must be shown that the market must not be prejudicial to neighbouring markets (h), otherwise it will be deemed a nuisance, and the patent under which it is claimed will be void (i). Again, the tolls demanded must be reasonable in amount (k), because franchises of this kind are to some extent restrictive of the ordinary rights of the public, though they are intended to be for the general benefit of the community. The grantee, therefore, must give to the public the full benefit intended for them, which would not be unless his demands be limited to reasonable amount (7). Sometimes the toll claimed is a fixed sum; in this case, if the claim rests upon prescription, and evidence of user *is given, it must prove by inference the existence of the [ * 112 ] franchise before the time of legal memory (A.D. 1189); a difficulty then arises to determine whether the amount claimed is such that it could have been considered reasonable at that early date, regard being had to the difference of the value of money (m).

Upon the same principle owners of markets or fairs are bound to take care that everything be sold according to just weight and measure, and the grantee of a market under a grant from the crown has, without any words to that effect, a court of record called the court of Piepowders as incident to his market (n).

Where a market or fair has been granted in general terms, the grantee may at pleasure remove the market from one place to another within the limits of the grant (0), and after such a removal it would be a trespass for the public to enter upon the former site (p).

Recent legislation has dealt with the subject of markets, so as to prescribe the modes in which for the future they *may be established and the [* 113] restrictions to which they are to be subject (q).

VIII. Another species of right usually included amongst incorporeal hereditaments are certain offices. An office is a right to exercise a public or private employment, and to take the fees and emoluments belonging to it. They are either public or private; the former are those which

VIII. Offices.

(h) R. v. Buller, 2 Vent. 344; 3 Lev. 222. (i) 1 Roll. Abr. 140; Fitz. N. B. 184; Yard v. Ford, 2 Wms. Saund. 172. See, however, as to the necessity of those who claim to have been damnified, to actively assert their exclusive rights, Holcroft v. Heel, 1 Bos. & P. 40.

(k) See stat. West. 1 (3 Edw. 1, c. 31); 2 Inst. 219; Com. Dig. tit." Toll" (E).

(1) Tripp v. Frank, 4 T. R. 666 (Ferry); Bridgland v. Shapter, 5 M. & W. 375 (Market); Pim v. Currell, 6 M. & W. 234 (Ferry); Blissett v. Hart, Willes, 510 (Ferry); Laurence v. Hitch, L. R. 3 Q. B. 521.

(m) In Laurence v. Hitch, L. R. 2 Q. B. 184, the Court of Q. B. (relying on a preceding case of Bryant v. Foot, ib. 161, where a claim for 138. fee on a marriage was held bad, as it could not possibly have been paid in the time of Rich. I.), held, that a toll of 18. per cart-load of vegetables brought to Cheltenham market was bad. This decision was reversed on appeal (3 Q. B. 521), on the ground that the claim appeared not to be a fixed, but only a reasonable amount, varying from time to time with the value of money.

The court of appeal also did not seem to think the toll 18., even if fixed was unreasonable. Bryant v. Foot was affirmed on appeal, 3 Q. B. 497. See, also, on these points, Jenkins v. Harvey, 1 C. M. & R. 877; Shephard v. Payne, 12 C. B. N. S. 414; s. c. on appeal, 16 C. B. N. S. 132; Mills v. Mayor of Col chester, L. R. 2 C. P. 476; and as to the value of money in the 13th and 14th centuries, 51 Hen. 3, st. 1, and the Statute of Labourers, 25 Edw. 3, st. 1, cc. 1-3.

(n) See 2 Inst. 220; 4 ib. cc. 60, 61.

(0) Dixon v. Robinson, 3 Mod. 186; Curwen v. Salkeld, 3 East, 588. See also as to the respective rights of the owners of the soil and of the public, De Rutzen v. Lloyd, 5 Ad. & E. 456; R. v. Starkey, 7 Ad. & E. 95; Tyson v. Smith, 9 Ad. & E. 406; Elwood v. Bullok, 6 Q. B. 383; Ellis v. Corporation of Bridgnorth, 2 J. & H. 67.

(p) R. v. Cotterill, 1 B. & Al. 67.

