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CSe Hanti HahJ^ 
 
 THE ENGLISH CITIZEN: 
 
 HIS RIGHTS AND RESPONSIBILITIES 
 
THE LAND LAWS 
 
 Sir FEEDEEICK PpLLOCK, Baet. 
 
 EABKISTEK-AT-LAW 
 
 M.A., HOX. LL.D. EDIN., DUBLIN AND HARVARD 
 
 CORPUS CHRISTI PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD 
 
 LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE 
 
 CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE 
 
 THIRD EDITION 
 
 Honian 
 
 MACMILLAN AND CO. 
 
 AND NEW YORK 
 1896 
 
 All rights reserved 
 
The First Edition of this Book was published 1883. 
 The Second Edition., 1887. 
 Addenda, to a Re-issue in 1893. 
 The Third Edition, i8g6. 
 
WILLELMO .^STVBBS 
 
 COLLE&AE . COLLEGA 
 
 MAGISTRO . DISCIPVLVS 
 
 HAEC . QVANTVLACVNQVE 
 
 D.D.D. 
 
 FRIDERICVS . POLLOCK 
 
PEEFACE TO THE THIED EDITION 
 
 The object of this book, as I formerly defined, it, is to 
 make the principles and the leading features of the 
 English law of real property intelligible to a reader who 
 is without legal training, but is willing to take some 
 little pains to understand. It does not aim at being a 
 practical manual, and therefore many things that take 
 an important place in counsel's chambers and the 
 solicitor's office, such as the Conveyancing Acts and the 
 Settled Land Acts, are purposely treated with great 
 brevity. Collateral topics such as local taxation, death 
 duties, and game laws, were and are omitted simply 
 because there was no room for them. 
 
 Eesearch has done much to the history of the law, 
 and legislation to the modern law itself, in the eight 
 years that have passed since the second edition was 
 issued. The present revision is, for divers reasons, less 
 thoroughgoing than I could have wished ; but I trust 
 that few serious errors remain, and that no recent 
 statutes of general importance have been overlooked. 
 I have found it necessary to rewrite a good deal of the 
 chapter on early customary law, to alter much of the 
 Appendix, and to add a wholly new note on the Origins 
 
Vlll THE LAND LAWS 
 
 of the Manor, in order to keep the antiquarian part 
 abreast of the present state of scholarship. Perhaps we 
 do not know much more about the Anglo-Saxon period 
 than we did a dozen years ago (except that on some 
 points we really know less than we supposed) ; but of 
 the Anglo-Norman and Angevin periods — thanks to Mr. 
 Seebohm, Mr. VinogradofF, Mr. Maitland, Mr. Round, 
 and Dr. Liebermann — we do know a good deal more 
 both positively and negatively. 
 
 At some points I have now ventured to refer for 
 proofs or details to the History of English Law before 
 the Time of Edward I., lately published by Mr. Mait- 
 land and myself. 
 
 The dedication to the Bishop of Oxford remains in its 
 original form in memory of the too short time for which 
 I had the honour to be his colleague as a professor in 
 the University. F. P. 
 
 Lincoln's Inn, Deceiriber 1895. 
 
CONTENTS 
 
 CHAPTER I 
 
 PAGE 
 
 Introductory . . i 
 
 CHAPTEE II 
 The Old English Customary Laws . 19 
 
 CHAPTER III 
 The Medieval System . .53 
 
 CHAPTER IV 
 Legislation and Transformation . 80 
 
 CHAPTER V 
 Development of the Modern Law 110 
 
X THE LAND LAWS- 
 
 CHAPTER VI 
 
 PAGE 
 
 Landlord and Tenant . 139 
 
 CHAPTER VII 
 
 Modern Reforms and Prospects . .164 
 
 APPENDIX 
 
 Note A. The Germanic Land System . .197 
 
 Note B. Symbolic Transfer in Early English 
 
 Customs . 199 
 
 Note C. The Origins of the Manor . 200 
 
 Note D. Villenage, Villein Tenure, and Copy- 
 holds . ... 208 
 
 Note E. Primogeniture in Socage Lands . 219 
 
 Note F. "Cestui que use" at Common Law . 222 
 
 Note G. Settlements and Perpetuity . 223 
 
 Note H. Recent Publications on Land Transfer 228 
 
 Index . . 231 
 
CHAPTER I 
 
 INTRODUCTORY 
 
 The laws and usages which govern the tenure of land 
 in England are, as a whole, unique. Our land system 
 is commonly called feudal, sometimes by persons who 
 use the word as a disparaging epithet without any clear 
 notion of what it means. This is not in itself wrong, 
 but it conveys a most imperfect notion of the number 
 and variety of the influences that have made our land 
 laws what they are. The statement and the belief 
 implied in it are so inadequate as to be misleading. 
 Almost every possible kind of ownership, and almost 
 every possible relation of owners and occupiers of land 
 to the State and to one another, have at one time or 
 another existed in England, and left a more or less con- 
 spicuous mark in the composite structure of the English 
 law of real property. We have to follow out a long 
 story before we can understand how much and how 
 little feudalism abides in the present state of things. 
 There are still in force many local customs and rights 
 which are now known to date — in their nature in all 
 cases, and in their actual origin in many — from a time 
 
 B 
 
2 THE LAND LAWS chap. 
 
 when the feudal system was unheard of, and indeed 
 when private property in land, as we now understand 
 it, was a struggling novelty. The main body of the 
 technical expressions of the law, and of the technical 
 habit of thought which they preserve, is derived from 
 feudalism ; but this feudalism has been deeply modified 
 by circumstances peculiar to England. In Scotland the 
 feudal system grew to its full development with little 
 interference, if any, from legislation ; and the forms of 
 Scottish land law still preserve the system in great com- 
 parative purity. Here legislation has constantly inter- 
 fered, and its effects have been to produce radical 
 changes. These changes have not always been such as 
 the Legislature intended ; in one or two material in- 
 stances the effect has been the very opposite of that 
 which was aimed at. One celebrated measure of 
 Henry VHI.'s reign, the Statute of Uses, was passed in 
 order to restore the ancient simplicity and notoriety of 
 titles to land, though more in the interest of the Crown 
 and other great lords than in that of the public. The 
 object of the statute was before long defeated by 
 judicial construction. But it did not remain inopera- 
 tive ; it had other and quite unexpected results. The 
 first was to make the transfer of land, without any act 
 or ceremony for securing publicity, far easier than it 
 had ever been before. The second, worked out in the 
 days of the Commonwealth and the Eestoration by the 
 ingenuity of two or three lawyers, was to introduce the 
 method of strict settlement of landed property which 
 is practised by a great proportion of landowners to this 
 day. Thus, as we shall see more fully hereafter, a 
 measure intended to compel notoriety and simplicity 
 
I INTRODUCTOEY 3 
 
 became the chief instrument of secrecy and complica- 
 tion. Turning, on the other hand, from the titles and 
 tenures of owners to the relation between owners and 
 occupiers, we find this resting to a great extent on 
 something thoroughly opposed to feudal ideas — namely, 
 the modern economical conception of land as an article 
 of commerce which, like any other commodity, is 
 bought, sold, and hired for prices regulated by com- 
 petition. In the case of town dwelling-houses, and 
 buildings used for trade or manufacture, this view is 
 carried out to its full extent, and the relation between 
 landlord and tenant is a purely commercial one. As 
 to farm -holdings, it is still otherwise in most cases, 
 owing to the survival of usages and habits which we 
 may in a loose way call feudal if we please. 
 
 Thus our system of landed property is a structure of 
 the most complex and heterogeneous kind. So great is 
 the technical complication and difficulty of our laws on 
 the subject, that within the special studies of the legal 
 profession the study of them is a speciality of itself. 
 Even among accomplished lawyers the number of those 
 who are well versed in real property law is but small ; 
 the number of those who know the history of the law 
 is a smaller one still. Forty or fifty years ago learned 
 persons might be found, such as the late Lord St. 
 Leonards, who seriously maintained that this complica- 
 tion was inevitable, and was indeed only a mark of per- 
 fection in the machinery. Few persons, if any, can be 
 found to maintain it now. But this very complication 
 which calls for amendment is one of the chief obstacles 
 in the way of amendment being made. The whole 
 subject is such a mystery to laymen that, though they 
 
4 THE LAND LAWS chap. 
 
 may know something is amiss, they cannot tell where 
 the remedy should begin, and do not know what to ask 
 for. Among lawyers a considerable number are hostile 
 to change, and a greater number indifferent. Those 
 who make the shoe do not feel it pinch, and those who 
 feel it pinch do not know how shoes are made. It has 
 often been said that in no country are landowners so 
 ignorant of their legal position or so dependent on legal 
 advice as in England ; and I believe it cannot be con- 
 tradicted. A century or two ago country gentlemen 
 commonly had some little knowledge of the law of pro- 
 perty ; three centuries ago they had a good deal, as we 
 may learn from Shakespeare ; now they seldom have 
 any unless they have practised at the Bar. It would 
 seem, therefore, worth a serious effort to overcome or 
 break down in some fashion the barrier between the 
 minds of lawyers and laymen which is apt to make dis- 
 cussion between them a game of cross purposes. How 
 this can best be brought about is a knotty question. 
 Statements made in the proper technical terms are in 
 danger of not being understood, or, what is worse, being 
 misunderstood ; while for those who are once accus- 
 tomed to the use of such|[terms it is far from easy to 
 state the same facts, even in the most general outlines, 
 in language to be understood by all men, and yet accu- 
 rate as far as it goes. One common method of popular 
 exposition, not only in law but in other special sciences, 
 is to give loose or insufficient explanations of the terms 
 of art, and then use the terms as if the reader had been 
 enabled really to understand them. This is the most 
 dangerous way of all, being by so much worse than 
 those which lead to mere bewilderment as false know- 
 
I INTRODUCTORY 5 
 
 ledge is worse than ignorance. Instruction of this kind 
 is answerable, presumably, for the loose talk about 
 primogeniture and entail which still abounds in the 
 mouths of people who might easily know better. 
 Serious and capable writers, Mr. George Brodrick and 
 some others, have done something to provide a remedy. 
 But the discussion of economical questions has left 
 them, as a rule, hardly room enough to show clearly 
 and plainly the legal composition of our land system. 
 Now the whole structure, as we have just said, and as 
 Mr. Brodrick points out in a notable passage of his 
 book, is a result of many successive accretions, and 
 those not of a natural but of a casual sort. It has not 
 been produced by deliberate legislation, nor yet by the 
 spontaneous growth of custom. Hence it cannot be 
 understood by itself. It has no intrinsic coherence, 
 and no organic principles. It is a series of historical 
 accidents, and becomes intelligible only in the light of 
 its historical conditions. And this is not less the case, 
 but rather the more so, when the persons desiring to 
 understand it are viewing it from the outside and are 
 unfamiliar with its details. Our aim therefore will be, 
 so far as our skill reaches and the thing can be done on 
 so small a scale, to disentangle the several historical 
 elements that go to make up our modern English real 
 property law. 
 
 Let us imagine ourselves placed on some commanding 
 point within the boundaries of a great English estate, 
 looking over its mansion-house and its park, its fields 
 and pastures, its woods and wastes. Over against us 
 there rises an open hill, covered, it may be, vidth bril- 
 liant gorse and heather in their season, and fringed and 
 
6 THE LAND LAWS chap. 
 
 crested with wild woods. These are open and common 
 lands, over which many persons have rights of putting 
 so many beasts to graze, of cutting turf and underwood 
 for the use of their habitations, and the like, according" 
 to the custom of the country and place. Such rights 
 were explained by our law-books, until quite recently, 
 so as to make them fit into a complete feudal theory 
 of land-holding. They were supposed to have been 
 granted by the lord of the manor to his tenants, or to 
 have grown up within his domain by way of sufferance 
 and usage, till the long-continued approval of successive 
 lords passed from a matter of favour into a matter of 
 right. This, or something like it, may sometimes have 
 happened. But in general the true history is just the 
 other way. The people who exercise rights of common 
 exercise them by a title which, if we could only trace it 
 all the way back, is far more ancient than the lord's. 
 Their rights are such as belonged to the members of a 
 township or agricultural community long before the legal 
 theory of manors and lords of the manor was heard of. 
 Perhaps there are also parcels of Lammas land in the 
 neighbourhood — fields which are enclosed and cultivated 
 part of the year, and during the other part thrown 
 open for the common use of the several occupiers, or 
 (as is more likely to be the case) of a larger class of 
 persons. Such arrangements are relics of the time 
 when separate ownership of land was in its infancy. 
 These and other ancient communal rights are often 
 vested in the inhabitants of the parish, which may well 
 be thought to represent a still older community, and to 
 preserve in such lingering usages some traces of its 
 original constitution. Examples of them have been 
 
I INTRODUCTORY 7 
 
 much diminished in the last few generations by the 
 steady progress of enclosures, but they are still not 
 uncommon. Between our imagined post and the waste 
 land there lies a stretch of cultivated ground, occupied 
 by one or more farmers. They may hold under leases 
 for a considerable term of years, or only from year to 
 year, but in the latter case they may, under favourable 
 circumstances, enjoy a good deal of practical security in 
 their tenure.^ In any case their legal condition is of a 
 relatively modern and simple kind. It was barely pro- 
 vided for in the economy of the feudal system, and is 
 exempt from the mysteries of the law of real property. 
 A leaseholder's interest in his farm is dealt with, in 
 case of his death without disposing of it by will, in 
 exactly the same way as his interest in the stock on 
 the farm, or money in the funds, or any other movable 
 property. In the language of the law it is personal, ' 
 and not real estate. The complexities of which we 
 have spoken affect him only through his landlord, in so 
 far as they tie the landlord's hands in dealing with the 
 tenant and improving the property. Nearer to us, 
 again, at the foot of the park, is a little home-farm, 
 kept in hand and managed by an agent on the lord's 
 immediate behalf. This method of cultivation was the 
 prevailing one for a considerable part of the Middle 
 Ages. We now meet with it in England only as an 
 exception ; sometimes it is a luxury, sometimes an ex- 
 periment, sometimes the necessity of a bad season. 
 Now let us turn to the park and the manor-house 
 
 ^ During the recent and unhappily continuing period of depres- 
 sion the difficulty has heen much oftener for landlords to keep 
 their tenants. 
 
8 THE LAND LAWS chap. 
 
 itself, which may fill the foreground of our imaginary 
 landscape. The lord of all this is himself a tenant, 
 though not in the popular sense, or to much practical 
 effect. His lands are held of the Crown, or perhaps of 
 some other superior who himself holds of the Crown. 
 His predecessors before the Commonwealth time owed 
 rent or services, or both, and were subject to a variety 
 of occasional dues and payments, some of them of a 
 vexatious kind. They were bound to follow the king 
 or other over-lord when he went forth to war, and 
 bring with them a specified armed force, or pay for the 
 maintenance of its equivalent. The feudal dues and 
 services have been abolished ; but ancient money-rents, 
 technically known by various names, and reduced to a 
 nominal amount by the changes that have taken place in 
 the standard of the coinage and the value of the precious 
 metals, often survive to this day. Some ancient rents 
 are not in money but in kind. The city of London stiU 
 pays to the Crown certain horse-shoes and nails as the 
 rent of a piece of land in the parish of St. Clement Danes, 
 once granted by the king to a farrier, and a faggot as 
 the rent of some waste lands in Shropshire.^ In some 
 cases the Crown is entitled to receive some weapon of 
 war, or part of warlike equipment — a sword, a banner, 
 a pair of gloves, or spurs. Once or twice these ancient 
 tenures, which were esteemed peculiarly honourable, 
 have been imitated in modern times on the occasion of 
 public grants for distinguished military services. But 
 
 ^ These rents are now received by the Queen's Remembrancer a 
 few days before the beginning of Michaelmas term. Tlie payment 
 has for more tlian 160 years become merely ceremonial, the same 
 horse-shoes and nails, preserved in the Queen's Remembrancer's 
 office, doing duty on each occasion. 
 
I INTRODUCTORY 9 
 
 if the remnant of feudal relations to a superior is at this 
 day no burden to the English landowner, and at most, 
 adds a picturesque circumstance to his title, he is apt to 
 be restrained in other ways of more modern and subtle 
 invention. The lord of this mansion is named by all 
 men its owner ; it is said to belong to him : the park, 
 the demesne, the farms, are called his. But we shall be 
 almost safe in assuming that he is not the full and free 
 owner of any part of it. He is a " limited owner," hav- 
 ing an interest only for his own life. He might have 
 become the full owner, though still under a greater or 
 less burden of encumbrances created by his predecessors, 
 if he had possessed the means of waiting, the independ- 
 ence of thought and will to break with the tradition of 
 his order and the bias of his education, and the energy 
 to persevere in his dissent against the counsels and feel- 
 ings of his family. But he has had every inducement to 
 let things go their accustomed way. Those whom he 
 had always trusted told him, and probably with sincere 
 belief, that the accustomed way was the best for the 
 family, for the land, for the tenants, and for the country. 
 And there could be no doubt that it was at the time the 
 most agreeable to himself. As soon, or almost as soon, 
 as he was of age to bind himself, he entered into a new 
 settlement, by which his own interest was reduced, like 
 his father's before him, to that of a life-tenant, and the 
 succession of his offspring secured in advance down to 
 the furthest limits allowed by the law. The legal 
 machinery by which this is done is little more than two 
 centuries old, and, though refined and improved in details 
 by the ingenuity of generations of conveyancers, has not 
 been much altered in substance since its first invention. 
 
10 THE LAND LAWS chap. 
 
 It owes nothing to legislation, except by accident. Thus, 
 then, the apparent owner of the domain is no more abso- 
 lute as to its actual disposition and management than 
 the king is absolute in a limited monarchy. He can do 
 but little of his own motion, and what he does is for the 
 benefit of successors not of his own choice. Likely 
 enough, he has no clear notion of his own powers and 
 their limits. An English family settlement is on the 
 whole less intelligible, and certainly less understood by 
 most English citizens, than the English Constitution. In 
 practice the limited owner has to put himself a good deal 
 in the hands of experts, and oftentimes he is fain to make 
 the family solicitor his prime minister. The advice he 
 gets is pretty sure to be on the safe side — that is, on the 
 side of not trying experiments. A family solicitor, un- 
 like those who administer affairs of State, has no motive 
 whatever for being enterprising in his client's affairs, and 
 many to the contrary. He cannot hurt himself by over- 
 caution, and may hurt himself much by rashness. So he 
 takes, as a rule, the line of doing as little as possible, 
 which is one much commended in all walks of life to those 
 whose first object is their own peace and quietness. 
 
 Peradventure the lord of this estate is lord in a strict 
 legal sense — that is, as lord of a manor. We have, in- 
 deed, assumed as much in our description. In this capa- 
 city he is a kind of small sovereign prince, possessed 
 of his own courts, and doing justice according to his own 
 procedure and customs. But his powers and jurisdiction 
 are shrivelled by the changes and chances of centuries 
 into next to nothingness, and only the names of them 
 remain. In the voluminous settlement which confers 
 title to these lands on him and his issue, the manorial 
 
I INTRODUCTORY 11 
 
 franchises are enumerated in a roll of strange-looking 
 terms, many of which are now obscure even to the 
 lawyer, unless he is also a historical student ; there are 
 English words among them of immemorial antiquity, 
 which had their technical meaning centuries before the 
 Conquest, and which the Norman lawyers, only half 
 understanding them, thought it prudent to leave un- 
 translated. They held their own through the invasion 
 of Norman-French and Latin, and their native English 
 hardly knows them again when it meets them. As for 
 the lord himself, he knows neither the words nor their 
 meaning unless he happens to be a scholar and an 
 antiquary. Nor is he concerned to know them for any 
 purpose of business. The ancient franchises and profits 
 are obsolete, and have been so for many generations. 
 The manorial courts exist in form, and their records are 
 kept in the ancient fashion. But the fine by which a 
 thief caught within the boundaries redeemed his life is 
 no longer a source of revenue to the manor, neither does 
 the lordship of " view of frankpledge and all that to view 
 of frankpledge doth belong " convey any sensible increase 
 to the wealth or the dignity of the modern landowner. 
 To be lord of a manor is to be the lord of a secular ruin, 
 in which he that knows the secret of the crabbed spell- 
 book may call up the ghosts of a vanished order of the 
 world. 
 
 Thus we have taken a hasty view of the legal aspects 
 of an English landed estate, which will presently come 
 before us one by one for a more detailed survey. It is 
 an unparalleled accumulation of layer upon layer of 
 diverse materials. Tenure and convention, custom and 
 competition, legislation and usage, the rude common 
 
12 THE LAND LAWS chap. 
 
 life of the free Teutonic warrior tribes, an aristocratic 
 military system sprung from sheer necessities of mutual 
 defence, and disguised in the terms and reasons of a 
 Eomanised law, the subtle deductions of a legal profes- 
 sion trained in scholastic disputes, the attempts of an 
 impatient Parliament to make their crooked things 
 straight, the not less subtle and more flexible inventions 
 of modern lawyers, the partial clearances and half- 
 hearted amendments of modern law-reformers : all these 
 have gone to the making of the vast and inextricable 
 mass, and all must be considered in their turn by the 
 seeker who is bold enough to search out the history and 
 the meaning of the land laws of England. 
 
 It may be not amiss, meanwhile, to point out one or 
 two of the general features in which the legal concep- 
 tions of ownership and rights over land are at variance 
 with the popular ones. It is commonly supposed that 
 land belongs to its owner in the same sense as money or 
 a watch. This has not been the theory of English law 
 since the Norman Conquest, nor has it been so, in its 
 full significance, at any time. No absolute ownership of 
 land is recognised by our law-books except in the Crown. 
 All lands are supposed to be held, imme'^ ' -^ly, or medi- 
 ately, of the Crown, though no rent or services may be 
 payable, and no grant from the Crown on record. The 
 feudal lawyers forestalled to some extent in substance, 
 and to a large extent in form, the modern Socialist 
 dream of the State as the universal landlord. On the 
 other hand, the law is equally far from countenancing 
 the belief that there is land \<aich belongs to nobody 
 and is free to all the world. Some such belief is 
 probably held by most people who are not lawyers, 
 
I INTRODUCTORY 13 
 
 Appearances are certainly in its favour, and indeed the 
 thing was legally possible in the Eoman system, and I 
 suppose is still legally possible in many Continental 
 countries. But in England it is not legally possible. 
 Land may be subject to public rights of way, to rights 
 of common, and to a great variety of private rights. 
 It may be worthless for all purposes except those of 
 recreation, and the owner may be undiscoverable. But 
 an owner there must be somewhere ; the Crown in the 
 last resort if no other is forthcoming. I am not aware 
 that the public at large have a strict right to be any- 
 where except on highways (including estuaries and 
 navigable rivers) and public paths, in places expressly 
 dedicated to public use and enjoyment by their former 
 owners or by Act of Parliament, and on the foreshore 
 of the sea between high and low water -mark. And, 
 strictly speaking, the right to be even on a highway is 
 limited to the purpose of passing and repassing. As 
 Whewell, when he was still only a tutor of Trinity 
 College, Cambridge, said of the College bridge over the 
 Cam, it is a place of transit and not of lounge. In like 
 manner the right to be on the foreshore is of doubtful 
 extent. It ir .'md to be limited to purposes connected 
 with navigation and fishery, though this opinion was 
 given not without weighty protest, and would perhaps 
 not be upheld now. There is a widely-spread popular 
 notion that the public have the right of going not 
 merely along the foreshore, but along the edge of the 
 cliff, where by reason of the steepness of the coast 
 there is no foreshore ; i.i short, that it is of common 
 right to make one's way along the coast somehow, by 
 the foreshore where there is any, but if not, then other- 
 
U THE LAND LAWS chap. 
 
 wise. So far as I can discover, there is no legal 
 authority whatever for this belief. We may take the 
 legal contrast between Wimbledon Common and Dart- 
 moor as another pretty striking illustration. To ordi- 
 nary observation they both have the air of waste places 
 belonging to nobody, and Dartmoor, I need hardly say, 
 is much the waster and wilder of the two. A shrewd 
 observer might guess from the situation of Wimbledon 
 Common that it would hardly remain open at this day 
 if something had not been done to preserve it. But 
 certainly no one but a lawyer would guess that the 
 public have a better right to be on Wimbledon Common 
 than on Dartmoor. Yet such is the case. Wimbledon 
 Common has been dedicated to the public by an Act of 
 Parliament. Dartmoor is, in practice, quite as free 
 for all the world to walk and ride on, but the number 
 of persons who have any strict right to be there is 
 probably by no means a large one. Most of the moor 
 belongs to the Duchy of Cornwall, which, on the whole, 
 is better for the public than if it belonged to private 
 owners. The only legal obstacle to Dartmoor being 
 enclosed is the existence of rights of pasture and turf- 
 cutting over it, which, of course, belong not to the 
 public but to a definite though considerable number of 
 commoners. Probably it might be found in the case of 
 Dartmoor, as in the case of Epping, that the old forest 
 laws afford means which may at this day be used with 
 effect against encroachments, but still the public at 
 large would have no enforceable right. ^ The same is 
 
 ^ The customs of Dartmoor have never been thoroughly iuvesti- 
 gated, and the materials are still only in part accessible. There 
 is every reason to believe that the result would be most interest- 
 
I INTRODUCTORY 15 
 
 the case with any other common which is not preserved 
 by statute. Practically the unenclosed and untitled 
 ground of England is free to the public for two reasons. 
 The owners have no interest in keeping the public off, 
 and would find it both an invidious and a troublesome 
 thing if they tried. Against a trespasser not in pursuit 
 of game the only remedy is a civil action, and no jury 
 would give substantial damages, nor any judge give 
 costs, against a trespasser on a wild moor or down who 
 had neither molested the owner, disputed his title, nor 
 injured his property. No one is likely to spend his 
 money for the sake of having a farthing damages, being 
 told by the judge that it serves him right, and making 
 himself odious and ridiculous. As a rule we hear of 
 actions for trespass only when there is a claim of right ' 
 to be settled. This is an example of a principle that 
 runs through the whole administration of law, and in 
 English law is very conspicuous. It is impossible so to 
 limit the rights of owners that they cannot sometimes 
 be harshly and vexatiously used. But it is possible to 
 have things so ordered that the extreme use of a man's 
 legal rights which would be intolerable to his neighbours 
 shall also give to himself so much trouble as will deter 
 most men from attempting it. This is accomplished in 
 England partly by an active public opinion, partly by 
 the wide discretion entrusted to judges and juries. For 
 many things of great importance, including all the 
 modern developments of the British Constitution, we 
 
 ing. The Dartmoor Preservation Association lias done what it 
 could with the means at its disposal ; see Mr. Elton's article in 
 Law Quart. Mev. vi. 207 (the volume there noticed was issued 
 only to members). 
 
16 THE LAND LAWS chap. 
 
 are content to rely on understandings rather than 
 positive law. ;^ The day may come when express law 
 has to take the place of these informal understandings. 
 It has come in the business of Parliament, in the rela- 
 tions between landlords and farmers, in the matter of 
 labourers' allotments, and in many matters of local 
 government. It is useless to deprecate changes of this 
 kind in the face of need ; but there will always be a 
 sort of people, often the best sort, who regret the old 
 easy-going ways. 
 
