ject may by custom or prescription, be entitled to ground added to his land by sand and earth from the sea; but custom cannot entitle a subject to lands deserted by the sea, or an arm thereof (a). The reason assigned for this distinction is, that in the former instance, the accession or addition of the land by the sea to the dry land gradually, is a kind of perquisite ; whereas, in the latter case, the land, as it belongs to the King when covered with water, cannot become the property of the subject, merely because the water has left it, though this reason for the distinction is not perhaps very satisfactory. Where the interest in a creek, arm of the sea, or districtus maris, is, by charter or prescription, vested in a subject, he is entitled to claim all those rights which the King is entitled to, as owner thereof; and, therefore, such prescription does not merely give a liberty or profit, apprendre, within such creek, &c. ; but the party prescribing will be entitled to lands forsaken by the water, or islands arising therein (6). The King is a sole corporation, capable of taking mere chattel interests in succession (c). Consequently, a fee passes on a grant to the King without the word successors (d);' and a grant by the King, without mentioning successors, binds them (e). The Crown possesses peculiar prerogative privileges, with respect to distresses for rent due from its tenants. At the common law, if a grant of land or rent were made to the King, he can distrain without attornment by virtue of his prerogative (f). And he may distrain for a rent-service, fee-farm, rent-charge, or even a rent-seek, though it vest in him not by grant, but by escheat upon attainder, not only on lands out of which such rent is reserved, but on all other the lands of the tenant, although held of other lords; provided the lands distrained upon be in the actual possession of his tenant, do so; inclosing and imbanking against the sea; and enjoyment of what is so inned; enjoyment of wrecks happening upon the sand; presentment and punishment of purprestures there, in the Court of a manor and such like. Ibid. So agreed in Sir Henry Constable's case, 5 Co. 107. 5 E. 3. 3 Dyer, 326, b. So in the Exchequer Chamber, P. 16. Car. inter l'Attorney Generall et Sir Samuel Rolls, Sir Richard Buller, and Sir Thomas Arundel, per omnes ba- (a) Hal de jure Maris, c. 6. 11 Co. 92, a. (c) Co. Lit. 90, a. (d) Co. Lit. 9. Plowd. 250. Jenk. 209, 271. (e) Plowd. 176. Yelv. 13. (f) Co. Lit. 809. May distrain for an amerciament in a Court Baron. Cro. El. 748. for, for, if they be underlet for years or at will, the under-tenant's effects are not liable to the King (a). The King may, however, distrain on lands so underlet after his rent distrained for accrued due (b). And the King may distrain in the highway (c).. In general, this prerogative is peculiar to the Crown, and its grantee cannot exercise it (d). But even at common law, if the King granted to a subject a reversion or services, the estate passed immediately without attornment, and the grantee might distrain (e), unless in the case of lands held of the Duchy of Lancaster, and not situate within the county palatine (ƒ). And by force of the statute 22 Car. 2. c. 6. for the sale of Crown feefarm rents (g), the vendees of such rents may distrain on all the lands of the original grantor. And, it seems, that either the King or his vendees, may make such a distress, although the lands distrained upon be under a sequestration out of Chancery (h). It seems that the tenant may replevy on the Crown distress for rent(i), though a replevy on a distress for a fee-farm rent or other duty to the Crown (k), or on a seizure in order to condemnation (1), is not, it appears, allowable. As the King may distrain on all his tenants' lands, he may reserve rent out of inheritances which are incorporeal, as commons, tithes, fairs, &c. (m). So the King may, contrary to the general rule, reserve rent payable to a stranger (n). But where the King made a lease of his house, belonging to his housekeeper, of Whitehall, reserving a rent to the house-keeper for the time being, it was held an ill reservation; for though the King may reserve rent to a stranger, he cannot reserve it to an officer who is removeable at his will (a), If the King make a lease reserving rent, with a clause of reentry for nonpayment, he is not bound to make any demand previous to his re-entry, but the tenant is obliged to pay the rent for the preservation of his estate; because it is beneath the royal dignity to attend a subject to demand the rent; but the law, for the support of that dignity, obliges every private person to attend the King with the services due to him (b). But if the King, in cases where he need not make a demand, assign over the reversion, the patentee cannot enter for nonpayment without making the regular previous demand; because, this privilege being inseparably annexed to the person of the King, for the support of his royal dignity, shall not be extended to cases where the King is no way concerned (c). So, if a prebendary make a lease rendering rent, and it be provided that if the rent be in arrear and be demanded, it shall be lawful for the prebendary to re-enter; if the reversion in this case come to the King, he must demand the rent as in common cases, though he shall by his prerogative be excused from an implied demand; for the implied demand is the act of the law, the other the express agreement of the parties, which the King's prerogative shall not defeat; and therefore even in the case of the King, if he make a lease