(2) See Markets and Fairs Clauses Act, 1847 (10 & 11 Vict. c. 14); Local Government Act, 1858 (21 & 22 Vict. c. 98); and The Public Health Act, 1848 (11 & 12 Vict. c. 63).

concern the general administration of justice, and the government of the kingdom or the collection of the public revenues, such as the judges of the courts of law or equity, the sheriffs or coroners of counties, the commissioners of inland revenue. The latter are those which relate to particular districts belonging to private individuals, such as stewards and bailiffs of manors. It is perhaps scarcely accurate to describe an office as a property, because even in the cases of those which are practically sinecures there are duties which are supposed to be performed by the holders, the refusal to perform which would cause a forfeiture (r); yet inasmuch as the tenure of many offices closely resembles and is connected with that of land (s), a man may have an estate in them either to him for life or to him and his heirs, or even for a term of years. Thus the office of Lord High Chamberlain is an hereditary office held by the heirs of John de Vere, earl of Oxford. That of Earl Marshal is now held by the duke of Norfolk in fee. By far the greater number, however, of offices are held for life.

Offices are also to be distinguished into two classes, according to the nature of the duties to be performed by the holders. One class is judicial requiring special knowledge and qualities on the part of the holder, and offices of this class cannot be granted otherwise than for life, lest they should [*114] vest in the representatives of the grantee (t); and, moreover, they cannot generally be granted in reversion, because, although at the time of the grant the grantee may be capable of performing the duties of the office, yet before the reversion should fall in he might become incapable (u), though it seems that in some cases where there has been a custom and usage to grant a judicial office in reversion such a grant may be supported (x).

Offices of the second class are called ministerial, requiring nothing more than ordinary diligence and skill for the fulfilment of their duties. The law permits offices of the latter kind to be dealt with very much like property (y), since the duties may be discharged by deputy (z). Those offices which are of a real nature, i. e. concern land, and are grantable in fee simple, may be entailed within the statute de donis (a), because they fall within the meaning of the word "tenement" (b). They may be held by a woman (c), and consequently by a tenant by the curtesy (d).

By the act 5 & 6 Edw. 6, c. 16, it is enacted that all persons who shall sell any offices shall lose all their right, interest, and estate in such office, and in the gift and nomination thereof; and that all persons who shall purchase such offices shall be disabled from occupying or *enjoying them, and all bargains for such shall be void. The statute, however, propurpose vides that acts done during the occupancy of the offending persons shall be valid. Much litigation has taken place as to what offices are within this statute,

(r) See, as to forfeiture, Lord Shrewsbury's Case, 9 Rep. 50, c.; Vaux v. Jefferen, Dyer, 114 b; Nevil's Case, 7 Rep. 34 b.

(8) For instance, the office of keeper of a royal park or chase.

(t) Reynell's Case, 9 Rep. 97; Sutton's Case, 6 Mod. 57; see Savage's Case, Dyer, 259. (u) Curle's Case, 11 Rep. 2.

(a) Young v. Stoell, Cro. Car. 279; Walker v. Lamb, ib. 258; Co. Litt. 3 b; Hardr. 357. (y) Bellany v. Burrough, Fort. 97; Howard v. Wood, 2 Show. 21.

(2) See R. v. Ferrand, 3 B. & A. 260; R. v.

[*115]

Gravesend, 2 B. & C. 602; R. v. Roberts, 3 A. & E. 771.

(a) As to which see post.

(b) 7 Rep. 336; 1 Roll. Abr. 838; Co. Litt. 20 a.

(c) Co. Litt. 29; 4 Inst. 311; Lady Russell's Case, Cro. Jac. 17.

(d) Co. Litt. 29; Collins's Claims, 5. As to tenancy by curtesy, see post. As to who may hold offices, see Co. Litt. 3 b; Jenk. 121; Bro. Abr. tit. Office," pl. 48; Dyer, 150; Sutton's Case, Cro. Car. 65; Young v. Stoell, ib. 279.

the result seems to be that it includes all offices relating to the administration of justice whether civil or ecclesiastical, and to offices of trust relating to revenue and other similar offices (e).

IX. Dignities bear a near relation to offices. Of the nature of these we treated at large in a former book: it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate (ƒ).

IX. Dignities.

[*116]

system was or

the growth of English law.

CHAPTER IV.

THE FEUDAL SYSTEM.

A

A STUDENT of our constitution, who wished to form a clear conception of the progress which it has made during the last eight centuries, would find it The feudal difficult to comprehend many of its features, unless he were iginally closely acquainted with the nature of the feudal system, a polity which connected with in England, if possible, more than in other parts of Europe, has pervaded and influenced the institutions of the country. student of the English law relating to the possession of land, would find it impossible to understand the principles upon which the structure rests without this previous knowledge (a). A brief account of the feudal system therefore, naturally finds a place in these commentaries before entering further into the law of real property.