 It may seem strange that in England, the land where 
 above all others the personal and political rights of the 
 simplest freeman have been saved whole through all 
 changes of princes and dynasties, the law should find 
 so little room for public and unstinted rights of using 
 the very elements. Even the air is not free, for the 
 maxim is that the owner of the soil is owner up to the 
 height above and down to the depth beneath. It seems 
 to be the law that to pass over land in a balloon, at 
 whatever height, without the owner's or occupier's 
 licence, is technically a trespass. This doctrine does 
 not, for the reasons I have mentioned, lead to any grave 
 inconvenience. If it did, its historical explanation 
 would not throw much light on the question of what 
 should be done with it, much less justify its continu- 
 ance. But the explanation is not far to seek, and it is 
 fitting that we should put ourselves in a position, so far 
 as we can, to judge ancient institutions and maxims 
 with all fairness, not only as to their present conveni- 
 ence for us, but as to their origin and history, and the 
 reasons of their acceptance in the past. In this case 
 history tells us that the conception of rights common 
 
I INTRODUCTORY 17 
 
 ' to all the public is a modern one. Even the personal 
 freedom of the old days was the right of a privileged 
 class, for below the freeman there were unfree men, 
 serfs bound to the soil and slaves, the conquered foes 
 of past generations and the captives of his own. The 
 Roman citizenship, which had grown step by step from 
 the exclusive franchise of a conquering tribe to the 
 common right of every freeman in the empire, had its 
 community rudely broken up by the Teutonic invasions. 
 Far into the Middle Ages law was for many purposes 
 not general or territorial, but personal. Besides the 
 radical distinction between free and unfree men, the 
 freeman of the Carolingian empire might be a Frank, 
 or a Lombard, or a Roman provincial, and in every case 
 he would be governed by a different law. So in 
 British India to this day there are widely different laws 
 of marriage and inheritance for the Hindu, the Mussul- 
 man, and the Parsee, and sensibly different laws, though 
 not so different, for the Hindus of Bengal and the 
 .Hindus of Madras. In Europe this kind of difference 
 could not persist. The victory of the Christian Church, 
 and the revival of the Roman ideal of uniformity, which 
 had first moulded her institutions and then found a 
 last refuge in them, destroyed all personal distinctions 
 founded on religion by making the Church include the 
 State.' Distinctions founded on race went the same 
 ^ As late as Coke's time it was the theory of English lawyers 
 that an infidel or pagan could have no civil rights. Jews certainly-.y 
 had none before their expulsion by Edward I. Regulations were 
 made for their government, and they were ultimately banished 
 from the realm, by the sole authoiity of the Crown ; and they are 
 expressly called the king's serfs in contemporary documents. In 
 medieval theory no one not a Christian could be a real member of 
 the State, and Christianity was one and indivisible, 
 
 n 
 
18 THE LAND LAWS chap, i 
 
 way ere long. The Norman and the Englishman, and 
 at a later day the Englishman and the Welshman, be- 
 came one people. But a man's rights were still for the 
 most part his rights, not simply as an Englishman, but 
 as a member of some particular class and community. 
 He lived under customs and enjoyed franchises which 
 might be peculiar to his native town or even his native 
 parish.^ In the Middle Ages there were few holders 
 of land, by however humble a tenure, who had not 
 some kind of rights of common annexed to their hold- 
 ings. And every village and township would no doubt 
 be as anxious to exclude strangers from its woods and 
 pastures as to preserve its ordinary members' rights in 
 them against encroachment from within or from above. 
 We know, indeed, that the boundaries of the ancient 
 German communities were guarded by a kind of sacred 
 horror, and the most frightful penalties denounced upon 
 violators of the marh. The medieval Englishman's 
 rights of common provided for his wants both of use 
 and of recreation. People did not then travel for their 
 pleasure, or make recreation a study. The legal theory 
 which denied the possibility of public rights over land 
 was only the formal expression of the dispositions and 
 habits of society. These being what they were, the 
 usage by which popular rights are acquired could not 
 and did not grow up except within limited particular 
 regions, for particular purposes, and in the acts of small 
 local communities. 
 
 ^ Ample illustration of this may now be seen in Mrs. J. R. 
 Green's The Eiiqlish Town in the Fifteenth Century. 
 
CHAPTEE II 
 
 THE OLD ENGLISH CUSTOMARY LAWS 
 
 It has been said that the most hopeful way to under- 
 stand the present structure of our land laws may be to 
 pick out separately the various elements which are now 
 mingled in the mass. Let us begin with that which is 
 the oldest, the most popular, and still in some respects 
 the most persistent — I mean the customary Germanic 
 law which our ancestors brought with them from the 
 mainland on their first settlement in this country, and 
 developed after their own fashion, with little substantial 
 foreign interference or influence for good or for ill, 
 until the reign of Edward the Confessor. Whatever 
 else may be said of the early English land system, as 
 preserved to us in Anglo-Saxon records a,nd interpreted 
 by modern scholars, it certainly had not the merit of 
 simplicity. The modern law, though far from simple, 
 is definite, and in the main uniform. Copyhold lands 
 are subject to peculiar incidents and modes of alienation, 
 and certain ancient varieties of tenure survive as local 
 customs of inheritance. But with these exceptions, the 
 substance of the law is the same for every piece of land 
 in England. Before the Conquest there was no more 
 
20 THE LAND LAWS chap. 
 
 one and the same law for every parcel of land than 
 there was one and the same law for every man. Land, 
 like men, was impressed with different legal qualities 
 and conditions, though its condition was not unchange- 
 able. Separate property in land was nothing new : in 
 the time of Tacitus, the general truth of whose descrip- 
 tion there is no reason to doubt, every German freeman's 
 homestead was already his own. Nevertheless full and 
 jfree private ownership, as we now understand it, was 
 I an innovation, and for a long time exceptional, though 
 its constant tendency was to encroach on the earlier 
 forms of tenure. 
 
 ' Bucland, or book-land, is the regular term for land 
 held in several property under the express terms of a 
 written instrument, or book as it was then called. Such 
 . grants could be made in the first instance only by the 
 king with the consent of his Witan. This tenure was 
 of comparatively late introduction, and came in luider 
 the influence of the Church, and in favour of grants to 
 religious houses. We ^vill return to the details. 
 
 At this point we note that book-land is what we have 
 most documents and authority about, for the simple reason 
 that land held in any other way was not dealt with in 
 writing, except occasionally in the wills of great persons. 
 We also read of folk-land. Far more has been 
 written about this in modern times than the whole sum 
 of our meagre authorities. There are only three places 
 in Anglo-Saxon legal documents where the word occurs, 
 and they enable us to say with absolute certainty only 
 that folk-land was something contrasted with book-land. 
 It seems to mean, as Spelman thought two centuries 
 ago, land held by folk-right or customary law, as opposed 
 
II THE OLD ENGLISH CUSTOMARY LAWS 21 
 
 to land held by a written charter or "book." For 
 many years all or nearly all scholars, including myself, 
 accepted Allen's explanation that " folk-land " was ager 
 publicus, land held by the nation for public purposes. 
 But it has been shown by Mr. Vinogradoff ^ that this 
 brilliant and plausible interpretation really raised more 
 difficulties than it solved ; and the restoration of Spel- 
 man's opinion has been accepted, so far as I know, 
 without an expression of dissent iil any quarter. 
 
 Folk-land might belong either to the king as repre- 
 senting the State, or to the king for his private use,^ or 
 to private persons ; a good deal of it was also common 
 land used and enjoyed by the members of particular 
 townships, or sometimes perhaps larger bodies, to the 
 exclusion of strangers. To say that such land was the 
 property of the community whose members used it 
 would however be misleading; for the idea of a corporate 
 body being treated as a person, and having rights like 
 those of a natural person, was much too artificial for our 
 Germanic ancestors, I do not say merely to invent, but 
 to grasp when presented to them from Roman sources. 
 It made way with some difficulty even after the Norman 
 Conquest.^ Early communal enjoyment is not an 
 artificial form of property, but one of the elements out 
 of which our developed notions of corporate existence 
 and corporate property have been made. 
 
 ' English Historical Heview, January 1893. In former editioua 
 of the present work I pointed out some of the difficulties, and 
 suggested a partial explanation, whioh is now superseded by Mr. 
 Vinogradoffs simpler and completer method. 
 
 ^ This distinction may seem suspiciously modern. I can only 
 say that I think I iind it in the documents. 
 
 '' Pollock and Maitland, Hint. Eng. Law, i. 476 sqq. 
 
22 THE LAND LAWS chap. 
 
 Land held by individuals, -whether in greater or in 
 less quantity, was included in the'general description of 
 folk-land, unless it had been turned into book-land by a 
 written grant or confirmation. 
 
 There is no reason to suppose that common lands 
 were regularly the subject of alienation, or that there 
 was any power to alienate them.^ As to land held by 
 individuals under local custom, very little is really 
 known about it save what can be gathered by analogy 
 from the customary tenures found surviving some 
 centuries later, and from Continental laws and usage. 
 Such land was sometimes dealt with by will; if it 
 could be sold by the owner in his lifetime, it is not at 
 all likely that before the Norman Conquest custom had 
 anywhere reached the point of letting him do so with- 
 out the consent of the family. Probably the stringency 
 of the local customs varied from county to county and 
 even from township to township. 
 
 Modern popular notions of " heirland that must 
 perpetually descend from father to son " ^ may perhaps 
 rather go back to these ancient customs of the country 
 than to medieval entails under the statute De Bonis (of 
 which hereafter), unless indeed they are merely a con- 
 fused apprehension of the practical effect of modern 
 strict settlements. Alienation by sale or gift, so far as 
 
 ' It is true tliat in Domesday, i. 213J, we read of Goldington 
 in Bedfordshire, "Hanc terrani tenuerunt homines villae com- 
 muniter et vendere potuerunt." But this might have been pur- 
 chased land. The express mention of the power of alienation tends 
 to show that there was something exceptional. Taking the ex- 
 ceptions recorded in Domesday for rules has been a fruitful source 
 of errors, as Mr. J. H. Round has lately pointed out. 
 
 ^ Joshua Williams, Real Property, 17th edition, 95. 
 
II THE OLD ENGLISH CUSTOMARY LAWS 23 
 
 it occurred at all, was no doubt executed by tjlie archaic 
 and popular forms of which traces may still be found in 
 copyholds, and in which either actual or symbolical de- 
 livery of possession was a principal and essential feature.^ 
 Book-land was coveted because it gave the holder 
 something much more nearly approaching full owner- 
 ship in the modern sense. The institution, it must be 
 remembered, is not of home growth. It is taken over 
 from ecclesiastical — in other words, from Roman, 
 habits of mind. There, were no limits to the 
 power of disposal enjoyed by the owner of book-land, 
 save those which might be laid upon him by the 
 terms of the grant itself. According to those terms 
 he could generally, without any further leave or con- 
 sent, grant it in his lifetime, as he had received it, 
 by hook, or dispose of it by his will. We find a certain 
 number of charters granting rights over common land, 
 and sometimes apparently portions of the common land 
 itself.^ These rights must have been already annexed 
 to the fqlk-land which is made into book-land by the 
 charter. It may be that in some of these cases the 
 grantees already held the land as an allotment of public 
 or common land. They may well have had by custom 
 some sort of right to a renewal of the allotment to 
 themselves or their descendants. If this were so, the 
 effect of the grant would be to confirm the customary 
 title in perpetuity, and to release the land from most of 
 the public dues and services to which land other than 
 book-land was subject. The release of these burdens 
 would require a regular grant from the king, with the 
 
 1 See Note B in Appendix. 
 2 References in Nasse, MiUelalt. Fcldgemeinschaft, 17-22. 
 
24 THE LAND LAWS chap. 
 
 consent of the Witan, just as much as the severance of 
 a new portion from the folk-land. This, however, is 
 given only as a conjecture. 
 
 The contrast of book-land with folk-land does not 
 mean that a grant of book-land destroyed existing in- 
 ferior tenures or rights of occupancy. Doubtless it 
 made no more difference to the actual occupiers and 
 small owners who held by the customs of folk-land when 
 a large tract was granted as book-land than it now 
 makes to the tenant-farmers of a great estate when the 
 freehold is sold or mortgaged, or to an occupying lease- 
 holder in a city when there is a sale of the ground-rent. 
 As now land may be held by a farmer on a lease made 
 by a copyholder, while the freehold remains with the 
 lord of the manor, so there is no difficulty in conceiving 
 that the various kinds of interest in land known to 
 Anglo-Saxon custom often co-existed in the same acres. 
 The division is of rights and interests, not necessarily of 
 boundaries. 
 
 It is evident from what has been said that the 
 ultimate legal origin of book-land was always a grant 
 made out of the folk-land. Ample records of such 
 grants are preserved, and are, in fact, our chief means 
 of knowledge as to the relation of book-land to folk- 
 land. The grant could be effectually made only by 
 the king with the consent of the Witan, and also of his 
 superior king, if he acknowledged any (for our records 
 begin in a time when there were still many kings and 
 under-kings of many tribes and kindreds of the English). 
 Not only this consent was required for grants in per- 
 petuity to private persons, but if the king wished to 
 appropriate any part of the folk-land as his own heritage, 
 
II THE OLD ENGLISH CUSTOMARY LAWS 25 
 
 a grant to himself had to be made out with the express 
 sanction of his counsellors, in just the same form as if it 
 had been to any other person. ^ The notion that all public 
 property was the king's, and that the king, on the other 
 hand could not hold property like a private person, 
 was formulated after the Conquest. Yet we iind some- 
 what earlier that when a man is forjudged of life and 
 lands for cowardice in battle, as the lands held by him 
 of a private lord go to that lord, so any book-land he 
 may have is forfeit to the king, and, it would seem, at 
 the king's personal disposal. ^ In practice, however, it 
 is at least possible that from a very early time much of 
 the increase of book-land at the expense of folk-land 
 took place in irregular ways. It may often have been 
 under colour of an occupation which was rightful in its 
 origin, but as often, perhaps, by mere encroachment. 
 The king and other great men had certain rights over 
 the waste folk-land, and rights of use tended then, as 
 much as they do now, to grow into claims of property 
 in the hands of the strongest. It fared with the un- 
 appropriated folk-land of the kingdom very much as it 
 fared some centuries later, for similar reasons, with the 
 common lands of the village or township which had 
 
 1 It would seem that a grant of land was regularly made to the 
 king by the Witan on his accession, for the support of his dignity 
 during his reign : Cod. I)i%^l., 1312, .ffithelred : "gi-atia dei me ad 
 intelligibilem perducere dignata est setatem, mihique per meorum 
 optimatum decreta affluentem et copiosam terrarum largita est 
 portionem." This charter, as well as Beda's well-known letter to 
 Ecgbert (see next page), seems to point to the existence of a kind of 
 public fund of land administered by the king and the Witan. 
 Allen and his followers erred not in supposing that there was such 
 land, but in taking folk-land to mean nothing else. 
 
 - Laws of Cnut, ii. 77. 
 
'7 
 
 26 THE LAND LAWS chap. 
 
 become a manor. As early as the eighth century grants 
 were made recklessly out of folk-land in the north of 
 England to persons who professed the religious character 
 merely to have the grant without the burden of the 
 ordinary secular dues and services. ^ It seems also not 
 unlikely that men of substance attempted to dispose of 
 part of their folk-land as book-land, to pious uses or 
 otherwise. It is certain that grants and wills of land 
 described by the donors as book-land were not uncom- 
 monly disputed by their families, and that an ordinance 
 of the Witan was thought needful to enforce even express 
 prohibitions against alienation out of the family contained 
 in the original " book." ^ The interests that were created 
 in book-land by the original grants varied a good deal in 
 their nature and duration. It is not known how far they 
 were regulated by any fixed laws or usages. Sometimes 
 a free and absolute power of disposal was conferred by 
 the terms of the "book" on the person to whom the grant 
 was made. Sometimes a special course of descent was 
 prescribed, so that the disposition was analogous to a 
 modern entail, or alienation was allowed only within the 
 family.^ 
 
 It is doubtful, however (as we see by the law of 
 Alfred just cited), whether the will of the grantor was in 
 such cases strictly observed in practice. A very common 
 form was to grant an interest for one or more lives in 
 succession, say to Oswine or ^thelwulf and to two heirs 
 
 ' Beda, Letter to Ecgbert. 
 
 ^ Laws of Alfred, c. 41. 
 
 * Many examples of such limited gifts are collected in Kemble's 
 Introduction to the Codex Diploniaticus. We may name as good 
 specimens among charters No. 299, and among wills that of King 
 Alfred, No. 314. 
 
11 THE OLD ENGLISH CUSTOMARY LAWS 27 
 
 whomsoever he shall choose after his own time, with an 
 ultimate gift to a religious house. 
 
 A grant of book-land on a large scale probably 
 carried rights of private jurisdiction, but it did not create 
 any new relation of tenure or jurisdiction between the 
 king or other grantor and the grantee. Hence book- 
 land appeared to persons acquainted with Continental 
 feudalism as not feudal but allodial, and " alodium " is 
 the regular Latin equivalent of book-land in Anglo- 
 Norman and late Anglo-Saxon documents. There is no 
 trace of any English form of the word "alodium," still 
 less is there any authority for applying the term to the 
 private holdings of freemen which were not book-land. 
 The word " ethel " was used by Kemble to denote such 
 holdings, with " alod " as an alternative ; but there is no 
 authority whatever for either usage. ^ 
 
 Such was in its main outlines the Old-English system 
 of land tenure. But we must not suppose that all or 
 most of the actual occupiers and tillers of the soil held by 
 any of the titles which we have enumerated. If we did, 
 we should fall into the same mistake as a foreigner who 
 in our own time should imagine from reading modern 
 English law-books that the whole or the greater part of 
 the present occupiers are freeholders. There was indeed 
 nothing, or next to nothing, resembling even distantly 
 in form our modern leases for years and other inferior 
 tenancies.^ Nor was there, as there has been ever since 
 the thirteenth century,^ any distinct class of labourers 
 working on other people's land and paid by money 
 
 ' Bishop Stubbs (Const. Hist. 3rd ed. 75, 76, in notls) had 
 already observed this. 
 
 ^ But one grant for a fixed term of years is found in the whole 
 of the Codex Diplomaticus, and that is for three years only. 
 
 ^ Vinogradoff, Villainage in England, 321. 
 
 /^ 
 
28 THE LAND LAWS chap. 
 
 wages. Nevertheless a great part of the cultivation of 
 the land was undertaken by people who occupied it by 
 the agreement or permission of the superior owner, and 
 paid for its use in money, in kind, or in labour, not un- 
 commonly in all three. Land thus held was known as 
 Mrirland, and the tenant was said to hold it (literally to 
 sit on it) 1 upon Isen. The word, it is almost needless 
 to add, is our modern loan. The lands of bishoprics 
 and religious houses, in so far as they were not tilled 
 by serfs belonging to the house and under its direct 
 management, were dealt with in this manner ; and we 
 may well think that religious corporations had the chief 
 hand in introducing Mns, as they certainly had some 
 centuries later with regard to leases of the modern type. 
 The condition of the tenants of Mn-land was various. 
 The smallest of them were little better than cottiers ; 
 the largest may have been no worse than substantial 
 farmers. Now and then they obtained a more per- 
 manent estate by grant from the owner, or as we should 
 now say acquired the freehold. We have examples of 
 a tenant of Isen-land receiving a grant of his tenement 
 by book, to hold it for book-land as fully as he did for 
 Is&n-land ; and it appears to have been a well known prac- 
 tice for lords to make such grants to deserving tenants.^ 
 
 ^ This phrase remained in use all through the Middle Ages. 
 "Whosoever sitteth upon the ground of any man . . . the lord 
 shall have an harlot of him as of another." (Customary of Tetten- 
 hall Regis, ap. Toulmin Smith, English Gilds, 432.) "The 
 sitting " (as opposed to "quitting ") " tenant " is a familar expres- 
 sion to this day. 
 
 ^ Kemble, Saxom in Eyigland, i. 312, 313. As he says in the 
 same place, "where there was leen, there could properly be no 
 book " ; but the use of terms was in practice more or less confused ; 
 for example, Cod. Dipl., 1062, where a grant by charter, indis- 
 
II THE OLD ENGLISH CUSTOMARY LAWS 29 
 
 This kind of tenancy was at first of minor importance. 
 Towards the date of the Conquest, however, a great 
 proportion of the actual occupiers must have held their 
 lands on Isfen. In a certain sense it is even true to say 
 that lEen-land ultimately supplanted everything else, and 
 that no other kind of landed property is recognised by 
 the strict theory of modern English law. Historically, 
 the growth of Isen-land, and the changes thereupon 
 consequent, are intimately connected with the personal 
 relation of lord and man, of which, therefore, something 
 must be said. It was familiar in England long before 
 the Conquest, and constantly tended to assume greater 
 importance in the constitution of society. At first it 
 was confined to the small body of personal followers 
 attached to the leaders of the Germanic tribes. At that 
 time it was personal and nothing more, and there was 
 no loss of rank or dignity on the follower's part. The 
 chief's or king's companions must be free, and might be 
 noble, and their service was an honour.^ The modern 
 European orders of nobility and knighthood owe to this 
 aspect of the institution the greater part of their titles, 
 their system, and their ceremonial ; and European 
 monarchies owe to it nearly all the pomp that surrounds 
 
 tinguishable in its nature and incidents from the regular type of 
 grants for lives so made by religious hoiises, purports to be by way 
 of lafen (EalferS bisceop and da higan on Wintaceastre habbaS 
 gelfeneS [sic] hiora leofan fri6nd viii. hida landes on Eastune {)riora 
 manna deg, etc.) The essence of Mn, in any case, appears to 
 have been holding under a definite person as superior by specific 
 services. Possibly it was a following of the Gallo-Frankish 
 precarium. 
 
 ' Kemble's opinion that this relation involved the loss of freedom 
 can only be called the eccentricity of a man of genius. It is dis- 
 posed of by Konrad Maurer, Kritische Uebersehau, ii. 391 sqq. 
 
30 THE LAND LAWS chap. 
 
 them, and much of the sentiment on which their con- 
 tinuance depends. For many generations before the 
 Norman Conquest, as distinctions of rank and substance 
 between freemen increased, the old community of free- 
 men, equal in personal condition if not in wealth, had 
 been virtually replaced by a ruling class with a humbler 
 and poorer multitude in dependence on them. For 
 some time this state of things had become associated 
 with the tenure of land to a considerable extent, and 
 had thus prepared the way for the feudal and manorial 
 system. Feudalism is the complete association of 
 territorial with personal dependence, and of both with 
 definite rights and duties of jurisdiction. The tenant 
 is not only an occupier who pays the owner in money 
 or in kind for the use of the land ; he owes him personal 
 service and allegiance and attendance at his court. The 
 lord himself may be in like manner bound to an over- 
 lord, and he again to another above him, until we come 
 to some one who holds of no lord, and who, in the 
 developed feudal theory, must be an absolutely sovereign 
 prince. Old English land law never reached this stage, 
 but it was tending towards it so fast that the Conquest 
 may be said to have only hastened its transformation. 
 
 As far as the personal relation is concerned, we find 
 it established in the earliest times of which we have any 
 trustworthy account. Every man was expected either 
 to be of substance enough to answer all payments he 
 might become liable for, whether to private suitors as 
 damages or composition, or to the public as fines, or to 
 be dependent on a lord who could answer for him. 
 Much as in English society of a far later time we find 
 " masterless men " to be a name of thieves, vagrants. 
 
II THE OLD ENGLISH CUSTOMARY LAWS 31 
 
 and peace -breakers, we find before the Conquest that 
 no honest man can be without a lord unless he is a lord 
 himself. In the first half of the tenth century this is 
 fixed as a positive rule, and the lordless man must find 
 a lord at his peril. If he or his kindred for him fail to 
 do this, he becomes outlawed, and may be dealt with as 
 a robber.^ The men who had risen to the condition of 
 being lords and protectors of the smaller freemen were 
 naturally great or relatively great landowners. Their 
 ancestors, we may suppose, had been distinguished by 
 birth or exploits among their fellows, English or Danish, 
 even before their settlement in this land. Enjoying at 
 first a kind of undefined primacy among their equals, 
 they gradually assumed a position of command. From 
 the first, we may be pretty sure, their possessions were 
 notably greater than those of common men, and gave 
 them a corresponding influence on all public occasions. 
 Each of them imitated the king to the best of his power 
 by surrounding himself with a band of personal 
 followers.^ And the sorts of men likely to seek the 
 personal service of a lord, or become dependent on him, 
 were increased by several causes. The natural growth 
 of population is one of these, for the land allotted in 
 the first instance to the freemen of the conquering host 
 would in a few generations be a too scanty means of 
 livelihood for their descendants. Men with no secured 
 possessions of their own were driven to find a place in 
 dependence on those who had land and goods to spare. 
 
 1 Laws of JElthelsta7i, ii. 2. 
 
 ^ It is a minor question whether there was any distinct con- 
 dition or qualification for a private man entertaining followers, or 
 in other words setting up as a lord. The better opinion appears to 
 be that there was not. 
 
32 THE LAND LAWS chap. 
 
 Another large class of free dependents were those who 
 had property, but were not strong enough to guard it 
 in times of trouble. These commended themselves to a 
 lord for protection, and with themselves their land. 
 There were likewise the manumitted serfs, a class which 
 became considerable in the tenth and eleventh centuries, 
 manumission being encouraged by the Church and 
 reckoned a pious work. Neither were the old motives 
 wanting which in the time of Tacitus had led the young 
 men of the German peoples to cast in their lot with 
 kings and chiefs. Adventurers in search of warlike 
 renown or booty, exiles driven from their home by civil 
 strife, or flying the vengeance of a slain man's kindred, 
 craftsmen skilled in the arts which supplied the luxuries 
 and recreations of life, such as then they were ; — all these 
 still contributed to swell the number of dependents, as 
 they had once chiefly formed it. So far the connection 
 with land tenure appears as accidental. The companion 
 may or may not be a landholder ; and if he is, the lord 
 to whom he is personally attached may or may not be 
 his superior in respect of the land. On the other hand, 
 we do not know, and have no right to assume, that the 
 man who occupied another's land on Isen was necessarily 
 his personal dependent. In fact we find tenure and 
 personal subordination or " commendation " separated 
 even after the Conquest.^ In course of time, however, 
 and by steps of which the beginning may lie further 
 back than the earliest of our documents, the dependent 
 becomes a tenant, and at last dependency and tenancj^ 
 become in legal theory co-extensive. According to the 
 
 ^ Examples are not infrequent in Domesday. See Round, 
 Feudal England, 33. 
 
II THE OLD ENGLISH CUSTOMARY LAWS 83 
 
 tenant's degree of personal rank, the inchoate tenancy 
 takes a different complexion. The personal aid and 
 service rendered in war to the king and the earls by 
 their more distinguished followers comes to be looked 
 on as the equivalent of the benefits received by them. 
 Even before the Conquest there are traces of duties and 
 relations hardly distinguishable from the true military 
 tenures of a later age. The free landowners owing 
 military service to the king as chief of the nation are 
 becoming tenants holding their lands by military service 
 of the king as their personal lord. . 
 
 Among the smaller folk things happened differently. 
 Their hereditary holdings were generally, though we 
 have no right to say always, under the common-field 
 system of which the details have been made clear chiefly 
 by Mr. Seebohm in late years. 
 
 We do not know that this system was regulated or 
 enforced by any definite authority, and, as fragments of 
 it have survived down to quite modern times mthout 
 the help of any such authority,'^ we are not bound to 
 
 '■ In 1892 Mr. Aubrey Spencer reported to the Royal Commission 
 on Labour that "in the village of Stratton" (in the Dorchester 
 Poor Law Union) ' ' there still exists an unenclosed arable field 
 divided into ' livings ' of about twenty acres each held upon lives. " 
 Rights of common for four cows and fifty sheep are attached to 
 each "living." "It is, however, a striking fact that these small 
 ' livings ' are not as a rule cultivated by the owners themselves, but 
 are principally let to two fanners who cultivate them with their 
 own farms." In this case an open-field system appears to be com- 
 pletely detached from any manorial or other organisation capable 
 of regulating it in any way, and has persisted, perhaps because of 
 this detachment rather than in spite of it, long after it has ceased 
 to be convenient to any one ; cp. Mr. F. AV. Maitland in Laio 
 Quart. Rev. ix. 224. 
 
 D 
 
34 THE LAND LAWS chap. 
 
 postulate a township court or administrative assembly 
 for that purpose in default of other evidence that 
 it existed. All recent research points to the hundred, 
 not the township, being the lowest unit of judicial and 
 executive authority in the Anglo-Saxon period. The 
 origin of lords of the manor is to be sought in the 
 growth of personal dependence and private jurisdiction 
 rather than in any direct development of economic 
 relations. It seems clear that we must put it back to 
 a remoter date than was implied, if not stated, in much 
 of the doctrine current when this book was first written. 
 The consolidation of the petty monarchy wielded in after- 
 times by the lord of the manor may have taken place in 
 various ways, and most likely did, according to circum- 
 stances, take place in all of them. In some townships a 
 chief house might become richer and more prosperous 
 than the others, until its head possessed a commanding 
 influence, and the poorer members were glad to become 
 his dependents. But the man who had thriven and 
 become a lord in his own township would be sought as a 
 protector, sooner or later, by strangers also. There were 
 times of warfare between kingdom and kingdom, and 
 later of Danish harrying and general disorder, in which 
 old bounds and usages were overridden, and the bonds 
 of society loosened. There were times of distress, too, 
 when freemen were ready to "bow their heads for 
 meat " to any one who would support them, insomuch 
 that the neediest of them were driven to become not 
 merely dependents but bondmen. Thus the dominion 
 of the stronger landholders, once set on foot, was in- 
 creased by the submission of many sorts of people, now 
 singly, now, perhaps, collectively. Grants of public 
 
II THE OLD ENGLISH CUSTOMARY LAWS 35 
 
 jurisdiction and revenues from the king completed the 
 strength and pre-eminence of the lords ; and this process, 
 repeated all over the country, had long before the 
 Conquest made England into a land of great estates, 
 cultivated partly by personally free dependents and 
 partly by bondmen. But it had not supplanted the 
 smaller free tenancies, of which a great number, chiefly 
 but by no means wholly in the eastern counties, are 
 recorded in Domesday, and the old communal use and till- 
 age of the land were unaffected in substance by changes 
 of over-lordship and of the legal title and position of the 
 lords. 1 
 
 We may now ask what became of these divisions of 
 land tenure as they existed before the Conquest, and 
 what traces they have left on the modern law ? These 
 traces will appear on examination to be far deeper and 
 more lasting than is commonly known. The inquiry, 
 therefore, is something more than a piece of minute 
 antiquarian curiosity. 
 
