CHAPTER I.

-and consequent creation of seigniories.

Sub-tenure and mesne seigniories.

tenant was permitted to succeed; an indulgence which was followed by the extension of the grant, first to the tenant and his issue (i. e. in fee-tail), and finally to him and his heirs (i. e. in fee-simple, expressed in legal phraseology by the word fee, without more), the law marking out a course of descent, which, enlarging by degrees, embraced his relations, lineal and collateral, male and female.

So long as the vassal's interest was either precarious, or of very limited duration, the property of the soil continued in the lord, whose condition was that of a landowner, while the vassal was a mere occupier. But the vassal, on acquiring a right to hold the land for life, rose in estimation; and when at length he came to receive the pure and proper feudal donation, to him and to his heirs in perpetuity, which left nothing in the lord but the chance of resumption on the failure of heirs, or on the violation of some condition, expressed or implied in the grant, the original proprietary right was exchanged for seigniorial honours, and both lord and vassal grew in dignity. Still the grant might have been confined expressly to an interest less than the fee; and the law itself, presuming in favour of the elder usage, confined an indefinite grant to the life of the grantee :-of such antiquity, and so linked with history, is the well-known rule, which requires the express mention of heirs in order to convey the fee by deed (k). But an estate less than for life ceased, as we shall presently see, to be of any consideration, as regards the feudal compact.

The tenant who, under a grant to him and his heirs, had acquired a permanent interest, was competent to carve out various interests of less extent, called in law

(k) Wright's Ten. 151; Sulliv. Lect. 122.

PARTICULAR ESTATES: as, (passing by holdings determinable at will) an interest to continue for any given number of years, or any other definite period of time; or for the life of the grantee or of another person; or for the life of the grantee, with a capacity of transmission to his lineal heirs, male or female, or both, (i. e. an estate tail). We recognise, in these derivative interests, the successive modifications which the tenancy underwent, before it attained the hereditary state, and which were now imitated by the vassal, secure in the full investiture of the fief. He did not stop there, but, pursuing the precedent to its final result, even affected seigniorial rank. Before the statute law (7) forbad sub-infeudations, a tenant in fee was competent to convey part, if not the whole of the fief, to a stranger and his heirs, to be held of the tenant making the conveyance and of his heirs, just as such tenant held of his immediate superior (m); so that, by means of subgrants, leaving no interest in the sub-grantor, save the right to the dues and services, and the possibility of the return of the land by the forfeiture of the grantee, or by the extinction of his heirs, every ownership of the fee was capable of being erected into a manor or seigniory (n). Thus, innumerable petty lords sprang up between the great barons and the immediate tenant of the soil, intercepting the fruits and privileges of tenure. But the creation of new seigniories was prohibited in effect by the legislature. Thenceforth A., the tenant, by aliening the

(1) Quia emptores, Westm. 3, 18 Edw. 1, c. 1, (1290). As to tenants in capite, see 17 Edw. 2, c. 6, (1324). As to fines to the Crown for alienation, see 1 Edw. 3, c. 12.

(m) Sulliv. Lect. 418; Wright's

Ten. 15; 2 Inst. 65.

(n) A manor, if part of the land was reserved by the sub-grantor; a seigniory in gross, if nothing but the superiority and the services was left in the sub-grantor; vide 5 Mann. & Ryl. 153 (a).

CHAPTER 1.

CHAPTER I.

tenement to B. and his heirs, or, in other words, by aliening the fee, renounced his dominion for ever, and B., the alienee, became immediate tenant to the lord, of whom A., the alienor, previously held. The result was the same, if A., the tenant, instead of conveying to B. and his heirs, simply made a conveyance by which the land was destined to be enjoyed by B. for life, and after B.'s death, by C. and his heirs; for here, although the ownership was divided between B. and C., yet the whole fee was equally transferred, and all connection with A., the conveying tenant, as completely dissolved: both B. and C. holding directly of the lord above. As B. and C. were equally strangers, deriving title at the same instant from A., the conveying tenant, their common donor, and not the one from the other, there was no tenure as between themselves; yet even such contemporaneous donees were connected, as will appear in the sequel, by a relationship equivalent, for some material purposes, to But sub-tenure tenure. But if A., the tenant, sub-granted the land ated by grant- to B. for a term of years, or for life, or in tail only, then, as A., the sub-grantor, parted with an interest less than the fee, tenure sprang up; B., the sub-grantee, who was called tenant for years, or tenant for life, or tenant in tail, holding the land of A. and of his heirs, who continued to hold, as before, of the superior lord.

might be cre

ing a particular interest.

