Page:EB1911 - Volume 22.djvu/959

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942
REAL PROPERTY


of land is not peculiar to the pre-Conquest or any other period. It runs through the whole of English history.

The elements of feudalism so far existed in England under the Anglo-Saxon and Danish kings as to make it easy to introduce it in full at the Norman Conquest. What the Norman Conquest did was not to change all at once allodial into feudal tenure, but to complete the association of territorial with personal dependence in a state of society already prepared for it.[1] “Nulle terre sans seigneur” was one of the fundamental axioms of feudalism. There might be any number of infeudations and subinfeudations to mesne lords, but the chain of seignior was complete, depending in the last resort upon the king as lord paramount. Land was not owned by free owners owing only necessary militia duties to the state, but was held of the king by military service of a more onerous nature. The folkland became the king's land; the soldier was a landowner instead of the landowner being a soldier. Free owners tended to become tenants of the lord, the township to be lost in the manor.[2] The common land became in law the waste of the manor, its enjoyment resting upon a presumed grant by the lord. On the other hand, the whole of England did not become manorial; the conflict between the township and the manor resulted in a. compromise, the result of which aftfects English tenure to this day. But it was a compromise much to the advantage of the privileged class, for in England more than in any other country the land law is the law of the nobility and not of the people. One reason of this is that, as England was never so completely feudalized as were some of the European continental states, the burden of feudalism was not so severely felt, and has led to less agitation for reform.

The land forfeited to the Conqueror was regranted by him to be held by military service due to the king, not to the mesne lord as in European continental feudalism. In 1086 at the council of Salisbury all the landholders swore fealty to the crown. In the full vigour of feudalism the inhabitants of England were either free or not free. The free inhabitants held their lands either by free tenure (liberum tenementum, franktenement) or by a tenure which was originally that of a non-free inhabitant, but attached to land in the possession of a free man. Franktenement was either military tenure, called also tenure in knight service or chivalry (including barony, the highest tenure known to the law, grand serjeanty and the special forms of escuage, castle-guard, cornage and others) or socage (including burgage and petit serjeanty), or frankalmoign (libera eleemosyna) or divine service, by which ecclesiastical corporations generally held their land.[3] The non-free inhabitants were in Domesday Book servi, cotarii or bordarti, later natiiri or vtllani, the last name being applied to both free men and serfs. All these were in a more or less dependent condition. The free tenures all exist at the present day, though, as will appear later, the military tenures have shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures are to a certain extent represented by copyhold. The most important difference between the military and socage tenures was the mode of descent. Whether or not a feudal benefice was originally hereditary, it had certainly become so at the time of the Conquest, and it descended to the eldest son. This applied at once in England to land held by military service as far as regarded the capital fief. The descent of socage lands or lands other than the- capital fief for some time followed the old pre-Conquest rule of descent. Thus in the socalled “ Laws of Henry I.” the lands other than the capital lief, and in Glanvill, who wrote in the time of Henry II., socage lands, if anciently partible (antiquitus divisum), were divided among all the sons equally. But by the time of Bracton (Henry III.) the course of descent of lands held by military service had so far prevailed that, though it was a question of fact whether the land was partible or not, if there was no evidence either way descent to the eldest son was presumed. Relics of the old custom still remain in the case of gavel kind. The military tenant was subject to the feudal incidents, from which the tenant in socage was exempt. These incidents, especially wardship and marriage, were often oppressive. Alienation of lands by will, except in a few favoured districts, became impossible; alienation inter vivos was restrained in one direction in the interests of the heir, in another in the interests of the lord. At the time of Glanvill a tenant had a greater power of alienation over land which he had purchased (terra acquietata) than over land which he had inherited. But by the time of Bracton the heir had ceased to have any interest in either kind of land. The lords were more successful. It was enacted by Magna Carta that a free man should not give or sell so much of his land as to leave an amount insufficient to perform his services to his lord. In spite of this provision, the rights of the lords were continually diminished by subinfeudation until the passing of the Statute of Quia Emptores. Alienation by a tenant in chief of the crown without licence was a. ground of forfeiture until 1 Edw. III. st. 2, c. 12, by which a fine was substituted. The modes of conveyance at this time were only two, feoffment with livery of seisin for corporeal hereditaments, grant for incorporeal hereditaments. Livery of seisin, though public, was not officially recorded like the old English transfer of property. The influence of local custom upon the land law must have become weakened after the circuits of the judges of the King's Court were established by Henry II. jurisdiction over litigation touching the freehold was taken away from the lord's courts by 15 Ric. II. c. 12.

The common law as far as it dealt with real estate had in the main assumed its present aspect by the reign of Henry III. The changes which have been made since that date have been chiefly due to the action of equity and legislation, the latter sometimes interpreted by the courts in a manner very different from the intention of parliament. The most important influence of equity has been exercised in mortgage and trusts in the doctrine of specific performance of contracts concerning real estate, and in relief from forfeiture for breach of covenant.

History of Real Estate Legislation.—The reign of Edward I. is notable for three leading statutes, all passed in the interests of the superior lords. The Statute of Mortmain (7 Edw. I. st. 2, c. 13) is the first of a long series directed against the acquisition of land by religious and charitable corporations. The statute De Donis Conditionalibus (13 Edw. I. c. 1) forbade the alienation of estates granted to a man and the heirs of his body, which before the statute became on the birth of an heir at once alienable (except in the case of gifts in frank marriage), and so the lord lost his escheat. The statute Quia Emptores (18 Edw. I. c. 1) preserved those rights of the lords which were up to that time subject to be defeated by subinfeudation, by enacting that in any alienation of lands the alienee should hold them of the same lord 'of the fee as the alienor.[4] Since 1290 it has been impossible to create an estate in fee-simple to be held of a mesne lord, or to reserve a rent upon a grant of an estate in fee (unless in the form of a rent-charge), or to create a new manor. The statute, however, does not bind the crown. The practical effect of the statute was to make the transfer of land thenceforward more of a commercial and less of a feudal transaction. The writ of elegtt was introduced by the Statute of Westminster II. in 1285 as a creditor's remedy over real estate. It has, however, been considerably modified by subsequent legislation. From 1290 to the reign of Henry VIII., there is no statute of the first importance dealing with real estate. The reign of Henry VIII., like the reign of Edward I., is signalized by three acts, the effects of which continue to this day. The one which has had the most lasting influence in law is the Statute of Uses, 27 Hen. VIII. c. 10 (see Conveyancing; Trust). The Statute of Uses was intended to provide against secrecy of

sales of land, and as a necessary sequel to it an act of the same

  1. “The relation of vassalage, originally personal, became annexed to the tenure of land ” (Palgrave, Rise and Progress of the English Commonwealth, vol. i. p. 505).
  2. It is a disputed point whether the manor organization existed before the Conquest; but its full development seems to have been later than that event.
  3. Frankalmoign was not always regarded as a distinct tenure. Thus Littleton (§ 118) says that all that is not tenure in chivalry is tenure in socage.
  4. Tenants in chief of the crown were liable to a fine on alienation until 12 Car. II. c.