But its influence

At the same time, it is also observable that the tendency of modern thought is to disregard historical facts as grounds upon which to rest the foundation of law. The mind of the modern law-giver has lately been and is now solely intent upon the consideration of what is best for society as now constituted, and as it promises in future to become. Many changes, therefore, is now rapidly have been brought about, and more are even now impending, disappearing. which bear such a revolutionary character, especially with reference to the possession and transmission of landed property, that the practical value of historical inquiries for the purpose of elucidating the present law is continually on the decrease.

[*117]

*Although the feudal system cannot be thought to have existed in England in a complete state till long after it had been fully developed

(e) 3 Inst. 148; Trevor's Case, Cro. Jac. 269; Woodward v. Fox, 3 Lev. 289; Ingram's Case, Cro. Jac. 386. The 4th section specifies certain offices which are not to be included. The act is extended by 49 Geo. 3, c. 12, to other cases, by which act also Scotland and Ireland were included within its operation. See also 6 Geo. 4, cc. 82, 83; 11 Geo. 4, c. 20. It is well known that the sale of commissions in the army is permitted, they not being included in any of the above acts. They can only be dealt, however, subject to the regulations of the military authorities. See Collyer v. Fal

lon, T. & R. 459. As to dealings with the proceeds of the sale, see Buller v. Plunkett, 1 J. & H. 441, followed by Webster v. Webster, 31 Beav. 393; and see also Somerset v. Cox, 33 L. J. Ch. 590; Earl of Suffolk v. Cor, 36 L. J. Ch. 591. As to half-pay and pensions, see 46 Geo. 3, c. 69, s. 7.

(f) See R. v. Viscount Purbeck, Shower P.C. 1, where the nature of a peerage was much discussed, and it was held that it could not be surrendered to the king by a fine. (a) Spelm. Parl. 57; orig. c. 8.

the Norman

conquest.

in France and those countries in which it was first established, not indeed until it was transplanted by the Normans after their conquest (b), yet it took Not fully devel- such deep root, under the rule of our first Norman kings, that oped til after many of its forms and theories were here extended beyond what existed anywhere else, and they in part remain to the present day, when their substance and spirit have long been extinct. Since, however, it is of exotic growth, we shall do well in tracing the origin and nature of its institutions, to bear in mind principally the history of those parts of Europe where it arose, which, speaking generally, were the countries subject to the dominion. of Charlemagne (c). First, we may remark that although the Romans or provincial inhabitants of Gaul were not entirely dispossessed of their property upon the invasion of the barbaric nations of Germany, and, indeed, soon after the establishment of the Merovingian dynasty they seem to have in individual instances been admitted to high offices (d), and were moreover allowed to retain their own laws as regulating their own concerns; still the feudal system in no

Its origin.

way arises out of or agrees with the principles of Roman law. It has its origin in the conditions under which society existed, and land was held under the barbaric conquerors, the Franks, who with Clovis and his successors the Merovingian and Carlovingian monarchs at their head, overspread Europe. Again, we must notice that it was not derived by the Franks from their own ancient customs when inhabiting *the wild forests of [*118] Germany. Originally these German races attached little importance to the possession of land, and the idea of permanent ownership by individuals was one strange to their minds (e). This might easily be the case where arable land was scarce, and the country for the most part a wilderness of forests. At the same time, it is also to be observed, that during the period succeeding the time of Tacitus, and prior to the invasion of Gaul by Clovis, they must have acquired some more settled principles of property, because either before or soon after that event we find the Salic laws, which contain a series of rules of property, including those of succession, well established. It is clear that when they took possession of the fertile regions which they had conquered they formed. permanent settlements, and for that purpose made a partition of the lands amongst themselves, leaving a portion to those prior inhabitants whom they found in possession (f).

The lands so acquired by the Franks (with whose occupation, alone, we now have to do) were what were termed allodial (g), a description which in later times was opposed to feudal or beneficiary, meaning that they were *possessed in absolute ownership, subject to

Allodial lands.

(b) 1 Hall. Mid. Ages, 187, 11th ed. Mr. Hallam's chapter upon the feudal system constitutes the best treatise to which the reader can be referred, who wishes to see the subject discussed in a masterly manner, with full reference to the ancient authorities. Robertson's History of Charles V. may also be usefully consulted. Much of the information in this chapter is derived from Mr. Hallam's work.

