or arise thereupon or thereby, shall be and hereby are declared to be taken away and discharged, and forever abolished; any law, statute, custom or usage to the contrary thereof in any wise notwithstanding.

"III. And be it further enacted by the authority aforesaid, That all tenures of any honors, manors, lands, tenements or hereditaments, or of any estate of inheritance at the common law, held either of the king or of any other person or persons, bodies politic or corporate, at any time before the fourth day of July, in the year of our Lord one thousand seven hundred and seventy-six, are hereby declared to be turned into free and common soccaye, to all intents and purposes, and shall be construed, adjudged and deemed to be free and common soccage. from the time of the creation thereof, and forever thereafter, and that the same honors, manors, lands, tenements and hereditaments, shall forever hereafter stand and be discharged of all tenure by homage, escuage, voyages royal and charges for the same, wardships incident to tenure by knights service, and values and forfeitures of marriage, and all other charges incident to tenure by knights service, and of and from relief, aid pur file marrier, and aid pur fair fitz chivalier; any law, statute, usage or custom to the contrary in any wise notwithstanding. "IV. And be it further enacted by the authority aforesaid, That all conveyances and devices of any manors, lands, tenements or hereditaments, at any time heretofore made, 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 soccage only; any law, statute, custom or usage to the contrary hereof in any wise notwithstanding.

"V. Provided always, and be it further enacted by the authority aforesaid, That this act, or any thing herein contained, shall not take away, nor be construed to take away or discharge, any rents certain, or other services incident or belonging to tenure in common soccage, due or to grow due to the people of this state, or any mean lord, or other private person, or the fealty or distresses incident thereunto.

"VI. And be it further enacted by the authority aforesaid, That the tenure upon all gifts, grants and conveyances heretofore made, or hereafter to be made, of any manors, lands, tenements or hereditaments, of any estate of inheritance, by any letters patent under the great seal of this state, or in any other manner, by the people of this state, or by the commissioners of forfeitures, shall be and remain allodial, and not feudal, and shall forever hereafter be taken and adjudged to be and continue in free and pure allodium only; and shall be forever discharged of all wardship, value and forfeiture of marriage, livery, primer seisin. ousterlemain, relief, aid pur file marrier, aid pur fair fitz chivalier, rents, renders, fealty and all other services whatsoever; any law, statute, reservation, custom or usage to the contrary hereof in any wise notwithstanding.'

"These sections except the last, which was a new provision, were taken from the English act, for taking away the courts of wards and liveries, and tenures in capite, and by knights service,' &c. (12 Charles II. chap. 24.)

"The day named in our act, (August 30, 1664,) is not the date of the original act, which was passed at a parliament that began on the 25th of April, 1660, and which declared that the military tenures should be deemed to be abolished from the 24th of February, 1645. The day named in our act was the same on which the fort and town of New Amsterdam were surrendered by the Dutch governor Stuyvesant, to Col. Nicolls and the English forces, pursuant to the capitulation of the 27th of August, 1664.

"The legislature of 1787, were engaged in the delicate and difficult task of selecting such English statutes as were proper to be re-enacted in this state, preparatory to the general repeal of the remainder. It is probable that the provisions above quoted, so far as they relate to the ancient military tenures, were re-enacted merely from abundant caution; for it is difficult to perceive any necessity for the formal abolition of tenures and incidents of tenures, which never existed in this colony.

"A stranger to our history would be inclined to suppose, from a purusal of the act of 1787, that the military tenures existed in this colony, prior to the 30th of August, 1664. But it is quite certain that

such was not the fact. Whilst the colony was under the Dutch governments, these tenures, and indeed all feudal tenures, were unknown. In the charter granted by the states general, in 1621, to the West India company, the latter, were empowered 'to enter into contracts and alliances with the princes and natives of the land,' and were required to advance the settlement and encourage the population of the territories they should acquire.' (1 Hazard's Collections, 121.)

"In 1629, the company established a series of privileges and exemptions, in favor of persons who should become settlers in the colony. They provided that any person who should plant a colony of fifty souls, should be deemed a patroon; should be entitled to select lands to a limited extent; and should have an absolute property therein, to be holden of the company as an eternal inheritance, without its ever devolving again to the company.' They also granted to the patroons the liberty of disposing of their inheritances by testa

ment.

"Under these general provisions the Dutch inhabitants appear to have held their lands entirely free from any feudal incident.

"By the second article of the capitulation of 1664, it was stipulated, that the people should still continue free denizens, and should enjoy 'their lands, houses and goods, wheresoever they are within the country, and dispose of them as they please.' Section 11 is as follows: The Dutch here shall enjoy their own customs concerning their inheritances.' The treaty of Breda, by which the British title to the colony was confirmed, contains no special provision bearing upon this subject.

