this is always one of the obligations of the contract. This is a proposition frequently overlooked in modern times, but its importance will presently appear. When the relation arose by the voluntary act of the allodial holder surrendering to the lord and becoming his man, the same contract exists.

Upon this principle Mr. J. Q. Adams and Mr. Harper argued, in Fletcher v. Peck, 6 Cranch, that a grant contains an implied executory contract, that the guantee shall enjoy the thing granted, and Chief Justice Marshall adopted this view. Mr. Hammond, in his edition of "Blackstone's Commentaries," shows this doctrine to result from the earlier authorities. 2 Ham. Blk. 525, note. This portion of Judge Marshall's opinion is sometimes criticised, and it is said that the other branch, taken by Judge Johnson, viz., that such legislative action as was attempted by the State of Georgia, was against common right, is the only true ground for the decision; but this reasoning fails to note that the common right is only the substitute for the ancient obligation of the contract whereby the grantor expressly or impliedly agreed to defend the seizen. See vol. 1, pp. 556–577.

The distinctive features of feudal tenure were the personal tie of allegiance between the lord and the tenant, the holding of lands upon condition of rendering services or rent, and the right of forfeiture for a breach of the conditions. The original inability to alien the land was a natural result of the personal tie; the same principle prohibited an alienation of the manor by the lord, for the duty of allegiance was personal, and so also was the correlative obligation of protection.

In the United States, at the Revolution, the principle of equality expressed in the Declaration of Independence, when established by law, destroyed one of the essential principles of Sovereignty and feudal tenures, viz. That land could be held of a personal superior. It, at the same time, destroyed the feudal idea of allegiance. This result, however, does not necessarily destroy the idea of tenure, but renders it essential to the preservation of that idea that the state, or some department or branch of government, be substituted in place of the personal lord as original and ultimate owner. This is what was done, and in the United States the only original source of title must be found in a grant from the United States or a state, either expressly proven or implied from long possession; but a possession, confessedly without a grant in the beginning, will never ripen into a title. (Jackson v. Frost, 5 Cowen N. Y. 346.) Thus the character of tenure, as between the individual and the state, returned to its original and natural form, precisely as it existed before the establishment of the feudal system.

manner.

The other features of feudal servitude are not disposed of in the same The contract, covenant or condition annexed to a grant of a fee that the estate should be forfeited to the original owner for condition broken and revert to him, was supposed to be defeated by the abolition

of all feudal tenures and results in the condition that the original and ultimate owner, i.e., the state, cannot grant its land to individual owners upon conditions, the breach of which works a forfeiture, but must grant it upon allodial tenures, whereby the tenant takes an absolute estate not to be defeated for conditions broken, and so no estate can be forfeited to the state except for crime, and can be taken by the state only by escheat, by eminent domain, or by purchase. Still further restrictions as to forfeitures to the government are imposed by constitutional provisions, which are interpreted to authorize a forfeiture of no more than the life -estate of the person seized, but does not take the whole estate even though it may be a fee-simple, and consequently such a forfeiture does not bar the inheritance of the heirs. Bigelow v. Forrest, 9 Wall. 339.

The allodial holding is, as between the holder and the state, none the less a tenure. DePyster v. Michaels, 6 N. Y. 504. So much as to tenure between the state and the grantor of the state. An inquiry as to what conditions may be annexed to grants of estates in fee would be to extend this note beyond a reasonable scope; but the next important inquiry may be suggested, first remarking that tenure relates only to a freehold estate, and that for ordinary commercial purposes a long term lease is more valuable because more certain than a life estate, yet the law does not recognize it of so high a character, such a lease not being a freehold, and consequently there can be no seizen. And in theory at least no conditions relating to rent services can be inconsistent with the lease.

The question, and an important one it is in our jurisprudence, and one upon which political economists will disagree, is to what extent may grants of so-called fee-simple interests in land between individuals be accompanied with covenants for rent service or other conditions, for the breach of which re-entry and forfeiture may be allowed; and how far such contracts are permissible and consistent with allodial holding of estates in fee in land? To these questions no answer will be attempted, but the reader will be repaid the trouble of examining the cases of Van Rensselaer v. Dennison, 35 N. Y. 339; Taylor r. Heidorn, 46 Barb. N. Y. Supreme Ct. Rept., 458; Ingersoll r. Sergeant, 1 Wharton Pa. Rept., .359.

The importance of the inquiry cannot be over-estimated and is nothing less than this: May a purchaser from an individual or corporation by contract, i.e., by accepting such covenants with his deed or lease, subject himself and his heirs and assigns to conditions identical in character with feudal rents and services upon condition of forfeiture of the estate? If so, the allodial holder may obtain the rights of a feudal lord without the obligation. We doubtless have those who would enjoy the position, as some are already subject to epithets implying such relations. One instance will illustrate the question. The case of Taylor v. Heidorn, above cited, involved a grant by Van Rensselaer, in 1794, to Her

rick, of a so-termed fee-simple estate at an annual rental of twelve and six-tenths bushels of wheat, covenanted to be paid to Van Rensselaer. his heirs and assigns, providing for a distress in case of default and reentry if distress was insufficient.

In 1862, after a default in delivering the grain of twelve years, such provisions were upheld, the estate forfeited and entry allowed. It is difficult to distinguish such an holding from a feudal socage tenure.

In the Pennsylvania case cited, the ground rents are held to be feudal tenures between individuals. There is no fiction about the nature of the holding. The deed of conveyance did not divest Van Rensselaer of all interest in the land; it was held by a fixed and determinate service. See 3 Kent's Com. 509.

In this country, says Robinson in his Elementary Law (§ 99), tenure, in the feudal sense, never has been recognized. [This statement is quite too broad.] There is here no feudal superior, to whom service is to be rendered or tribute paid. In nearly all the states tenure is allodial (from al, the whole, and od, ownership), and the holder of an estate has the entire ownership thereof residing in him. Conditional estates indeed exist, and are both numerous and important; but the conditions originate in some contract between the parties, not in any feudal relation, and characterize or qualify the existence of estates, and not the tenure by which they are held.

From this one would infer that if the conditions "originate in some contract between the parties," this changes the nature of the relation; but, as we have seen, feudal tenures might and did so originate. The real test is not to be found in words or names, but in the relations created by the contract in reference to how the land is held. That personal fealty is abolished is clear; but this was only one of the incidents of tenure. If the other services or tribute, in the shape of rent charges, may be created by contract, how can it be said that land may not be held of an individual ?]

CONSIDERATIONS

ON THE NATURE AND EXTENT OF THE

LEGISLATIVE AUTHORITY

OF THE

BRITISH PARLIAMENT.

PUBLISHED IN THE YEAR M,DCC,LXXIV.