 First we may dispose of book-land. I have tried to 
 show that its importance as a normal and constant 
 element in the Old-English land system has been over- 
 rated. If this is right, we may the more easily under- 
 stand the certain fact that we hear next to nothing 
 of book-land after the Conquest. Many of the great 
 estates, probably most, were confiscated on accour of 
 the owner's resistance to William. There must hi.vs 
 been many cases, however, notably those of religions 
 
 ' See note in Appendix for a summary, mostly extracted from 
 an address delivered by me as President of the Devonshire Associa- 
 tion in 1894, of rival theories on the "village community " question. 
 The controversy is both difficult and interesting, but really makes 
 very little difference to the post-Norman history of the law. 
 
36 THE LAND LAWS chap. 
 
 houses, where the substance and enjoyment of posses- 
 sion remained undisturbed. In these cases the form was 
 none the less superseded by the new Anglo-Norman 
 theory of tenure and the corresponding forms which it 
 introduced. The Norman charter, which in strictness 
 was only evidence of the corporal act of investiture, and 
 thus returned to the ancient Germanic system, took 
 the place of the English " book " ; and where no real 
 services were performed by the landholder, nominal 
 ones were invented to save the credit of the theory. 
 Religious persons were supposed to hold their lands on 
 condition of performing divine services^ which would 
 assure the spiritual benefit of the grantor and his heirs, 
 as the lay tenants held theirs by rendering to the lord 
 the temporal and tangible benefits of military or agricul- 
 tural aid. And the lands of ecclesiastical corporations 
 are to this day said to be held by the tenure of frank- 
 almoigne or free alms, though the explanation which 
 originally supported the fiction of a tenure has dis- 
 appeared since the Reformation.^ Such lands now 
 represent book-land, so far as anything can represent it 
 in our modern system. There is no doubt that at least 
 some of them are in fact ancient book-land which has 
 been held without a break in title since it was first 
 granted by some West-Saxon or Mercian king ivith the 
 witness and consent of his Witan.^ Of course no new 
 book-land was created after the Conquest. The Anglo- 
 
 ^ Services, that is, not specifically defined or demandable. In 
 some oases the services were definite, and then the tenure was " by 
 divine service" strictly so called, in opposition to fraiik-almoigne. 
 
 ^ Litt. s. 135, and Coke thereupon. 
 
 ^ For example, the manor of Scotter in Lincolnshire. Ardiceo- 
 logia, xlvi. 371. 
 
II THE OLD ENGLISH CUSTOMARY LAWS 37 
 
 Saxon " book " was supplanted by the feudal grant 
 (jreating a tenure ; and of this the written charter was 
 only a common and convenient record, not an essential 
 part. 
 
 We have next to consider what became of the folk- 
 land. Whatever remained disposable by the king with 
 the consent of the Witan became the king's land. The 
 king not only dealt with such land without the counsel 
 or consent of the Witan or any one else, but treated it 
 as if it were in all respects his private inheritance. For 
 several centuries no distinction was made between 
 property held and administered by the king in right of 
 the Crown and on behalf of the nation, and property 
 belonging to him as an individual. After the Conquest 
 whatever was found in the king's hands was thrown 
 into one mass with what had come to the Crown by 
 forfeitm-es and confiscations, and the whole was registered 
 in Domesday as Terra Regis. There is much reason to 
 think, however, that even before the Conquest, from 
 the tenth century onwards, if not earlier, the consent of 
 the Witan, though almost always expressed, was often 
 little more than a formal attestation. 
 
 As to folk-land subject to common rights, there is 
 no doubt that much of it went on being occupied and 
 used in the old fashion down to our own time. Indeed 
 historical records about it are scanty, and the modern 
 survival of practices which can be explained only by a 
 general system of common use and enjoyment is the 
 best evidence we have that the system really existed in 
 the past, a circumstance which ought to make us careful 
 in other cases how we draw negative inferences from the 
 dearth of positive evidence in early times. The lands 
 
38 THE LAND LAWS chap. 
 
 which in modern times have remained subject to com- 
 munal customs are variously known as commonablei 
 open, or intermixed fields, and very frequently as 
 Lammas lands. In the last few generations the pro- 
 gress of enclosure and partition has been rapid, and the 
 amount of these lands has been notably diminished even 
 within living memory. It will be convenient, however, 
 to speak in the present tense of the facts which towards 
 the 'middle of this century were put on record by careful 
 and competent observers as then actually existing.^ 
 Another generation earlier more than half the land of 
 some English counties was under one or another variety 
 of these usages. They differ in detail, but the general 
 type is that from seedtime to harvest the land is 
 divided among several occupiers, tilling each his own 
 portion, and after the harvest (that is, on or about old 
 Lammas day, or the 12th of August in the reformed 
 calendar, whence the name of Lammas lands) it is thrown 
 open for pasturage, sometimes to the [same persons who 
 have occupied them in severalty, sometimes to a larger 
 class. The occupiers for tillage are generally bound to 
 a customary rotation of crops and fallow, which of itself 
 is such as to point to days of very primitive farming.^ 
 Many commonable hay-fields are also found which are 
 thrown open earlier in the year, as soon as the hay- 
 
 ^ Select Committee on Commons Inclosure, 1844. E. Wasse, 
 Mittelalterliche Feldgemeiiischaft, etc. -. Bonn, 1869 (Eng. ti'ansl. by 
 Col. Ouvry, published by the Cobden Club, 2nd ed., 1872), where 
 details are given. The facts collected in Mr. Seebohm's Eiiglish 
 Village Community also throw much light on these matters. 
 
 ^ The regular course is wheat, oats or beans, and fallow. A 
 four-course rotation is also met with, and exceptionally the bare 
 alternation of crop and fallow. 
 
II THE OLD ENGLISH CUSTOMARY LAWS 39 
 
 harvest is over. It is significant that these usages are 
 stated to be most prevalent in those parts of the country 
 where the soil is most fertile, and the land was there- 
 fore taken into cultivation at a very early time. The 
 subdivision of the holdings for several cultivation is 
 extremely minute, so that even a considerable owner of 
 land of this kind will have it all in little parcels of at 
 most a couple of acres each, the remnants of the acre- 
 strips of which a normal holding " lying abroad " in the 
 common fields was made up throughout the Middle 
 Ages.i It is found that where this system prevails 
 the farmers are collected in agricultural villages, whereas 
 in the parts where complete severalty of ownership is 
 the rule we find scattered and independent homesteads. 
 One cannot overlook the historical significance of such 
 a fact ; the conclusion is almost irresistible that the 
 village in these cases represents an earlier township or 
 community to which the land belonged. It is no less 
 fit to be noted that the country of open and common 
 fields is also the country of small copyholds ; this, how- 
 ever, we shall consider later. 
 
 Another fact of some importance is that, although 
 in the modern legal theory a parish or township is not 
 capable of holding lands, yet lands belonging to a parish, 
 and administered by the churchwardens in aid of its 
 other sources of revenue, are frequently met with / so 
 frequently, indeed, that the difficulties of legal title 
 
 ^ See Mr. Seebohm's English Village Community for details. 
 The process by which the strips were gradually consolidated may 
 be seen in various stages in estate maps of the late sixteenth and 
 early seventeenth centui-ies, in the possession of the colleges of All 
 Souls and Corpus Christi at Oxford. Other public bodies probably 
 have similar collections, but I have not heard of any so good. 
 
 L. 
 
40 THE LAND LAWS chap. 
 
 resulting from this state of things were brought to the 
 attention of Parliament within the present century, and 
 in one of the Poor Law statutes the churchwardens and 
 overseers of any parish to which land belongs were 
 incidentally made a body corporate for the purpose of 
 dealing with it.'^ Sometimes these parish lands are within 
 the modern boundaries, but by no means always. For 
 example, the parish of Sampford Spiney in South Devon 
 lately held a piece of land in the parish of Tamerton, 
 as much as twelve miles away. Such outlying lands can 
 hardly be supposed to have belonged to the township in 
 ancient times ; more probably they represent medieval 
 gifts to pious uses. It would now be impossible, unless 
 in specially favourable conditions which may sometimes 
 exist, to trace the history of these parish properties with 
 any certainty. In the case I have mentioned nothing 
 whatever is known about it, all early records of the 
 parish having been lost by neglect. In some cases the 
 use of the property for parish purposes is known to go 
 back to the time of the Reformation or earlier. This, 
 however, is still consistent with a gift or appropriation 
 long since the Conquest. But the fact of gifts being 
 made to the parish at all shows that for the popular 
 mind it retained its existence as a kind of corporate 
 body, though the law refused to acknowledge it. And 
 at last Parliament, as we have just seen, had to bring 
 the law round again to the popular view. 
 
 The village greens which still exist in many parts of 
 
 the country may fairly be regarded as a remnant of old 
 
 unappropriated common land. Here the modern legal 
 
 theory simply reverses the order of the facts. These 
 
 '■ 59 Geo. in. c. 12, s. 17 (a.d. 1819). 
 
11 THE OLD ENGLISH CUSTOMARY LAWS 41 
 
 bits of ground used by the inhabitants for recreation 
 are in most cases ground which never really belonged 
 to any several owner. Not having been appropriated 
 by reclamation or otherwise in early times, and having 
 escaped wholly or in part from the encroachment of 
 the lord or his agents, they remain open for common 
 enjoyment. But the theory of the law-books is that 
 they belonged to the lord, and that in early times he 
 granted rights of enjoyment over it, or allowed them 
 to grow up by way of custom. And though of late 
 years judges have more than once admitted from the 
 bench the historical futility of this theory, it is now 
 hardly possible to break with it altogether for legal 
 purposes. We now speak of a custom for the inhabit- 
 ants of a parish to dance or to play lawful games at 
 seasonable times on such and such a piece of land, the 
 land being imagined to belong to some person whose ordin- 
 ary rights over it as owner are limited by the customary 
 use of strangers. This is really fiction and nothing else 
 in the majority of cases ; but the fiction is inveterate. 
 
 Eights of common have a similar history, though 
 both the facts and the legal treatment of them are 
 more complex. The simpler case of the village green 
 may help us to a clear understanding of the legal nature 
 of a common. According to the doctrine of the books a 
 common is the waste of a manor. It may happen that 
 the wastes of two or more manors adjoin, and sometimes 
 the common, or moor, or whatever it may be called, is 
 a royal forest — that is, a hunting preserve created since 
 the Conquest. 1 The presence of trees, I need hardly 
 
 ^ " Foresta regis est tnta ferarum mansio . . quasi feresta, 
 lioc est ferarum static. " — Dial, de Scaccario, i. c. xii. 
 
42 THE LAND LAWS chap. 
 
 say, is not required to make a forest in this sense. 
 Tlie great mark of it is the absence of enclosures. 
 Dartmoor is a forest, and (but for modern plantations) 
 trees grow on it only in a few sheltered hollows. 
 These cases offer peculiarities of their own, which to 
 the lawyer are extremely curious. But just now we 
 will confine ourselves to the more ordinary case of a 
 common lying wholly within the bounds of a single 
 manor. The waste of the manor, then, is in the 
 modern legal theory so much of the lord's land as his 
 predecessors have not found it worth while either to 
 take into cultivation on their own account or to let out 
 to tenants. Those predecessors have at some remote 
 time granted to their tenants various privileges over 
 this unoccupied land ; the liberty of pasture, or of tak- 
 ing sand and gravel, or cutting underwood, and such 
 like matters convenient for the use and enjoyment of 
 their cultivated holdings. These liberties have ripened 
 by long continuance into rights which the lord can no 
 longer withhold. All the rights of the commoners are 
 thus conceived as having been carved, as it were, out 
 of the original full and absolute dominion of some 
 imaginary predecessor of the existing lord. It is 
 allowed, indeed, that in the one case of common of 
 pasture the tenant's right might be in some measure 
 independent of the lord's will, being annexed by law to 
 his tenement if there was nothing to exclude it. This 
 is the doctrine of " common appendant.'' But the 
 general theory was as I have stated. We have great 
 reason to say again, as we said in the particular case of 
 the village green, that this theory reverses the facts. 
 We cannot say it, however, without qualification, for 
 
II THE OLD ENGLISH CUSTOMARY LAWS 43 
 
 there is reason to think that in many cases manorial 
 customs which at first sight look like very ancient 
 survivals are the result of arrangements deliberately 
 made in the fourteenth or fifteenth century.^ But 
 even in these cases, whether they are few or many, 
 the usages were not invented by the tenants or the 
 lord, but were framed, with additions and variations, 
 on customs already established elsewhere. On the 
 whole, then, we may say that rights of common and all 
 similar rights are derived either from the ancient use 
 and enjoyment of undivided common land under the 
 customs of the particular neighbourhood, or from use 
 and enjoyment really granted by lords to their inferior 
 tenants in imitation of the ancient customs. The old 
 common land, then, is represented on the one hand by 
 such remnants of the common system of cultivation as 
 now exist in England, or lately existed ; on the other 
 hand, by rights of common and the like. 
 
 Lastly, what became of the folk -land held by 
 individuals as their inheritance, not by the exceptional 
 privilege of a " book " or charter, but according to the 
 varying custom of the country, and without any written 
 evidence of title at all ? It is impossible for us now 
 to get any direct proof about this ; but for my own 
 part I believe that such land went on being held by the 
 old customs for centuries after the Conquest, and is to 
 a great extent represented by copyholds ; a form of 
 tenure which is now fast disappearing, and may be 
 extinct in another generation or two, but on which a 
 large proportion of English land was held down to the 
 
 ' Maitland, "The Survival of Aichaic Communities," Law 
 Quart. Rev. iv. 36, 211. 
 
44 THE LAND LAWS chap. 
 
 present century. We are told in all the books dealing 
 with the history of our land laws or land tenure, from 
 Sir Edward Coke downwards, that the copyholder of 
 the modern and later medieval English system grew 
 out of the villein of earlier times. The statement is 
 certainly true in some sense ; but it is capable of so 
 many that it is important to determine which of them 
 we mean to adopt. The meaning of the proposition 
 depends on the meaning of its terms. The first of 
 them is clear enough. We all know, or may easily 
 know whenever we please, what is meant by a copy- 
 holder. A copyholder is a tenant of a manor who is 
 said to hold his tenement " at the will of the lord 
 according to the custom of the manor." This means 
 that the tenant's rights are nominally dependent on the 
 will of the lord ; but the lord is bound to exercise his 
 will according to the custom, so that the tenant is 
 really as safe as if he were an absolute owner. The 
 lord's petty monarchy over the manor, whatever it may 
 have been formerly (and there is nothing to show that 
 it was ever really absolute as regards tenure), is now 
 strictly constitutional. The tenant's title, however, is 
 evidenced not by deeds in his own possession, but by 
 the records of the lord's court, which show the admis- 
 sion of successive tenants by the lord or his steward. 
 For this reason the tenant is said to hold " by copy of 
 court roll." He is generally debarred from some of 
 the rights of an absolute owner, such as cutting timber 
 and opening mines, and has to pay fines on alienation ; 
 and often, besides these, the curious and vexatious fine 
 in kind called a heriot on a succession. These pay- 
 ments represent a price paid for the lord's consent to 
 
II THE OLD ENGLISH CUSTOMARY LAWS 45 
 
 admit a purchaser or accept the deceased tenant's heir ; 
 which once, no doubt, was arbitrary — in other words, 
 the most the lord could get. In the modern law the 
 money payments have become fixed, but the heriot of 
 the best beast, or sometimes the best chattel of any 
 kind, may still in many cases be demanded. Also 
 there are money rents payaljle to the lord which once 
 were of substantial value, and often can be made out 
 to have been the full letting value of the land in the 
 thirteenth or fourteenth century. Thus much for a 
 general notion, rough but sufficient for our immediate 
 purpose, of the nature of copyhold tenure. 
 
 But as to the other term of the proposition, what do 
 we mean by a villein ? As far as the word goes, it is 
 the Latin villanus, which in itself means nothing more 
 than an inhabitant of a vill or township. At the time 
 of the Conquest, and long after, the villanvx was a 
 rustic tenant holding land under a lord, and owing to 
 that lord certain rents and agricultural services. The 
 rents were sometimes in farm produce, but sometimes 
 (and in course of time generally) in money payments 
 representing its commuted average value. The teniu'e 
 was not reckoned free, but the mllaims was not neces- 
 sarily an tmfree man ; the majority of the rural popula- 
 tion were probably unfree as late as the thirteenth 
 century, 1 but how great a majority we cannot say. 
 Nor were these mllani properly so called even the 
 lowest class of personally free tenants. There were 
 .others, described by various names, whose services were 
 more burdensome, and the lowest of these must have 
 been little better off than true bondmen. It is not 
 
 1 Pollock and Maitland, Hist. Encj. Law, i. 415. 
 
46 THE LASTD LAWS chap. 
 
 always easy to draw the line between the free .and the 
 unfree tillers of the soil. But there is not the least 
 doubt that a large number of bondmen existed. The 
 proper Latin name for a man in this condition was 
 servus or nativus. Probably most of them were descend- 
 ants of the British population who had been spared 
 in the English Conquest. At all events, they were 
 personally in their lords' power, and were at their 
 mercy in everything short of life and limb. Whatever 
 they held of land or goods was held only by the lord's 
 permission and might be recalled at his will. We 
 know that before the Conquest freemen were not un- 
 commonly driven by want to become bondmen. But 
 sometimes they stopped short of this degradation, and 
 accepted land to be held on servile and precarious 
 terms, but without giving up their personal freedom, or 
 their rights of property in their movable goods. We 
 know that similar terms were after the Norman Con- 
 quest forced on many Englishmen who had been hostile 
 to the Normans without actually bearing arms against 
 them ; and we may suspect that similar arrangements 
 had centuries before been made, especially in the 
 western parts, between the conquering Englishman and 
 ■ the conquered Welshman. There are abundant possible 
 historical sources of precarious tenures intermediate 
 between full security and that bare holding on suffer- 
 ance which hardly ever exists in practice ; and however 
 troublesome these are to the lawyer when he meets 
 with them, we really ought to be surprised, if at allj 
 that there are not more of them. Only the tendency 
 of usage to become fixed has saved us from a great 
 deal more trouble of this kind. On the whole, we find, 
 
II THE OLD ENGLISH CUSTOMARY LAWS 47 
 
 at and after the time of the Conquest, three distinct 
 types of actual occupiers of the soil. 
 
 There are the personally free men, holding more or 
 less land on terms of more or less burdensome service, 
 and called by sundry names accordingly, but on fixed 
 terms in every case. There are the bondmen, who are 
 in a lord's hand and can call nothing their own, whose 
 holdings are precarious, and who are taxed at the lord's 
 will. And there are the degraded freemen (whether 
 the remnant of a conquered race, or decayed members 
 of the ruling one), who are not personally enslaved, but 
 whose holdings are of a servile and precarious kind. 
 Moreover, the holdings retained the character once 
 fixed upon them; so that by successive changes of 
 ownership it might and did happen that the same man 
 would hold some land by free and other by bond 
 service, and the nature of the services did not affect 
 his personal condition. To say that one was a lord's 
 villein was to renounce freedom and all independent 
 rights ; to say that one held land of him in villenage 
 was compatible with defending the title in one's own 
 name against a stranger. ^ On the other hand, a bond- 
 man might deal as a freeman with any one except his 
 lord, and might, if he could, hold free land, under the 
 risk of the lord reclaiming him. The test of a servile 
 holding was liability to be taxed at the will of the lord. 
 Its other incidents were in practice fixed by usage 
 even at the time of the Conquest, and in many cases 
 the holders acquired some kind of inchoate hereditary 
 right. 
 
 If we bear in mind these distinctions, it is not very 
 ' Year Book, 20 Ed. I. (Rolls ed.), 41. 
 
48 THE LAND LAWS chap. 
 
 difficult to form a reasonable conception of the early- 
 history of copyholds. Positive proof we can hardly 
 expect, as our authorities are scanty for the first 
 century after Domesday, and we have hardly any 
 detailed records in the shape of court rolls and accounts 
 for another century after that. Unfortunately the 
 whole subject has in modern times been confused by 
 the ambiguous use of words. The meaning of the old 
 nUanu.% which was at first no less honourable a name 
 than our yeoman, became degraded after the Conquest, 
 and both in Latin, and in the French form villein, it 
 was used to stand for nativus, with which it properly 
 had nothing to do. The old customary tenure by 
 labour-rents was still called villenage, and thus the 
 customary tenants and the bondmen became completely 
 mixed up in the apprehension of modern text-writers. ^ 
 Medieval lawyers, no doubt, strove to be accurate with 
 this awkward nomenclature. When they meant nativus, 
 they spoke in express terms of a " villein by blood." 
 They were careful to distinguish the old or privileged 
 villenage, which was really a free though more or less 
 onerous tenure, from the villenage of base and uncertain 
 tenure, and again to distinguish the service due in 
 respect of the land from the personal condition of the 
 holder. But in later times these things were over- 
 looked, and the result was the formerly current 
 account of copyholds : namely, that (in Blackstone's 
 
 ' Historical students have gradually worked out the truth 
 piecemeal. Some of our best authorities, however, seem to think 
 that dependent freemen and bondmen were really mixed up by 
 their Norman lords. This, for the reasons given in the Appendix, 
 Note D, seems to me improbable. 
 
II THE OLD ENGLISH CUSTOMARY LAWS 49 
 
 language) "copyholders are in truth no other than 
 villeins, who by a long series of immemorial encroach- 
 ments on the lord have at last established a customary 
 right to those estates which before were held absolutely 
 at the lord's will " : ^ villeins being understood as 
 villeins by blood or nativi. It would be nearer the 
 truth to say that by a long series of encroachments 
 and iictions the lords, and lawyers acting in the interest 
 of the lords, got people to believe that the lord's will 
 was the origin of those ancient customary rights which 
 before were absolute. 
 
 When we have once shaken off the false theory of 
 Blackstone (I say of Blackstone, for I cannot find that 
 anybody stated it so positively before him), the nature 
 of existing copyhold customs is really enough by itself 
 to carry conviction of their great antiquity. Of this 
 kind is the custom of "borough-English," or, as it is 
 more expressively called in some parts, " cradle-holding," 
 by which the course of descent is neither to the eldest 
 son as at common law, nor to all equally as in the 
 old tenure of gavelkind which still subsists in Kent, 
 but to the youngest son exclusively. Such a rule of 
 descent is very difficult to account for. But the diffi- 
 culty we now have in understanding it is some proof 
 that it comes down from a forgotten condition of 
 society ; and the fact that it was so deeply rooted as 
 to survive the Norman Conquest seems to show that it 
 was ancient then. Similar customs are found in 
 various parts of Europe, and in some cases have been 
 kept up in modern times in spite of the modern law 
 taking no account of them. Probably the explanation 
 ^ Commentaries, ii. 95. See Note D. 
 
 V, 
 
50 THE LAND LAWS chap. 
 
 is that there was a time when each son of a family as 
 he came of age was entitled to an allotment out of 
 common land. Thus the sons in turn parted off from 
 the family and were provided for, and the homestead 
 was left for the youngest. Such a state of things is 
 actually recorded in the old Welsh laws. It might be 
 inferred that the custom as found in England is of 
 Welsh origin, and is in fact a primitive usage which 
 has survived not only the Norman but the English 
 Conquest. In that case, however, we should expect to 
 find it prevalent not in the south and centre, but in 
 the west and south-west of England. 
 
 Whatever account may be given of particular 
 customs, we need have no fear in saying that the 
 modern copyholders are the historical successors of the 
 Old English landholders who had inheritable titles 
 according to local custom, evidenced not by writing 
 but by the witness of the neighbours, and paid dues 
 and services to a lord. If the copyholders now seem 
 too few to fill so large a place in the history, we have 
 to remember that the amount of land held on this 
 tenure has for a long time been fast diminishing. Late 
 in the sixteenth century one-third of the land in Eng- 
 land was still copyhold. The archaic incidents of the 
 tenure being found in modern practice inconvenient to 
 everybody concerned with the land, and productive of 
 far more vexation to the tenant than advantage to the 
 lord, the manorial rights have in later times been con- 
 stantly extinguished by agreement, and of late years 
 under the powers of requiring enfranchisement on 
 proper terms given by the Copyhold Acts to both lords 
 and tenants. In various parts of the country there are 
 
II THE OLD ENGLISH CUSTOMARY LAWS 51 
 
 customary estates of the nature of copyhold, but in 
 which the tenant's position is still insecure. He holds 
 for one or more lives, or sometimes for a short term of 
 years ; and renewal, though it is the rule, is not a 
 matter of established right. This tenure is common in 
 the western counties, and may fairly be thought to 
 represent the terms on which the conquered Welsh 
 population were allowed by the English settlers to 
 retain their lands. In Cornwall there are or were^ 
 certain " conventionary tenants " holding by a title 
 renewable at intervals of seven years, the tenant 
 paying a fine on renewal. As the old customs of 
 Brittany present analogies to this tenure not only in 
 substance but in name, it is all but certain that the 
 Cornish custom is older than the English settlement. 
 The same may be said of the peculiar mining customs 
 of Cornwall and parts of Derbyshire, which entitle 
 adventurers to work mines under any man's waste land 
 if he does not work them himself, paying to the owner 
 the customary dues and royalties. In Cornwall this is 
 called "tin-bounding," from the setting out of the 
 working by bounds, which is the adventurer's first step 
 towards establishing his claim. The like custom existed 
 in the mining districts of Devon as long as tin-streaming 
 was there practised. 
 
 The detailed pursuit of special and local customs, 
 however — much more the attempt to trace their history 
 and affinities — would lead us too far. Enough has been 
 
 ^ The conventionary tenements of certain manors of the Duchy 
 of Cornwall were enfranchised by an Act of 1844 (7 & 8 Vict. c. 
 105). I do not know whether other examples of the tenui-e 
 remain. 
 
52 THE LAND LAAVS chap, ii 
 
 said to show that customs older than the Norman Con- 
 quest, and perhaps older than the English Conquest, 
 have been far- more persistent, and have left far deeper 
 marks in the modern structure of the law, than was 
 formerly understood. We must pass on to the feudal 
 period of English land tenure, and trace the effects of 
 the feudal doctrines and policy which for so long over- 
 laid the ancient customs without destroying them. 
 
CHAPTER III 
 
 THE MEDIEVAL SYSTEM 
 
 The Norman Conquest was the means of introducing 
 great and systematic changes in the government and 
 laws of England, and not least in the law governing the 
 tenure of land. If we are to fix a date, however, to 
 which to refer the active carrying out of these changes, 
 we must look nearly a century onwards from the Con- 
 quest itself. It was the general and uniform jurisdiction 
 of the king's courts, represented by his judges, who 
 regularly went round the country, that achieved the 
 work of breaking up the diversity of local customs and 
 fixing the new pattern of English institutions. This 
 jurisdiction was put into effectual working order under 
 Henry II., and feudalism was at its most perfect stage 
 in England in the first half of the thirteenth century. 
 From the latter part of that century onwards the system 
 underwent a series of grave modifications. Grave as 
 these were, however, the main lines of the feudal theory 
 were always ostensibly preserved. And to this day, 
 though the really characteristic incidents of the feudal 
 tenures have disappeared or left only the faintest of 
 traces, the scheme of our land laws can, as to its form, 
 be described only as a modified feudalism. 
 
