By what steps it prevailed here, is so happily and so concisely explained, in a note of the present Editor's most learned predecessor in this work, (note 1 to page 111 b.) as to render any deduction of it unnecessary in this place. To a perusal of that note, the reader is therefore invited. It remains to observe, that after the testamentary power over land was introduced, a devise of lands was not considered to operate as an appointment of a party to be a general heir of the testator, as in the Roman law; but was considered to operate as a legal conveyance of the lands themselves. See Lord Mansfield's argument in Hogan v. Jackson, Cowp., 299. In consequence of this, many of the requisites to other legal instruments are requisite in wills. Thus, as to the efficacy of a deed, for the transfer of real property, it is necessary that the grantor should have the seisin of the lands conveyed; so, to the efficacy of a will, it is necessary that, at the time of making his will, the devisor should have the seisin of the lands devised, or at least that kind of inchoate seisin or title, which is conferred by a contingent remainder. The consequence of which is, that while a Roman will operates on all the property of the deceased, without any regard or distinction, as to property acquired by the testator, before or after, the making of his will; by the law of England, a will cannot operate on any freehold lands, of which, at the time of making of the will, the party has not this species of seisin. Another consequence of the notion, that, a will affecting lands, is merely a species of conveyance, is, that, as by the law of England, a fee simple cannot be created without words of inheritance in the original donation or grant, so by the same law, words of inheritance are equally necessary to the creation of a fee by will. The only difference is, that certain technical words are required by law, to the creation of an estate in fee, by deed; but in wills, they may be dispensed with, and supplied, by any words, sufficiently denoting the intention of the testator. Here the subject appears to draw to a conclusion.

VI. 11. The reader has been presented with some of the most striking circumstances in the history and principles of the feudal law, particularly so far as they affect the landed property of this country. It remains only to state some of the most striking circumstances, IN THE GENERAL HISTORY OF ITS DECLINE. It has been shown, that the peculiar ingredient of the feud was, the connection between, and the reciprocal obligations of, the lord, and the tenant. Whatever interrupted or relaxed this connection and reciprocity of obligation, had a direct tendency to overturn the feud.

One of the earliest circumstances of this tendency was, the general introduction of the practice of subinfeudation. This, however salutary, in a general view, loosened the tie, which united the feudal association, by preventing the chain of dependence and subordination, consequent to the practice of subinfeudation; and which, it is evident from the general principles of the feudal law, and the history of other nations, operated in the strongest manner to cement and perpetuate the feud.

Another circumstance of the same tendency, was, the introduction of the tenure of escuage. This enabled the tenants by knights service to send persons to serve in the King's armies in their stead, and in process of time to make a pecuniary satisfaction to the lord, in lieu of it. This substitution of money, for personal attendance , was diametrically opposite to every feudal principle. Accordingly all writers have considered it, as a degeneracy of the tenure of knight service. A further circumstance of the tendency we are speaking of, was, the prevalence of the socage tenure. It is probable, that the number of these tenures was not great, till a considerable time after the Norman conquest; and perhaps the increase of them was not rapid, till some time after the introduction of escuage. From a comparative view of the different natures of the military and socage tenures, it is easily seen, how much stronger the feudal connection was under the former, than it was under the latter. The tenure in burgage was a species of socage tenure. Under this, chiefly, the commercial part of the community classed themselves. Nothing could be more opposite to the nature of the feudal tenure, than the wealth, the independence, and the peaceful habits of life, which usually attend the pursuits of commerce. Thus, as the general tenure of socage prevailed, the connection between the lord and the tenant proportionately relaxed.

But one of the most important circumstances, in the history of the decline of the feud, is, the introduction of uses. By these the legal estate of the land was in the feoffee. In fact, therefore, there never was a vacancy in the tenure. But the ownership and beneficial property of the land being absolutely vested in the cestui que use, there was no point of connection between him and the lord. Besides, when a feoffment was made to uses, it seldom happened, that the feoffment was made to a single person. The feoffees were numerous, and when their number was reduced to that of one or two persons, a new feoffment was made to other feoffees, to the subsisting uses. In the meantime, the ownership of the.land was transmitted and aliened, at the will of the cestui que use. It is evident that, while the fief was held in this manner, there was a wide separation between the lord and the tenant. It must also be observed, that, where there was a feoffment to uses, the fruits of tenure incident to purchase, became seldom due, and those incident to descent almost never accrued to the lord. Now, where a person took by purchase, the lord was only entitled to the trifling acknowledgment of relief; when he came in by descent, the lord was entitled to the grand fruits of military tenure, wardship, and marriage. From these observations, it is clear, how great a fraud was practiced upon the lord, by the introduction of uses. A fief thus circumstanced, presented an apparent tenant to the lord, but it was almost barren of every fruit and advantage of tenure, and the land itself was entirely subtracted from the feud. Hence, we find, that, among the mischiefs recited in the preamble to the statute of uses, the loss to the lord, of the fruits of tenure, is particularly insisted on. It does not fall witliin the nature of these observations, to mention the steps which were taken to extirpate uses. One of them was the statute of the 1 Richard the 2d. cap. 9, which gave an action to the disseisee, both against the feoffee, and the cestui que use. It is observable, that the senatus consultum Trebonianum, gave the same right of action against the hoeres fidei commi8sarius. Unquestionably the object of the statute of the 27 of Henry 8, was to effect a total extirpation of uses.