Of the practical influence exerted by tenure.

Thus tenure bound together, by a community of interests and duties, the whole proprietary body. So strong, indeed, was that principle, as to impose even upon the sovereign himself (o) a legal necessity that all the landed possessions enjoyed by subjects of the realm should be holden, either mediately or immediately, of HIM; but, after the statutory prohibition, tenure, as be

(0) 6 Co. Rep. 6 b; 9 Co. Rep. 123 a.

tween subject and subject, could not, except by licence (p)
from the crown, (which was never in fact obtained), be

Da 7591 except by conveying an interest less than that

the grantor was himself entitled. If A., owner LONDON TRANSPORT BUSES -simple, died without leaving an heir, the land 16(9), or returned to the lord-to the mesne lord, R15 eudation, anterior to the statute, had interposed 14 3eigniory, if not, to the king, as universal lord

6 B 7 Peli St

Bed Lou

8 B

CHAPTER I.

what.

13 it re-grant the land. If A. conveyed to B. for REMAINDER, 5 MH 12 by the same conveyance gave the land, immefter B.'s death, to C. for life, or in tail, or in fee, ssion, on the determination of B.'s interest, rever, (or, to speak more intelligibly, passed on) to C., whose interest was, therefore, called a REMAINDER, and who was himself called a remainder-man. If the interests created by A.'s conveyance exhausted the fee, as where the limitation to C., in the preceding example, was in fee, then the land, on failure of such interests, escheated. But if the interests created by the conveyance REVERSION, did not exhaust the fee, (as where, in the same example, the limitation to C. was for life, or in tail only,) then the possession, on the determination of such particular interests, reverted or returned to A., (or to his heirs,) whose interest was therefore called a REVERSION, and who was himself called a reversioner. Thus the fee was held of the lord of the seigniory, and the tenant owed a species of allegiance to him, as the supposed author of the feudal donation, while every interest derived out of, and without conveying away, the fee, was held of the reversioner, and the tenant was bound to acknowledge de

(p) Under 17 Edw. 2, c. 6. It is, however, observable, that this statute, which prohibits sub-infeudations by crown tenants without

the King's license, is confined to
tenants by knights' service.
(a) Excidit, fell away.

what.

CHAPTER I.

Office and importance of the freehold;

-how to be regarded.

pendence upon him, as quasi lord. Hence the principles of tenure pervaded (and they still, with some few modifications, pervade,) the whole system of the common law.

The immediate taker of an interest for his own or for another's life, or in tail, or in fee, was invested, by some visible symbol, with the feudal seisin. He was tenant of, emphatically, the freehold, and was bound to perform the duties and maintain the integrity of the feud; from him, at once the champion of the seigniory and the guardian of the tenancy, the lord received his seigniorial dues, and the substitute-grantees, if any, expected, in due season, the possession. The present and expectant interests composed one fee, of which he was the ostensible holder, and which depended for its continuance on his fidelity and vigilance. As the law dealt only in direct and actual ownership, and the seisin consequently governed the title, the substitute-grantees necessarily sympathized in any disturbance of his freehold.

In order to obtain an impression, at once accurate and vivid, of the primitive character of the common law, a character which time has modified, but not obliterated, we must accustom ourselves to consider, that, though land is immovable, yet the apparent possession may pass from one man to another by actual delivery; and that, upon this rude foundation of actual delivery, which imitated, so far as the different nature of the subject-matter would admit, the delivery of movables, our ancestors raised their system; that possession,-corporeal possession, or seisin,-was therefore the substantial, and the only basis of title and conveyance; that the subject of the feudal donation, the land itself, was necessarily in the custody and keeping of the primary grantee, who alone filled the possession, whether destined by the grant to terminate in himself, or to be transmitted through him