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whom the land was held might be enforced against the land by the seizure of chattels found thereon (distress), and sometimes by the recovery of the land itself.

Land thus held by one as tenant of a superior on condition of the rendition of services was known, at least in certain stages of the development of the system, as a "feud," "fief," or "fee," all varieties of the same word, "feodum" or "feudum," and was contradistinguished from "allodial" land, that is, land which was possessed by a man in his own right, not in dependence on another, and without any obligation of rent or service. Such allodial land had existed in Anglo-Saxon times in England, and was found in parts of the continent even after the establishment of the feudal system there, but, as stated above, it disappeared from England after the Norman Conquest, as a result partly of the Conquest, and partly of the tendency, in those times, of holders of land to put themselves under the protection of their more powerful neighbors."

§ 8. Classes of tenure.

Tenures were divided primarily into free tenures and base or villein tenures, the first being based on services of a character such as it was considered proper for a free man to render, while base or villein tenure was based on

1 Pollock & Maitland, Hist. Eng. Law, 215.

Co. Litt. 65a, Hargrave's note; 2 Bl. Comm. 104; Digby, Hist. Real Prop. 13, 32. As to the meaning of "allodial," see Gray, Per petuities, § 23.

The word "tenement," however, finally became the established term properly descriptive of lands, as well as "incorporeal things," which were held by one man of another (1 Pollock & Maitland, Hist. Eng. Law, 215, note 3; Digby, Hist. Real Prop. 72, note 5. See ante, § 4); the word "fee" having acquired a new meaning as descriptive of an estate of inheritance. 2 Bl. Comm. 105. See post, § 19.

• Co. Litt., Butler's note 77, V, 1; Digby, Hist. Real Prop. 32.

imposed either by law or the terms of the grant. The relation thus established between the crown and the person to whom, either actually or by fiction of law, the grant was made, was termed "tenure." 2 The persons who thus held lands of the crown could themselves make grants of parts of their lands to others, creating thereby a "subtenure" between themselves and their grantees, without af fecting the tenure already existing between themselves and the crown. These subtenants could again grant out parts of the land held by them to others, who would hold of them. This process of the creation of subtenancies could, in theory, continue to an indefinite degree, and in fact sometimes there were as many as six or seven persons (mesne lords) standing between the king (the lord paramount) and the lowest in the scale of tenants,-the one who actually enjoyed possession of the land, termed the tenant "in demesne," or tenant "paravail." Each person in the scale, except the tenant in demesne, while tenant merely as to those above him, was lord as regards those below him, and was accordingly termed a "mesne" or "middle" lord.3

While the tenant in demesne alone had the general rights of use in the land, those above him in the scale were all regarded as having certain rights in the land, and, in a sense, as possessed of it. Furthermore, the land itself was regarded as owing the services due by the respective tenants, so that the same land might owe to one of the lords in the scale, on behalf of his immediate tenant, services of one kind, of a military nature, perhaps, and to another of such lords, on behalf of the latter's tenant, another service, the payment of rent, for example, and so on, and the right to any or all of the services due to the various lords of

21 Pollock & Maitland, Hist. Eng. Law, 210 et seq.; Digby, Hist. Real Prop. 34; Co. Litt. 65a, and Hargrave's note.

1 Pollock & Maitland, Hist. Eng. Law, 211; 2 Bl. Comm. 59.

were originally of an agricultural or profitable character, to be rendered on lands in the possession of the lord, its distinctive characteristic was that the services to be rendered were fixed and determinate in amount, and consequently it included all tenures by fixed rents, whether these rents were of considerable pecuniary value, or were merely nominal, as the gift of a rose or a peppercorn, reserved only in order to evidence the tenure.11

There were various kinds of free socage tenure, including "petit sergeanty," which was of the king alone, involving the yearly presentation to him of a thing of slight value, as a bow, a sword, or a lance, and "burgage" tenure, which existed where the king or other person was lord of an ancient borough, in which the tenements were held by certain rent. Another species of socage tenure was that of "gavelkind," which was chiefly confined to the county of Kent. This tenure was subject to certain customs, the most important of which were that the holding did not escheat in case of execution for felony; the tenant could devise the land even at common law, and the land descended to all the sons equally. The bulk of free socage tenures did not, however, fall into one of these subclasses, but were merely in "free and common socage."

