[But hereditament, says Sir Edward Coke, "is the largest word of all in that kind (q); for whatsoever may be inherited is an hereditament, be it corporeal or incorporeall, real, personal, or mixed." Thus an heirloom, or implement of furniture, which by custom descends to the heir together with a house, is neither land, nor tenement, but a mere moveable: yet, being inheritable, is comprised under the general word hereditament. And so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament (r).

Hereditaments, then, to use the longest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses, such as may be seen and handled by the body; incorporeal are not the subject of sensation, can neither be seen or handled, are creatures of the mind, and exist only in contemplation.] It is to corporeal hereditaments that our attention must be first directed; and whatever is said generally, hereafter, as to the law of real property, it is to be understood as referring to corporeal hereditaments only, until those of the incorporeal kind present themselves, in their turn, for separate consideration, in a distinct chapter.

(9) Co. Litt. 6 a; Moore v. Denn (1800), 2 Bos. & Pul. 251; Pocock v. Bishop of Lincoln (1821), 3

Brod. & Bing. 33.

(r) Marquis of Winchester's Case (1583), 3 Rep. 2 b.

CHAPTER II.

OF TENURES.

IN proceeding to treat of corporeal hereditaments or things real, we shall consider, first, the tenure by which they may be holden; secondly, the estates which may be had in them; and, thirdly, the titles by which they are acquired and lost.

[And, first, as to Tenures. These it will be impossible to understand properly unless we have some previous acquaintance with the nature of feuds and with the feudal law, a system established during the middle ages throughout the greater part of Europe, and from thence derived to England, where its spirit still lives in several of her institutions. Now, feuds were introduced under the new dynasties founded by the barbarous tribes, who, during the fourth, fifth, and sixth centuries, poured themselves from Germany and the neighbouring countries into the Roman empire (s). In every province which they subjugated, large tracts of territory were divided by lot among the conquerors, some portion falling to the king or leader of the invading tribe, and the rest to his soldiers, who received their shares as free and independent property, subject only to the condition of bearing arms, as occasion might require, in the defence of the community from hostile aggression. Of the lands assigned to the leader of the tribe, certain portions were afterwards usually distributed by him among his adherents, and chiefly among his courtiers or companions (comites). But the interest they derived

(s) Spelman, Feuds (cap. ii.); Wright, Tenures, (cap. i.); Co.

Litt. by Harg. 64 a, n. (1); 191 a, n. by Butler.

under these grants was not strictly in the nature of property; it was of a beneficial or usufructuary kind only, a mere stipendiary return for services (commonly services of a military description) which they were expected to render to their master, and subject at some future period to resumption. The proprietas, or actual ownership of the land, was considered as still residing in the sovereign himself.

The species of interest, which we find described sometimes as a munus and sometimes as a benefice (t), was latterly called a feud,-a term which signified in the German language a stipendiary estate, and stood in contradistinction to allodium, the phrase applied to that independent species of property, before described, which had originally become vested by allotment in the conquerors of the country. There began thus to arise two distinct modes of holding or possessing land; for the stipendiary held of (that is, in relation to and in dependence upon) a superior, while the allodialist held of no one, but enjoyed his land as free and independent property. The interest of the stipendiary or beneficiary tenant did not originally extend beyond his own life, if it was not even determinable at the royal pleasure. But in course of time it gradually improved in stability, and acquired an hereditary character, which led by a natural progress to the practice of subinfeudation; for the stipendiary, (or feudatory, as he should now rather be termed,) considering himself as substantially the owner, began to imitate the example of his sovereign, by carving out portions of the benefice or feud, to be held of himself by some other person, on terms and conditions similar to those of the original grant. A continued chain of successive dependencies was thus established, connecting

each stipendiary, or rassal as he was termed, with his immediate superior or lord.

The beneficiary or feudal relation was well suited to times of violence and insecurity, and was attended with great advantage both to the lord and to the vassal. To the lord, as it secured to him a band of military retainers, attached by duty and by sentiment to his person; and to the vassal, as it brought him into close connection with a powerful superior, under whom he found shelter from oppression. The effect of this, as regarded the allodial species of property, was remarkable; for the allodialist, though enjoying a nominal independence, was yet envious of the comparative security of the feudal vassal, and therefore gradually placed himself in a similar relation, changing the nature of his property from allodial to feudal. This change he effected, by giving up or surrendering his land to some powerful lord, and receiving it back again from him in the shape of a beneficium or feud, to be held upon some kind of service; or, more simply, by merely acknowledging himself to hold as a vassal to some chosen lord, under specified services, as if by the effect of a former grant, which had, in truth, never taken place. And in one or other of these two ways, allodial lands were largely converted into feudal, although there were many estates which always continued to be held allodially (u).

[The feud was conferred by words of gratuitous and pure donation, dedi et concessi; which words would still be the operative words in a modern deed of feoffment. And the donation was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vassals, which perpetuated among them the era of the new acquisition, at a time when the art of writing was very little known. Besides an oath of fealty, or profession of faith to the Lord, which was the parent of our oath of allegiance, the (u) Co. Litt. by Harg. 65 a, n. (1).

[vassal usually, upon investiture, did homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sat before him, and there professing that "he did become his man from that day forth, of life and limb and earthly honour." And then he received a kiss from his lord (x).

When the tenant had thus professed himself to be the man of his superior, or lord, the next consideration was concerning the service, which, as such, he was bound to render, in recompense for the land he held. This, in pure, proper, and original feuds, was only twofold: to follow, or do suit to, the lord in his courts in time of peace, and in his armies or warlike retinue, when necessity called him to the field. The lord was, in early times, the judge over all his feudatories; and therefore the vassals were bound by their fealty to attend their domestic courts baron, in order as well to answer such complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellow tenants. And upon this account, in all the feudal institutions, both here and on the continent, they are distinguished by the appellation of peers of the court-pares curtis, or pares curiæ. The military branch of service consisted in attending the lord to the wars, if called upon, with such a retinue, and for such a number of days, as were stipulated in the first donation, in proportion to the quantity of the land.

Although, as we have said, feuds did not originally extend beyond the life of the first vassal, in process of time they were universally extended to his sons. And where a feud was given to a man and his sons, all his sons succeeded him in equal portions, and (as they died off) their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation (y). But when such a (x) Litt. s. 85. (y) Wright, Tenures, 17.