54 THE LAND LAWS chap. 
 
 In order to do justice to the feudal system we must 
 consider it not only in its proper shape but witli regard 
 to its proper and original purpose. From any modern 
 point of view the surviving peculiarities of feudal law, 
 such as primogeniture, can be defended only by those 
 ingenious arguments which, being manifestly begotten 
 of afterthought, appear convincing only to persons who 
 need no conviction. But in the early Middle Ages 
 economical excellence was not the first object of Euro- 
 pean systems of tenure, and it was impossible to make 
 it so. Before men could settle how to hold and culti- 
 vate their land to the best advantage, they had to deal 
 with the more pressing question how they should make 
 sure of being allowed to hold or cultivate it at all. 
 Feudalism was really a co-operative association for the 
 mutual defence of the members. Considered in its 
 application to the whole of an independent community, 
 it was the military organisation of society appropriate 
 to a time when there were no standing armies, and one 
 able-bodied man needed nothing but arms in his hands 
 to make him as good a soldier as another. A feudal 
 State was a nation ready to take arms. The king 
 or other supreme prince was the commander-in-chief. 
 His immediate feudal tenants were generals, each of 
 whom not only commanded but raised and equipped 
 his contingent. And these contingents again were 
 made up by the contributions of lesser tenants, of whom 
 some were bound to take the field with a certain num- 
 ber of men and horses, some only to serve in person. 
 The plan of every chief and under -chief bringing his 
 own men, who take their orders from him alone, is in 
 itself much older than feudalism. It is pretty well 
 
Ill THE MEDIEVAL SYSTEM 55 
 
 universal in the early stages of civilisation. We see it 
 in full force in the Homeric descriptions of the Greek 
 host before Troy. Marks of it have remained even in 
 moderij military establishments. In the last century a 
 regiment was regarded as in a manner belonging to its 
 colonel ; and British regiments were separately recruited 
 and equipped by their commanding officers almost in 
 our own time. The peculiarity of the feudal system is 
 that this type of military organisation has increased 
 fixity and solidity given to it by making it also terri- 
 torial. Land, as the ultimate source of wealth (and at 
 that time almost the only direct one), is regarded by 
 the State according to its capacity for supporting the 
 defence of the nation. It is not merely bound to con- 
 tribute to this purpose by way of taxation, as was the 
 case in England before the Conquest. Quite apart from 
 feudalism, the burden of supplying the means of de- 
 fensive warfare was universal and paramount ; even 
 in the most favourable grants of public land this was 
 excepted from the immunities conferred on the holder. 
 But feudalism does not stop at contribution ; it makes 
 military service, in many cases personal service, or in 
 any case definite provision for it, the essence and the 
 condition of the landholder's title. The land is assigned 
 to him for the support of his military duties. To some 
 extent this was the real historical origin of feudal ten- 
 ures ; in what proportions it combined with other causes 
 to produce the actual result is outside the business in 
 hand.-' Such is in any case the conception dominating 
 the system in its finished form. 
 
 1 As to Continen'tal feudalism see Stiibbs, Const. Eist. i. 251 ; 
 and as to the introduction of military tenures in England, ib. 261. 
 
56 THE LAND LAWS ohap. 
 
 Eegarding the feudal tenant as an officer settled on 
 land rather than as owner of the land, we see the fitness 
 of the feudal institutions. Both as to the rights and 
 duties of the tenant, and as to the transmission of them 
 by descent or otherwise, the efficient performance of the 
 services is the first consideration. Freedom of aliena- 
 tion is regarded, in our modern way of thinking, as one 
 of the natural incidents of ownership ; but there was no 
 place for it in the doctrine of feudal tenancy. The 
 tenant by military service was no more entitled of his 
 own motion to put a new-comer in his place than a 
 soldier on duty to assign his post to another. Feudal 
 tenants had indeed powers of alienation which ultimately 
 became equivalent to freedom for all practical purposes : 
 but these were regarded as in the first instance not 
 belonging to them as owners, but conferred on them by 
 delegation from the lord under whose grant they held. 
 Disposal by will was a thing still more strongly repug- 
 nant to the feudal theory. Before the Conquest, as we 
 have seen, it had been the fashion among the larger 
 landowners (though perhaps rather as a matter of special 
 privilege than of common right) ; but the military 
 tenures put a stop to this. Even inheritance by descent 
 can scarcely be called an unqualified right in the feudal 
 system. It existed only when there was mention of 
 heirs in the original grant of the estate ; and the heir did 
 not even then succeed as a matter of free and common 
 
 In England tliere was never a complete military feudalism any 
 more than a complete legal one ; the practice was already inade- 
 quate and hecoming obsolete before the law was fully defined 
 (see Pollock and Maitland, Hist. Eng. Law, i. 231) ; so that the 
 military incidents of tenure were soon as useless to the kingdom 
 as burdensome to the tenant. 
 
in THE MEDIEVAL SYSTEM 57 
 
 right. He owed the lord a payment called relief, which 
 was the price of his full acceptance as the new tenant. 
 In form English law preserves this conception to the 
 present day. Dealing with land as a subject of owner- 
 ship, like anything else, we should expect a grant of 
 land to a man in unqualified terms to give him the 
 whole interest the grantor was capable of transferring. 
 But land, as it was not so dealt with in the feudal 
 tenures, is still not so dealt with in our legal theory. 
 The grant of land to a man, without specifying what 
 estate he is to take, will to this day give him no interest 
 beyond his own life. In the case of a will the rule has 
 been changed by legislation, and had in various ways 
 been relaxed earlier ; but our modern wills of land 
 belong to another and later stage of the history, and 
 must be considered apart. On the principle that a 
 feudal tenancy is not merely a possession, but an office 
 of trust and confidence, it is more difficult to account 
 for inheritance being the rule, or being allowed at all, 
 than for dispositions by will not being allowed. The 
 hereditary character of feudal estates had been estab- 
 blished on the Continent, however, long before the 
 feudal period of English law, but still under conditions 
 bearing witness to the difference between the tenure of 
 such estates and complete ownership. Both on the 
 Continent and in England the inheritance of military 
 tenures was governed by a peculiar and appropriate rule 
 of its own, the rule now familiar by the name of primo- 
 geniture. On the tenant's death his eldest or only son 
 took the whole of his land, to the exclusion both of 
 daughters and of younger sons. 
 
 The actual origin of primogeniture is obscure. More 
 
58 THE LAND LAWS chap. 
 
 or less preference is shown to the eldest son in the 
 division of the father's heritage by many customary 
 laws of different nations, European and other. Such a 
 customary law may be found still in force in the Queen's 
 dominions no farther from us than the Channel Islands. 
 On the other hand, we find in many local customs that 
 the same kind of preference is shown to the youngest ; 
 and it is doubtful whether this very general usage of 
 " privileged succession," as Sir Henry Maine calls it, has 
 in truth anything to do with the exceptional rule of 
 exclusive succession. There are traces of primogeniture 
 in the strict sense having existed as a local custom in 
 England apart from feudalism, but to what extent we 
 do not know. Wherever the institution came from, its 
 advantages to both the lord and the tenant in an un- 
 settled state of society, where a man might any day 
 have to keep his goods and land by his own sword, are 
 sufficiently obvious. The same reasons which made 
 against free alienation of that which was not so much 
 property as a post of defence and an office of command 
 were yet stronger against dividing it. We see that 
 where the feudal rules did allow division, as in the case 
 of female co-heirs, an exception was made in the case of 
 a chief place of arms or castle, for the avowed reason of 
 military necessity, propter ms gladii quod dividi non potest. 
 Primogeniture, accordingly, grew fast at the expense of 
 other rules of descent. It was imported into England 
 full-grown, and here it obtained, strangely as it appears 
 at first sight, a more complete and lasting success than 
 anywhere else. Its most formidable competitor, the 
 rule of equal division among all the sons (in preference 
 to daughters, not sharing with them as modern ideas of 
 
Ill THE MEDIEVAL SYSTEM 59 
 
 equal justice would have it), has held its ground only 
 in Kent. The opposite extreme of the youngest son's 
 exclusive right is also found as a special and local 
 custom, s'ometimes to the confusion of purchasers. 
 Primogeniture not only drove its rivals into corners, 
 and became the common law of English landed pro- 
 perty, but has outlasted the abolition of the military 
 tenures to which it was in the first instance confined. 
 Concurrently with that abolition, however, the power of 
 testamentary disposition became unlimited ; so that the 
 rule of intestate descent is now comparatively unim- 
 portant in its effects. 
 
 Primogeniture is only one striking example of the 
 extension of feudal doctrine and law beyond their original 
 sphere which took place in England. They assimilated 
 and superseded, with few exceptions, the customs of the 
 non-military free tenures ; and even in copyholds the 
 feudal rules of descent became largely prevalent, with 
 the help, it may be, of ancient local customs bearing 
 some resemblance to them. In the presence of the 
 general law, more widely known and applied than any 
 particular custom, these customs could not but lose any 
 distinctive characters they may have had, and become 
 fused in one body of rules and practice enforced every- 
 where by the king's courts. It is uncertain how long 
 the process lasted. In socage land, — the land, that is, 
 which was held by free tenure, but without military, 
 service, — the contest between primogeniture and gavel- 
 kind was still undecided in the thirteenth century.^ It 
 was in each case a question of fact whether the inheritance 
 was divisible by ancient custom. There is reason to 
 
 1 See Note E. 
 
60 THE LAND LAWS chap. 
 
 think that the king's judges established a presumption 
 in favour of primogeniture which in a few generations 
 became a fixed rule of law. By requiring every one who 
 claimed a share according to any other custom to prove 
 strictly that the custom applied to the land in question, 
 and in default of strict proof applying the feudal rules, 
 it would not have been difficult to produce in a moderate 
 time the results that actually came to pass. It must be 
 remembered that the total number of titles coming within 
 the jurisdiction of the king's courts was not very large, 
 a considerable proportion of the land being held on the 
 inferior customary tenures which, as we saw in the last 
 chapter, appear in the settled form of the law as copy 
 holds. The fact that for copyholds, except in parts of 
 the southern counties where descent to the youngest son 
 prevails, primogeniture has become the common rule, is 
 enough to show that in these also some similar process 
 went on, the manor courts following the fashion set by 
 the king's judges : but no specific evidence of its course 
 is now, as far as I know, accessible. Possibly it may 
 still exist in unexamined court rolls ; but it is extremely 
 rare to find court rolls earlier than the middle of the 
 fourteenth century in good or even fair condition. 
 
 At the same time that the ancient customs of Eng- 
 land were thus feudalised, feudalism itself was modified 
 or corrupted. Some relaxation of its principles was the 
 necessary condition of their being so widely applied, and 
 the system underwent a kind of degeneration in the very 
 completeness of its victory. The adoption of the feudal 
 rules as the common law of all English land, but with 
 the mitigation or omission of their essentially military 
 features, went side by side with the formation of a 
 
in THE MEDIEVAL SYSTEM 61 
 
 society wherein a strong aristocratic feeling and com- 
 munity of interest prevailed among the larger land- 
 owners, and yet there was nothing like the Continental 
 aristocracy of race. These points of contrast between 
 English and Continental feudalism are closely akin, or 
 rather they are two manifestations of the same social and 
 political difference. Where the law recognised no differ- 
 ences of caste, and the king's younger children remained 
 commoners unless and until they were specially called 
 to peerages, it was impossible that the law should make 
 differences between the land of a peer and the land of 
 any other freeholder. Quite in accordance with the 
 general tendency to treat all differences of rank as 
 political rather than personal, it was always considered 
 by English courts that the tenure of land was unaffected 
 by the quality of the person holding it ; and this was 
 carried out even in the case of a free man taking land 
 of servile tenitte, or a serf becoming a freeholder. The 
 personally free holder of a base tenement performed 
 the services, or got them performed for him, and paid 
 the dues^ according to the conditions of the tenure. 
 The bondman who acquired a freehold could be 
 challenged on the ground of his personal condition by 
 nobody but his own lord. 
 
 Along with this reduction of tenures to a few uniform 
 types, and severance of them from the personal condition 
 of the landholders, there came from the thirteenth cen- 
 tury onwards (if not earlier) a general commutation of 
 the services into money payments. This tendency may 
 
 ^ But it was already disputed in the Middle Ages whether merchet 
 (the fine on a daughter's marriage) could be demanded except from 
 bondmen. 
 
62 THE LAND LAWS chap. 
 
 be seen equally in the military obligations of knight- 
 service and in the labour-rents of socage and villein- 
 service. And the feudal tenant's position, from having 
 been a kind of military occupation of the land on special 
 duty, became a complicated form of ov^nership, subject 
 to periodical and occasional burdens which, having lost 
 their original purpose, appeared as meaningless as they 
 were vexatious. 
 
 These " fruits and consequences " of military tenure, 
 as they were called, were of course due to the Crown 
 from its immediate tenants, and were thus a material 
 part of the public revenue. Since the Restoration they 
 have ceased to exist, and are now represented by the 
 excise and the land-tax ; but it is impossible to under- 
 stand either the working of the medieval system or its 
 later modification without knowing the nature of these 
 burdens, which by the middle of the seventeenth 
 century had become intolerable, and made the settle- 
 ment of the Restoration a necessity. First there were 
 payments called • aids ; in the theory of our earlier 
 authors they were ofiered of the tenant's free will, to 
 meet the costs incurred by the lord on particular 
 occasions ; but they settled into a iixed custom after- 
 wards, if they had not really done so when those 
 authors wrote. The occasions in question were the 
 ransoming of the lord from captivity ; the knighting 
 of his eldest son, " a matter that was formerly attended 
 with great ceremony, pomp, and expense " ; ^ and the 
 marriage of his eldest daughter. The amounts pay- 
 able for the two latter purposes were assessed at the 
 fixed proportion of a twentieth of the assumed annual 
 
 ^ Blackstone. 
 
m THE MEDIEVAL SYSTEM 63 
 
 value of the holding by statutes of the thirteenth and 
 fourteenth centuries. Then there was the relief payable 
 by an heir of full age on his entry, which likewise 
 became fixed at an early time. In the case of land 
 held of the Crown, the king also took a year's profits, 
 which was called pimer seisin, and a fine was payable 
 by the tenant on every alienation of the land. If the 
 heir was under age, the king or other lord became the 
 guardian of both the heir and the estate, and rendered 
 no account of the profits ; and on the heir's coming of 
 age a fine was payable to the guardian for C[uitting the 
 land. This privilege of the lord, in many cases a highly 
 lucrative one, was called wardship; and incident to it 
 was the right of disposing of the ward in marriage, 
 which appears to have been commonly treated as a 
 matter of sale and barter in the guardian's interest. 
 In the case of non-military free tenure a relief of a year's 
 rent was payable where a rent in money or kind was 
 reserved, and "primer seisin" if the land was immedi- 
 ately held of the Crown ; and the aids for the knight- 
 hood of the lord's eldest son or marriage of his eldest 
 daughter were also due. But the rules of guardianship 
 were quite different ; the guardian in socage was not 
 the lord, but the nearest of kin to the heir among those 
 to whom the land could not possibly descend ; the 
 wardship lasted only till the heir was fourteen years 
 old (when he was free to choose his own guardian until 
 full age), and, most important of all, the guardian was 
 accountable. " Such guardian in socage,'' says Littleton, 
 " shall not take any issues or profits of such lands or 
 tenements to his own use, but only to the use and 
 profit of the heir; and of this he shall render an 
 
64 THE LAND LAWS chap. 
 
 account to the heir, when it pleaseth the heir, after he 
 aocomplisheth the age of fourteen years.'' When the 
 military tenures and their incidents were finally abol- 
 ished at the Restoration, this became the general rule ;_ 
 by the same statute the father was empowered to 
 appoint persons of his own choice to be his children's 
 guardians after his death, if he left them under age. 
 By an Act of 1886, 49 & 50 Vict. c. 27, the mother, if 
 she survive, is a guardian, and may also appoint others 
 to act after her own death. With these additions the 
 ancient law remains. The statutory power of naming 
 guardians and the careful provisions of modern settle- 
 ments have made it almost forgotten. 
 
 Thus it appears that in the material point of guardian- 
 ship the strict feudal doctrines were never applied to 
 socage lands at all, while the other services and incidents 
 of feudal tenure rapidly degenerated into a clumsy mode 
 of taxation in money, or a source of private profit to 
 the lord of the fee, with great opportunities for corrupt 
 and oppressive practices. ^ It was no wonder that the 
 military tenures should be unpopular, or that a variety 
 of devices should be employed to escape their obliga- 
 tions, which had their effect in suggesting similar 
 devices for other purposes, and ultimately producing 
 the complicated and artificial state of our real property 
 law. The history of our land laws, it cannot be too 
 often repeated, is a history of legal fictions and evasions, 
 with which the Legislature vainly endeavoured to keep 
 pace until their results (and with them the crooked 
 ways by which they were attained) were perforce 
 
 1 The reader may consult Blaokstone {Comm. ii. 76) for a forcible 
 and probably accurate sketch of these abuses. 
 
in THE MEDIEVAL SYSTEM 65 
 
 acquiesced in as a settled part of the law itself. We 
 have not yet mentioned an incident common to all 
 feudal tenures, whether military or not^the possibility 
 of the land falling back into the hands of the lord, as 
 representing the original donor, on a failure of the 
 tenant's heirs. Escheat (such is the technical name of 
 this event) must have been a sensible branch of the 
 lord's casual profits so long as land could not be dis- 
 posed of by will. Now that on the one hand alienation 
 by will is allowed without limit, and on the other hand 
 sundry disabilities to take by inheritance are removed, 
 escheat is still possible, but seldom happens. It is yet 
 more seldom, if ever, that it happens in favour of any 
 one but the Crown. 
 
 Feudalism in England tended of itself to settle into 
 a kind of compromise between the rules appropriate to 
 military tenancies, and such as would allow some toler- 
 able convenience of agricultural occupation and peaceful 
 commerce. But the direct action of the Crown and of 
 Parliament likewise effectually prevented the system 
 from being established in its full consistency. The 
 first decisive step was taken by William the Conqueror 
 when he exacted a direct and universal oath of allegiance 
 to himself, overriding all feudal obligations. That one 
 and paramount sovereignty of the Crown which has 
 ever since been the principle of English executive 
 government, and is stamped in every part on the lan- 
 guage and formulas of English law, dates from the 
 Council of Salisbury. From that day, we may truly 
 say in one sense, feudalism was doomed. In another 
 sense we may say that it was preserved by being made 
 harmless against the public order of the kingdom, and 
 
 F 
 
66 THE LAND LAWS chap. 
 
 reduced to its fitting place in a polity both coherent 
 and capable of expansion. What the Conqueror's 
 wisdom had saved England from was seen later by a 
 terrible example, when the strength of the king's hand 
 was for a time paralysed in the evil days of Stephen. 
 The separation of political allegiance from feudal tenure 
 cleared the way for the assimilation of the feudal doc- 
 trines, as a branch of civil law, by the general custom 
 and judicial usage of the realm. In the thirteenth cen- 
 tury there was a fairly complete system of customary 
 land laws, as we know by Bracton's exposition. The 
 feudal services were being reduced to something like 
 certainty. Primogeniture was not yet fully established 
 as the common law of non-military free tenancies, but 
 was rapidly prevailing over the old equal partition 
 among sons, and other local customs. In other respects 
 the course of inheritance of freeholds, and the tenant's 
 power of alienation in his lifetime (by will he could do 
 nothing with his land, save in some places by special 
 custom), depended on the terms of the grant. If heirs 
 were not named at all, the taker had not and could not 
 give any interest beyond his own life. If heirs were 
 named, the grant being, for example, to Adam of Stoke 
 and his heirs, or heirs and assigns, he could alienate 
 whenever he chose. The interest conferred by a grant 
 in these terms was and is the largest a subject is capable 
 of having. It is called an estate in fee simple. "A 
 man cannot have a more large or greater estate of in 
 heritance than fee simple." ^ But if a limited Idnd of 
 
 1 Litt. s. 11. The power of alienation was not establislied all 
 at once. The history is still obscure in detail, and it seems likely 
 that for some time the customary law was really vague. ' ' Xiovra 
 
Ill THE MEDIEVAL SYSTEM 67 
 
 heirs were named, for example, by grant to Ralph of 
 Hengham and the heirs of his body, or the heirs male 
 of his body, he could not alienate until some one capable 
 of succeeding under the special designation was in exist- 
 ence. In the former of the cases just put, Hengham 
 might alienate as soon as he had a child ; in the latter, 
 as soon as he had a son. His interest was called in 
 either case an estate in fee simple conditional, as it fell 
 short of being a complete fee simple until the condition 
 of an heir of the named class being in existence was 
 fulfilled. When it was fulfilled, the special course of 
 descent prescribed by the original grant was not affected 
 so long as the tenant retained the land. But if, after 
 having issue answering the description, he made a grant 
 in fee simple to another person, say Metingham, then 
 in Metingham's hands the estate would be a common 
 estate in fee simple, and descend according to the 
 general rules of law. Thus if Hengham's lineal descend- 
 ants, or descendants in the male line, as the case might 
 be, ceased to exist, this would not enable the lord or 
 his heirs to claim the estate by escheat. 
 
 This wide interpretation of grants limited in their 
 terms, and intended by the makers to confine the estate 
 to a particular course of succession, and preserve the 
 benefit of the grant for the lineal heirs and the chance 
 of escheat for the lord, was displeasing to the great men 
 of the kingdom. In 1285 it was declared by Parlia- 
 ment that gifts of this kind should be strictly observed 
 
 to the end of the twelfth century the tenant in fee who wished to 
 alienate had very commonly to seek the consent of his apparent or 
 presumptive heir," Pollock and Maitland, Eist. Eng. Law, ii. 13, 
 cp. i. 310-30. 
 
68 THE LAND LAWS chap. 
 
 according to their form, and the tenant should have no 
 power of alienating the inheritance to the prejudice of 
 his issue or of the grantor. This Act is known as the 
 statute De Bonis Conditionalibus, or in common citation 
 De Bonis. Under its operation the tenant who would 
 have had a fee simple conditional had only a limited 
 and inalienable estate ; and this, as being permanently- 
 cut down from the freedom of disposition incident to a 
 fee simple, was no longer called a qualified fee simple, 
 but regarded as a new kind of estate, and called a fee 
 tail ( " feodum talliatum, taill6 " i). If after the statute 
 land was granted, say to Metingham and the heirs of his 
 body, then Metingham had all the rights of a tenant in 
 fee simple as to use and enjoyment, but he could not 
 grant away the land for any time beyond his own life. 
 His lineal heirs succeeding under the grant were in the 
 same position. He and they were called tenants in 
 tail, and the land was said to be entailed upon them. 
 Such is the legal and only correct meaning of the 
 term entail, which nowadays is constantly used to ex- 
 press the far more complicated scheme of modern 
 settlements. 
 
 Entails, as authorised by the statute Be Bonis, were 
 certainly intended by the Legislature to be perpetual 
 and inviolable. But that intention never took full 
 effect, and before two centuries were over it was wholly 
 set at naught. This is the first of several surprises 
 which the learner of English legal history meets with 
 on his way. He must not expect to find Acts of 
 Parliament in the thirteenth or even the sixteenth 
 
 ^ "Jus taliatiim, hoc est limitatum, iiicisum aut restrictum." 
 —Coke, 4 Rep., Pref. 
 
HI THE MEDIEVAL SYSTEM 69 
 
 century carried into execution as they are in our own 
 time. Statutes had to be administered through judges 
 and lawyers, who were stubborn instruments. They 
 constantly preferred their own mind to that of the 
 Parliament, and would contrive and encourage every 
 means of counterworking a statute they disliked, short 
 of disobedience to its express terms. We know nothing 
 of the particular circumstances in which the statute 
 Be Bonis was passed. But it is clear that it was 
 obtained by the great landowners against the feeling of 
 the country ; and that feeling was taken up and made 
 effectual by the lawyers. Coke, writing long after the 
 work was done for his time, expressed the tradition of 
 his order in terms almost of indignation. " When all 
 estates were fee simple, then were purchasers sure of 
 their purchases, farmers of their leases, creditors of their 
 debts ; the king and lords had their escheats, forfeitures, 
 wardships, and other profits of their seigniories ; and 
 for these and other like cases, by the wisdom of the 
 common law, all estates of inheritance were fee simple ; 
 and what contentions and mischiefs have crept into the 
 quiet of the law by these fettered inheritances, daily 
 experience teacheth us." Later still the tradition took 
 new life in the more polished phrases of Blackstone, 
 who summed up the mischiefs of inalienable estates, and 
 testified that by legal authorities they had been " almost 
 universally considered as the common grievance of the 
 realm." The methods by which the bonds of the 
 statute were first relaxed and then slipped off will be 
 better considered in connection with the other changes 
 that brought the law of real property to its finished 
 form. In the meantime we will turn to the other 
 
70 THE LAND LAWS chap. 
 
 -t 
 
 fundamental statute of Edward I, which is cited as 
 Quia emptores by its first words, according to the constant 
 medieval usage still preserved by the Church of Rome, 
 and to some extent in modern books of Roman law. 
 
 This statute was made in 1290. Like the De Bonis, 
 it was made in the interest of the great lords ; but, 
 unlike that measure, it was accepted with satisfaction 
 on all hands. It dealt a heavy blow to the consistency 
 and elegance of the feudal theory, but made the con- 
 ditions of land tenure far more simple. It was the 
 first approximation of feudal tenancy to the modern 
 conception of full ownership. Before 1290 the feudal 
 tenant who alienated the whole of his land put the new 
 tenant in his place as regards the lord; but if he 
 alienated a part only, the effect was to create a new 
 and distinct tenure by suhinfevdation, as it is called. 
 Thus, if the king granted a manor to Bigod, and Bigod 
 granted a part of it to Pateshull, Bigod was tenant as 
 regards the king, and lord as regards Pateshull. Bigod 
 remained answerable to the king for the services and 
 dues to be rendered in respect of the whole manor, and 
 Pateshull to Bigod in respect of the portion Bigod had 
 granted him. Pateshull, again, might grant over to 
 Raleigh a portion of what he had from Bigod, and as 
 to that portion would be Raleigh's lord, and Raleigh 
 ^ would be his tenant. A person who, being himself a 
 tenant, is lord of under tenants, is called a mesne lord. 
 These under-tenures were constantly multiplying, and 
 not only titles became complicated, but the interests of 
 the superior lords were gravely affected. The lord's 
 right to the services of his tenant were in themselves 
 unchanged by any subinfeudation; but his chance of 
 
Ill THE MEDIEVAL SYSTEM 71 
 
 getting them practically depended on the punctuality of 
 the under-tenants, against whom he had no personal 
 rights, in rendering their contributions to the immediate 
 tenant. The profits coming to him by escheat, marriage 
 of wards, and wardship, were also diminished. Many 
 years before the statute in question the great lords had 
 thought themselves ill-used in this matter. It was 
 provided by Magna Charta that no free tenant should 
 alienate more of his holding than would leave him 
 enough to perform the services (this shows, by the way, 
 that at the beginning of the thirteenth century the 
 feudal services and dues had ceased to represent, if 
 they ever did represent, anything like the full annual 
 value of the land). But this was found inadequate by 
 the superior lords, and in 1290 the law was funda- 
 mentally changed. It was enacted that every free- 
 man ^ might thenceforth dispose at will of his tenement, 
 or any part thereof, but so that the taker should hold 
 it from the same chief lord, and by the same services. 
 The incomer became the direct tenant of the chief lord, 
 and liable to him, and to him only, for a proportionate 
 part of the services due in respect of the original hold- 
 ing. A clause curiously like the introductory clauses 
 of modern Acts of Parliament confined the application 
 of the statute to estates in fee simple, and fixed the 
 
 1 Except those holding directly of the Crown, to whom the 
 same right was extended only in 1 Ed. III. (a.d. 1327). They 
 still had either to obtain a licence from the Crown to alienate, or 
 to pay a "reasonable fine," which in the sixteenth century was 
 understood to be one year's value of the land, whereas the fee for 
 a licence was only one-third of the annual value. The Crown, 
 therefore, retained a considerable check on its own immediate 
 tenants. How it was used I do not know. 
 
72 THE LAND LAWS chap. 
 
 day when it should come into operation. Since that 
 day — the feast of St. Andrew in 1290 — it has been 
 impossible to create a new feudal tenure of a fee simple 
 estate ; and any chief or quit rent now payable to a 
 superior lord out of land held in fee simple must have 
 been created before that time.^ The statute enabled 
 the fee simple tenant to deal with his land as property, 
 without consulting his lord ; and in this respect it was 
 a great economical advance. Probably it was intended 
 to compel the owner of land to be also the occupier, or, 
 at any rate, through his villein and customary tenants, 
 the direct administrator and collector of revenue. If 
 such was the intention, it was before long defeated by 
 the general introduction of leases for years. They 
 were already known in the thirteenth century, but 
 received a great and sudden increase of importance in 
 the fourteenth. The fearful depopulation that followed 
 on the Black Death in 1348 brought about a great 
 scarcity of labour, and made it unprofitable to keep 
 farms in hand ; and leases, which till that time had 
 been chiefly used by religious houses as a convenient 
 means of administering their estates, became common 
 everywhere. Leaseholding, however, belongs to what 
 may be called the commercial factor of English land 
 law, and will be considered apart. 
 