§ 9. The manor.

12

A grant by the crown of a certain portion of territory conferred rights of jurisdiction and other sovereign rights or franchises within such territory, by which it was constituted a "manor." The exact characteristics which were necessary to constitute a manor seem to have been somewhat indefinite, but the typical manor presented certain features which demand a brief consideration.

11 Litt. §§ 117, 119, 129, 130; 2 Bl. Comm. 79 et seq.; 1 Pollock & Maitland, Hist. Eng. Law, 271 et seq.

12 Litt. §§ 159-169; 2 Bl. Comm. 79 et seq.; Challis, Real Prop. 9.

The most important characteristic of the manor was the manorial court, called the "court baron," composed of the freeholders of the manor. This court exercised certain governmental functions in connection with the various tenancies of the manor, and also had a limited jurisdiction of personal actions between the various tenants. It furthermore had jurisdiction of litigation between the lord and his tenant, and of disputes as to freehold land in the manor, as well as of villein tenements. Except, however, as to questions of the title to villein tenements, which was based, as will hereafter appear, on the custom of the manor, the jurisdiction of the court baron was early curtailed by the organization of the crown courts, to which suits in the court baron could be removed.13

Of the land comprised in the manor, a part was usually retained by the lord himself as demesne land, actually cultivated by him, or by others under contract with him, and on this he had a mansion or manor house, or a homestead of some sort. Other land in the manor was granted by him to free men, some of whom would be tenants by knight service, and others tenants in socage, bound to render service of a certain character, as by payment of rent, or attendance at the lord's court, or perhaps by aiding in the cultivation of the lord's demesne land. Land not in occupation for the purpose of cultivation was termed "waste" land, and this the tenants of the manor might use in common for pasturage and like purposes, though it still belonged to the lord. Besides the free men on the manor who held of the lord by one of the recognized forms of free tenure, and those persons who might cultivate a part of the demesne lands of the lord under contracts of lease, there were al ways on a manor a large and important class of persons

191 Pollock & Maitland, Hist. Eng. Law, 574 et seq.; 3 Bl. Comm. 33; Digby, Hist. Real Prop. 52-54.

who were not free men. The chief duties of this class of persons, who were called "tenants in villeinage," consisted in the cultivation of the lord's demesne lands, and the serv ices of a "villein" character so rendered appear to have been to a certain degree uncertain, and at the will of the lord.14

These unfree or villein tenants had allotted to them for their dwellings and maintenance parcels of the lord's de mesne land. Originally these holdings of land were regarded as being at the will of the lord, but, as time went on, the usage of the manor, under the control and influence of the general law or the land, imposed restrictions upon the right of the lord to dispossess such tenants, and finally they acquired absolute fixity of tenure, together with absolute freedom of person and certainty of services. The amount and character of the services rendered in return for the holding came to be determined by what was known as the custom of the manor, and such custom was settled by the rolls of the manorial court, on which were entered all transactions as to the surrender of the holding by a tenant who had sold it, or as to the admittance by the lord to the land of a purchaser of the holding, or of the heir of a previous tenant. Copies .of the rolls were delivered to the tenants as evidence of their title, and accordingly such tenants by "customary tenure" are also spoken of as "copyholders," and their lands as "copyholds." Tenancies of this character exist in England at the present day.15

§ 10. Incidents of tenure.

There were certain incidents to the relation of tenure, or to particular varieties of tenure, which existed without

141 Pollock & Maitland. Hist Eng. Law, 582 et seq.; Digby, Hist. Real Prop. 43-51; Williams, Real Prop. 119.

15 Litt. 88 73-76; Digby, Hist. Real Prop. c. 5, 6; 1 Leake, pt. 1, c. 2.

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