quired by law to create the right. The rights which the creditor has under certain circumstances over his debtor's land may also be referred to the class of rights in alieno solo.

These rights in alieno solo comprise a large portion of the rights called by Blackstone incorporeal hereditaments. In fact the classes of rights in alieno solo styled easements and profits, seem to constitute the class of rights which Blackstone designates by that name.

The principal rights recognized by the law as easements. properly so called are rights of way, i.e., of going over the land of another on foot, on horseback, or with carriages or cattle, in a certain line, or for certain purposes; watercourses, for example, where a person has the right to divert a flow of water to which, except for this special right, the owner of the praedium serviens would be entitled; the right to discharge water or other matter upon a neighbor's house or land; the right to restrain a use of land which obstructs the access of light and air to an "ancient" window. Of profits, the principal are rights of common of various kinds; rents (the right to a rent issuing out of the land, unconnected with the relation of landlord and tenant) may be classed under the same head; as also might tithes. have been before the act for their commutation (6 and 7 Will. IV., c. 71).

It appears to be more accurate to class creditor's rights under the head of rights in alieno solo; though in the earlier stages of our law, as has been seen above,1 the tendency in the case of mortgages was to make the right of the creditor after default absolute. As legal ideas progress and become more refined, the notion that the land is only a security for the debt comes into prominence, and regulates the real rights of the parties, and the creditor is reduced to his true position of having simply a right in alieno solo.

1 Chap. V., § 5 (2).

BOOK II.

OWNERSHIP OF REAL PROPERTY.

A. LEGAL OWNERSHIP.

I. The Feudal System.

CHAPTER I.

ABSOLUTE OWNERSHIP AND TENURE.

Co. LIT., 65, a. For the better understanding of that which shall be said hereafter, it is to be knowne, that first, there is no land in England in the hands of any subject (as it hath been said) but it is holden of some lord by some kind of service, as partly hath been touched before.1 Secondly, all the lands within this realme were originally derived from the crowne, and therefore the king is sovereigne lord, or lord paramont, either mediate or immediate, of all and every parcell of land within the realme.

ID., 191, a. Upon the whole, the most probable conjecture appears to be that evident traces of something similar to the feud may be traced in the Saxon polity; that it was established, with its concomitant appendage of fruits and services, by the Norman barons in the possessions which were parcelled out among them by the conqueror; and that, about the middle of his reign, it was formally and universally established 1 Co. Lit. 1, a.-ED.

by law. This universality of tenure is, perhaps, peculiar to England. In other kingdoms those parts of the lands which were permitted to remain in the hands of the natives, and a considerable part of those which the conquerors parcelled out among themselves, were not originally subject to tenure. In the earliest age, however, of the feudal law, some advantages attended tenure, and frequently occasioned the conversion of allodial into feudal property. But in the anarchy which followed the removal of the Carlovingian dynasty, there was an end of all political government; so that almost all persons found it advantageous to enter into the feud. To effect this they delivered up their lands, sometimes to the sovereign, sometimes to some powerful lord, and sometimes to the church, on condition to receive it back in feudality. Lands, thus delivered and returned, received the appellation of feuda data et oblata. Some portion of lands, however, still remained free. Of this the proportion differs in the countries on the continent. In some, the courts presume it to be feudal, till it is proved to be allodial. In others the presumption is in favor of its allodiality. . But with us, in the eye of the law, tenure is universal-that is, the dominium directum of all the lands in the kingdom is in the Crown; the dominium utile of them is in the tenant.— Butler's note, 77, V. I.

2 BL. COм., 104-105. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in its original sense it is taken in contradistinction to allodium, which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seized thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior on condition of rendering him service, in which superior the ultimate prop

erty of the land resides. And therefore Sir Henry Spelman1 defines a feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services, the mere allodial property of the soil always remaining in the lord. This allodial property no subject in England has, it being a received and now undeniable principle in the law that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominium; but all subjects' lands are in the nature of feodum or fee, whether derived to them by descent from their ancestors or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feudal clogs which were laid upon the first feudatory when it was originally granted. A subject therefore hath only the usufruct, and not the absolute property of the soil; or, as Sir Edward Coke expresses it, he hath dominium utile, but not dominium directum. And hence it is that in the most solemn acts of law we express the strongest and highest estate that any subject can have by these words: "He is seized thereof in his demesne, as of fee." It is a man's demesne, dominicum, or property, since it belongs to him and his heirs forever; yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee-that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides.

WILLIAMS, PERS. PROP., 7-8. The first lesson to be learned on the nature of real property is this: that of such property there can be no such thing as an absolute ownership; the utmost that can be held or enjoyed in real property is an estate. There may be an estate for life, or an estate tail, or an estate in fee-simple; but, according to the law of England, there cannot exist over landed property any absolute and

independent dominion. All the land in the kingdom is the subject of tenure; and if the estate is not holden of any subject, at any rate it must be held of the Crown. With regard to personal property, however, the primary rule is precisely the reverse. Such property is essentially the subject of absolute ownership, and cannot be held for any estate. It is true that the phrase personal estate is frequently used as synonymous with personal property; but this general use of the term estate should not mislead the student into the supposition that there can be any such thing as an estate in personalty properly so called. The rule that no estate can subsist in personal property would seem to have originated in the nature of such property in early times. Goods and chattels of a personal kind, in other words, movable articles, then formed, as we have seen, the whole of a man's personal estate. And such articles, it is evident, may be the subjects of absolute ownership, and have not those enduring qualities which would render them fit to be holden by any kind of feudal tenure. As personal property increased in value and variety, many kinds of property of a more permanent nature became, as we have seen, comprised within the class of personal, such as leases for years, of whatever length, and Consolidated Bank Annuities. But the rule that there can be no estate in chattels, the reason of which was properly applicable only to movable goods, still continues to be applied generally to all sorts of personal property, both corporeal and incorporeal.

2 POLL. & MAIT., HIST. ENG. LAW, 2-6. One of the main outlines of our mediæval law is that which divides material things into two classes. Legal theory speaks of the distinction as being that between "movables" and "immovables"; the ordinary language of the courts seldom uses such abstract terms, but is content with contrasting "lands and tenements" with "goods and chattels." We have every reason to believe that in very remote times our law saw differences between these two classes of things;