouster or devestment of the seisin on which the limitations depended, and the want of an existing