 1 There is nothing in law to prevent the reservation of rent 
 service or other services on a grant of an estate for life or an estate 
 tail by a tenant in fee simple, but it has never been the practice, 
 except in the case of leases for lives (now going out of use) of the 
 lands of colleges and ecclesiastical corporations. In the State of 
 Pennsylvania the statute of Quia emptores has never been received 
 as law, and ground-rents are at this day reserved, when desired, in 
 the form of rent service. 
 
in THE MEDIEVAL SYSTEM 73 
 
 Even a summary view of the medieval system would 
 be incomplete without some notice of the forms and 
 procedure used in dealing with landed property. Ques- 
 tions of form appear more important, in every system 
 of law which has not reached a highly developed and 
 rational stage, than questions of substance. We may 
 say, if we please, and perhaps it will give a juster notion 
 of the truth of the matter, that questions of substance 
 appear in the disguise of questions of form. This has 
 eminently been the case in the history of English law. 
 Therefore it is never safe for the philosophical lawyer, 
 and still less for the historian, to neglect points of form 
 as being merely technical. An apparently minute 
 technicality may be the veil of a decisive principle. 
 With regard to landed property, the policy of English 
 law as to its disposition has been wrapped up in a series 
 of technical rules, and one may almost say technical 
 accidents. The legalised usage of landowners passed 
 from a simple but cumbrous publicity to an absolute 
 secrecy without any direct assistance from the Legis- 
 lature, and, in fact, contrary to its intention. 
 
 In all early legal systems the transfer of property, 
 or of the more important kinds of property, has to be 
 effected by some kind of public ceremony. Frequently, 
 though not always, the ceremony is of a symbolic 
 nature, and is a substitute for the actual abandonment 
 of possession in favour of another, which is the most 
 ■obvious way of putting that other in one's place. 
 Possession, it must be remembered, is the first and 
 most important thing in Germanic law, and in the 
 Common Law the Germanic idea, though often obscured 
 in detail and sometimes disregarded by legislation, is 
 
74 THE LAND LAWS chap. 
 
 still fundamental. It is hardly too much to say that 
 even now our law hardly recognises ownership save 
 under the form of the best or most complete right to 
 possession. Thus the transfer of land was formerly 
 completed by the delivery of a turf, a bough, or a 
 straw taken off the land, the part representing the 
 whole of the soil itself, or of its produce. There is 
 much reason to think that in England this was the 
 manner in which the smaller holders of land, who knew 
 not the ecclesiastical innovation of written charters or 
 " books,'' were accustomed to transfer it before the Con- 
 quest. Certain it is that customs of this kind, long 
 since dwindled to the emptiest formality, still exist in 
 many copyholds. The transaction was proved by the 
 witness of the neighbours, who attended for the purpose 
 of keeping it in memory. When charters were intro- 
 duced, it would appear that the symbolic delivery was 
 sometimes also carried out, and recorded in the written 
 instrument ; but in the great majority of Old English 
 charters nothing of the kind is mentioned. The 
 "book," in fact (if the view put forward in the 
 last chapter be correct), was the record, not of an 
 ordinary conveyance, but of an act of State ; and 
 it was witnessed by officers of State, not by the 
 neighbours or the popular Court. For a time it 
 seemed as if the archaic usage of conveyance by actual 
 or symbolic delivery of possession was to be superseded 
 by authentic writing. But feudalism came to the rescue 
 of archaism, and for a time restored it in an even stricter 
 form. The lord expected to know the dealings of his 
 tenants with their land : the tenant expected to know if 
 he was to have a new lord. Alienation of feudal hold- 
 
Ill THE MEDIEVAL SYSTEM 75 
 
 ings, when it came to be allowed, was subject to the 
 condition of being notorious. This was assured by 
 requiring an actual delivery of possession before wit- 
 nesses and on the land itself — a proceeding accompanied 
 with different forms in different countries and districts, 
 and known by the general name of investiture.^ In 
 England it was called livery of seisin ; English practice 
 required no particular symbolic action or form of words, 
 provided the intention was clearly expressed, though 
 some forms are mentioned as usual ; and an invitation 
 to take possession, given in sight of the land, and fol- 
 lowed by actual entry in the lifetime of both parties, was 
 allowed to have the same effect. A charter, or, in later 
 language, a deed, was generally added, both as a perma- 
 nent record and for the certain knowledge of the interest 
 intended to be conveyed. A deed is a writing on parch- . 
 ment or paper, authenticated by the seal of the person 
 whose mind it purports to declare. Seals were not used 
 in England before the Conquest, and only by men of 
 considerable rank for some time after ; ^ but before the 
 thirteenth century the necessity of sealing for a deed 
 was fully established. Through the Middle Ages every <: 
 man of substance had his own particular seal. In our 
 own time a distinctive seal is hardly ever used, except 
 by corporations ; and the so-called sealing of a deed is 
 practically nothing but a formal acknowledgment of 
 one's signature. The process of conveying land by i 
 
 ' See Ducange, s. v. Investitura. A form of English medieval 
 feoffment may be seen in the Appendix to the second volume of 
 Blackstone ; the common forms of livery are described, ib. 315. 
 
 2 Gp. Lambarde's Perambulation of Kent, s. v. Hailing ; Palgrave, 
 English Commonwealth, 2. Ixx ; Bigelow, Placita Anglo ■ nor - 
 tnannica, 177. 
 
76 THE LAND LAWS chap. 
 
 livery of seisin was called a feoffment ; the deed (a 
 usual though not necessary part of the transaction) ^ 
 was first executed, and then livery of seisin was given, 
 and a memorandum of this was indorsed on the deed, 
 and usually attested by the same witnesses. As a rule, 
 the deed was short and simple enough in its language ; 
 on the other hand, the indispensable livery of seisin 
 might easily lead to much trouble. For technical 
 reasons there were cases in which several distinct 
 liveries were required, as if the land being dealt with 
 was not all in one county. Then there were the 
 cases, probably not unfrequent in the Middle Ages, 
 in which hostile claims or occupation made it 
 dangerous to enter on the land at all ; in such cases 
 actual entry might be dispensed with. Local notoriety 
 was pretty well secured by these rules, but at the cost 
 of much inconvenience, of some bodily risk, and, it may 
 be supposed, of sundry breaches of the king's peace. 
 Whether the landowners of those days objected to 
 publicity for its own sake, as their successors have 
 persistently done for about three centuries and a half, 
 does not appear. Legal ingenuity was for a long time, 
 at all events, directed towards other and more pressing 
 objects. 
 
 A cumbrous and ceremonial publicity was not less 
 the character of judicial dealings with land. The steps 
 of procedure in "real actions," as lawsuits concerning a 
 freehold title were called, were many and slow; moreover 
 there was another cause of delay, frequently the gravest 
 of all, in the necessity suitors were under, first of finding 
 
 ^ Writing was first made necessary by the Statute of Frands, a 
 deed only in 1845 (8 & 9 Vict. c. 106). 
 
Ill THE MEDIEVAL SYSTEM 77 
 
 the king's court, and then of obtaining a hearing. For 
 the king claimed and exercised exclusive jurisdiction in 
 all matters touching the freehold, which no doubt was 
 one chief reason of the decay of the ancient local courts ; 
 the king's justice, before Magna Charta, followed the 
 king's court wherever he happened to be ; and in the 
 time of which we now speak the king was seldom in 
 the same place for many days together. Moreover, he 
 was often in Normandy or elsewhere in his Continental 
 dominions, so that the suitor might have to cross and 
 recross the Channel in pursuit of him. Add to the cost 
 of travelling the heavy fees which had to be paid to the 
 king's officers to get the cause brought before his court, 
 and we may be satisfied that in the twelfth and early 
 thirteenth centuries litigation about landed property 
 was an even more costly luxury than it is now, or than 
 it was in the Court of Chancery sixty years ago. This 
 crying grievance was removed by Magna Charta. The 
 seat of the king's justice between subject and subject 
 was fixed at "Westminster ; and at the same time it was 
 made accessible in the remotest county by the regular 
 circuits of the justices of assize. The name of these 
 justices and of their court is derived from their com- 
 mission to try the actions for recovering the possession 
 of land, which were technically called assizes. These 
 possessory actions were less cumbrous than the "writ 
 of right" by which the general title to the freehold 
 was decided ; but they were still extremely technical, 
 and the minute distinctions between the forms ap- 
 propriate to different circumstances abounded in traps 
 for unwary pleaders. A tenant of land who thought 
 himself unjustly deprived of possession was naturally 
 
78 THE LAND LAM'S chap. 
 
 tempted to fall back on self-help, and re-enter, if lie 
 could, by the strong hand. But he was in danger, if 
 he did this, of putting himself in the wrong ; for there 
 were several cases in which a wrongful dealing with 
 land was so far effectual as to deprive the person really 
 entitled of the summary right of entry which he could 
 have used against a mere intruder. The true owner who 
 had lost actual possession and the right of entry was 
 no better off than a claimant who had never been in 
 possession ; if he wanted to keep the law on his side, 
 he must resort to the expensive process of a "real 
 action." Hence it was a great object of the actual 
 holder of an estate, where his title was questionable, to 
 go through some of the proceedings svhich would destroy 
 any possible right of entry. This, again, was a matter of 
 trouble and expense, but it often gave practical security. 
 Further details would not be to our purpose ; but this 
 much it is worth while to bear in mind, as helping 
 to explain why titles to land were constantly doubtful 
 in the medieval period of English law, and how such a 
 state of things was found tolerable enough in practice 
 to escape organic reform. It must also be remembered 
 that the shifts and fictions which appeared to our fathers 
 of the Eeform Bill time roundabout, cumbrous, absurd, 
 and barely honest, were introduced as a deliverance from 
 things yet worse. The old-fashioned action of ejectment, 
 with its dummy plaintiff appearing as the lessee of the 
 real plaintiff, and the dummy " casual ejector," who 
 wrote to the real defendant as " your loving friend," was 
 more grotesque but less inconvenient than an assize of 
 novel disseisin. 
 
 It will be gathered from what has been already said 
 
Ill THE MEDIEVAL SYSTEM 79 
 
 that the medieval land system of England, such as 
 we find it in Bracton's exposition, never really existed as 
 a perfect system. We have seen that legislation broke 
 in upon it almost before it was completed. We have 
 next to see how the growth of three centuries more pro- 
 duced a fabric substantially identical with the law which 
 men still living remember as their practical study, and 
 how that growth, driven into perverse courses, was such 
 as to make the total result, to use Macaulay's term for 
 one portion of it, a barbarous puzzle. 
 
CHAPTER IV 
 
 LEGISLATION AND TRANSFORMATION 
 
 Feudalism as applied to land tenure in England carried 
 with it almost from the first the seeds of its own de- 
 struction. Between the reigns of Edward I. and Henry 
 Vin. they took root and brought forth such fruit as 
 led to a gradual but complete transformation. First 
 let us watch the fortunes of the law of entail. 
 
 " Infinite were the scruples, suits, and inconveniences," 
 says Ooke,i "that the statute of 13 Ed. I. De Donis 
 Conditionalibus did introduce, which intended to give 
 every man power to create a new-found estate in tail, 
 and to establish a perpetuity of his lands, so as the same 
 should not be aliened nor letten, but only during the 
 life of the tenant in tail, against a fundamental rule of 
 the common law, that all estates of inheritance were fee 
 simple." The fetters of the " new-found estate in tail " 
 were grievous to all sorts of people except the great 
 landowners, and various attempts, it appears, were made 
 in Parliament to procure the repeal of the statute. But 
 the landowners were strong enough to hold what they 
 had won against any direct attack ; and legal ingenuity 
 set to work to turn the position which it was impractic- 
 1 Pref. to Rep. Part i, cf. 6 Rep. 40. 
 
CHAP. IV LEGISLATION AND TRANSFORMATION 81 
 
 able to storm. This was partly effected within a short 
 time by the application of doctrines which now seem to 
 us of the most technical and arbitrary kind, and yet in 
 their origin were intended to fulfil, and did fulfil well 
 enough, the purpose of giving security to purchasers, 
 and lessening the danger of stale or fictitious claims of 
 title. They were devised for the case of tenants in fee 
 simple, and before the statute De Bonis was thought of ; 
 but the judges treated them as applicable to acts of a 
 tenant in tail, except so far as their application would 
 have obviously reduced the statute to a nullity. The 
 holders of an estate tail were not regarded, as they 
 might have been, and' as the holders of settled estates 
 are still in those Continental countries where settlements 
 exist, as a series of mere life-tenants, of whom each 
 comes into his predecessor's place by way of " substitu- 
 tion.'' The grantee of the new limited estate still had 
 an estate of inheritance which might continue for ever ; 
 he was "chief owner of the land," subject to the statutory 
 deprivation of power to dispose of it to the prejudice of 
 his issue, or, in default of issue, the persons (if any) 
 designated in the grant to take in remainder,^ successively 
 or otherwise, and ultimately the donor and his heirs. 
 Having the freehold, the tenant could lawfully deal with 
 
 1 "When a tenant in fee simple grants a limited estate, such as 
 an estate for life or in tail, the residual interest not thus disposed 
 of is itself an estate capable of being separately dealt with. If, by 
 the same conveyance, the grantor parts with it, it is called a 
 remainder ; if he keeps it, it is called a reversion. The process of 
 subdivision may be indefinitely repeated, the fee simple being 
 regarded as a kind of fixed quantity out of which any number 
 of "particular estates" may be "carved" : the sum of them all 
 makes up the fee simple, as the bits of a Chinese puzzle make up 
 the square. 
 
82 THE LAND LAWS chap. 
 
 it in his lifetime ; if he professed to deal with the fee 
 simple, that was only an excess of authority, not a 
 wholly unauthorised act ; and the effect of a feoffment 
 by him (the solemn and accustomed assurance mentioned 
 at the end of the last chapter) was to work a discontinu- 
 ance; that is, his issue had after his death no right to 
 enter on the land and turn out the intruder, but had to 
 resort to the expensive course of asserting their title by 
 process of law, or, in the technical phrase, they were 
 " put to their action." If the alienation was accompanied 
 by a warranty — that is, a covenant by the grantor that 
 he and his heirs would warrant the title and enjoyment 
 of the land to the grantee and his heirs — there ensued 
 the further consequence that the very person who 
 claimed to set aside his ancestor's alienation as un- 
 authorised might — under certain conditions, which it is 
 needless, and hardly possible, to specify here — find him- 
 self bound by the warranty to defend it, and in case of 
 eviction to compensate the tenant by providing him 
 with lands of equal value. ^ Practically, therefore, it 
 was often possible for the actual possessor of land to 
 give to a purchaser a better title than he had himself. 
 And by such means there is much reason to think that 
 the operation of the statute De Bonis was to a consider- 
 able extent cut short from the very first. 
 
 It was not till the fifteenth century, however, that 
 a completely effectual method of breaking through the 
 statutory restraint on alienation — or "barring the entail" 
 as we say — was in regular use. This was an elaborate 
 
 1 The learned reader may see more in Butler's notes to Co. Litt. 
 191a (vi. 8), 327, and 3736, whicli deal fuUy witli this intricate 
 subjeoti 
 
IV LEGISLATION AND TRANSFORMATION 83 
 
 form of collusive lawsuit called a recovery — first a feigned 
 or fictitious recovery — afterwards, when it was well estab- 
 lished and familiar, a " common recovery " — and depend- 
 ing for its efScacy on the doctrine of warranty just 
 mentioned. The device, in its simplest form, was of 
 this nature : the tenant in tail (let us call him Littleton) 
 being in possession, some person (say Brian) acting in con- 
 cert with him would bring the real action, called a "writ 
 of right," for the recovery of the freehold (whence the 
 name of the proceeding), claiming to be himself the true 
 owner. Littleton, instead of defending his title for him- 
 self, would " vouch to warranty " a third person (say 
 Catesby), from whom or whose ancestors he professed 
 that his title was derived, and who was supposed bound 
 to warrant the tenant against all comers. Catesby, the 
 "vouchee," as he was called, was brought in as a party, 
 and acknowledged the warranty. Brian, the nominal 
 plaintiff, then asked and obtained leave of the Court to 
 " imparl," or privately confer with him, thus providing 
 — if one may be so irreverent as to take an illustration 
 from the stage — a sort of carpenter's scene to cover the 
 production of the final effect. When Brian came back 
 into Court as if to report the result of the " imparlance," 
 it was found that Catesby had disappeared, " departed 
 in contempt of the Court," as it was formally recorded. 
 Thereupon judgment went by default against Catesby, 
 and the lands were awarded to Brian for an estate in 
 fee simple ; as to Littleton, he and his heirs in tail became 
 entitled to a recompense in lands of equal value against 
 ; Catesby, by virtue of his supposed warranty. Thus, if 
 Littleton's lineal heirs, who would otherwise have suc- 
 ceeded to the entailed estate, were to make any claim on 
 
84 THE LAND LAWS chap. 
 
 it in the future, the answer to them would be that their 
 only remedy was against Catesby, through whose default 
 a stranger claiming in some wholly independent right, 
 or in the technical phrase "by title paramount," had 
 deprived them of their inheritance. It remained to deal 
 with the land according to the preconcerted arrange- 
 ment : this was the affair not of the Court but of the 
 parties. If Littleton's purpose was to make a sale to 
 Brian, then Brian had only to keep the land in which the 
 judgment of the Court gave him full title and possession. 
 If not, Brian would dispose of it according to Littleton's 
 directions, by reconveying it to Littleton for an estate 
 in fee simple, or otherwise as might be desired. 
 
 The proceeding is here stated, as above said, in its 
 simplest form ; and it is supposed that all the steps in 
 the collusive action are really taken in the regular way. 
 But the practice of later times, as described by Black- 
 stone, and minutely explained by the text- writers on the 
 law of real property before 1833, was more artificial and 
 complex. The action was not merely collusive, but 
 fictitious. Nothing was really done in the Court of 
 Common Pleas or its offices, after the issue of the writ 
 which commenced the supposed proceedings, but the 
 making up of a record stating, as in the case of a genuine 
 action, the demand, defence, voucher, imparlance, default, 
 and judgment; the same or equivalent fees, however, 
 were paid to the officers of the Court as if everything 
 had been done in detail. Only where the party " suffer- 
 ing the recovery " was a nobleman, he did appear in 
 Court, and a serjeant went through the form of pleading 
 for him, as I learn on the authority of those who 
 remember the old practice. On the other hand, the 
 
IV LEGISLATION AND TRANSFORMATION 85 
 
 form was complicated by additional precautions intended 
 to make sure that every possible claim of the inheritable 
 issue of the tenant in tail, or of those who in their 
 failure would become entitled under the further dis- 
 positions of the grant in tail, or ultimately of the original 
 grantor and his heirs, should be effectually barred. The 
 developed modern shape of a " common recovery " can 
 hardly be understood by any one but a special historical 
 student of the law, nor is there any need that it should. 
 It was possible, even after these developments, to raise 
 doubts whether the fiction was in theory quite satis- 
 fying ; and the rationalising lawyers of the eighteenth 
 century, while some of them at least inclined to think 
 these doubts unanswerable, dismissed them as idle, and 
 considered recoveries "as common assurances, and not 
 at all as real transactions," the artificial reasoning by 
 which a systematic justification of them was attempted 
 being "a thing in its nature inexplicable."'- One 
 question, however, may naturally occur to the candid 
 reader, and must not be neglected. Was not the 
 vouchee, Catesby, as we called him in our imaginary 
 example, put in an extremely awkward position by 
 being made liable to find a recompense in value for the 
 tenant in tail's issue ? And how was he induced to 
 take such a risk ? No doubt the position would have 
 been anxious and dangerous for a man of substance : 
 for, in the Middle Ages at any rate, the Court could 
 not have confessed that it had lent the forms of its 
 most solemn proceedings to a concerted evasion of the 
 statute. But all trouble on this score was avoided by 
 
 1 Willes's Reports, p. 449 ; cf. Blaokstone, ii. 360. This view 
 is in substance much older ; cf. Coke, 5 Rep. 406, 10 Rep. 43a. 
 
86 THE LAND LAWS chap. 
 
 choosing as vouchee some one who notoriously had no 
 lands to make recompense withal, and therefore was, as 
 we now say, not worth powder and shot. In later 
 times this office was assigned by settled usage to the 
 crier of the Court, who in this capacity was called " the 
 common vouchee," and thus cheerfully and, we presume, 
 not ungainfully passed his life, or so much thereof as 
 was covered by the legal terms, in perpetual contempt 
 of the Court of Common Pleas and liability to be fined 
 at the king's discretion.^ It may also seem that the 
 nominal plaintiff in the action must have been greatly 
 trusted by the parties : for what if after the judgment 
 in his favour he disavowed the arrangement, and in- 
 sisted on taking the thing seriously and remaining in 
 possession ? He had the strongest possible title on the 
 face of the proceedings, and no remedy known to the 
 old common law could touch him. It is possible that 
 in the earlier days of common recoveries everything 
 was really left to his honour. But before the latter 
 end of the fifteenth century the growing jurisdiction 
 of the Chancellor, of which we shall have to speak 
 presently, had ample means of enforcing the fulfilment 
 of his undertaking according to its intention. In later 
 times the ingenuity of conveyancers made assurance 
 doubly sure by a complication of provisoes and counter- 
 checks, which it is needless to specify.^ 
 
 ' It appears that one Jacob Morland held this curious position 
 in Blackstone's time ; see the form in the Appendix to vol. ii. of 
 the Gomnientaries. The common vouchee or his deputy got four- 
 pence for each recovery. (Appendix to 1st Report of R. P. Com- 
 missioners. ) 
 
 ^ Cf. Blackstone, ii. 363, and Appendix. The practice of the 
 early nineteenth century was even more elaborate. 
 
IV LEGISLATION AND TRANSFORMATION 87 
 
 There was another and more ancient proceeding 
 called a fine, differing from a recovery in that the 
 collusive or friendly action was not pursued to judg- 
 ment, but compromised ; the name is from the " final 
 agreement," finalis concordia, which was the last step, 
 " quia imponit finem litibus." Fines could be used to 
 some extent for the same purposes as recoveries, and 
 were favoured by statutes which in various ways in- 
 creased their efiicacy ; but their action was not so 
 certain or complete. On the other hand, they were 
 the proper and sufficient mode of assurance in some 
 cases where a recovery was unnecessary or inapplicable. 
 In modern practice their regular use was in dealing 
 with the lands of married women, which could not 
 otherwise be effectually conveyed either by the wife or 
 by the husband. It does not seem needful to say any- 
 thing more of them here. 
 
 The method of barring entails by means of recoveries 
 is commonly dated, as a settled practice, from the year 
 1472. A reported case of that date is said to mark 
 the time when the convenient though cumbrous fiction 
 obtained full judicial allowance. It appears to me 
 (though indeed it is of no consequence) that this re- 
 port, standing alone, would hardly bear out the common 
 inference, and that our real authority is a statement 
 made by Coke, which only professes to give the date 
 approximately. •■• This, however, we may be content to 
 
 ^ Reeves, Hist. Eng. Law, iii. 328 ; 6 Co. Rep. 40a. The earliest 
 express reference to Taltarran's case (the name was really Talkarum, 
 see Mr. F. W. Maitland's note in Law Quart. Sev. ix. 1) I have met 
 with is in the arguments in Mary Portington's case, 10 Rep. 37a. Coke 
 himself evidently thought the doctrine and practice were older, ib. 
 Zib, 38a. I suspect the extreme oddity of the name has some- 
 
88 THE LAND LAWS chap. 
 
 accept ; and there is no doubt about the main fact, 
 which is, that from the latter part of the fifteenth 
 century onwards (if not earlier) a tenant in tail might 
 safely use the form of a common recovery to make 
 himself, or any purchaser from him, a tenant in fee 
 simple. The modern scheme of strict settlements dates 
 only from the Restoration ; and the intervening space 
 of about two centuries has therefore been aptly called 
 a period of comparative freedom of alienation. When 
 this freedom of the tenant in tail was once established, 
 the judges made short work of all attempts to encumber 
 it with any freshly devised restrictions. Ingenious 
 foimders of estates endeavoured from time to time to 
 impose on their descendants conditions or provisions 
 against alienation which might restore in their particular 
 cases the full effect of the statute De Bonis ; but it was 
 invariably held that such dispositions were repugnant 
 to the nature of an estate tail, and that the tenant 
 could not by any means whatever be restrained from 
 " suffering a recovery," and thereby acquiring or con- 
 ferring a fee simple. The process of a recovery was 
 treated with a kind of mystery and special reverence, 
 and Coke tells us how one Hoord, in a case before the 
 House of Lords, "rashly and with great ill-will in- 
 veighed against common recoveries, not knowing the 
 reason and foundation of them ; who was with great 
 gravity and some sharpness reproved by Sir James 
 
 thing to do with the acceptance of Taltarum's case as an historical 
 landmark. The real point was not to establish the validity of the 
 proceedings in the recovery itself, but to determine that the issue 
 in tail must be content with their imaginary recompense in value 
 against the ultimate vouchee, and (what was more) that those in 
 remainder were also fully barred. 
 
IV LEGISLATION AND TRANSFORMATION 89 
 
 Dyer, then Chief Justice of the Common Pleas, who 
 said he was not worthy to be of the profession of the 
 law who durst speak against common recoveries, which 
 were the sinews of assurances of inheritances, and 
 founded upon great reason and authority ; sed non mnnis 
 capit hoc verlum." ^ It may be as well to add that the 
 same doctrines and inventions which served to break 
 the strength of the statute De Bonis were in themselves 
 capable of being used in various other cases as instru- 
 ments of downright fraud, and were prevented from 
 being so used only by a series of special enactments, 
 which, together with their causes, are now all but 
 forgotten. 
 
 Eecoveries had originally served another purpose : 
 their first invention was due to the ingenuity of the 
 clergy. Eeligious houses abounded in England, and 
 much of the best land of the kingdom was in their hands 
 by virtue of ancient grants made by pious kings and 
 under-kings, and of additional endowments received 
 from kings and great men since the Conquest. The 
 monasteries were, except one or two municipal cor- 
 porations, the only power in the land capable of repre- 
 senting the arts of peace with such weight of wealth 
 and ability as to make head against the military lords. 
 Early medieval chronicles show the abbots as stout, and 
 often successful, litigants in the maintenance of their 
 rights and privileges. The Crown and the secular lords 
 very soon became jealous of them for political and, 
 still more, for financial reasons. We have seen that a 
 material part of the revenues of the Crown was derived 
 from the payments made by feudal tenants on succession 
 1 10 Rep. 40a. 
 
90 THE LAND LAWS chap 
 
 and other events. 'Now the religious communities were 
 exempt from these payments in two ways. The lands 
 they enjoyed by original grants creating a fresh tenure 
 (or, in the construction put on them by lawyers after 
 the Conquest, deemed so to do)^ were not held on feudal 
 conditions at all : the only service the monks had to 
 render to the donor was to pray for his soul and the 
 souls of his kindred, a purpose associated with religious 
 foundations, in one shape or another, from the Atlantic 
 to the Indian Ocean.^ If land held in fee simple by 
 military tenure were granted over to a religious house, 
 it escaped the feudal burdens by reason of the new 
 tenant being a corporation. For the very meaning of 
 a corporation is that a changing series of successive 
 persons (whether being many at one time, as the mayor, 
 aldermen, and burgesses of a town, or the master, fellows, 
 and scholars of a college, or an abbot and his convent, 
 or but one at a time, as a bishop or parson) is treated 
 by the law as one continuing person. This artificial 
 person cannot die, or be in guardianship as an infant, 
 or perform military services. Thus when land was held 
 by a corporation (and religious corporations were the 
 most important class before the monasteries were dis- 
 
 ^ See pp. 36, 36 above. 
 
