I 0 comprehend fully the reasons which gave birth to this rule, we ought to recall not only the nature of the feudal tenures of land in England, but the history of the origin and development of the system itself, which before the close of the eleventh century had suceded, mainly by conquest and force, in vesting the ultimate ownership of nearly all the lands in England, as well as on the continent of Europe, in the feudal lords, and parcelling them out among a few military chieftains or leaders of bands of predatory barbarians. * * *
Blackstone says: "At the first introduction of feuds, as they were gratuitous, so also they were precarious, and held at the will of the lord, who was then the sole judge whether his vassal performed his services faithfully. Then they became certain for one or more years. Among the ancient Germans they continued only from year to year. . . . But, when the general migration was pretty well over and a peaceable possession of the new-acquired settlements had introduced new customs and manners; when the fertility of the soil had encouraged the study of husbandry, and an affection for the spots they had cultivated began naturally to arise in the tillers, - a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory. But still feuds were not yet hereditary, though frequently granted by the favor of the lord to the children of the former possessor; till in process of time it became unusual, and was therefore thought hard, to reject the heir, if he were capable to perform the services. . In process of time feuds came by degrees to be universally extended, beyond the life of the first vassal, to his sons, or perhaps to such one of them as the lord should name, and in this case the form of the donation was strictly observed; for, if a feud was given to a man and his sons, all his sons succeeded him in equal portions, and as they died off, their shares reverted to their lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation. But when such a feud was given to a man and his heirs, in general terms, then a more extended rule of succession took place; and when the feudatory died, his male descendants in infinitum were admitted to the succession. . . . Other qualities of feuds were, that the feudatory could not alien or dispose of his feud; neither could he exchange, nor yet mortgage, nor even devise it by will, without the consent of the lord. For the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should be at liberty to transfer this gift, either from himself, or from his posterity, who were presumed to inherit his valor, to others who might prove less able." 2 Bl. Com. 55. * * *
These extracts are enough to show that the word " heirs," when first introduced into charters and feoffments, was a word of very great importance. It enlarged the right of the vassal from one held either at the will of the lord, or for his own life, to a permanent and hereditary interest. It signified an undertaking by the lord that he would accept the heir as his vassal, and that all the rights and obligations growing out of that relation should be extended to him. It was, in effect, simply a stipulation for a renewal of the lease upon the same terms with the heir of the first lessee. They also show to some extent the nature of the institutions and condition of society in which the rule we are speaking of originated and to which it was applicable, and strongly present the contrast between those institutions and our own._
It is important to our inquiry that the utter repugnancy and hostility of feudal institutions to ours should be fully borne in mind. * * *
It was to answer one of the conditions upon which the existence of such a system depended that the rule in question was introduced. Unless the lord bound himself that the fief should go to the heir of his vassal, the heir had no rights in it on the death of his ancestor, but the lord, being the absolute owner of the soil, might bestow the fief upon any stranger who would enter into homage and do fealty to him for the land, upon such new services as he might impose.
The rule was nothing more nor less than the practice of the feudal sovereign, securing and perpetuating his grasp upon all the land, and the service of all the landholders in his realm. Its origin, purpose, and history show it to be in no way adapted to our institutions, system of government, or condition of society. As a feudal rule of construction, it was a recognition of the fact that the vassal held his lord's land upon the condition of rendering in his own person certain services to his lord. The vassal, thus holding the land by reason of the personal trust and confidence reposed in him by his lord, could not assign, nor could his heirs inherit, his obligation of personal service on the land held on such a condition. Flanders v. Lamphear, 9 N. H. 201; Eastman v. Batchehler, 36 N. H. 141; Bethlehem v. Anns, 40 N. H. 34, 41, 42. The feudal rule is inapplicable to a conveyance of New Hampshire land not held by any such tenure.
When the fetters which feudalism had fastened upon the tenure of lands in England fell off, every reason on which this rule had rested fell with them. Why should the rule itself be retained? Lord Coke says: "Cessante ratione legis, cessat ipsa lex." Coke, Litt. 70 b. And that has come to be - indeed, it was then - one of the most familiar maxims of the law. The fourth maxim of construction of statutes laid down by Dwarris is, An act of parliament cannot alter by reason of time; but the common law may, since cessante ratione cessat lex. Potter's Dwar, 122.
But suppose the rule was retained in England after the reason of it ceased and that it was engrafted upon the common law at the time of the settlement of this State and the adoption of the constitution, the question is, Has it been adopted here? The framers of the constitution, in providing for the continuance of such laws as had theretofore been adopted and approved, etc., wisely excepted such parts thereof as should be found repugnant to the rights and liberties contained in that instrument. Const. N. H., art. 90. This implies that there might be some parts of the common law to which the exception should be applied. With all the devotion to the general principles of the common law which eminently distinguished that generation of men, they could not fail to see that as a body of municipal law it was not wholly free from defects. They must have known, as Judge Cooley says, that many of its features were exceedingly harsh and repulsive, and gave unmistakable proofs that they had their origin in times of profound ignorance, superstition, and barbarism; that the feudal system, which was essentially a system of violence, disorder, and rapine, gave birth to many of its maxims; and that some of these, long after that system had passed away, might still be traced in the law, especially in the rules which govern the acquisition, control, and enjoyment of real estate. Cooley's Const. Lim. 22. Hence the exception. Accordingly it has many times been held, under our constitution, that if there is any part of the common law incompatible with our institutions or not adapted to our circumstances, it does not prevail here. Lisbon v. Lyman, 49 N. H. 582, and cases cited.