"The first grant from Charles II. to the Duke of York, bears date the 12th of March, 1664. After describing the premises intended to be granted, the letters patent run as follows: Together with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishing, hawking, hunting and fowling; and all other royalties, profits, commodities and hereditaments, to the said several islands, lands and premises belonging and appertaining, with their and every of their appurtenances, and all our estate, right, title, interest, benefit and advantage, claim and demand, of, in, or to, the said lands or premises, or any part or parcel thereof: To have and to hold all and singular the said lands and premises, with their and every of their appurtenances hereby given and granted, or herein before mentioned, to be given and granted, unto our said dearest brother James, Duke of York, his heirs and assigns forever, to be holden of us, our heirs and successors, as of our manor of East-Greenwich, in our county of Kent, in free and common soccage, and not in capite by knight service, yielding and rendering, and the said James, Duke of York, for himself and his heirs and assigns, doth warrant and promise to yield and render unto us, our heirs and successors, of and for the same, yearly and every year, forty beaver skins, when they shall be demanded, or within ninety days after such demand made.'

"The confirmatory letters patent granted to the Duke of York in 1674, have the same clause in the same words.

"Pursuant to these grants, the tenure of lands in the colony of New

York, was always considered as of common soccage, and no trace can be found of any military tenure. In the act “ In the act" declaring what are the rights and privileges of their Majesties' subjects, residing within their province of New York,' passed in 1691, (which may be found in Bradford's edition of the colonial laws, p. 1,) it is expressly declared, that 'all the lands within the province shall be esteemed lands of freehold and inheritance, in free and common soccage, according to the tenor of East Greenwich, in their Majesties' realm of England.'

"This act was repealed by the crown in 1697, in consequence of objections of a political nature, to some of the matters contained in it; but the accuracy of the provision above cited, does not appear to have been controverted. This shows what was then understood to be the law of the colony on this point. The grants made by the colonial government, and the acts of the assembly passed anterior to the revolution, proceed on the same principle. It is also explicitly stated by the historian, Smith, that all lands are held of the crown by soccage tenure, as those of East Greenwich, at home, in the county of Kent.' (Smith's History, Albany ed. of 1814, p. 372.)

66

"The foregoing observations and references render it quite certain, that the military tenures and their incidents, were never in existence in this colony; and that their abolition in 1787, was quite unnecessary. "In regard to the more burthensome incidents of soccage tenure, which are formally abolished by the act of 1787, the case stands on somewhat different ground. Prior to the act of Charles II. soccage tenures were subject to the following incidents: 1. Homage and fealty. 2. Rent and services certain. 3. Age for knighting the son, and marrying the eldest daughter. 4. Relief. 5. Primer seisin. Wardship till 14, to the nearest relative to whom the inheritance of the infant cannot descend. 7. Marriages. 8. Fines for alienation; and, 9. Escheat. By the act of 16 Charles II. soccage tenures were freed from aids, primer seisins, marriages, and fines for alienation. Reliefs were retained by the English acts; but are enumerated in our act of 1787, (see § 2 and 3,) and are thus declared, with the other enumerated incidents, to have been taken away and discharged, from the 30th of August, 1660. If this part of the act is correct in point of fact, it would seem that the soccage tenure, as known in this colony, was not only modified agreeably to the act of 16 Charles II. but that it was even more liberal, in its exemptions from reliefs. With the single exception of reliefs, there can be no doubt, that under the grant to the Duke of York, the soccage tenure in this colony must have stood on the same ground as in England after the act of 16 Charles II.; for the first grant to the Duke was four years after the passage of that act, and the soccage tenure of the manor of East-Greenwich' had already received all the modifications of that act.

"It is therefore proposed to omit the sections above quoted from the act of 1787, both as unnecessary in their original form, and as calenlated to produce erroneous impressions, in regard to important historical facts. It is however deemed useful to declare the tenure by which lands shall hereafter be held in this state, both for the purposes of general information, and to remove a singular diversity which now exists in that part of our law. By the 6th section of the act of 1787,

the tenure of all lands granted by the people of this state, is to be allodial, and not feudal. By previous sections, the feudal tenure of common soccage had been declared to be the tenure of all other lands. It is well known that the greater part of our lands is now held allodially, under titles derived from the people. The nature of these different modes of title, is widely different; and if the distinction should be retained, it may give rise to inconvenient and perplexing consequences.