 ^ ' ' And they whicli hold in frankalmoigne are bound of right 
 before God " (this means that they might be compelled by the 
 ecclesiastical courts) "to make orisons, prayers, masses, and other 
 divine services, for the souls of their grantor or feoifor, and for the 
 souls of their heirs which are dead, and for the prosperity and good 
 life and good health of their heirs which are alive. And therefore 
 they shall do no fealty to their lord, because that this divine ser- 
 vice is better for them before God than any doing of fealty." — Litt. 
 s. 135. No new tenure of frankalmoigne could be created, except 
 by the Crown, after the statute of Quia emptores ; it. s. 140. 
 
IV LEGISLATIOK AND TRANSFORMATION 91 
 
 solved) the king or other chief lord lost what were called 
 the fruits of the tenure in any case. Naturally the 
 secular lords were not disposed to let this process con- 
 tinue imchecked : and some years before the statute De 
 Bonis an Act of Parliament, reinforcing a somewhat 
 vague provision in Magna Charta, prohibited the acquisi- 
 tion of lands by religious or other persons, " whereby 
 such lands or tenements may any wise come into mort- 
 main." The reasons given in the preamble are the loss 
 of services " which at the beginning were provided for 
 defence of the realm," and of escheats to the lords ; if 
 the reader likes, he may believe that Edward I. and 
 his advisers were also alive to the social disadvantages 
 that would ensue from the unlimited withdrawal of land 
 from commerce. But the economic changes which made 
 land really an article of commerce began only in the 
 period of depopulation and great enclosures, from a 
 century and a half to two centuries later. However, 
 the religious houses did not sit down under this pro- 
 hibition. Indeed attempts were made to procure the 
 repeal of the statute ; ^ but in the meantime, the clergy 
 and their willing benefactors set about compassing their 
 end by collusive actions, in which the benefactor — now 
 unable to make a direct gift to the abbey or other 
 ecclesiastical society — was sued by it on a pretended 
 claim of title, and let judgment go by default. In the 
 same session of Parliament with the statute De Bonis 
 order was taken against this device ; but, having once 
 become familiar to legal minds, it survived, as we have 
 seen, in a new and wider application. For the rest, the 
 Statute of Mortmain of Edward I., though recast in a 
 1 Stubbs, ii. 126. 
 
92 THE LAND LAWS chap. 
 
 modern form,^ is still substantially in force.^ No 
 corporation, ecclesiastical or civil, can hold land in 
 England, save under a grant made before the statute, or 
 a licence from the Crown, or the authority of some 
 Act of Parliament. The word mort'iiiain is a transcrip- 
 tion rather than translation of the Latin manus mwhia, 
 a term probably used, as Mr. Digby suggests, because 
 the regular clergy against whose endowment this legisla- 
 tion was chiefly directed were treated for legal purposes 
 as dead, "civiliter mortui." Coke's explanation^ (after 
 mentioning two or three "wild ones " framed out of wit 
 and invention ") is that " the lands were said to come to 
 dead hands as to their lords, for that by alienation in 
 mortmaine they lost wholly their escheats, and in efi'ect 
 their knights -services for the defence of the realme, 
 wards, marriages, relief es, and the like ; and therefore [it] 
 was called a dead hand, for that a dead hand yeeldeth no 
 service." Whatever be its exact derivation, the expression 
 was felt to be forcible and appropriate, and has passed 
 into common speech. Of late years it has been inexactly 
 made use of in reference to family settlements, as if the 
 " dead hand " were the hand of the settlor by whose grant 
 the successive interests are limited, to use a technical 
 but in this connection an easily understood word. 
 
 The difficulties thrown in the way of ecclesiastical 
 persons and bodies acquiring land are connected with 
 the rise and growth of a doctrine which (together with 
 the undesigned effects of legislation intended to cut it 
 
 ' By the Mortmain and Charitable Uses Act, 1888. An 
 amending Act of 1892 facilitates gifts to local authorities for 
 purposes within their statutory powers of acquiring land. 
 
 2 On the connection of this with Quia emptorcs as part of a 
 general policy, see Stubbs, ii. 113, 122. ^ Co. Litt. 2b. 
 
IV LEGISLATION AND TRANSFORMATION 93 
 
 short) has profoundly modified our land laws, impressing 
 on them a great deal of their peculiar modern form, and 
 fostering, if not creating, the luxuriant intricacy which 
 makes them the despair of the unlearned. I mean the 
 doctrine of Uses, with its offshoot, the law of Trusts. 
 Briefly, the main lines of the story are these. Dis- 
 abilities to hold land as the recognised feudal tenant, 
 or the fear of civil troubles and forfeitures for treason 
 thereupon ensuing, or the desire of escaping feudal 
 burdens, or making beneficial dispositions of a kind 
 not sanctioned by the common law, induced men to 
 screen the real use and enjoyment of landed property 
 behind the names and presence of titular owners, of 
 whom alone the ordinary judicial authority could take 
 notice. These persons, duly constituted as legal tenants, 
 were a shield to the beneficial owner against a variety 
 of accidents, of which the mere possibility might then 
 be a potent enough cause of disquiet. As between 
 himself and the legal holder, the beneficial holder's 
 claim to have the substantial enjoyment was at first 
 merely precarious. In course of time it was protected 
 by the supreme power of the king, exercised not by his 
 ordinary courts, but through his Chancellor as dispenser 
 of an extraordinary and overriding justice. Then 
 came jealousies on the part of the Crown and the great 
 lords ; again their privileges and revenues were in 
 danger of being undermined by subtle evasions. An 
 attempt was made to reverse the process by one bold 
 legislative stroke. The Statute of Uses attempted to^ 
 reunite the nominal and the substantial ovniership which 
 the practice of cunning men had separated. But the 
 legislative had once more reckoned without the judicial 
 
94 THE LAND LAWS chap. 
 
 power. There was no more willingness than there had 
 been in the case of the statute De Bonis to carry out the 
 intention of Parliament. Not only, as in that case, 
 was the intention evaded, but by means of a super- 
 subtle interpretation the Statute of Uses was made the 
 instrument of its own discomfiture ; it became a land- 
 mark and a fresh starting-point in the development of 
 the system it was intended to destroy. The points thus 
 indicated shall be now set forth with the least possible 
 technicality ; to hold out the promise of none would be 
 an idle and impracticable profession. 
 
 " From a very early period the bishops and heads 
 of religious houses, as one contrivance for evading the 
 laws prohibiting alienations in mortmain, procured 
 lands to be conveyed in fee simple to some friendly 
 hand, upon trust that they and their successors should 
 be permitted to enjoy the profits." ^ This contrivance, 
 like others, was cut short by Parliament, and eflfectually 
 as regards its original purpose ; ^ but, as in the case of 
 recoveries, it was quickly taken up by laymen who 
 perceived the extent and usefulness of its application. 
 In such a conveyance the land was said to be granted 
 ,> to the intermediary person or persons (there were 
 generally several of them) to the use of the beneficial 
 owner, and these persons, taking as they did the legal 
 title, by the regular ceremony of feoffment (explained 
 above, pp. 75, 76), were said to be enfeoffed, or to be 
 feoffees, to uses. As to the beneficial owner, he was 
 described by the uncouth phrase, cestui que use, he for 
 
 ^ Spence, Equitable Jurisdictimi of the Court of Chaiicery, i. 
 440. 
 
 2 15 Rich. IL c. 5 (a.d. 1391). 
 
IV LEGISLATION AND TRANSFORMATION 95 
 
 whose sake the use is : no single word was ever found 
 to take the place of this, and at the present day 
 English lawyers have to speak of cestui que trust} Such 
 were the terms most commonly employed ; but the 
 word use was not (as for creating estates at common 
 law certain appropriate words were) a matter of 
 necessity. "Trust" or "confidence" would serve as 
 well, or indeed anything clearly showing the intention. 
 Assuming the feoffees to uses to be willing and faithful 
 instruments of the beneficial owner, his advantages 
 were great. Though he were involved in the civil 
 strife of York and Lancaster, and dealt with as a 
 traitor by victorious enemies, the land would be secured 
 for his children ; for it legally belonged not to him but 
 to the feoffees to uses, and therefore was not forfeited 
 by his attainder. For the same reason nothing was 
 payable to the over-lord on his death ; there could be no 
 legal succession while any of the feoffees remained alive, 
 and herein^ was the convenience of naming several in 
 the first instance. The numbers might be kept up 
 from time to time by new conveyances, as is the 
 common practice to this day with bodies of trustees 
 established for charitable and public purposes. Again, 
 there was by law no power to give lands by will 
 (except in some cities and towns by special custom) ; 
 but the possessor of lands in use could without any 
 formality at all give directions to the feoffees in his 
 lifetime, or by testamentary declaration as to the 
 
 1 In the case of an estate for the term of a life or lives other 
 than the tenant's -(as a lease for lives), the person whose life is 
 named is called the cestui que vie. I know no other example of 
 this construction. 
 
96 THE LAND LAWS chap. 
 
 enjoyment of them after his death.^ In this case 
 the feoffees were said to hold the lands to the uses of 
 his will. It was also possible to employ the method 
 of conveyance to uses, and it was not unfrequently 
 employed for the less laudable purpose of evading 
 creditors. The debtor made over his lands to some 
 friend on the understanding that he should still have 
 the profits, and betook himself to one of the many 
 sanctuaries or liberties where personal process could not 
 be executed against him. " There were two inventors 
 of uses, fear and fraud,'' said Coke in a summary phrase; 
 Bacon adds, and rightly, the desire of larger powers of 
 disposition than were known to the common law ; but 
 fraud would, in Coke's eyes, perhaps include that as 
 well. 
 
 Down to the end of the foiu'teenth century or later 
 the interests of the possessor in use were protected only 
 by the honour of the feoffees, though he could ensure a 
 certain measure of safety by being one of them himself, 
 which was a very common practice. The ecclesiastical 
 courts dared not interpose in a matter of conscience 
 which so nearly concerned the title to land ; the king's 
 ordinary courts could not recognise interests which 
 those who created them had studiously put outside the 
 scope of the coinmon law, for the very purpose of avoid- 
 ing the risks and burdens of legal ownership. So com- 
 pletely was an use of lands ignored that if the feoffee 
 chose to treat the " cestui que use " as a mere trespasser, 
 there was no legal defence to his action. Such a state 
 
 ' Many examples of suoh declarations may be seen in The Fifty 
 Earliest English Wills in the Court of Proiate, London, edited by 
 Mr. Furnivall for the Early English Text Society. 
 
IV LEGISLATION AND TRANSFORMATION 97 
 
 of things could not go on indefinitely ; the quantity of 
 land held by feoffees to uses increased year by year till 
 it comprised the greater part of the realm, and the un- 
 certainty of titles depending on mere private understand- 
 ing became intolerable. The judges might in more than 
 one conceivable way have given some indirect protection 
 to the beneficiary ; '^ but recourse was had to the extra- 
 ordinary jurisdiction of the Chancellor, a power still 
 fresh, flexible, and ambitious. It was then held that 
 the king was in a real sense the fountain of justice. 
 His justice was not exhausted by the functions of the 
 regular tribunals which guided it, so to speak, in the 
 channels of its common application. There remained 
 a supreme executive discretion which might be used 
 on special occasions, a discretion which (according to 
 modern doctrine at least) could not directly abrogate the 
 common law, but might supply its defects or temper its 
 application. This discretion was exercised through the 
 Chancellor, and was the foundation of the whole system 
 of the Court of Chancery ; the isolated petitions by 
 which aggrieved subjects begged for its exercise were 
 gradually moulded into regular pleadings, and the tran- 
 scendent action of the king in his attribute of justice 
 became the settled process of the Court. Thus the 
 possessor of land in use complaining of want of faith 
 on the part of the feoffees, would beseech the Chancellor 
 to relieve him "for the love of God, and in the way 
 of charity." The king's charity, when the Chancellor 
 decided to exercise it, was masterful. Although the 
 feoffee in trust could not be disturbed in his legal title 
 and possession, yet, if he refused to dispose of the 
 1 Note F. 
 H 
 
98 THE LAND LAWS chap. 
 
 enjoyment and profits in the manner that seemed to 
 the Chancellor agreeable to good faith and conscience, 
 he might be sent to prison for contempt of the king. 
 Once habitually put in use, this power became by rapid 
 steps a normal and systematic jurisdiction. The use 
 of lands, as distinguished from the apparent feudal 
 tenancy or "legal estate," became hardly less secure 
 and a more convenient form of ownership. Broadly 
 speaking, it resembled legal ownership in everything 
 but the burdensome incidents ; and not only the original 
 feoffees were bound by the confidence of their grantor, 
 but so were persons taking the legal estate from them 
 by purchase with knowledge of their fiduciary office, 
 or by succession or other gratuitous title in any case.^ 
 In other words, the Chancellors extended the conscien- 
 tious obligation on which their jurisdiction was founded 
 from the actual feoffee to uses to every one claiming 
 title through him who had not honestly given value 
 for the land in ignorance that his vendor was commit- 
 ting a breach of faith. As Bacon said, " The Chancery 
 looketh further than the common law, namely, to the 
 corrupt conscience of him that will deal with the land 
 knowing it in equity to be another's." These prin- 
 ciples, though shifted in their application by the means 
 and in the manner to be forthwith described, are not 
 
 ^ I have thought it convenient, as the learned reader will see, 
 to use " purchase " in the text in its popular sense. The man of 
 business (if I have such a reader) may be helped by the analogy of 
 the special rights and immunities allowed to the bona fide holder 
 of a negotiable instrument ; the technical principles in the two 
 branches of law are different, but the policy is the same. An ex- 
 cellent summary of the law of Uses before the statute may be seen 
 in Blackstone, ii. 330, 331. 
 
IV LEGISLATION AND TRANSFORMATION 99 
 
 obsolete ; the -working out of them has produced the 
 whole structure of that part of the modern law of 
 the Court of Chancery, technically called Equity, which 
 regulates the vast amount of property, movable and 
 immovable, held in trust throughout England. Thus 
 the beneficial titles to a large proportion of the land 
 in the kingdom were being drawn into the exclusive 
 jurisdiction of the Chancellor. 
 
 Notwithstanding the difficulty and expense that must 
 have attended an application to the Chancery as com- 
 pared with proceedings at the assizes, this jurisdiction 
 was apparently popular. But the Crown and the great 
 lords once more took alarm. In the fourteenth and 
 fifteenth centuries a series of statutes made the " cestui 
 que use " subject to certain liabilities, as if he were legal 
 owner of the estates, and in one or two points gave him 
 corresponding powers, but more for the benefit and 
 security of purchasers than for his own.-' At last, in 
 1535, the Parliament of Henry VIII. passed "an Act 
 concerning uses and wills," which has ever since been 
 known as the Statute of Uses, and is one of the funda- 
 mental and peculiar points of our modern law of real 
 property. The intention was to abolish the system of 
 uses altogether, and reunite the beneficial enjoyment of 
 land to the legal estate ; it was likewise intended to 
 abolish the power of disposing of lands by will, which 
 had been introduced by the machinery of uses, and was 
 
 1 Blaokstone, ii. 332. 
 
 ^ Our chief authorities for the intention of the Statute of Uses are 
 the prea-mble of the statute itself, and the generally similar statements 
 made by Coke in his report of Chudleigh's case (1 Rep. 113a), and 
 
100 THE LAND LAWS chap. 
 
 The statute ^ declared that " by the common laws of 
 this realm lands, tenements, and hereditaments be not 
 devisable by testament, nor ought to be transferred from 
 one to another but by solemn livery and seisin " (feoff- 
 ment), " matter of record " (judicial process entered on 
 the records of the court, that is, fine or recovery), 
 "writing sufficient made lona fide without covin or 
 fraud " (this clause lacks construction, but is, I think, 
 to be understood as explaining or summing up the two 
 previous heads, unless possibly it means leases for years) ; 
 nevertheless, the preamble proceeds, " divers and sundry 
 imaginations, subtil inventions, and practices have been 
 used, whereby the hereditaments of this realm have 
 been conveyed from one to another by fraudulent feoff- 
 ments, fines, recoveries, and other assurances craftily 
 made to secret uses, intents, and trusts," and also by 
 wills, formal or informal, " for the most part made by 
 such persons as be visited with sickness, in their extreme 
 agonies and pains, or at such time as they have scantly 
 
 Bacon in his unfinished Reading on the Statute. I do not find it 
 easy to make out in detail what either of these authors really means 
 by the restoration of the common law which is supposed to have 
 been the object. Bacon seems to take a more benignant view of 
 Uses than Coke, who would have liked to treat the whole system 
 as a nuisance to be rigorously abated. Without attempting to 
 fathom all the learning of Chudleigh's case, one may pretty safely 
 say that Coke would have looked with unmixed disgust on such 
 inventions as the "name and arms clause" of a modern settle- 
 ment ; and it is probable that such, among other things, were the 
 dispositions which the statute was intended to frustrate. 
 
 ' Revised Statutes, vol. i. p. 452. I have modernised the spell- 
 ing, which throughout the statutes of Henry VIIL is in a stage 
 of confused transition. Its "dyverse and sundry ymaginacions, 
 subtile invencions, and practises " are amusing, but would disti'act 
 a reader not familiar with the matter. 
 
IV LEGISLATION AND TRANSFORMATION 101 
 
 had any good memory or remembrance " ; all which 
 tended to the loss of feudal dues, services, and for- 
 feitures, to uncertainty of title such that " scantly any 
 person can be certainly assured of any lands by them 
 purchased, nor knowen surely against vi^hom they shall 
 use their actions or executions for their rights, titles, 
 and duties," and moreover to " manifest perjuries by 
 trial of such secret wills and uses," and finally to " the 
 utter subversion of the ancient common laws of this 
 realm." And therefore, " for the extirping and extin- 
 guishing of all such subtil practised feoffments, fines, 
 recoveries,^ abuses, and errors heretofore used and accus- 
 tomed in this realm," it was enacted that thereafter 
 whoever should have an " use, confidence, or trust " in 
 any hereditaments should be " deemed and adjudged in 
 lawful seisin, estate, and possession " for the same estate 
 that he had in use ; that is, that he should become, 
 instead of the feoffees or trustees, the full legal owner 
 (or, more exactly, feudal tenant) for all purposes, and 
 that the absence of any actual delivery of possession to 
 him should make no difference. Here this brief state- 
 ment must suffice ; there are, in fact, subsidiary provi- 
 sions of some length to work out and safeguard the 
 general idea. The result was as follows. If Stan- 
 ford made a feoffment to More, Fisher, and Brooke, 
 to hold to the use of himself, the statute made this 
 ineffectual. Before the statute. More, Fisher, and 
 Brooke would have become the only tenants whom the 
 
 1 Observe that fines and recoveries are put on a level with feoff- 
 ments as common and recognised forms of conveying land. It 
 is only the ' ' subtil practised " conveyance to secret uses that is 
 aimed at. 
 
102 THE LAND LAWS chap. 
 
 common law coui-ts could notice, and the only persons 
 liable for the feudal dues (which, however, would mostly 
 never become demandable), while the Court of Chancery 
 would compel them to allow Stanford all the benefit 
 of the estate. By the operation of the statute. More, 
 Fisher, and Brooke would not become owners at all ; 
 Stanford, by being named to take the use, would at once 
 come into their place. He would be as much the legal 
 tenant as before, and liable to all the legal burdens and 
 incidents. A feoffment to John, or to John and William 
 or to John and William and Peter, to the use of Peter, 
 or in trust or confidence for Peter, was made by the 
 statute equivalent to a feoffment to Peter. The use 
 carried with it the legal estate ; in the curious technical 
 phrase which has ever since been current in the books, 
 the use was said to be executed in Peter by the statute. 
 And the law thus made by the Statute of Uses is law 
 to this day. 
 
 Yet the statute ultimately failed in every one of its 
 chief objects. It abolished wills of land (though, oddly 
 enough, not in direct terms) ; but so unpopular was the 
 restriction^ that a few years later (1540) an Act was 
 passed expressly enabling tenants in fee simple to dis- 
 pose by will of two-thirds of the land held by them in 
 military tenure, and the whole of that held in socage. 
 The statute was not improbably meant to put an end to 
 new-fangled modifications of ownership by allowing no 
 conveyance to take effect which would not have been 
 
 ^ The repeal of the Statute of Uses was one of the articles of 
 redress of grievances put forward by the leaders of the Pilgrimage 
 of Grace in 1536. See the documents ap. Froude, Hist, Eng. iii. 
 91, 105, 158 
 
IV LEGISLATION AND TRANSFORMATION 103 
 
 good at common law; ^ but it was interpreted by practice 
 and in time by the courts as giving full legal validity 
 to all interests which could formerly have been created 
 by way of use, and would have been protected by the 
 Chancellor. All that the jealousy of the common 
 lawyers could effect was to saddle this new licence of 
 disposition with certain qualifications of a highly techni- 
 cal and irrational kind. Again, it was intended that 
 there should be no use or confidence without legal 
 ownership. But some ingenious person bethought him 
 that the statute had provided only for one transfer or 
 " execution " of the legal possession to couple it with 
 the use. There was no denying that a conveyance to 
 John to the use of Peter gave Peter the legal estate. 
 But what if the conveyance was to John, to the use of 
 Peter, to the use of Paul 1 It was not only argued, but 
 decided and settled, that the bidding of the statute was 
 satisfied, or as was then said, its operation was ex- 
 hausted, in making Peter the legal owner. Paul had 
 " a use upon a use '' ; this interest, it was held, was 
 beyond the scope of the statute, and must be left, like 
 uses before the statute, to the protection and manage- 
 ment of the Court of Chancery. "An use,'' said the 
 judges, " cannot be engendered of an use." ^ In like 
 manner if Thomas, tenant in fee simple, conveyed to 
 John and his heirs to the use of Thomas for his life, 
 
 ^ Both Coke and Bacon appear to have thought so. The fact 
 that the statute wholly omits to say anything which could fairly 
 be so construed goes, at that time, for very little. 
 
 ^ It is difficult to appreciate this reason. Perhaps it was made 
 plausible by its analogy to the familiar (and then commonly 
 received) argument against usury, that it is against nature for 
 money to beget money. 
 
104 THE LAND LAWS chap. 
 
 and after his death to the use of Peter and his heirs, in 
 trust to perform Thomas's last will, and then by his 
 will declared that Robert and his heirs should have the 
 land, — here after Thomas's death Peter had an estate in 
 fee simple, and Robert had no title at all in a common 
 law court ; he could only compel Peter in the Court of 
 Chancery to let him enjoy the land, or deal with it 
 according to his direction. In technical terms, Robert 
 had an equitable estate, but no legal estate. Thus the 
 Chancellor's jurisdiction, so far from being cut short, was 
 fortified and enlarged ; and uses and trusts, instead of 
 being " extirped," flourished all the more in a new form. 
 The word trust became appropriated, as it still is, for 
 these uses of the second order which the statute leaves 
 untouched. We commonly hear and speak of lands 
 being conveyed to the use of A in trust for B ; the dis- 
 tinction is so fixed in practice and so convenient that 
 nobody would think of neglecting it, but still it is matter 
 of convenience only. " In trust for A " or " in confid- 
 ence for A," followed by " to the use of B," would have 
 exactly the same effect. 
 
 Once more, among the mischiefs to be remedied by 
 the statute was the secrecy of conveyances, which had 
 been introduced through uses. The open ceremony of 
 " livery of seisin " was to be restored to its full value, as 
 pointing out the real owner ; and in those days of sparse 
 population and little migration, when every man knew 
 his neighbours and their doings, it was no doubt as good 
 a means of securing publicity as any register could have 
 been. But how did the statute operate 1 By one master- 
 ful stroke, against all principle formerly recognised, 
 it turned the possessor in use into a legal possessor ; 
 
IV LEGISLATION AND TRANSFORMATION 105 
 
 and there were other ways besides actual conveyance to 
 feoffees in trust by which uses might be created before 
 the statute. In particular, if Brooke agreed with Fitz- 
 herbert to sell him a piece of land, and Fitzherbert paid 
 the agreed price, it was the rule of the Court of Chancery 
 that Brooke was bound in conscience not only to make 
 a proper legal conveyance to Fitzherbert, but forthwith 
 to let him have all the advantages of ownership. By 
 the " bargain and sale " (such was the accustomed term) 
 Fitzherbert acquired the use or equitable interest in 
 the land. If, then, the bargain and sale were made 
 after the statute came into force, Fitzherbert would 
 get the legal interest also ; ho must be " deemed and 
 adjudged in lawful seisin, estate, and possession." 
 That is, the full legal ownership of land would be 
 transferred from one man to another by acts which 
 might be strictly private, need not be recorded in 
 writing, and might be incapable of legal proof.^ So 
 manifest a danger did not escape notice. It was 
 seen that without fresh legislative precaution lands 
 might pass from one to another " on payment of a 
 little money in an alehouse," as one or two of the old 
 books say. In the same year with the Statute of Uses 
 an Act was passed to the effect that no estate of in- 
 heritance or freehold, or any use thereof, should be 
 conveyed by bargain and sale, unless the bargain and 
 sale was made by deed, and the deed enrolled ^ within 
 
 ^ At that time and long afterwards parties could not be witnesses 
 in a court of common law. 
 
 ^ An enrolment is an official copy made on a roll of parchment. 
 Before 1849 the authentic text of Acts of Parliament was the en- 
 grossment on the Parliament Roll : now a copy printed on vellum 
 has taken the place of this. 
 
106 THE LAND LAWS ohap. 
 
 six months either in one of the courts at Westminster 
 or in the county where the land lay. This was in- 
 tended to provide, and did provide for some time, that 
 land should be dealt with either by feoffment, by the 
 still more solemn "matter of record," or by deeds 
 publicly registered. But the invention of lawyers was 
 at length too much for the precautions of Parliament. 
 The Statute of Enrolments had nothing to say of estates 
 less than freehold, such as a term of years. Interests 
 for a term of years (of which more in their place under 
 the head of Landlord and Tenant) had become familiar ; 
 and probably the makers of the statute thought it un- 
 necessary and impracticable to impose the formality 
 and expense of an enrolled deed on farmers' tenancies. 
 Here, however, was an unsuspected loophole. It was 
 discovered that since the Statute of Uses a bargain and 
 sale by Dyer (having the freehold), to Anderson, sup- 
 pose, for the term of one year, put Anderson in the 
 same position as if he had actually entered on the land ; 
 for by the words of the statute he was to be " deemed 
 in lawful possession." Now a tenant in possession 
 could acquire the freehold by a simple deed (called a 
 release) from the owner of the reversion. Livery of 
 seisin could not be given to one already in possession, 
 and the fact of possession (which by the old law implied 
 an actual entry) was thought to supply the notoriety of 
 a feoffment. In the present case Dyer, the day after 
 making the bargain and sale for one year, would grant 
 by release to Anderson, who was now in constructive 
 possession by the Statute of Uses, his remaining interest 
 or reversion in the freehold. Thus Anderson might 
 become tenant in fee simple without any publicity at 
 
tv LEGISLATION AND TRANSFORMATION 107 
 
 all, and the Statute of Enrolments was evaded. This 
 process was called a conveyance by lease and release, 
 and was the common method of transferring freehold 
 lands for more than two centuries. Doubts were for 
 some time entertained as to its validity, but by 1620 
 the point was considered no longer open to discussion. 
 
 Thus was the secrecy of modern English conveyanc- 
 ing established. Its lines were fixed by the results of 
 the Statute of Uses, and what legislation has done since 
 amounts to little more than the simplifying of its 
 formal elements. "A system of infinite subtlety, but 
 answering, it must be acknowledged, most important 
 purposes, has been framed upon this Statute, while most 
 of the evils which it was meant to remedy remain."^ 
 The frauds and other mischiefs which our ancestors, not 
 without reason, apprehended have been in part provided 
 against by the systematic development and refinement 
 of the jurisdiction of the Court of Chancery, and in 
 part by the ingenuity of counsellors. In the course of 
 the seventeenth and eighteenth centuries conveyancers 
 worked out a system of private investigation of titles 
 which is still in use, and which, though exceedingly^ 
 cumbrous and expensive, is fairly effectual. One can 
 only say fairly effectual, for there remain possibilities 
 of fraud which no ordinary precaution can exclude, and 
 from time to time great hardship is thereby caused to 
 persons who have laid out their money in good faith 
 and have not failed in any point of due diligence. 
 
 Other causes too were at work to break up the 
 
 ' First Report of Real Property Commissioners, p. 8. 
 ^ I should have said intolerably, but for the fact that land- 
 owners have so long tolerated it. 
 
