a franchise of free fishery ought now to be at least as old as the reign of Henry II. This differs from a several fishery; because he that has a several fishery must also be (or at least derive his right from) the owner of the soil, (i) which in a free fishery is not requisite. It differs also from a common of piscary before mentioned, in that the free fishery is an *exclusive right, the common of

piscary is not so: and therefore, in a free fishery a man has a property in [*40] the fish before they are caught, in a common of piscary not till afterwards. (k) (26) Some indeed have considered a free fishery not as a royal franchise, but merely as private grant of a liberty to fish in the several fishery of the grantor. (1) But to consider such right as originally a flower of the prerogative, till restrained by magna charta, and derived by royal grant (previous to the reign of Richard I) to such as now claim it by prescription, and to distinguish it (as we have done) from a several and a common of fishery, may remove some difficulties in respect to this matter, with which our books are embarrassed. For it must be acknowledged, that the rights and distinctions of the three species of fishery are very much confounded in our law-books; and that there are not wanting respectable authorities (m) which maintain that a several fishery may exist distinct from the property of the soil, and that a free fishery implies no exclusive right, but is synonymous with common of piscary. (27)

VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance. (n) In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted. (0) And these may be reckoned another species of incorporeal hereditments; though not chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect of such his inheritance. To these may be added,

IX. Annuities, which are much of the same nature; only that these arise from temporal, as the former from spiritual persons. An annuity is a thing very distinct from a rent-charge, with which it is frequently confounded: a rent-charge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor. (p) Therefore, if a man by deed grant to another the sum of 201. per annum, without expressing out of what lands it shall issue, no land at all shall be charged with it; but it is a mere personal annuity; which is of so little account in the law, that if granted to an eleemosynary corporation, it is not within the statutes of mortmain; (g) and yet a man may have a real estate in it, though his security is merely personal. (28)

(i) M. 17 Edw. IV, 6 P. 18 Edw. IV, 4 T. 10 Hen. VII, 24, 26. Salk. 637. (k) F. N. B. 88. Salk. 637. (7) 2 Sid. 8. (m) See them well digested in Hargrave's notes on Co. Litt. 122. (n) Finch, L. 162. (0) See book 1, ch. 8. (p) Co. Litt. 144. (9) Ibid. 2.

(26) [A subject may have, by prescription, a several fishery in an arm of the sea. Per Ld. Kenyon, 4 T. R. 439; 1 Camp. 312. A grant of "a several fishery," without more, does not pass the soil. 5 B. and Cr. 881.] A public river is a public highway, and this is its distinguishing characteristic; and all rights of fishery in it must be subservient to the right of passage, and must be so exercised as not to prejudice such right when it is used in reasonable manner. Mayor of Colchester v. Brooke, 7 Q. B. 339; Young v. Hichens, 6 Q. B. 609.

(27) In the United States, franchises are derived from legislative grant, or claimed by prescription, which presupposes such grant. And, in England, at the present time, they are all more or less taken under legislative direction and control.

(28) [This appears to require some explanation. If an annuity (not charged on lands) be granted to a man and his heirs, it is a fee simple personal. Co. Litt. 2, a And Mr. Hargrave, in his note upon the passage just cited, says, though an annuity of inheritance is held to be forfeitable for treason, as an hereditament: 7 Rep. 34 b; yet, being only personal, it is not an hereditament within the statute of mortmain, 7 Edw. I, st. 2; nor is it entailable within the statute de donis. Lord Coke again says, Co. Litt. 20 a "if I, by my deed, for me and my heirs, grant an annuity to a man, and the heirs of his body, this concerneth no land, nor savoreth of the realty." And see Earl of Stafford v. Buckley, 2 Ves. Sen. 177; Holdernesse v. Carmarthen, 1 Br. 382; Aubin v. Daly, 4 Baru. and Ald. 59. Some of the diversities between a rent and an annuity are thus laid down, in the 30th chapter of the Doctor and Student, Dialogue 1: "Every rent, be it rent-service, rent-charge, or rent-seck, is going out of land. Also of an annuity there lieth no action, but only a writ of annuity; but, of a rent, the same action may lie as doth of land. Also, an annuity is never taken for assets, because it is no freehold 355

