services as his feoffor held before. But the charter expressly provided against this, by allowing the proprietary to make alienations to others, who should hold directly of himself, and dispensed with the statute of quia emptores in the province. This power of dispensation the king or lord had by the common law, it being considered that the statute was made for the benefit of the chief lord, and he might wave a benefit introduced for himself. (1) The seventeenth section of the charter grants to William Penn, his heirs and assigns, power to aliene parts or parcels of the province to purchasers in fee simple, fee tail, or for life, or years, to be held of him, his heirs and assigns, as of his said seignory of Windsor, by such services, customs and rents, as he or they should think fit, and not of the crown. The eighteenth section gave purchasers power to take and hold such grants, the statute of quia emptores notwithstanding. The nineteenth section went a step further, and enabled the grantees, having license from the proprietary, to erect manors, with courts baron; to make grants in fee simple or fee tail, to be held of such manors; but the alienees of these grantees were to hold of the manors as they did. It follows, that the proprietary could grant his lands in socage, to be held directly of him, and he always did so. Every patent expressed that the land was to be held of the proprietaries, as of some of the manors they had,(2) in free and common socage, in lieu of all other services, with the reservation of onefifth of all gold and silver ore at the pit's mouth.

(1) Co. Lit. 99, a.

(2) 2 Sm. Laws 140.

When the commonwealth, by the revolution and act of 1779, succeeded to the rights of the proprietaries, for a valuable consideration paid, they did not abolish the royalties, franchises, and lordships of the proprietaries, but declared them vested in the commonwealth, for the use of its citizens. They abolished the tenure of the crown, and all services to be rendered to it, but not the tenure by which the grantees by patent held of the proprietaries. The seventh section confirmed the estates of grantees, by patent or otherwise, under the limitations and uses contained in them. In 1781, when the commonwealth established a land office for settling the grants which had been made in the times of proprietaries, the act of assembly gave the form of a patent, in which there is a direction to insert the tenure and reservation. And by section eleven, it declares, that the lands so granted shall be free and clear of all reservations and restrictions as to mines, royalties, quit-rents or otherwise, so that the owners shall hold the same in absolute and unconditional property, to all intents and purposes whatsoever, and all, and all manner of profits, privileges, and advantages belonging to or accruing from the same, and that, clear and exonerated from any charge or incumbrance whatever, excepting the debts of the owner, and reservation of one-fifth part of ores.

It would seem, then, that the ancient tenure is not abolished, but the commonwealth takes the place of the proprietaries as lord of the soil, and that lands are still held of the commonwealth by free and common

socage, with fealty and reservation of a portion of gold and silver ore. But on this point there are different opinions entertained, some holding that the property of the tenant, in fee simple, since the revolution, is allodial.(1)

(1) See, 1 Whart. 330, the effect of the charter on rents.

2 A

CHAPTER XXXIII.

SHOWING TITLE OUT OF THE COMMONWEALTH.

It is a prevalent opinion, that in ejectment it is necessary for the plaintiff to show title out of the commonwealth. The objection frequently occurs in our books of Reports, but the only authority for the doctrine is the nisi prius dictum of C. J. M'KEAN, 1 Dall. 68, reported to have been said in 1782, when it is well known the principles of our land-titles were not settled, and that C. J. M'KEAN entertained notions of the necessity of a complete office-right, which he afterwards changed.(1)

That case is thus stated. In this cause, M'KEAN, C. J. said, that he had ruled it in a case at Lancaster, that the lessor of the plaintiff shall not be obliged to show his title further back than from the person who last died seised, first showing the estate to be out of the proprietaries or the commonwealth. It would seem that this case ought rather to be considered as relieving a plaintiff from the necessity of going through a long chain of conveyances not material to

(1) Ante 138.

the matter in dispute, which was probably the practice, than as imposing on him any new requisition. But still it inculcates the necessity of his showing even when he has traced his title to the person last seised, that the title was out of the proprietary or commonwealth.

The only case in which the principle was enforced that can be found reported, is that of Hylton v. Brown (in 1804), 1 Wash. C. C. Rep. 204, in which Judge WASHINGTON nonsuited the plaintiff on this objection. On consideration, however, he set aside the nonsuit, declaring that he had permitted his judgment to be influenced more than it ought to have been by the nisi prius opinion of the chief justice. He decided that in ejectment the plaintiff must show (and it is enough for the purpose that he does show) a right of entry, or, in other words, a right of possession. If he prove twenty years possession, or the seisin of his ancestor, and a descent cast, it is, in general, sufficient prima facie, unless the defendant show a better right. But the defendant may succeed by showing a better right in himself, or by showing it out of the plaintiff. But, he asks, is it sufficient for the defendant to show an original title in the proprietary? If the plaintiff show a right of possession in himself, this he thinks certainly sufficient against every person but the proprietary. If the defendant rely upon the original title of the proprietary, he must show it to be a subsisting one, either in the proprietary or in some one claiming under him. He admitted the rule to be correct as laid down in the case cited, if the suit be