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and Liveries, and all wardships, liveries, primer seisins and ousterlemains, values and forfeitures of marriages, by reason of any tenure of the King's Majesty, or of any other by knight-service, and all mean rates, and all other gifts, grants, and charges, incident or arising for or by reason of wardships, liveries, primer seisins, or ousterlemains be taken away and discharged, and are hereby enacted to be taken away and discharged, from the said twenty-fourth day of February one thousand six hundred forty-five; any law, statute, custom, or usage to the contrary hereof in any wise notwithstanding : And that all fines for alienations, seizures, and pardons for alienations, tenure by homage, and all charges incident or arising for or by reason of wardship, livery, primer seisin, or ousterlemain, or tenure by knight-service, escuage, and also aide pur file marrier, et pur faire fitz chivalier, and all other charges incident thereunto, be likewise taken away and discharged from the said twenty-fourth day of February one thousand six hundred forty and five: any law, statute, custom, or usage to the contrary hereof in any wise notwithstanding : And that all tenures by knightservice of the king, or of any other person, and by knight-service in cupite, and by socage in capite of the king, and the fruits and consequents thereof, happened or which shall or may hereafter happen or arise thereupon or thereby, be taken away and discharged ; any law, statute, custom or usage to the contrary hereof in any wise notwithstanding : And all tenures of any honours, manors, lands, tenements, or hereditaments, of any estate of inheritance at the common law, held either of the king or of any other person or persons, bodies politick or corporate, are hereby enacted to be turned into free and common socage, to all intents and purposes, from the said twenty-fourth day of February one thousand six hundred forty-five, and shall be so construed, adjudged and deemed to be from the said twenty-fourth day of February one thousand six hundred forty-five, and for ever hereafter, turned into free and common socage; any law, statute, custom, or usage to the contrary hereof in any wise notwithstanding.
2. And that the same shall for ever hereafter stand and be discharged of all tenure by homage, escuage, voyages royal, and charges for the same, wardships incident to tenure by knight's-service, and values and forfeitures of marriage, and all other charges incident to tenure by knight-service, and of and from aide pur file marrier, and aide pur faire fitz chivalier; any law, statute, usage, or custom to the contrary in any wise notwithstanding. And that all conveyances and devises of any manors, lands, tenements, and hereditaments, made since the said twenty-fourth day of February, shall be expounded to be of such effect as if the same manors, lands, tenements, and hereditaments had been then held and continued to be holden in free and common socage only; any law, statute, custom, or usage to the contrary hereof in any wise notwithstanding.
3. And be it further ordained and enacted by the authority of this present Parliament, That one Act made in the reign of King Henry the Eighth, intituled An Act for the Establishment of the Court of the King's Wards; and also one Act of Parliament made in the thirtythird year of the reign of the said King Henry the Eighth, concerning the officers of the Courts of Wards and Liveries, and every clause, article, and matter in the said Acts contained, shall from henceforth be repealed and utterly void.
4. And be it further enacted by the authority aforesaid, That all tenures hereafter to be created by the King's Majesty, his heirs or successors, upon any gifts or grants of any manors, lands, tenements or hereditaments, of any estate of inheritance at the common law, shall be in free and common socage, and shall be adjudged to be in free and common socage only, and not by knight-service, or in capite, and shall be discharged of all wardship, value and forfeiture of marriage, livery, primer seisin, ousterlemain, aide pur faire fitz chivalier and pur file marrier ; any law, statute, or reservation to the contrary thereof in any wise notwithstanding.
5. Provided nevertheless, and be it enacted, That this Act, or anything herein contained, shall not take away, nor be construed to take away, any rents certain, heriots, or suits of court, belonging or incident to any former tenure now taken away or altered by virtue of this Act, or other services incident or belonging to tenure in common socage due or to grow due to the King's Majesty, or mean lords, or other private person, or the fealty and distresses incident thereunto; and that such relief shall be paid in respect of such rents as is paid in case of a death of a tenant in common socage.