*X. Rents are the last species of incorporeal hereditaments. The [*41] word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgment given for the possession of some corporeal inheritance. (r) It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money; for spurs, capons, horses, corn, and other matters may be rendered, and frequently are rendered, by way of rent. (s) It may also consist in services or manual operations; as, to plough so many acres of ground, to attend the king or the lord to the wars, and the like; which services in the eye of the law are profits. This profit must also be certain ; or that which may be reduced to a certainty by either party. It must also issue yearly; though there is no occasion for it to issue every successive year; but it may be reserved every second, third, or fourth year; (t) yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold or enjoy them, it ought to be reserved yearly, because those profits do annually arise and are annually renewed. It must issue out of the thing granted, and not be part of the land or thing itself; wherein it differs from an exception in the grant, which is always of part of the thing granted. (u) (29) It must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrein. Therefore a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the like. (w) But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debt: (a) though it doth not affect the inheritance, and is no legal rent in contemplation of law. (30)

There are at common law (y) three manner of rents, rent-service, rentcharge, and rent seck. Rent-service is so called *because it hath some [*42] corporal service incident to it, as at the least fealty or the feudal oath of fidelity. (z) For, if a tenant holds his land by fealty, and ten shillings rent; or by the service of ploughing the lord's land, and five shilling rent; these pecuniary rents, being connected with personal services, are therefore called rentservice. And for these, in case they be behind, or arrere, at the day appointed, the lord may distrein of common right, without reserving any special power of distress; provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expired. (a) A rent-charge is where the owner of the rent hath no future interest, or reversion expectant in the land: as where a man by deed maketh over to (t) Ibid. 47. (u) Plowd. 13. 8 Rep. 71. (2) Co. Litt. 144. (2) Co. Litt. 142. (a) Litt. § 215.

(r) Ibid. 144. (x) Ibid. 47.

(8) Ibid. 142. (y) Litt. § 213.

in the law, nor shall it be put in execution upon a statute merchant, statute staple, or elegit, as a rent may." No doubt, when an annuity is granted, so as to bind both the person and real estate of the grantor, the grantee hath his election, either to bring a writ of annuity, treating his demand as a personal one only, or to distrain upon the land, as for a real interest. Co. Litt. 144 b. The definition which Fitzherbert, N. B. p. 152, gives of an annuity is, that it either proceeds from the lands or the coffers of another. Where it is charged upon land, it may be real or personal, at the election of the holder. If it is out of the coffers, it is personal only as to the remedy; but the property itself is real as to its descent to the heir. And this seems to be the only sense in which an annuity, for which the security is merely personal, can be called real estate. Turner v. Turner, Ambl. 782.]

(29) [Co. Litt. 142; see also Wickham v. Hawker, 7 M. and W. 63; Doe d. Douglas v. Lock, 2 A. and E. 705; Durham and S. R. Co. v. Walker, 2 Q. B. 940; Pannell v. Mill, 3 C. B. 625. An exception to this exists in the case of mines, quarries, &c., where the rent or royalty consists commonly of a fixed proportion of the ore raised or stone gotton, which, it is to be observed, is a part of the land itself. Campbell v. Leach, Ambl. 740; Buckley v. Kenyon, 10 East, 139; R. v. Earl of Pomfret, 5 M. and S. 139; R. v. Inhabitants of St. Anstell, 5 B. and Ald. 693; R. v. Westbrook, 10 Q. B. 178.]

(30) [A rent may however be granted or reserved out of tithes, with all the incidents of a rent, except from the necessity of the case, that of distress. 3 Wils. 25; 2 Saund. 303; statute 5 Geo. III, c. 17. But a rent cannot be reserved out of chattels personal, and if such chattels are demised with land at an entire rent, the rent issues out of the land only. 5 Rep. 17 b; 2 N. R. 224.]

others his whole estate in fee-simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. 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. (b) Rent-seck, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but without any clause of distress.

There are also other species of rents, which are reducible to these three. Rents of assize are the certain established rents of the freeholders and ancient copyholders of a manor, (c) which cannot be departed from or varied. Those of the freeholders are frequently called chief-rents, reditus capitales: and both sorts are indifferently denominated quit-rents, quieti reditus: because thereby the tenant goes quit and free of all other services. When these payments were reserved in silver or white money, they were anciently called white-rents, or blanchfarms, reditus albi ; (d) in contradistinction to rents reserved in work, grain, or baser money, which were called *reditus nigri, or black-mail. (e) Rack[*43] rent is only a rent of the full value of the tenement, or near it. A feefarm 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: (f) for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee-simple instead of the usual methods for life or years. (31)

These are the general divisions of rent; but the difference between them (in respect to the remedy for recovering them) is now totally abolished; and all persons may have the like remedy by distress for rents-seck, rents of assize, and chief-rents, as in case of rents reserved upon lease. (g)

Rent is regularly due and 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. (1) And strictly the rent is demandable and payable before the time of sunset of the day whereon it is reserved; (k) though perhaps not absolutely due till midnight. (7)

With regard to the original of rents, something will be said in the next chapter; and, as to distresses and other remedies for their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our Commentaries, which will treat of civil injuries, and the means whereby they are redressed.