"In the case of Cornell vs. Lamb, 2 Cowen, 652, it was decided that the common law right of distress incident to lands held in common soccage, was saved by the fifth section of the act of 1787; and that in all cases where the landlord is entitled to the reversion, and to a rent, he is authorized to distrain for such rent, without any authority for that purpose in the lease or contract. Justice Woodworth suggests, that independently of the 5th section, the right to distrain would remain upon every demise for a rent certain, where the reversionary interest was in the landlord; and that this right would not be impaired by the abolition of fealty, and all other services upon lands granted by the state. Chief Justice Savage excepts from this remark, lands held allodially by grant from the state; and it is apprehended with great reason. It is also extremely doubtful whether those lands are subject to guardianship in soccage, or to escheat. Indeed there would be no ground for supposing them liable to either of these incidents of tenure, were it not for the general terms used in some other statutes.

"Deeming it important that all lands in this state should be held upon an uniform tenure; and still more so, that all lands should be subject to the rent and services which have heretofore obtained among our citizens, and the rights annexed thereto by the common law; the Revisers, in § 3, have made all lands allodial, and in § 4, have expressly subjected them to those incidents of the soccage tenure."

"ARTICLE II.—Of the persons capable of holding and conveying lands."

$ 9, adopted with some modification. Original note. "The 8th section of the act to naturalize and to prevent the avoidance of titles in certain cases, 3d vol. of Greenleaf's ed. of laws, p. 280, confirms all subsisting titles derived from aliens, and vested in any persons who were at that time inhabitants of the state, and subsequent laws containing similar provisions have from time to time been passed. No objection is perceived to a general and prospective provision of the same character."

[S 11. Same as 10 R. S.] Original note. "Conformable to the first part of § 1 of the act concerning tenures, (1 R. L. 70.) The residue of the original section, saving the rights of chief lords, has been omitted as unnecessary. It was taken from the first and second chapters of the statute quia emptores, 18 Edward I. To elude the restraints imposed by the feudal law upon the alienation of the fief, the practice of sub-infeudation was often resorted to, which, by dividing the fief into many parts, served to render the inferior tenant independent of the chief lord, and indirectly to effect a transfer of the fief itself. This practice was restrained by Magna Charta, ch. 32, which provides

'that no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands, the lord of the fee may have the service due to him which belongeth to the fee.' But as that provision was not sufficiently general, the statute of quia emptores extended it still farther. There seems to have been no necessity for the re-enactment of this statute in this state; the state of things which gave rise to it having never existed in the colony of New-York, and the rights of lessors and their grantees against lessees and the assignees of lessees being perfectly secured by the act to enable grantees of reversions to take advantage of the conditions to be performed by lessees.' 1 R. L. 363."

[$ 12, 13. Same as § 11, 12 R. S.] Original note. "See Goodell vs. Jackson, 20 Johns. 693."

[S 20. Same as § 19 R. S.] Original note. "The 2d section of act of 1802, allows mortgages to be taken; but it is defective in omitting the right of a mortgagee to purchase, which is supplied by the latter part of the above section."

"TITLE II.-Of the nature and qualities of estates in real property, and the alienation thereof."

"ARTICLE I.-Of the creation and division of estates."

[S 2, 3, 4. Same as enacted.] Original note to § 4. "At common law, where an estate is conveyed or devised to A, and if he die without issue or without heirs of his body, or without heirs where the limitation over is to an heir, then to B in fee, A takes an estate tail, on which the limitation to B is valid as a remainder; and if the entail be not barred, the fee will vest in B, or his heirs, in case of the failure of the issue of A, at any distance of time. By the operation of our statute respecting entails, the estate of A is converted into a fee simple absolute, and thus the remainder to B and his heirs is entirely defeated. Such is obviously the necessary effect of giving to the first taker a fee simple absolute, and would also be the result of the well known rule, that a fee cannot be limited upon a fee, even by way of use or executory devise, unless upon a contingency that must happen within a life or lives in being, and twenty-one years thereafter. It is conceived, however, that the object of the legislature in abolishing entails, may be effected, without sacrificing (as certainly they are now sacrificed) the rights of the persons entitled in remainder. The object of the legislature was to destroy perpetuities, in other words, to prevent the fee from being rendered inalienable beyond a certain period; and this object is completely attained, if, without defeating the remainder, we confine it to vest within the period allowed by law in other cases; in doing this, we violate no rule of public policy, and we comply, we may be assured, with the intention of the person creating the estate.

"In most cases, it is expressed, that the limitation over shall take effect on the event of the first taker's 'dying without issue, or without leaving issue;' and in these cases, it is believed that the meaning which the law affixes to the terms, viz. a failure of issue, at any period however remote, even after the death of the first taker, is very opposite to that of the party by whom they are employed.