Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/323

Rh REAL ESTATE 305 degrees of serfdom, owing money or labour rents; (5) variety of custom, tending to become uniform, through the application of the same principles in the local courts ; (6) subjection of land to the trinoda necessitas, a burden imposed for the purpose of defence of the realm. The rudiments of the conceptions of tenure and of the crown as lord paramount were found in the old English system, and laenland was an anticipation of the limited interests which afterwards became of such importance. 1 The con- nexion of political privileges with the ownership of land is not peculiar to the pre-Conquest or any other period. It runs through the whole of English history. Originally all freeholders seem to have voted in the county court. Finally the Reform Acts of this century, however they may have lowered the qualification, still require (except in the case of the university vote) the vote to be derived from an interest in land. No amount of consols will give a vote at a parliamentary election. A qualification from land is also necessary in the case of sheriff, justices of the peace, and other public officials. 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. Feudalism was not so much a distinct and separate creation, developed at once in its maturity, as a collection of institu- tions whose origin was to be found in unconnected sources. 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. 2 "Nulle terre sans seigneur" was one of the fundamental axioms of feudalism. There might be any number of infeudations and subin- feudations to mesne lords, but the chain of seigniory 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 far 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. 3 The common land became in law the waste of the manor, its enjoyment rest- ing 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 affects 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 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 Continental feudalism. In 1086 at the council of Salisbury all the landholders swore fealty to the crown. In the full vigour of feudalism the inhabit- ants of England were either free or not free. The free inhabitants held their lands either by free tenure (liberum tetiementum, 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 The name has not remained as in Germany and Denmark. A fief is still Lchen in Germany, Lehn in Denmark. ' 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). 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. 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 elee- mosyna) or divine service, by which ecclesiastical corpora- tions generally held their land. 4 The non-free inhabitants were in Domesday Book servi, cotarii, or bordarii, later nativi or villani, 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 (q.v.}. The most im- portant difference between the military and socage tenures was the mode of descent. Whether or not a feudal benefice was originally hereditary, it bad 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 so-called "Laws of Henry I. " the lands other than the capital fief, and in Glanvill, who wrote in the time of Henry II., socage lands, if anciently partible (antiguitus division), 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 pre- sumed. Relics of the old custom still remain in the case of gavelkind (see below). The military tenant was sub- ject to the feudal incidents, from which the tenant in socage was exempt. These incidents, especially wardship and marriage, were often of a very oppressive nature. 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 Glan- vill 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 Charta 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. Aliena- tion 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 con- veyance 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 lords' 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 4 Frankalmoign was not always regarded as a distinct tenure. Thus Littleton ( 118) says that all that is not tenure in chivalry is tenura in socage. XX. - 39