Page:The American Cyclopædia (1879) Volume XV.djvu/685

 TENURE 655 the lord and the vassal, in very different pro- portions. There were generally many lords, for the system of subinfeudation prevailed, and the vassal held of his immediate lord, he of the next higher, and he of the next, the series always going up to and ending with the sov- ereign. Hence we may say that all tenure rested upon two principles : one, that all land was held of the sovereign, who retained cer- tain rights and interests therein ; the other, that all the rights and interests of all the lords, and of the tenant finally in possession, added to- gether, constituted that allodial tenure already mentioned. There were various kinds of ten- ure, as for example tenure by copyhold, ten- ure in gavelkind, and the tenure of borough English. Of copyhold there is nothing in the United States. The principal feature of tenure in gavelkind was that all the sons in- herited equally and together, instead of the eldest son alone, Avhich latter is the rule of the feudal system, and is nearly universal in Eng- land. (See GAVELKIND, and HEIR.) Of tenure by borough English, the essential principle is, that neither the eldest nor all the sons inherit, but the youngest takes as heir. For this strange custom Littleton accounts by the lesser ability of the youngest son to take care of himself ; but a custom prevalent in many parts of the United States offers a more probable explana- tion of this tenure. It is common in New England, for example, for the eldest son, as he comes to maturity, to receive what assistance his father can give, which is considered as his share of the estate; the same thing is done with other sons as they reach full age ; until at length only the youngest son is left to take charge of his parents. When they die he has the homestead ; or while they live they relin- quish it to him, taking his obligation or trust- ing to his affection for support. The same custom is said to exist in Tyrol, Bavaria, and other parts of Germany. The tenure with which we have most concern is that of socage. This was wholly liberated from the stringent military services which generally prevailed, and the civil services on which land was held under it were for the most part easy and honor- able. At an early period it became known as " free and common socage," and as this tenure spread over England, the severities, restric- tions, and encumbrances of the common feu- dal tenures passed away, until this process was completed by the statute 12 Charles II. (1661), and nearly all the old feudal tenures (all in fact which were in any way burdensome or restrictive of the proper rights of the tenant) were reduced to the tenure of free and com- mon socage. This tenure has all the actual advantages of allodial ownership. The bene- ficial use which one who holds by this tenure has in the land comprises, for all practical pur- poses, a sole, undivided, and unencumbered interest. Escheat remains as a feudal incident to the tenure, but the lord cannot profit by it if the tenant has an heir or chooses to make a 782 VOL. xv. 42 will. The tenant in fee simple of lands held in free and common socage can make any dis- position of them, and carve any estates out of them, which the law of real estate permits; and any one to whom he grants it by sale or gift, or devises it by will, takes title directly from the grantor or testator, and his title is complete without the consent or concurrence of the lord or any action whatever on his part. It may be added that this tenure, unlike most other feudal tenures, has no reference what- ever to the rank or occupation of the tenant, or to the purposes to which the lands are ap- plied. This was the tenure created or pre- scribed by all the early colonial charters or patents from which our titles are now de- rived ; as the charter of Virginia in 1606 ; the patent of New England in 1620; the charter of Massachusetts in 1629 ; of Maryland in 1632 ; of the province of Maine in 1639; of Connec- ticut in 1662; of Oarolina in 1663 ; of Rhode Island in 1663 ; of Pennsylvania in 1681 ; the act of the general assembly of the colony of New York in 1691 ; and the charter of Geor- gia in 1732. But in New York, Pennsylvania, Connecticut, and Michigan all feudal tenures, including of course that of free and common socage, are abolished by statute ; and it seems to be held, that under the provisions of the ordinance of 1787 the doctrine of tenures is not in force in any of the states formed out of the territory to which that ordinance applied. Substantially, our tenure unites what is best in both the allodial tenure and that by free and common socage. Nor is the fact without its historical value, that the allodial tenure, which formerly prevailed over all Europe, among all the nations who were the ancestors of Euro- pean nations and so of our own, after being displaced for more than 1,000 years by the feudal system, is at length reestablished in full force throughout the United States. And yet there are reasons for thinking the tenure of free and common socage, freed as it certainly is now from all feudal encumbrance, explains and illustrates our law of real estate better than the other theory. One reason is, that the principles of the feudal system do in fact underlie all the doctrines and all the forms of the common law in regard to real estate; and wherever *the common law prevails, which it does in all the states excepting Louisiana (where the municipal law is founded upon the Roman civil law), the principles of the feudal law and of feudal tenure must be understood and made use of. Another reason is, that the law of escheat is universal with us (see ES- CHEAT), and it is governed by the law of feu- dal tenure, modified by our statutes. A third reason is, that the important and universal law of eminent domain is far better understood and applied by the theory that all property is held from the sovereign, that is, the state or people ; and that in the original grant on which all title is founded, the sovereign reserved the right to resume the same for his own, that is,