(c) 1 Hall. Mid. Ages, 187. (d) Ib. 149, and note iv.

(e) Cæsar, De Bell. Gall. 1. vi. c. 21, tells us that they allotted lands afresh every year, and Tacitus Germ. c. 26, says "Arva per an

[ * 119 ]

nos mutant." See Montesquieu, Esprit des Lois, lib. xxx. c. 3.

(f) This proportion seems to have differed in the different invasions of the Goths, the Burgundians, the Lombards, the Vandals, and the Franks. See Guizot, Civilis. en France, Lec. 32; Montesquieu, Esp. des L. lib. xxx. c. 9; 1 Hall. Mid. Ages, 275.

(g) Allodium is usually derived from the words all and odh, property [Du Cange, voc. sors.; Pontoppidan, History of Norway, 290, et alii]. M. Guizot derives it from loos lot, on the assumption that a partition was made of the lands in some regular way by which they were allotted. That there was some princi

no burden except the performance of the universal duty of public defence. They passed to the children equally, or on failure of children, to the nearest kindred (h). From this descendible quality the word allodial was afterwards not uncommonly used synonymously with heritable (i). In the general distribution of lands, moreover, a very considerable share was reserved for the maintenance of the dignity of the crown. These lands, called the fiscal lands, were dispersed over different parts of the kingdom, and formed the only regular source of revenue which in those times the sovereigns possessed.

This original absolute ownership of large tracts of land by the crown is a fact of the highest importance, for from it depended a chain of consequences, which ended in the feudal system. It is obvious that when nearly the only kind of wealth which existed was land and its immediate products, the only rewards for past services and present fidelity which could be given by a monarch to his followers would consist in grants of land to be enjoyed by the grantee for such period as might be determined upon. And this in fact seems to have been the practice. The demesne lands of the crown, or the fisc, were granted under the title of benefices to favoured subjects, or subjects whose fidelity it was of importance to secure, upon conditions creating a close relationship between the grantee and his lord (k). Originally they were in general granted *only for life, but in very early times they [* 120] became hereditary, capable of being enjoyed in succession, so long as the conditions of their tenure were observed. Of these conditions there can be little doubt that an oath of fidelity and the render of military service constituted the most important.

Benefices.

When grants from the crown made in this manner became common, there naturally arose the custom of the great lords who owned large territories,

Sub-infeudations.

either allodially or as hereditary benefices, granting portions of their land to others to be held of themselves upon a like species of nature. Even in the days of Pepin and Charlemagne (A. D. 750-800 circ.) this process of sub-infeudation was practised. At a later period it became universal. Indeed the constant private wars which existed rendered it of the same importance to a powerful baron, as to the crown itself, to have attached to him by a connection of more enduring kind than mere personal affection, a body of retainers ready to take arms at his word and follow him to the field. "Out of these ancient grants, now become for the most part hereditary, there grew up in the tenth century, both in name and reality, the system of feudal tenures (7)."

ple of allotment seems clear from the story of the vase of Soissons (1 Hall. 155), where Clovis having, on the occasion of distribution of plunder, begged for himself a precious vessel belonging to the church of Rheims, a soldier, contrary it would seem to the general wishes of the army, exclaimed, striking the vase with his battle-axe, "you shall have nothing here but what falls to your lot."

(h) Leges Salicæ, c. 62; as to these, see Guizot, Civ. Lec. 9, and Hall. Mid. Ages, Ch. 2, n. iii.

(i) "Allodial lands are commonly opposed to beneficiary or feudal, the former being strictly proprietary, while the latter depended upon a superior. In this sense the word is of continual recurrence in ancient histories, laws, and instruments. It sometimes, how. ever, bears the sense of inheritance and this

seems to be its meaning in the famous 62nd chapter of the Salic Laws,-De Alodis. Alodium interdum opponitur comparato,' says Du Cange, in formulis veteribus.' Hence, in the charters of the eleventh century, hereditary fiefs are frequently termed alodia.” (Hall. Mid. Ages, vol. 1, p. 97.)

(k) Marculf. Form, xii, and xiv. 1. i.; 1 Hall.

159.

() 1 Hall. Mid. Ages, 161. The word feud has been variously derived. 1st, from fee or feh, signifying reward, odh property; 2nd, from the initial letters of the vassal's oath, "Fidelis ero ubique domino vero meo;” 3rd, from emphytensis (by Sir F. Palgrave, English Commonw. ii. 208). See Hall. c. 2, n. x, where the derivations are commented on. The first seems to be the most probable.