CHAPTER IV.

OF THE FEUDAL SYSTEM.

It is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, (1) or the laws which regulate its landed property,

(b) Co. Litt. 143

(d) In Scotland this (e) 2 Inst. 19.

(i) 4 Rep. 73

(c) 2 Inst. 19.

kind of small payment is called blanch-holding, or reditus alba firma.
(f, Co Litt 143.

(g) Stat. 4 Geo. II, c. 28.

(h) Co. Litt. 201.

(k) Co. Litt. 302. 1 Anders. 253. (1) 1 Saund. 287. Prec. Chanc. 555. Salk. 578.

(31) [A fee-farm rent is not necessarily a rent-charge; Mr. Hargrave indeed thought it could only be a rent service, and that the quantum of the rent was immaterial. Co. Litt. 143, n. 235. But in the case of Bradbury . Wright, Douglas Rep. 4th ed., are notes by the reporter himself, and the late learned editor, which explain the mistake both of Blackstone and Hargrave, and show, I think, satisfactorily, that the former is correct in his account of the rent, except in calling it a rent-charge, which it may but need not necessarily be.]

(1) An intimate acquaintance with the feudal system is absolutely necessary to the attainment of a comprehensive knowledge of the first principles and progress of our constitution.

without some general acquaintance with the nature and doctrine of feuds, or the feudal law: a system so universally received throughout Europe upwards of twelve centuries ago, that Sir Henry Spelman (a) does not scruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time misemployed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a scholar-like, scientifical manner, without having recourse to the ancient. Nor will these researches be altogether void of rational entertainment as well as use: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers, both pleasure and instruction to compare them with the draughts of the same edifices, in their pristine proportion and splendour.

*The constitution of feuds (b) had its original from the military policy [*45 ] of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who all, migrating from the same officina gentium, as Crag very justly entitles it, (c) poured themselves in vast quantities into all the regions of Europe, at the declension of the Roman empire. It was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure 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 parcels or allotments to the inferior officers and most deserving soldiers. (d) These allotments were called feoda, feuds, fiefs or fees: which last appellation in the northern language (e) signifies a conditional stipend or reward. (f) Rewards or stipends they evidently were; and the condition annexed to them was, that the possessor should do service faithfully, both at home and in the wars, to him by whom they were given: for which purpose he took the juramentum fidelitatis, or oath of fealty: (g) (2) and in case of the breach of this condition and oath,

(a) Of parliaments. 57 (c) De jure feod. 19, 20.

(b) See Spelman, of feuds, and Wright of tenures, per tot.
(d) Wright. 7.
(e) Spelm. Gl. 216.

(f) Pontoppidan, in his history of Norway, (page 290) observes that in the northern languages odh signifies proprietas, and all totum. Hence he derives the odhal right in those countries; and thence too perhaps. is derived the udal right in Finland, &c. (See Mac Doual Inst. part 2.) Now the transposition of these northern sylables, allodh, will give us the true etymology of the allodium, or absolute property of the feudists; as by a similar combination of the latter syllable with the word fee, (which signifies, we have seen a conditional reward or stipend) feeodh or feodum will denote stipendiary property.

(g) See this oath explained at large in Feud. l. 2, t. 7.

The authority of Lord Coke, upon constitutional questions, is greatly diminished by his neglect of the study of the feudal law; which Sir Henry Spelman who well knew its value and importance, feelingly laments: "I do marvel, many times, that my Lord Coke, adorning our law with so many flowers of antiquity and foreign learning, hath not turned into this field, from whence so many roots of our law have, of old, been taken and transplanted." Spelm. Orig. of Terms, c. viii.]

Upon the subject of the feudal system see, in addition to the authorities cited by Blackstone, Robertson's History of Charles V; Hallam's Middle Ages, c. 2, part 2; Guizot's History of Civilization in France, and Bell's Historical Studies of Feudalism. See also 1 Washb. on Real Prop. c. 2.