108 THE LAKD LAWS chap. 
 
 feudal scheme of land law. The military services were 
 obsolete. Spain was teaching the world the power of 
 disciplined standing armies, and the growing use of 
 firearms brought in a need of copious and uniform 
 munitions of war such as the old assize of arms ^ could 
 not meet. Warlike equipment and organisation were 
 henceforth more and more to be the immediate charge 
 of the State. In this and other ways the feudal tenures 
 had lost their original significance ; and the money pay- 
 ments to the Crown and other lords appeared no longer 
 as natural incidents of tenure, but as vexatious burdens 
 on the full dominion of an owner. Even the fact that 
 the decrease in the value of money had already greatly 
 lessened such of them as were set at fixed amounts 
 operated, we may well think, in the same direction. 
 The same man who as tenant would cheerfully pay a 
 substantial rent will, as soon as he regards himself as 
 owner, resent the payment of much lighter but ap- 
 parently casual and arbitrary demands. Then the 
 besetting ambition of lordship, " an excess of will in 
 men's minds, affecting to have assurances of their estates 
 and possessions to be revocable in their own times, and 
 too irrevocable after their own times, "^ was all the more 
 stimulated ; nor did professional astuteness fail to devise 
 the means of satisfying it. How the feudal tenants of 
 England were definitely made real owners, and how the 
 licence of disposition and posthumous control which the 
 
 ' Sundry statutes and ordinances known by this name enjoined 
 all freemen to keep in readiness a contribution of warlike weapons 
 and equipment, whioli was graduated according to their rank. 
 
 ^ Bacon, fading on tJie Statute of Uses (Works, vii. 409, ed. 
 Spedding). 
 
IV LEGISLATION AND TRANSFORMATION 109 
 
 Statute of Uses seemed to make unlimited was, not by 
 the baffled legislature but by a fresh exercise of judicial 
 power, confined within certain though liberal bounds, 
 shall be told in the following chapter. The Statute of 
 Uses marks the close of the medieval epoch, and intro- 
 duces a time of transition during which a new system 
 works itself out, a system which after the Eestoration is 
 continued without any notable break down to our time. 
 A landmark so prominent and so memorable demands a 
 pause before we pass on. 
 
CHAPTEE V 
 
 DEVELOPMENT OF THE MODERN LAW 
 
 The century that followed the passing of the Statute of 
 Uses was a time of great legal activity in all directions. 
 During the latter half of the sixteenth and the first 
 half of the seventeenth centuries the books were pro- 
 duced which, for most practical purposes, have long 
 been regarded as the ultimate evidence of English 
 Common Law. Coke's Commentary upon Littleton's 
 Tenures, eminent in the charmed (and long since closed) ^ 
 circle of "books of authority," was published in 1628. 
 About the same time began the publication of printed 
 reports of judicial arguments and decisions, a kind of 
 publication which has gone on increasing till it has now 
 swollen to a vast and unmanageable bulk. The advice 
 of Coke to students, that " it is ever good to rely upon 
 the book at large," has become a precept beyond human 
 powers to fulfil, and the text-books of special subjects 
 which digest and methodise the matter of the reports 
 are themselves groaning under the burden. But in 
 
 ^ Sir Michael Foster's Discourse of Crown Law (1762) was, I 
 think, the latest addition. Blackstone, and some few later books, 
 come very near, but only near, to being authoritative in the 
 technical sense. 
 
CHAP. V DEVELOPMENT OF THE MODERN LAW 111 
 
 those days lawyers had more leisure. They found time 
 to debate fully all the points of interest raised by a 
 case, whether the solution of them was necessary for 
 the actual decision or not ; and, with all their pedantry 
 and occasional perversity of intellect, they held fast to 
 a high and serious conception of the profession they 
 followed, and their duty to it as a science and an art, 
 which the modern practitioner must for the most part 
 be content to envy. The law of real property got its 
 full share of the discussion and development that went 
 on in this period. Yet the results of the Statute of 
 Uses were long in ripening. , Indeed the final touch 
 was not put to them till the year 1833, on the very 
 eve of the modern period of reform, when the limits of 
 the " rule against perpetuities " were settled by the 
 House of Lords. Practically, however, the structure 
 of family settlements of land had assumed its modern 
 form before the Eestoration, and the practice of con- 
 veyancers became, from the seventeenth century on- 
 wards, a fixed and well understood routine, improved 
 in details from time to time by addition or variation, 
 but preserving its main points unchanged. 
 
 The general scheme of a " strict settlement " is of this 
 kind. Let A be a living landowner who has a living 
 son B, and wishes to keep his estate " in the family " as 
 long as possible. For simpHcity's sake, we will suppose 
 A to be tenant in fee simple to begin with. A convey- 
 ance is executed by which A becomes tenant for life, 
 and B tenant for life after A's death ; or else A by his 
 will makes B the first tenant for life. Then an estate 
 tail (generally in tail male) is given to the first son of 
 B — a person not yet in existence, and who may never 
 
112 THE LAND LAWS chap. 
 
 come into existence ; and similar estates are given to B's 
 second and other sons in succession. Each of these dis- 
 positions can take effect only if every previous estate tail 
 fails to begin, or comes to its natural end, by persons 
 entitled to it not existing or ceasing to exist. Thus if 
 the estates are in tail male, and B has three sons, the 
 third son, or any of his descendants in the male line, 
 can become tenant in tail only if the two elder sons and 
 all their descendants in the male line, if any, are dead, 
 and none of them has exercised his power of barring the 
 entail — a power of which no tenant in tail can by any 
 device whatever be deprived. There will follow, prob- 
 ably, similar dispositions in favour of B's sons in tail 
 general, so as to admit their descendants in the female 
 line after those in the male line ; then other and some- 
 what less elaborate ones in favour of B's daughters ; 
 then, again, A's children other than B, if he has any, 
 and their possible descendants,^ and also (in the case of 
 a settlement made in A's lifetime) A's children who may 
 yet be born, are provided for in a series of successive 
 " limitations " of the same type as those already de- 
 scribed. In the remote contingency of all these disposi- 
 tions running their full course till every specified line of 
 descent is exhausted, the ultimate "remainder" (see p. 
 81 above) is usually declared to be for A's " right heirs,'' 
 that is, the person or persons who, at the time when the 
 previous interests have been worked out, may answer 
 the description of A's heir according to the common 
 course of descent of a fee-simple estate. 
 
 ' It is a question of detail, on wHoli the practice varies according 
 to the desire of parties in the particular case, whether the descend- 
 ants in the male line of the settlor's younger children are postponed 
 or preferred to descendants in the female line of the elder ones. 
 
V DEVELOPMENT OF THE MODERN LAW 113 
 
 This may seem pretty complicated, but it is the least 
 complicated part of a modern settlement. Practically 
 it is only in rare cases that the remoter interests so 
 carefully mapped out ever come into possession. If all 
 things happen as is desired, the regular course is this : — 
 B becomes tenant for life on A's death. He has a son C 
 (born either during A's life or afterwards, it matters not 
 which), who is " tenant in tail in remainder." English 
 lawyers do not say that he mil he tenant in tail when the 
 life tenancy comes to a end, but that he is tenant in tail 
 subject to B's life estate. Suppose that C comes of age 
 in B's lifetime. He can now without B's consent bar the 
 entail as against his own issue, but not as against those 
 "in remainder"; in other words, he can neither sell nor 
 borrow to much purpose, for a title depending on the 
 continuance of his descendants, which is all he can give 
 to a purchaser or lender, is a precarious and specula- 
 tive thing. ^ This check on C's power of alienation is a 
 result of the technical necessities of the old " common 
 recovery," which could not be carried through to its full 
 effect without the aid of the person in actual posses- 
 sion of the freehold. When fines and recoveries were 
 abolished in 1833, a new but sustantially equivalent 
 check was provided by the Legislature, the purpose of 
 
 ' The curious kind of estate created by the conveyance in fee 
 simple of a tenant in tail not in possession, without the concur- 
 rence of the owners of estates preceding his own, is called a base fee. 
 Though uncommon, it is not unknown in practice ; and it has been 
 used by George Eliot in Felix Holt, with great effect and with 
 perfect correctness, as part of the machinery of the plot ; insomuch 
 that conveyancers reading the novel have been known to lament 
 seriously, as if the thing had happened to one of their own clients, 
 that the parties did not take better advice. 
 
 I 
 
114 THE LAND LAWS chap. 
 
 that measure being only to simplify the form of proceed- 
 ing and put an end to fictions and useless expense. Since 
 that date B would be " protector of the settlement," 
 and his consent to any disposition by C is an express 
 and direct condition for its validity against the ulterior 
 interests created by the settlement. B then stands in 
 a commanding position towards C ; B and C between 
 them are masters of the estate, while C alone can do 
 very little, and B alone — except in the extraordinary 
 contingency of all the subsequent limitations failing — 
 can do nothing beyond the term of his own life. And 
 when B proposes that C, in consideration of being 
 adequately provided for during the rest of B's life, 
 shall join in making a new settlement in which C 
 shall be only a tenant for life, and other successive 
 limited interests shall be laid out in the same fashion as 
 in the former one, but with C and C's issue in the place 
 of B and B's issue, there is not much probability that C 
 can or will refuse. This process is repeated, as occasion 
 serves, from generation to generation ; and so long as it 
 can be kept up the estate is never in the hands of an 
 absolute owner.^ 
 
 Hence arose the necessity for the further complicated 
 machinery which, as already hinted, must be added to 
 these dispositions : I speak for the moment without 
 regard to recent legislation, of which more in its due 
 place afterwards. If things stood merely as now de- 
 
 ' The process of settling and resettling famUy estates lias re- 
 peatedly been described in forms intended to be more or less intel- 
 ligible to the lay public. I have purposely -written my own 
 account without referring to any other ; not that I can hope to be 
 more successful than my predecessors. 
 
V DEVELOPMENT OF THE MODERN LAW 115 
 
 scribed, there would be no provision made out of the 
 estate for the younger branches of the family (save in 
 the remotely contingent event of some of them coming 
 into possession of the whole), and no means of making 
 any. Neither would there be any means of effecting a 
 sale or exchange of any part of the settled estate, grant- 
 ing leases, or exercising many other necessary and usual 
 functions of an owner, during the minority of a tenant 
 in tail. And here the wide and flexible applications of 
 the Statute of Uses (undreamt of by its authors) come 
 in. It would be possible, indeed, without the aid of the 
 statute, to effect most of the purposes of a modern 
 settlement, if not all, by conveying the whole estate to 
 trustees in the first instance, who would, like feofi'ees 
 before the statute, have the legal fee simple, or, in other 
 words, would be the only persons whom a court of 
 common law would recognise as owners. Such a course 
 might nowadays be viewed with equanimity by lawyers 
 and landowners, and in fact it is sometimes adopted in 
 settlements made by will. But two centuries or even 
 one century ago there was still a kind of magic in men's 
 apprehension about the " legal estate.'' It is still true 
 in strictness of theory that an " equitable estate," as we 
 call the interest of a person beneficially entitled under a 
 trust, is not perfect ownership — a right available against 
 all the world — but is only a right to claim the profits and 
 enjoyment of ownership from the determinate person 
 who is the trustee. The beneficiary is in the same 
 position as the old " cestui que use " before the Statute 
 of Uses. Increased security has been given to this kind 
 of interest by the full but gradual development of the 
 jurisdiction and jurisprudence of the Court of Chancery; 
 
116 THE LAND LAWS chap. 
 
 the trustee's obligation being extended to all persons 
 deriving or claiming title through him otherwise than 
 for value, in good faith, and with due diligence of 
 inquiry. This process was still in its youth at the time 
 of the Eestoration, and it may well be thought that 
 nothing less than the power given by the Statute of Uses 
 to devise complex modifications of the legal ownership 
 itself would have sufficed to strengthen the hands and 
 embolden the invention of Orlando Bridgman and his 
 contemporaries.^ Broadly speaking, there are two kinds 
 of objects for which the special powers and provisions 
 now in question are introduced : the benefit and support 
 of wives and younger children of the successive holders 
 of the estate, and the general management of the estate 
 for the advantage of all parties interested in its profits. 
 These objects are effected partly by the action 'of the 
 person for the time being in possession, partly by the 
 intervention of trustees named for that end in the settle- 
 ment itself, and through an ingenious and intricate 
 machinery which is far too artificial to be described 
 here. It is enough to say that the machine has been 
 brought to great technical perfection by the experience 
 of about two centuries, and, when constructed by a 
 skilful artist who takes advantage of all known improve- 
 ments, works with much less friction than might be 
 expected. On the other hand, if the workmanship is 
 not first-rate to begin with (and for various reasons — 
 
 ^ Orlando Bridgman, who gained great fame as a, conveyancer 
 before and during the Commonwealth time, and was afterwards 
 Lord Keeper, is credited with the invention of the ' ' strict settle- 
 ment " in substantially its present form, avoiding certain risks to 
 which it had before his time been subject. 
 
V DEVELOPMENT OF THE MODERN LAW 117 
 
 haste, ignorance of country practitioners, or what not — 
 it often falls short of this standard), very serious trouble 
 may ensue. With regard to the special trustees just 
 mentioned, it must not be supposed that they exercise 
 much discretion of their own. As a rule, they are little 
 more than wheels in the machine, the management of 
 which is in the hands of the family solicitor, fortified at 
 need by the opinion and advice of counsel. It would be 
 considered meddlesome if they offered to exercise their 
 powers before they were asked. At the same time they 
 are fully answerable for what is done by them on the 
 usual request and advice ; and they are mostly persons 
 of such weight and standing as to be above suspicion 
 of conniving at any reckless or improper dealings with 
 the settled estate. In short, the trustees of a family 
 settlement are something like the constitutional safe- 
 guards of a complex political system ; their presence is, 
 in ordinary circumstances, hardly perceived, but they 
 hold great powers in reserve, which may be used with 
 effect on an emergency. 
 
 The parallel just now suggested is not a casual one. 
 There is nothing, perhaps, in the institutions of modern 
 Europe which comes so near to an imperivm in imperio 
 as the settlement of a great English estate. The settlor 
 is a kind of absolute lawgiver for two generations ; his 
 will suspends for that time the operation of the common 
 law of the land, and substitutes for it an elaborate con- 
 stitution of his own making. These constitutions are in 
 fact all modelled on the same, or very nearly the same, 
 type ; for the desire of great landowners has constantly 
 been to make the strictest settlements which the law 
 would allow, and the law, as we shall immediately see, 
 
118 THE LAND LAWS chap. 
 
 has set bounds, though liberal ones, to the power of 
 fettering inheritances and suspending absolute owner- 
 ship. And the ingenuity of conveyancers, devising how 
 to satisify private ambition to the utmost within the 
 field left clear to it by public ordinance, has produced 
 that curious and exquisite structure which, a hundred 
 years hence, will probably be as much abandoned to the 
 care of a few legal antiquaries as the learning of remitter 
 and collateral warranty. But a correction is needed 
 when we speak of the family settlement as a constitu- 
 tion ; for though it resembles a modern political system 
 in its multiplication of checks and counter-checks, and in 
 the tacit or half-expressed understandings by which its 
 working is made practicable, there is another respect in 
 which it is more fitly compared to the customs of an 
 Oriental despotism. When the authors of a settlement 
 have once made their disposition, it is like the law of 
 the Medes and Persians rather than the acts of a modern 
 legislature. They are as powerless as the great king of 
 old to alter their decrees, unless they have made special 
 provisions for that purpose which are not usually made 
 in practice, and which indeed would be inconsistent 
 with the main object of making the estate as a whole 
 as nearly inalienable as possible. 
 
 It might be a topic of curious meditation for the 
 student of comparative jurisprudence to note how well 
 the English landowning families have striven, though 
 all unconsciously, to reproduce in our modern society 
 something like the image of an archaic Aryan household. 
 There is at the head of all the eldest living male 
 ancestor, revered by his descendants and inferiors, and 
 exercising great control and influence in divers ways. 
 
V DEVELOPMENT OF THE MODERN LAW 119 
 
 and yet with his power over the family property strictly 
 limited — in the ancient household by custom, in its 
 modern counterpart by accustomed convention. There 
 are the women and younger generations of the family, 
 subject to the house-father in one sense, and yet having 
 rights in the common inheritance which he cannot inter- 
 fere with. The free dependents, not members of the 
 family, who swelled the state and substance of the 
 ancient household, may well enough be represented by 
 the modern tenant-farmers. Only the highest and 
 lowest extremes of the community are wanting. Slavery 
 and serfdom are happily long since extinct in our land ; 
 and so are the rites of the domestic altar, which were 
 for the ancient Aryan family the bond of fellowship, the 
 assurance of the departed ancestors' welfare, and the 
 pledge of their favour to the living. Some brilliant 
 theorists have sought in these the very origin of pro- 
 perty and inheritance ; and to this day the worship of 
 household gods and ancestors is in full force in India, 
 and lies at the foundation of the law which English 
 judges administer to the Queen's Hindu subjects. The 
 most fearful imprecation by which a Hindu can bind 
 himself is that, if he speak falsely, he may have no son 
 to deliver his soul from hell by due performance of the 
 sacrifice. But hardly can a faint survival of such old- 
 world usage (though much of the abiding human passions 
 which only change their garment from age to age) be 
 traced by the modern observer's fancy in an English 
 estate. He may speculate on a remote connection of 
 Pitris and Lares with the domestic chaplain, the an- 
 cestral monuments in the parish church, or the family 
 pew. Or, when he notes who is now the real possessor 
 
120 THE LAND LAWS chap. 
 
 of the secrets of the estate, the real familiar spirit at 
 whose bidding the magical powers of the settlement are 
 called forth, and without whose aid no matter of weight 
 can be undertaken, he may peradventure dream that 
 " the disestablished Lar," to use the term of a late 
 ingenious writer,^ is not dead but transformed, and lives 
 embodied in the family solicitor. 
 
 We have said that the modern form of settlement 
 dates, roundly speaking, from the Restoration. But 
 already in the sixteenth century, when controversy was 
 keen about Uses and the effect of the great statute, 
 lawyers had an inkling of what was coming. And their 
 opinions of the invidiousness and social inconvenience of 
 strict settlements (or even of dispositions falling far 
 short of what we now understand by the term) were 
 such as would not many years ago have been called 
 Radical. Coke has been quoted in the last chapter. 
 Let us hear Bacon : — 
 
 " First [it is said] that jit is a wisdom and foresight 
 for every man to imagine of that which may happen to 
 his posterity, and by all ways establish his name. To 
 this I answer that it is a wisdom, but a greater than 
 even Solomon aspired after, who had a large heart, as the 
 Scripture saith. For I find that he uses other language, 
 when he says that he must leave the fruit of his labour 
 to one of whom he does not know if he shall be a fool or 
 a mse man. And yet does he say that he shall be an 
 usufructuary or tenant restrained in a perpetuity ? No ; 
 but the absolute lord of all that he had by his travail. 
 So little did he know of these establishments." . 
 
 Whether Solomon had any land by his travail, in the 
 ^ Hearn, The Aryan Hoiiseliokl. 
 
V DEVELOPMENT OF THE MODERN LAW 121 
 
 modern sense of having a thing in absolute ownership, 
 we need not stop to inquire. As king he was no doubt, 
 in a sense, lord of the soil of his kingdom ; but, if he 
 was like other eastern kings, he could not lawfully dis- 
 possess the meanest of his subjects who duly paid the 
 customary revenue. Private ownership of land, at any 
 rate, has been of slow growth in the East. Under the 
 ancient rule of custom which is slowly decaying before 
 our eyes in India the land belonged to the village or to 
 the family, and was inalienable, though the possession 
 and enjoyment might change hands within the circle of 
 joint owners. The Hindu joint family is the true and 
 ancient perpetuity. Later attempts at founding per- 
 petuities by way of entail, mmjorat, strict settlement, and 
 the like, are the rebellion of a privileged class against 
 the tendency of the civilised world towards absolute 
 and several ownership, even as the schemes of Socialists 
 and other visionary reformers for "Land Nationalisa- 
 tion," or whatever else it may be called, are the rebellion 
 of those for whom the education of the world goes too 
 slowly, and who vainly seek a charm that shall redress 
 in one instant the balance of life between rich and poor. 
 But Bacon has more to say to us. Let us hear him 
 further : — 
 
 " Some young heir when he first comes to the float 
 of his living outcompasseth himself in expenses, yet 
 perhaps in good time reclaims himself, and has a desire 
 to recover his estate ; but has no readier way than to 
 sell a parcel to free himself from the biting and con- 
 suming interest. But now he cannot redeem himself 
 with his proper means, and though he be reclaimed in 
 mind, yet can he not remedy his estate. 
 
122 THE LAND LAWS chap. 
 
 " So, passing over the considerations of humanity, 
 let us now consider the discipline of families. And 
 touching this I will speak in modesty and under cor- 
 rection. Though I reverence the laws of my country, 
 yet I observe one defect in them ; and that is, there is 
 no footstep of the reverend potestas patria which was 
 so commended in ancient times. . . . This only yet 
 remains : if the father has any patrimony and the son 
 be disobedient, he may disinherit him ; if he will not 
 deserve his blessing, he shall not have his living. But 
 this device of perpetuities has taken this power from 
 the father likemse and has tied and made subject (as 
 the proverb is) the parents to their cradle, and so not- 
 withstanding he has the curse of his father, yet he shall 
 have the land of his grandfather." ^ 
 
 The term perpetuity, as here used by Bacon, and 
 constantly used by modern lawyers, signifies a dis- 
 position which attempts to make property inalienable 
 beyond certain limits fixed, or conceived as being fixed, 
 by the general law. What, then, are those limits ? It 
 was long before they were ascertained. In Bacon's 
 time, and for a century later, the legal question was 
 still open to be argued on wide grounds of policy. There 
 was no obvious limit to the time within which trusts, or 
 dispositions operating under the Statute of Uses, might 
 be calculated to take effect. Yet it was felt that a limit 
 there must be. It was agreed that " the rules of the 
 law to prevent perpetuities are the polity of the king- 
 dom," but nobody knew what the rules were. A long 
 series of experiments, extending into the second quarter 
 
 ' Arguments in Chudleigh'a case. Works, vol. vii. pp. 632-35, 
 ed. Spedding. 
 
V DEVELOPMENT OF THE MODERN LAW 123 
 
 of the eighteenth century, determined the limits of safety 
 for founders of families. Yet another century passed 
 before the rule was finally settled in all points. In 
 order to understand the form which it took, we must 
 go back to the older law. Quite apart from the learn- 
 ing of Uses, it was possible, at any time after the statute 
 De Bonis} to grant by one and the same conveyance an 
 estate for life, say in the manor of Dale, to Markham ; 
 and, subject to his life interest, an estate tail to Martin ; 
 after the determination of that estate another estate tail 
 to Newton, and so on through any number of persons, 
 till some one was named to take an ultimate fee simple, 
 after which there was nothing more to dispose of. 
 Martin, being of full age, could at any time, but not 
 without Markham's concurrence while Markham's life 
 estate was in existence, " suffer a recovery,'' in the 
 manner explained in the last chapter, and thus acquire 
 and dispose of the fee simple, when all the subsequent 
 dispositions made by the original grant would go for 
 nothing. So far, then, the manor is inalienable until 
 Markham's life estate ceases, or Martin, if an infant at 
 the date of the original conveyance, is twenty-one years 
 old, whichever of these events happens latest. But it 
 was not necessary that Martin, a person in existence, 
 should be named as the successor after the first life 
 estate. After some doubt ^ it was settled that an estate 
 for life might be given to Markham, and an estate " in 
 remainder " for life, in tail, or in fee, to Markham's first 
 son, though at the time of the gift he had no son. The 
 
 ' The legal reader will remember that a remainder over could 
 not be limited upon a fee simple conditional at common law. 
 2 Digby, History of Laic of Real Property, c. 5, § 3, 
 
124 THE LAND LAWS chap. 
 
 series of dispositions which form the groundwork of a 
 modern settlement, as above described, are only the full 
 application of this principle. But it was not, and is not, 
 allowable to give an estate for life to Markham's first 
 son, after that another estate for life to the first son of 
 that son, and so following — by which means, if allowed, 
 the estate might have been made inalienable for an 
 indefinite time. The title could not be secured for 
 Markham's descendants in the male line further than by 
 giving an estate tail to his first son ; nor indeed was 
 the security perfect even so far, for if no son was in 
 existence at the date of the settlement it was still in the 
 father's power to destroy the " contingent remainder,'' 
 which, when a son was born, would become "vested" 
 in him and beyond the father's control. Suppose a son 
 born and his interest unimpaired. That son might 
 possibly be born in the last year of Markham's life, 
 or even some months after his death. In that case 
 twenty-one years might elapse from Markham's death 
 before any one had power to alien the fee simple of the 
 manor. But whenever a tenant in tail of full age is in 
 possession, he can dispose of the fee simple notwith- 
 standing any attempt made by the terms of the settle- 
 ment to prohibit or restrain him. So it comes to this, 
 that the furthest period until which alienation can be 
 restrained by settlement, apart from provisions taking 
 effect by way of use or trust, is the end of twenty-one 
 years, and exceptionally something more, after the 
 death of some person living at the date when the settle- 
 ment is made. 
 
 Now uses and trusts were not directly amenable to 
 these rules, Being originally nothing else than direc- 
 
V DEVELOPMENT OF THE MODERN LAW 125 
 
 tions to the " feoflfees to uses " ^ to allow the profits of 
 the land to be enjoyed by persons named by the feoffor, 
 or to be ascertained in the manner pointed out by him, 
 which directions were enforced by the Chancellor as 
 binding on the feoffee's conscience, they had nothing to 
 do with the rules of the common law as to the creation 
 of estates. These newly -modelled interests might, 
 under cover of the feoffee's legal possession, be made to 
 shift about in the most capricious fashion. By the 
 common law Fortescue could not give an estate to 
 Brian and his heirs so long as they should use the name 
 and arms of Fortescue, and if they did not, then to 
 some one else. But when uses were established For- 
 tescue might infeoff Moyle and his heirs to the use of 
 Brian and his heirs until any of them should cease to 
 use the name and arms of Fortescue, and then to the 
 use of Prisot and his heirs. And as far as theory 
 went, the contingency might have been something 
 wholly unconnected with the estate and beyond the 
 parties' control — for example, until Heme's oak in 
 Windsor Park should fall, or until a new Pope should 
 take the name of Leo. There were other contrivances, 
 more complex in form but similar in principle, by 
 which like results could be produced for a variety of 
 purposes.^ 
 
 i 1 P. 94, above. 
 
 ^ "Uses of this class,'' said a learned and accurate modern 
 writer (William Hayes, Elementary View, etc., 1840, s. 31), "may 
 be described aa altogether eccentric ; as deviating from the course 
 prescribed by the original laws of the system, not without con- 
 siderable disturbance of its ordinary operations." It is said that 
 by common law "a man may have an inheritance in fee simple in 
 lands, as long as such a tree shall gi-ow, because a man may have 
 
126 THE LAND LAWS chap. 
 
 Neither the judges who had broken through the ex- 
 press terms of the statute De Bonis, nor the successors 
 who inherited their tradition, could be expected to 
 tolerate this new-found way of fettering the possession 
 and inheritance of lands. And, in fact, there was not 
 (what one might look for) a crowd of daring attempts 
 to push forward to all lengths in that course, but 
 settlors of estates rather felt their way step by step till 
 it was known how far they might venture ; so little 
 doubt was there that the Courts would once more hold 
 themselves authorised by the general "policy of the 
 law " to make new law for a new mischief. The rule 
 was at last settled by analogy (an analogy more felt 
 than expressed) to the course of the common law. Not 
 without sundry fluctuations of both opinion and judicial 
 decision, it came to be understood, towards the middle 
 of the eighteenth century, that a disposition of any 
 kind of property ^ intended to take effect in the future 
 must be so framed as necessarily to take effect, if at all, 
 after a lapse of time not exceeding twenty-one years 
 from the death of some certain person, or of the sur- 
 vivor of certain persons, who are living at the date of 
 the settlement if it is made by deed, or at the date of 
 the testator's death if it is made by will. As late as 
 1833 it was decided by the House of Lords that these 
 twenty-one years need not have reference to the infancy 
 
 an inheritance in the tree itself" (Liford's case, 11 Co. Rep. 49a). 
 This raises a very curious and difficult question, on which the 
 learned reader is referred to Note G. In any case, a, remainder 
 over could not he limited after such an estate. 
 
 ^ The rule is not confined to land, though we now have to do 
 with it only in that application. 
 