6. Provided always, and be it enacted, That anything herein contained shall not take away, nor be construed to take away, any fines for alienation due by particular customs of particular manors and places, other than fines for alienations of lands or tenements holden immediately of the king in capite.
7. Provided also, and be it further enacted, That this Act, or anything herein contained, shall not take away, or be construed to take away, tenures in frankalmoign, or to subject them to any greater or other services than they now are ; nor to alter or change any tenure by copy of court-roll, or any services incident thereunto; nor to take away the honorary services of grand serjeanty, other than of wardship, marriage, and value of forfeiture of marriage, escuage, voyages royal, and other charges incident to tenure by knight-service; and other than aide pur fuire fitz chivalier, and aide pur file marrier.
Terancy IN CAPITE. “Tenure in capite, in its genuine sense, signifies a tenure of another sine medio, that is, immediately and without the interposition of any mesne or interniediate lord ; and therefore when an honor or other seigniory came into the hands of the Crown by escheat or otherwise, its tenants were as much tenants in chief to the king as those who were so by original grant from the Crown. In proof of this Mr. Madox selects from ancient records a great variety of instances between the 8th of Richard I. and the 20th of Henry VI. in which tenures ut de honore are expressly styled tenures in capite ; and as Mr. Madox adds no instances of a later time than
Henry the Eighth and Queen Elizabeth, in which the words in capite are omitted, it may be conjectured, that the error complained of by Mr. Madox originated soon after the time of Henry the Sixth. Mad. Baron. Angl. 181. The design of excluding tenures ut de honore from the description of tenures in capite was to distinguish those estates which were held of the king by a tenure originally created by the king, from those held of him by a tenure commencing by the subinfeudation of a subject; between which there were many differences in point of incident very essential both to the lord and tenant. Mad. Baron. Angl. 12. But it should have been recollected, that the distinction aimed at was already marked, with equal sufficiency and more correctness, by denominating tenures of the first sort tenures ut de corona, and those of the second tenures ut de honore. The influence of this mistaken notion of tenancy in capite is very evident, as well throughout the statute of Charles the Second for taking away the oppressive fruits of knight's service and tenure in capite, as in those grants from the Crown, which in the tenendum are expressed to be ut de honore et non in capite. See Mad. Excheq. fol. ed. 432. But great as this error about tenure in capite may be, Lord Coke is excusable or conforming in his language to it ; because before his time it had been adopted by the legislature. See 37 H. 8 c. 20's. 2, 3, 4. 1 E. 6 C, 4 s. 1, 2, & 3, and Mad. Baron. Angl. 233." - Hargrave's note to Co. Lit. 108a.
TENURE IN THE UNITED STATES. Land in the colony of Virginia was holden of the king as of the “ manor of East-Greenwich, in the county of Kent, in free and come mon socage only, and not in capite.” Lucas, Chart. 8, 12, 22 ; so in Massachusetts, Id. 36, 75 ; so in Connecticut, Jd. 54 ; so in Rhode Island, Id. 65. Land in Mary. land was holden of the king as of the castle of Windsor, in the county of Berks, “in free and common socage, by fealty only, for all services, and not in capite, or by knight's service ;” yielding annually “two Indian arrows of those parts." Id. 90. And the proprietary could grant land to be held of himself, the statute of Quia emptores notwithstanding. Id. 95. So in Pennsylvania, yielding “two beaver skins." Id. 101, 106. Land in Georgia was to be held of the king as of the manor of Hampton Court, in the county of Middlesex, in free and common socage, and not in capite, at a money rent. Id. 117