(2) [Fealty, the essential feudal bond, is so necessary to the very notion of a fend, that it is a downright contradiction to suppose the most improper feud to subsist without it; but the other properties or obligations of an original feud may be qualified or varied by the tenor or express terms of the feudal donation. Wright L. of Ten. 35. Fealty and homage are sometimes confounded; but they do not necessarily imply the same thing. Fealty was a solemn oath, made by the vassal, of fidelity and attachment to his lord. Homage was merely an acknowledgement of tenure, unless it was performed as homagium ligeum; that indeed did, in strictness include allegiance as a subject, and could not be renounced; but homagium non ligeum contained a saving or exception of faith due to other lords, and the homager might at any time free himself from feudal dependence by renouncing the land with which he had been invested. Du Fresne Gloss. voc. Hominium, Legius, et Fidelitas. Mr. Hargrave, in note 1 to Co. Litt. 68 a, says, in some countries on the continent of Europe, homage and fealty are blended together, so as to form one engagement; and therefore foreign jurists frequently con

by not performing the stipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them. ()

Allotments, thus acquired, naturally engaged such as accepted them to defend them and, as they all sprang from the same right of conquest, no part could subsist independent of the whole; wherefore all givers as well as [*46] receivers were mutually bound to defend each other's possessions. But, as that could not effectually be done in a tumultuous irregular way, government, and, to that purpose, subordination, was necessary. Every receiver of lands, or feudatory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewise subordinate to, and under the command of, his immediate benefactor or superior; and so upwards to the prince or general himself: and the several lords were also reciprocally bound, in their respective gradations, to protect the possessions they had given. Thus the feudal connection was established, a proper military subjection was naturally introduced, and an army of feudatories was always ready inlisted, and mutually prepared to muster, not only in defence of each man's own several property, but also in defence of the whole, and of every part of this their newly-acquired country; (i) the prudence of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests. (3)

The universality and early use of this feudal plan, among all those nations, which in complaisance to the Romans we still call barbarous, may appear from what is recorded (k) of the Cimbri and Teutones, nations of the same northern

(h) Feud. l. 2, t. 24.

(i) Wright, 8.

(k) L. Florus, l. 3, c. 3.

sider them as synonymous. But, in our law, whilst both continued, they were in some respects distinct; fealty was sometimes done where homage was not due. And Lord Coke himself tells us, 1 Inst. 151 a, fealty may remain where homage is extinct. So Wright, L. of Ten. 55, in note, informs us, that it appears not only from the concurrent testimony of all our most authentic ancient historians (whom he cites), but likewise from Britton, Bracton, the Mirror, and Fleta, that homage and fealty were really with us distinct, though (generally) concomitant, engagements; and that homage (he of course means homagium non ligeum) was merely a declaration of the homager's consent to become the military tenant of certain of the lord's lands

or tenements.

The short result appears to be, that, whilst the tie of homage subsisted, fealty, though acknowledged by a distinct oath, was consequential thereto; but that the converse did not hold, as fealty might be due where homage was not.]

(3) [Mr. Hallam gives an account of the origin of the feudal system rather different from that in the text. He says that, when the Germanic tribes poured down upon the empire, the conquerors made partition of the lands between themselves and the original possessors, some tribes taking a large, some a less, portion to themselves. The estates of the conquerors were termed allodial, subject to no burden but that of public defence, and inheritable. Besides these lands, others also were reserved out of the share of the conquered for the crown, partly to maintain its dignity, partly to supply its munificence. These were the fiscal lands, and for the greater part were gradually granted out under the name of benefices; and if the donation was not accompanied by any express reservation of military service, yet the beneficiary was undoubtedly more closely connected with the crown, and bound to more constant service than the allodial proprietor.

Mr. Hallam thinks there is no satisfactory proof that these benefices were ever redeemable at pleasure, but that from the beginning they were ordinarily granted for the life of the grantee. Very early they became hereditary, and, as soon as they did so, they led to the practice of subinfeudation, which he deems the true commencement of feudal tenures.

Still. at this point the far larger part of the lands remained allodial, and the extension of the feudal system is to be attributed, in his opinion, to the forlorn and unprotected state in which the allodial proprietor found himself during the period of anarchy and private warfare which followed soon after the death of Charlemagne. In those times the connection between the beneficiary and the vassal was a protection to both; the former abstained from acts of violence against the latter, and both together protected each other against the attacks of others; while the isolated allodialist, to whom the crown in its weakness could afford_no succor, was left a common prey for all. This led to a voluntary subjection of themselves to feudal lords, upon feudal conditions, and to the gradual diminution, though not extinction, of allodial estates.]

Mr. Justice Coleridge gives his assent to Mr. Hallam's theory, which he regards as more reason able and natural than the common theory, that which is stated in the text.