reserving rent, with a proviso that if the rent be in arrear for such time (being lawfully demanded, or demanded in due form), that then the lease shall be void: it seems that not only the patentee of the reversion in this case, but also the King himself, whilst he continues the reversion in his own hands, is obliged to make an actual demand, as in ordinary instances, by reason of the express agreement for that purpose (d). If land be given to the King and a subject, to have and to hold to them and their heirs, yet they are tenants in common (a) Lord Raym. 36. (b) 2 H. 7, 8. Co. Lit. 201, b. Bro. Prerog. pl. 101. But this prerogative is not to be extended to the duchy lands. Moor, 149, 154, 161. (c) 4 Co. 73. Moor, 104. Cro. Eliz. 462. Dyer, 87. And, R. 304. Co. Lit. 201, b. (d) Moor, 210. Dyer, 87. See 2 Maul. and S. 528. and and not joint tenants, as they take in different capacities; and the King cannot be a joint tenant with a subject (a). 2. The King's ordinary revenue arose also from antient rights of seigniory; as military tenures; from purveyance and pre-emption, and wine licences. These are now abolished, but still require some slight notice. The feudal system was adopted in England at the time of the Conquest, and in consequence of its introduction it became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures. "That the King is the universal lord and original proprietor of all the lands in his kingdom (b); and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feudal services." The intention of this fiction was to enable the King, by his royal prerogative, to put the kingdom in a state of defence whenever it might be necessary; and every holder of land, was thus obliged to maintain the King's title and to defend his territories, with equal vigour and fealty, as if he had received his estate upon that express condition (c)." But this system, originally intended for the public protection and security, was afterwards made a pretext to introduce a plan of tyranny and oppression, hardly to be equalled in history. For in the first place, the proprietor of every estate in the kingdom, in proportion to its extent, was burthened with military services; for which, in process of time, a certain sum of money was taken, by way of fine and commutation, called escuage. 2. He was also subject to certain annual payments orrents in money, laid on as a mark of the lord's pre-eminence, and in order to keep the vassal in perpetual remembrance of his feudal subordination. 3. He was obliged, under the name of aids, to give pecuniary assistance when necessary, to ransom the King's person if taken prisoner, to furnish a portion to his daughter, and to contribute to the expense incurred on making his eldest son a knight. 4. It was supposed upon the death of the feudal possessor, that the estate ought to revert into the hands of the (a) Co. Lit. 190, a. 1 Saund. 319, n. 4. Bac. Ab. Joint Tenants, B. 2 Bla. Com. 184. (5) Montesq. Sp. L. b. 31. c. 1. See 12 East, 96, as to the presumption of law, that on the death of the tenant last seised without heirs, the King is entitled. (c) 1 Bla. Com. 51. P 2 superior superior lord, and under that pretence it was contended, that the new vassal ought to make him a present of a suit of ar mour (which in antient times was reckoned peculiarly valuable), or to pay a fine under the name of relief; to which, in process of time, an addition was made, called primer seisin, entitling the King to demand from the heir of any of his tenants in capite, who died seised of a Knight's fee, one year's profit upon his being put in possession of the estate. 5. If the heir was under age at the death of his predecessor, the King was entrusted with the wardship, or the custody both of his person and estate; and enjoyed the income which it yielded till he arrived at the age of twenty-one years, and consequently was able to perform the services stipulated for his feud. If the heir was a female, she came of age at sixteen years, being then supposed capable of marrying a husband who might act in her stead. 6. If the possessors of feudal estates had the power of entering into matrimonial connections during their minority, according to their own fancy and humour, they might introduce into the joint possession of the fief, an enemy of the lord; perhaps one descended from a family with whom he had an hereditary variance (a). Upon this ground, the feudal superior was invested with some degree of control over the ward's marriage, and at length the right of selling the ward in marriage, or of receiving the price or value of the match, was confirmed by an express act of the legislature. 7. It was asserted by the feudal lawyers, that when the King gave an estate to be holden of himself and his successors, it was a gift to a chosen and selected individual, which no other person ought to be put in possession of, without his privity and consent; and that any attempt to infringe upon this essential stipulation, by alienating the lands to a stranger, ought to be attended with the forfeiture of the grant (b). This right was exercised with great severity during several reigns in the earlier part of the English history, until at last it was provided by statute Edward 3. c. 12. that one third of the yearly value of the lands should be paid by way of fine, for a licence of alienation; but if the tenants presumed to aliene without a licence, that they should be liable to a full year's rent of the (a) Dalrymple on Feud. Prop. ch. 2. sect. 2. page 38, 4th edit. (b) Bacon's Works, fol. edit. vol. 3. p. 551. estate. |