“Our ancestors, in emigrating to this country, brought with them such parts of the common law and such of the English statutes as were of a general nature and applicable to their situation (1 Kent, 473, and cases cited in note a to the 5th ed. ; Bogardus v. Trinity Church, 4 Paige, 178 ; and when the first Constitution of this State came to be framed, all such parts of the common law of England and of Great Britain and of the acts of the Colonial Legislature as together formed the law of the Colony at the breaking out of the Revolution, were declared to be the law of this State, subject, of course, to alteration by the legislature. (Art. 35.) The law as to holding lands and of transinitting the title thereto from one subject to another must have been a inatter of the first importance in our colonial state ; and there can be no doubt but that the great body of the English law upon that subject, so far as it regarded the transactions of private individuals, immediately became the law of the colony, subject to such changes as were introduced by colonial legislation. The lands were holden under grants from the Crown, and as the king was not within the statute Quia emptores, a certain tenure, which, after the act of 12 Charles II. (ch. 24) abolishing military tenures,
his grantee. I have elsewhere expressed the opinion that the king might, notwithstanding the statute against subinfeudation, grant to his immediate tenant the right to alien his land to be holden of himself, and thus create a manor, where the land was not in tenure prior to the 18th Edward I. (The People v. Van Rensselaer, 5 Seld. 334.) But with the exception of the tenure arising upon royal grants, and such as might be created by the king's immediate grantees under express license from the Crown, I am of opinion that the law forbidding the creating of new tenants by means of subinfeudation was always the law of the Colony, and that it was the law of this State, as well before as after the passage of our act concerning tenures, in 1787. A
contrary theory would lead to the most absurd conclusions. We should have to hold that the feudal system, during the whole colonial period and for the first ten years of the State government, existed here in a condition of vigor which had been unknown in England for more than three centuries before the first settlement of this country. We should be obliged to resolve questions arising upon early conveyances, under which many titles are still held, by the law which prevailed in England during the first two centuries after the Conquest, before the commencement of the Year Books, and long before Littleton wrote his Treatise upon Tenures.” Per DENIO, J., in Van Rensselaer v. Hays, 5 N. Y. 68, 73.
See Gray, Perpetuities, $$ 22-28.
LIT. $$ 1, 2. Tenant in fee simple is he which hath lands or tenements to hold to him and his heirs for ever. And it is called in Latin feodum simplex, for feodum is the same that inheritance is, and simplex is as much as to say, lawful, or pure. And so feodum simplex signifies a lawful or pure inheritance. Quia feodum idem est quo hæreditas, et simplex idem est quod legitimum vel purum. Et sic feodum simplex idem est quod hæreditas legitima, vel hæreditas pura. For if a man would purchase lands or tenements in fee-simple, it behooveth him to have these words in his purchase, To have and to hold to him and to his heirs : for these words (his heirs) make the estate of inheritance. For if a man purchase lands by these words, To have and to hold to him for ever; or by these words, To have and to hold to him and his assigns for ever: in these two cases he hath but an estate for term of life, for that there lack these words (his heirs), which words only make an estate of inheritance in all feoffments and grants.
And if a man purchase land in fee simple and die without issue, he which is his next cousin collateral of the whole blood, how far soever he be from him in degree (de quel pluis long degree qu'il soit), may inherit and have the land as heir to him.
1 "It is to be known that a freehold is that which one holds to himself and his heirs in fee and inheritance, or in fee only to himself and his heirs. So also it is a freehold if one holds for life only or in the same way for an indeterminate time, without any certain limit of time ; to wit, until something is done or not done, as if it is said, I give to such a one until I shall provide for him. But that cannot be called a freehold which one holds for a certain number of years, months, or days, although for a term of a hundred years which exceeds the lives of men. So that cannot be called a freehold which one holds at the will of his lords, which can be seasonably and unseasonably revoked, as from year to year, and from day to day." Bract. lib. 4, c. 28, fol. 207.
? “In the most ancient time [the feud) was so entirely in the power of the lords that when they wished they could take away a thing given by them as a feud. But afterwards they came to be good for a year only. Then it was determined that it should he continued for the life of the vassal ; but since this by right of succession did not belong to sons, it was so extended that it did pass to sons; to whom (in quem), to wit,