101. 222. 269

Welland Canal Co. v. Hathaway,.. 271

Wellington v. Wellington,.

Wells v. Beall,....

PART VI.

OF THE LAW CONCERNING REAL PROPERTY.

(CONTINUED FROM THE THIRD VOLUME.)

LECTURE LIV.

OF ESTATES IN FEE.

THE perusal of the former volumes of these Commentaries has prepared the student to enter upon the doctrine of real estates, which is by far the most artificial and complex branch of our municipal law. We commenced with a general view of the international law of modern civilized nations, and endeavoured to ascertain and assert those great elementary maxims of universal justice, and those broad principles of national policy and conventional regulation, which constitute the code of public law. The government of the United States next engaged our attention; and we were led to examine and explain the nature and reason of its powers, as distributed in departments, and the constitutional limits of its sphere of action, as well as the restrictions imposed upon the original sovereignty of the several members of the Union. We then passed to the sources of the municipal law of the state governments, and treated of personal rights and the domestic relations, which *are naturally the ob- *2 jects of our earliest sympathies and most permanent attachments. Our studies were next directed to the laws of personal property, and of commercial contracts, which fill a wide space in all civil institutions; for they are of constant application in the extended intercourse and complicated business of mankind. In all the topics of discussion, we have VOL. IV.

1

been, and must continue to be, confined to an elementary view and sweeping outline of the subject; for the plan of these essays will not permit me to descend to that variety and minuteness of detail, which would be oppressive to the general reader, though very proper to guide the practical lawyer through the endless distinctions which accompany and qualify the general principles of law.

In treating of the doctrine of real estates, it will be most convenient, as well as most intelligible, to employ the established technical language to which we are accustomed, and which appertains to the science. Though the law in some of the United States discriminates between an estate in fee and pure allodium, and an estate in fee-simple absolute, these estates mean essentially the same thing; and the terms may be used indiscriminately, to describe the most ample and perfect interest which can be owned in land. The words seisin and fee have always been so used in New-York, whether the subject was lands granted before or since the revolution ; though by the act of 1787, the former were declared to be held by the tenure of free and common socage, and the latter in free and pure allodium. In Connecticut and Virginia, the terms seisin and fee are also applied to all estates of inheritance, though the lands in those states are declared to be allodial, and free from every vestige of feudal tenure. The statute of New-York, to which I have alluded, made an unne

cessary distinction in legal phraseology as applied to *3 estates; and the distinction lay *dormant in the statute, and was utterly lost and confounded in practice. The technical language of the common law was too deeply rooted in our usages and institutions, to be materially affected by legislative enactments. The New-York Revised Statutes have now abolished the distinction, by declaring, that all lands within the state are allodial, and the entire and abso

653.

See the Reports passim, and particularly 18 Johns. Rep. 74, and 20 ibid. 548.

b6 Conn. Rep. 373. 386. 500. 4 Mumf. 205. Notes to 2 Blacks. Com. 44. 47. 77. 104, by Dr. Tucker. In Michigan, by act of 1821, all persons seised in fee-tail were declared to be seised of an allodial estate. So, also, in Pennsylvania. In Connecticut, by statute of 1793, every proprietor of land in fee-simple was declared to have an absolute and direct dominion and property in the same.