Page:The Green Bag (1889–1914), Volume 04.pdf/314

 Short Studies in the Early Common Law. the deed. " If I lease land fur autervie, and cestui que vie dies and the rent is in arrear, he1 shall have an action of debt without a deed." Candish in same case, to which Knivet, J., replies : Yes, in your case the tenant's estate terminates by the death, but in this case the action of debt is claimed by reason of the entry, and that by force of the condition, which cannot be proved without a deed. Cestitis que usent, when allowed to lease by Richard III., could not distrain for their rent, because they had no reversions. Conse quently they had an action of debt as upon a contract. But it was a question whether they could have it by way of reservation in the lease, or in any way but by deed of in denture (express covenant). For a reserva tion must be considered as a grant of the lessee, which could only be by deed. Still Perkins tells us that such leases and reser vations were commonly made in his day by cestuis que usent by parol (c. 692). Compare the question raised above as to the nature of rents for equality of partition. Both are cases of rent-charge created by parol in the nature of rent-service : a thing not anoma lous if the rent lay in livery. When the conception of incorporeal "things" became converted into that of incorporeal "hereditaments" after Bracton's time, we can see that it was applied less with philological accuracy than by the more ready and plain test of things lying in grant, as distinct from those " in livery." Rents-charge of course fell among the former; but their nature, as objects of seisin, was too firmly fixed in law yers' minds and language to be changed merely to make a definition accurate. Thus they remained through the times of Littleton and Coke, and even down to their gradual disappearance from general use; a solitary survival of a lost conception of land-owner ship. The creation of rents-service had come to an end with the statute of quia emptores, unless in the case of estates less than fee1 He, instead of/, is clearly a mistake of the speaker or reporter. 37

289

simple. Besides, the peculiar nature of the lord's seisin, etc. in rent-service was less obvious because he usually had a demesne in manors, and always a reversion or an es cheat. These two conceptions were not clearly distinguished till after the same statute. Both kinds of rent, then, lead us back to a time when the seisin or possession of land was deemed to be in the landlord, who got the profits, rather than in the tenant, who did the labor. We know that there was on the Continent an intermediate view between the two, when their ownership, designated by the Roman term dominium (however little it may have resembled the classic institution so known), was divided between the two, the lord hav ing dominium directum, the tenant dominium utile; a distinction attributed to Bulgarus in the twelfth century. These terms never had any practical application in our law, I believe; and their chief interest to us is in showing that there was a period when the question of ownership or seisin as between lord and ten ant was an open one, to be determined by scientific law, and not as one of mere fact. The early charters or " books " show that this ownership of the lord was the uniform rule in the Anglo-Saxon era, as might be ex pected when the cultivators were for the most part serfs. But the position of the geneat, and other facts seem to warrant us in believing that the same was true even as between the lord and a free tenant.1 This might naturally lead to the continu ance of the same notion as applied to all tenancy, until the feudal idea of freehold and of the tenancy of nobles and knights, as well as of mere churls or socagers, became so in consistent with it as to force a change. It would also explain the otherwise puzzling fact of a certain degree of confusion between feudal tenure in its early stages, and the servile tenure that preceded it. This is in consistent with the fundamental feudal con1 Sec the Rectitiidines Sing. Personarum in Ancient Laws