V DEVELOPMENT OF THE MODERN LAW 127 
 
 of any person. In particular cases the rule of law which 
 treats an unborn child as a person in existence for all 
 purposes of his benefit may have the effect of adding some 
 months to the time allowed. A disposition which goes 
 beyond these limits is said to be "bad for perpetuity." 
 Thus a gift to the first child of A (having at the time 
 no children) who shall attain the age of twenty-one 
 years, or to all his children who shall attain that age, is 
 valid. A gift to the first son of A who shall attain the 
 age of twenty-five years is of no effect, and it makes no 
 difference that A may in fact have a son who attains 
 that age in his own lifetime. Again, a gift by will to 
 the first person who shall climb up the cross of St. 
 Paul's after the testator's death is " void for remote- 
 ness,'' though somebody may peradventure do the thing 
 within a week ; if the gift were to the first person who 
 should so climb within twenty-one years after the 
 testator's death, it would be good. 
 
 The rule, it must be well marked, does not prevent 
 an estate in remainder or reversion from being made 
 expectant on an interest which may, or which naturally 
 will, endure for a much longer time. For English 
 lawyers regard an estate in remainder or reversion not 
 as a future interest, but as a present interest subject 
 to the " particular estate " which together with the re- 
 mainder or reversion makes up the fee simple. To 
 illustrate this by common cases : — If Holt grants an 
 estate tail to Powell, with remainder to Finch in fee, 
 Finch has the fee simple subject to Powell's estate tail, 
 and can dispose of his interest at once, though it is un- 
 certain when it may take effect by the failure of Powell's 
 heirs under the entail, or whether (since Powell or any 
 
128 THE LAND LAWS chap. 
 
 of his successors can bar the entail and acquire the 
 whole fee simple) it will take effect at all. Holt will be 
 in the same position if, instead of granting the fee 
 simple subject to the estate tail as a remainder, he keeps 
 it as his reversion ; he can at once deal with it for what 
 it is worth as he thinks fit. Again, Bayley grants a 
 lease to Buller for ninety-nine years. If Bayley tries 
 to provide that at the end of the ninety-nine years the 
 person who is then his eldest living male descendant 
 shall have the land, this is " void for remoteness," as 
 the creation of an interest to take effect after the lapse 
 of more than twenty-one years. But if he leaves it 
 alone, he has a perfectly good reversion by the common 
 law, which he may dispose of now or hereafter as he 
 thinks fit, no less than if it were land in his actual 
 possession. If he sells, it is commonly said that he sells 
 the ground-rent ; but in legal conception and language 
 he sells the land itself subject to the lease ; and if 
 the lease were for a thousand years, the legal doctrine 
 would be the same. 
 
 Such is in outline the " rule against perpetuities," 
 which, as regards these general principles, is now a 
 settled part of our law. Many curious questions might 
 still be raised on the application of it in various cir- 
 cumstances ; but the skilled and cautious routine of 
 conveyancers is for the most part, though not invariably, 
 successful in keeping clear of them. Certain points in 
 the legal theory are also still unsettled, or have been 
 settled only in the last few years, but it would be un- 
 profitable to explain or discuss them here.^ 
 
 The rule prevents property from being made certainly 
 ' See Note G, on Settlements and Perpetuity. 
 
V DEVELOPMENT OF THE MODERN LAW 129 
 
 inalienable beyond the limits of time fixed by it. But 
 it would not be correct to say that the property must 
 therefore be in fact alienable when the restrictive dis- 
 positions have run their full course. There must then 
 be some person absolutely entitled, but that person 
 may be an infant or a lunatic, so that yet another 
 generation may elapse before there is an owner with 
 full and active power of disposal. 
 
 The questions thus decided arose for the most part 
 upon dispositions by will. The Statute of Uses, as 
 we saw, was intended to make the devise i of land by 
 will thenceforth impossible ; but the prohibition gave so 
 much offence as to be soon removed, though for the 
 time to a limited extent only, by the Statute of Wills 
 of Henry VIII. (p. 102 above). And it was held that, 
 dispositions by will being once allowed, either the 
 Statute of Uses or its analogy (it matters not which) 
 was applicable in their favour. Thus a man could, and 
 he still can, by his last will, as well as by acts executed 
 in his lifetime, create interests unknown and indeed 
 repugnant to the doctrine of the old common law. 
 Persons making wills are notoriously more adventurous 
 and capricious than those who make settlements to take 
 effect in their lifetime ; in part, it may be, because the 
 obscurity or perplexity of their directions can vex only 
 posterity ; moreover, they are less under the influence 
 
 1 A gift by will of freehold land, or of such rights arising out of 
 or connected with land as are by English law classed with it as 
 real property, is called a demse. A gift by will of personal property 
 (a term including leasehold as well as movable property) is called 
 a leqxiest. Dispositions of real property of a kind not conforming 
 to the rules of the common law before the Statute of Uses are 
 called, when made by will, executory c 
 
 K 
 
130 THE LAND LAWS chap. 
 
 of discreet advisers. Hence dispositions by will pro- 
 duced much the greater part of the litigation which 
 defined the bounds of legal control over future genera- 
 tions. 
 
 Complete freedom of dealing with land by will was 
 a result of the abolition of military tenures, an event 
 which preceded in time the settlement of the rule 
 against perpetuities, and may be taken as marking the 
 full close of the medieval stage of the law. Though in 
 form it stands as one of the first acts of the Restoration, 
 in substance it was one of the many law reforms under- 
 taken in the time of the Commonwealth. Most of those 
 reforms were rejected or dropped at the Eestoration. 
 This one was too popular and necessary to be so dealt 
 with ; nor was unexceptionable authority wanting, for a 
 similar measure had been strongly advocated by Coke.^ 
 The Act of the first Parliament of Charles II. for 
 abolishing the military tenures and their incidents was 
 passed in 1660. No notice was taken by it of the 
 previous Act of the Commonwealth which had been 
 passed in 1656, all statutes of the Commonwealth being 
 treated under the restored monarchy as made without 
 lawful authority, and mere nullities ; but the same pro- 
 visions were enacted in a rather more elaborate form.^ 
 All freehold tenures were reduced to the one type of 
 " free and common socage," ^ with an important twofold 
 
 ^ See the details and references in Mr. Digby's History, eh. ix. 
 It is a gi-eat error, but it has been a common one, to overlook these 
 facts, and regard the legislation of 1660 as an arrangement between 
 Charles IL and the great landowners. 
 
 ^ According to Madox {Rist. Exch., i. 620, ed. 1769), the work- 
 manship of the statnte leaves much to be desired, 
 
 ^ See pp. 59 and 63, above, 
 
V DEVELOPMENT OF THE MODERN LAW 131 
 
 result. First, all the vexatious incidents of military- 
 tenure disappeared with the tenure itself ; only ancient 
 money rents might remain payable by the tenant, which 
 already had become, by the changes in the value of 
 money since they were fixed, almost or altogether 
 nominal. Next, inasmuch as the statute of 1540 had 
 enabled tenants in fee simple to dispose by will of the 
 whole of their socage lands, and socage was now made 
 the only freehold tenure, the whole of the fee-simple 
 land in the kingdom became disposable by will. Feudal 
 tenancy was converted for all practical purposes into full 
 ownership. The "honorary services of grand serjeanty," 
 that is, services due to the Sovereign in person by the 
 terms of the tenure, were exempted from abolition ; and 
 tenure in frank-almoigne, by which the greater part of 
 ecclesiastical lands were and still are held, was left 
 untouched.^ 
 
 It had been proposed at an earlier time to compensate 
 the Crown for the loss of feudal dues by assessment of 
 a fixed money rent on the enfranchised lands.^ This 
 method was not now adopted, but the excise duties 
 which had been invented by the Long Parliament and 
 renewed under the Commonwealth were granted to the 
 King, " to the intent and purpose that his Majesty, his 
 heirs and successors, may receive a full and ample 
 recompense and satisfaction " for the feudal incidents, 
 and for certain other profits and privileges abolished by 
 the same Act. There is a not uncommon impression, I 
 believe, that the land tax was imposed as part of, or in 
 
 ^ This, however, was not a real exception, for every non-military 
 free tenure is tenure in socage. 
 2 Coke, 4 Inst. 202. 
 
132 THE LAND LAWS chap. 
 
 connection with, the same transaction, and to make up 
 to the public revenue for the income formerly received 
 from the military tenants of the Crown. But this is 
 not so ; we first hear of the land tax in 1692, and then 
 as part of a scheme for a general property tax.^ The 
 Land tax itself has now shrunk into relative insig- 
 nificance beside Schedule A of the Income tax, which 
 in our time is the real and effective tax on landed 
 property for national as distinct from local purposes. 
 It is a true property tax, being, unlike the tax on 
 profits under Schedule D, assessed on the gross, not on 
 the net value. And if any one thinks land does not 
 bear its fair share of taxation, and wants to raise the 
 question in a practical form, his proper course would be 
 to propose a differential rate under Schedule A. But 
 it is easier, and for some purposes more profitable, to 
 put forth sounding generalities than to work out a 
 definite plan.^ 
 
 There were other branches of law relating to land 
 which the development of the seventeenth and eigh- 
 teenth centuries brought into substantially their present 
 condition. Of these the law of mortgage is the most 
 important. The power and practice of making a 
 debtor's property, and especially immovable property, 
 a security to the creditor for the payment of his debt, 
 are well-nigh as old as the legal recognition and judicial 
 enforcement of any rights of property whatever. The 
 
 1 Appendix L to Mr. G. Brodriok's English Lmid and JUnglish 
 Landlords (by Mr. Humphreys-Owen). 
 
 ^ A landowner who keeps land in hand pays not only as owner 
 under Schedule A, but also as occupier under Schedule B, whether 
 he occupies for proiit or not. I doubt whether this is generally 
 understood. 
 
V DEVELOPMENT OF THE MODERN LAW 133 
 
 reflection is trite that both parties gain — the creditor 
 by having security, the debtor because a secured 
 creditor can let him have money on easier terms. 
 Good security means low interest as certainly as high 
 interest means bad security. Certain reformers who 
 wish on economical grounds to abolish mortgage alto- 
 gether must take, it seems to me, an extremely sanguine 
 view of the facility of making a radical change in the 
 convenience and the desires of mankind. The forms, 
 however, in which English law has given efifect to this 
 all but universal practice have been singularly ill 
 chosen. Beginning with fictitious and impracticable 
 stringency, our practice has ended in a wide and 
 dangerous laxity, which breeds doubtful titles and 
 litigation, and is no small encouragement to fraud. 
 In the medieval period we meet with two ways of 
 giving land in security. One of these consists in 
 handing over possession to the creditor, who repays 
 himself out of the rents and profits. This is called in 
 Latin vivwm vadmm, in French mf gage, because the 
 pledge in the creditor's possession is, as it were, alive 
 for the debtor's benefit in working off the debt. In 
 English it is called a Welsh mortgage ; in modern 
 practice it seldom or never occurs. The other and 
 prevailing method is a conditional sale of the land by 
 the debtor to the creditor. If the debtor repays the 
 money with interest to the creditor at a stated time, 
 the creditor must give him back the land; if not, it 
 remains the creditor's. And this is properly called 
 mortgage, mortuum vadium, in opposition to the "vif 
 gage," where the growing profits go to extinguish the 
 debt, because the profits of the land are, as it were. 
 
134 THE LAND LAWS chap. 
 
 dead to the debtor. It must be difficult for any one 
 but a lawyer to believe that so clumsy an operation is 
 to this day the regular means of securing a debt on 
 land in England. It is true that its harsh meagreness 
 was amplified by the judgments of the Court of 
 Chancery into a full and elaborate system of rules, 
 abounding even to overmuch caution in safeguards for 
 the debtor. The terms of the transaction were — as 
 they still appear to be — that the debtor must pay his 
 money to get back the land (redeem it, in the technical 
 phrase) at a stated time, generally six months after the 
 date of the agreement, or it would become the creditor's 
 absolute property. But the Chancellors laid down that, 
 notwithstanding these terms, the debtor should be ad- 
 mitted to redeem after the set time had past. The 
 right thus allowed him in the Court of Chancery was 
 called an " equity of redemption." In other words, the 
 jurisprudence of that Court, looking to the substance of 
 the dealing between the parties and disregarding the 
 form, treated the borrower as still the real owner of the 
 land, and the land as only pledged for the lender's 
 security. But a corresponding right had then to be 
 given to the lender, his nominal right to deal with the 
 land as owner being made useless. He might indeed 
 take possession when the debtor failed to pay on the 
 appointed day, but he did so at his peril; the Coxu-t 
 held him strictly accountable to the debtor, so that the 
 plight of a mortgagee in possession ^ is one of the most 
 unenviable known to the law. Therefore a more just 
 and convenient redress was given him. He was allowed, 
 
 ^ The borrower who pledges his land by way of mortgage is 
 called a mortgagor ; the lender who holds it in pledge is a mortgagee. 
 
V DEVELOPMENT OF THE MODERN LAW 135 
 
 if he could not get payment of his debt after due notice, 
 to sue in Chancery, that the borrower might be ordered 
 to pay the principal and all arrears of interest, or in 
 default be "foreclosed of his equity of redemption," 
 that is, no longer protected against the strict legal 
 consequences of his agreement according to its form. 
 This, however, was found expensive and tedious; and 
 it became an almost universal practice to insert in the 
 deed special provisions enabling the mortgagee to sell 
 the land and repay himself out of the proceeds, if the 
 debt were not paid off on notice, or if the interest fell 
 into arrear for more than a certain time. Recently 
 this " power of sale " has been conferred on mortgagees 
 by Act of Parliament, so as to supersede in ordinary 
 cases the necessity of expressly repeating the provisions 
 which had become well settled by usage. Power has 
 also been given to the Court to order a sale of the 
 property instead of foreclosure. Shortly, the result is 
 this : — A deed of mortgage means something very 
 different from what it says, but this has so long been 
 an understood thing that nobody is misled by it. The 
 mortgagee never expects to be repaid on the day 
 nominally appointed for redemption (not uncommonly, 
 indeed, there is an express stipulation that the principal 
 shall not be paid off till after a certain number of years), 
 and the mortgagor's possession is safe as long as he pays 
 the interest punctually. 
 
 But the Court of Chancery embarked on other adven- 
 tures, and discovered new methods of encumbering land. 
 It was not enough to remodel the old mortgage into 
 accordance with present convenience and the real expec- 
 tation of the parties. Nor was it enough to hold that a 
 
136 THE LAND LAWS chap. 
 
 beneficial owner who had not the " legal estate " might 
 raise money on the security of his beneficial interest in 
 the same manner as a legal tenant. It was held, first, 
 that an agreement to give a mortgage was not a mere 
 personal agreement, but operated as a charge on the 
 land itself in the hands of any one who knew of it ; and 
 then that an " equitable mortgage " might be created 
 without any written agreement at all. The latter step 
 came about thus : — As the first thing required of an 
 English landowner by any one dealing with him for the 
 land is to produce his title-deeds, the handing over of 
 the title-deeds to a creditor, pending the preparation of 
 a formal security, is a fairly effectual precaution for the 
 creditor's safety. When the Court of Chancery took 
 notice of this practice, it became, and it still is, the 
 established doctrine that such a deposit of deeds consti- 
 tutes an " equitable mortgage " of itself. This doctrine 
 being founded on the supposed equitableness of executing 
 the agreement between the lender and borrower, and not 
 on any virtue of the title-deeds in themselves, it does 
 not matter whether the documents actually deposited 
 are the whole of the debtor's evidence of title, and it 
 even seems that it does not matter whether they are 
 title-deeds at all, so long as they are stated so to be, and 
 accepted as such by the creditor. A clever and un- 
 scrupulous borrower may thus deposit part of his title- 
 deeds with one creditor, part with another, make an 
 express agreement for security with a third (if he can 
 lull the suspicion excited by the deeds not being forth- 
 coming, a feat which, though not easy, has been per- 
 formed with success), and execute a legal conveyance by 
 way of mortgage to a fourth, while the value of the 
 
V DEVELOPMENT OF THE MODERN LAW 137 
 
 property on wMcli they rely for payment is wliolly 
 insuificient to satisfy them all. The judicial adjustment 
 of the conflicting claims thus created, and the determina- 
 tion of the order of preference to be given to the several 
 creditors, demand the solution of most intricate legal 
 problems. The Court of Chancery has manfully faced 
 these difficulties, and, with the laudable intention of doing 
 complete justice, has introduced various rules and dis- 
 tinctions which in their turn, being worked out in great 
 detail, have led to unforeseen and sometimes unreasonable 
 consequences. It may be doubted whether these refine- 
 ments have not, on the whole, done more harm than 
 good. 
 
 Endeavours have been made by Parliament at different 
 times, from the end of the seventeenth century onwards, 
 to deter borrowers on landed security from committing 
 fraud on lenders by the concealment of earlier charges. 
 These, however, have been but moderately successful, 
 and the present state of things is anything but satis- 
 factory. A lender may assure himself that there is at 
 least one mortgage prior to his own, but he cannot be 
 sure that there is only one, or any definite number.^ 
 Neither the Court of Chancery nor Parliament is much 
 to blame. The power of encumbering land by secret 
 and informal charges is but the natural outcome of the 
 events which followed the Statute of Uses. When once 
 the Statute of Enrolments was successfully evaded, 
 and no fresh measure taken to restore the original 
 purpose of the Statute of Uses, it was settled for many 
 generations to come that dealings with land, instead of 
 being, as the old law required, open and notorious, 
 ' Cp. Solicitm-s' Jouriial, xxx. 268. 
 
138 THE LAND LAWS chap, t 
 
 might be private and secret. The refinements and per- 
 plexities of " equitable mortgages " have only carried 
 out this principle. And if the Legislature or the public 
 are minded to have any effectual amendment, they must 
 in turn consider whether there is any way short of 
 wholly reversing the principles of modern conveyancing, 
 and going back, in principle though not in form, to the 
 ancient ways of the fathers of the Common Law. 
 
CHAPTER VI 
 
 LANDLORD AND TENANT 
 
 A LANDHOLDER whose land is more than he can occupy 
 and manage himself, and who does not choose to part 
 with the ownership, can use it in the following ways : — 
 He may, where slavery exists, cultivate the land by slave 
 labour under overseers. He may cause it to be culti- 
 vated, still at his own risk and for his own profit, by the 
 hired labour of freemen under the management of an 
 agent or bailiff. Or he may hand over the cultivation 
 and the profits to some person who makes his own 
 advantage of it on agreed terms and conditions, paying 
 for the use of the land either in money or by a share of 
 the produce. The first of these methods is not now 
 possible in any considerable part of the civilised world, 
 and has not existed in Europe at any time or place which 
 need be regarded for our purpose. The second is every- 
 where possible in law, and is common, I believe, on 
 some parts of the Continent, but in England a large 
 owner who farms his own land is now met with only as 
 an occasional exception. The third plan, namely, letting 
 the land to a tenant-farmer, has been, in one or another 
 form, generally adopted in modern times. Yet another, 
 which cannot be classed with any of these, was prevalent 
 
liO THE LAND LAWS chap. 
 
 in the Middle Ages ; that is, the holders of small tene- 
 ments were bound by custom to do agricultural work, 
 of stated amount and at stated seasons, on other land 
 possessed for his own use by the lord under whom they 
 held. These customary services may be called labour- 
 rents ; they probably represented what we now call the 
 letting value of the land, but we must remember that 
 they were not dealt with as a matter of contract. As 
 often as not they were rendered by personally freemen ; 
 in the case of a bondman's holding the services were 
 more burdensome and the tenure less assured, though 
 a comparison of the medieval text-writers with such 
 detailed records as are accessible suggests that by those 
 writers, and still more by the later ones who have built 
 upon their statements, the precariousness of even the 
 bondman's tenure is exaggerated. At least as early as 
 the thirteenth century these labour-dues were largely 
 commuted into fixed money payments. In the latter 
 half of the fourteenth century the depopulation and 
 scarcity of labour following on the Black Death went 
 far to break up the system, and by the beginning of 
 the sixteenth century money-rents appear to have fully 
 taken the place of personal service. The same causes 
 which made the old labour-rents worthless also made it 
 unprofitable to the landlord to farm his own land by 
 bailiffs, and thus the way was cleared for the modern 
 usage of letting to tenants. ^ 
 
 ^ Archdeacon Hale's Introduction to Domesday of St. Paul's, p. 
 Ivi. Thorold Rogers's History of Prices. Vinogradoff, Villainage 
 in Migland. Mucli interesting and useful information on the social 
 aspects of the history of tenancy in England is also to be found in 
 Part 1. of Mr. G. Brodrick's English Land and English Landlords. 
 
VI LANDLORD AND TENANT 141 
 
 Not that this usage is of modern origin. The begin- 
 ning of it may be traced at least a century further back 
 than the Norman Conquest. Religious foundations, the 
 greatest owners of land in the earlier Middle Ages, and 
 also the least able to give direct attention to its manage- 
 ment, made temporary grants to tenants from an early 
 time. Towards the end of the tenth century we find 
 Oswald, Bishop of Worcester, explaining in a letter to 
 King Edgar his practice of letting church lands to a 
 tenant for three lives (the lives being the tenant's own, 
 and those of two other persons named by him as suc- 
 cessors) on the terms of rendering specified services ; 
 and several examples of these grants are preserved.'- 
 Two or three centuries later the practice of the Dean 
 and Chapter of St. Paul's was to let their farms for life 
 (sometimes to two tenants for the life of the survivor), 
 the tenant rendering a fixed supply of provisions for the 
 use of the house, with or without money payments in 
 addition.^ The farm buildings and live stock were 
 found by the landlord, and the stock had to be accounted 
 for at the end of the tenancy. The mitayer system of 
 farm-holding, still prevalent in many parts of the Con- 
 tinent, is not unlike this. 
 
 When tenancies for a fixed term of years came into 
 use is not certain; they were well known, however, in the 
 thirteenth century, and were common in the fifteenth. 
 We may perhaps assume that letting for a certain term 
 was suggested by the rotation of crops. A three years' 
 
 1 Cod. Bvpl. No. 1287, and Introd. vol. i. p. xxxiv. It does 
 not appear whether the two succeeding lives must be those of 
 persons in existence during the original tenant's life. 
 
 2 Domesday of St. Paul's, xxxviii. 122 sqq. 
 
142 THE LAND LAWS chap. 
 
 lease, according to the old-fashioned husbandry, would 
 enable the tenant to complete the round and secure the 
 advantage of the wheat crop ; and a term of three years 
 is in fact the shortest that occurs in practice. Yearly 
 tenancy, now the commonest form of holding in England, 
 is not a letting for one year, but "from year to year," 
 that is, for an indefinite time, determinable by either 
 party giving notice (formerly a half-year's notice, but 
 now a whole year's in the absence of agreement to the 
 contrary) ^ at the proper season. Perpetual leases, after 
 the fashion of the Eoman emphyteusis, are unknown to 
 English law, but there is no legal limit to the certain 
 number of years for which a lease may be granted, and 
 therefore no technical difficulty in the way of making it 
 as good as perpetual. In practice twenty-one years is 
 the greatest length of agricultural and occupation leases.^ 
 Building leases are commonly made for ninety-nine years 
 (but of late often for not more than eighty), and mining 
 leases (which, as being in truth a sale of the minerals 
 to be worked by the lessee, are in sundry ways peculiar) 
 for terms varying with local usage, not as a rule ex- 
 ceeding sixty years. Longer terms, as of 200, 500, or 
 even 1000 years, are conferred upon trustees as part of 
 the machinery of family settlements, and were for some 
 time commonly used in mortgages ; it is enough here, if 
 it be not too much, to mention their existence. In these 
 cases there is no rent and no real tenancy. Leases for 
 
 1 Agricultural Holdings (England) Act, 1883, s. 33. 
 ' ^ In many American States the length of farming leases is re- 
 stricted by statute to ten or twelve years. On the other hand, a 
 lease for a term of years with a covenant for perpetual renewal is a 
 common form of urban tenure. 
 
VI LANDLOED AND TENANT 143 
 
 lives, renewable by custom on payment of a fine as often 
 as a life fell in, were until lately the common method of 
 managing ecclesiastical and corporate lands. The object 
 of adopting this plan was simply to benefit the existing 
 bishop or corporators at the expense of the see, college, 
 or other corporate body, the fines, as they were received 
 for successive renewals, being treated not as capital, 
 which they really were, but as revenue. Modern reforms 
 have put an end to this, I believe, in every case. 
 
 Leaving exceptional cases aside, we pass on to con- 
 sider the position of the tenant who holds either for a 
 term of years, or as tenant from year to year. In the 
 feudal plan of society there is no place for him ; and 
 accordingly the legal doctrine starts from the conception 
 that the relation between the landlord and the tenant 
 is simply a personal contract. This conception is at the 
 bottom of all the differences between freehold and lease- 
 hold tenure, and, though largely qualified in its effects, 
 must be borne in mind in order to understand even the 
 most modern form of the law. The lessee's interest is 
 now beyond question property, not the mere right to 
 the performance of a contract. Still, being in legal 
 theory the creature of contract, it has neither the dig- 
 nities nor the burdens peculiar to freehold tenures. 
 It is not the subject of feudal modes of conveyance, nor 
 of the feudal rules of inheritance. No particular form 
 of words is necessary for its creation ; and the custom of 
 creating it by deed has become a legal requirement (and 
 that not in every case) only by modern statutes. It 
 could always be disposed of by will if the tenant died 
 before the expiration of the term ; and in case of such 
 death the law deals with it in the same way as cattle or 
 
144 THE LAND LAWS chap. 
 
 money, and it goes to the executor, as part of the " per- 
 sonal estate," to be administered by the same rules as 
 movable property. If undisposed of by will, the lease- 
 hold tenant's interest belongs on his death to the same 
 persons, and in the same proportions, as cash or railway 
 shares which he has not disposed of. There is no such 
 thing as an heir of leaseholds. In one word, which for 
 the lawyer includes all that has been said, a leasehold 
 is not real but personal estate. From a strictly feudal 
 point of view there is not an estate at all, only a per- 
 sonal claim against the freeholder to be allowed to 
 occupy the land in accordance with the agreement. 
 But as early as the thirteenth century two points were 
 settled, which together constituted a true right of pro- 
 perty in the tenant. If he was ejected in breach of his 
 landlord's agreement, he could recover not merely com- 
 pensation for being turned out, but the possession 
 itself ; and this not only against the original landlord, 
 but against a purchaser from him. Already the pur- 
 chaser could not say to the tenant whom he found on the 
 land, "I have made no contract with you; look for 
 your redress to the man with whom you did contract." 
 The farmer's possession was as secure while his estate 
 lasted as the freeholder's.^ On the foundation thus laid 
 the modern law has been completed, partly by judicial 
 usage and partly by express legislation. Broadly 
 speaking, both the landlord's and the tenant's successors 
 in title enjoy, while the term of the tenancy lasts, the 
 
 1 "Won magis poterit aliquis firmarium eiicere de firma sua 
 quam tenentem aliquem de libero tenemento suo." — Bracton, fo. 
 220h. For details see the section on "The Term of Years," in 
 Pollock and Maitland, Hist. Eng. Law, ii. 105-17. 
 
VI LANDLOED AND TENANT 145 
 
 rights conferred at its creation upon the landlord and 
 tenant respectively, and are subject to the burdens 
 imposed on them. Exceptions may still occur, too rare 
 and technical to be now further specified, which are just 
 enough to show that the old notion of a mere personal 
 agreement, though decayed, is not dead. 
 
 There is, however, one ancient and peculiar incident 
 in the relation between landlord and tenant which the 
 theory of contract is incapable of explaining. This is 
 the landlord's right of distress. Early records, both of 
 English customs and of those of kindred nations, point 
 to a time when distress was almost the universal form 
 of civil remedy. When cattle were the only movable 
 property of any value, and courts of justice had no 
 swift or certain means of enforcing their orders, the most 
 natural thing for a man to do who complained of wrong 
 at his neighbour's hands was to drive off some of the 
 neighbour's cattle, and keep them till the owner would 
 either satisfy his claim or refer the matter to the decision 
 of an impartial authority. Still more obvious is the form 
 of self-help, preserved in our law to this day, which is 
 called " distraint damage feasant " ; that is, impounding 
 cattle •*• which trespass upon one's land as a security that 
 the damage shall be made good. When courts of justice 
 began to compel the attendance of parties before them 
 (for there are traces everywhere of a time when they 
 professed only to do justice between such as willingly 
 submitted themselves), they applied the same kind of 
 compulsion that was in familiar use in private quarrels. 
 
 1 Goods of any kind may be distrained damage feasant, and a 
 locomotive has been so dealt with by a railway company ; but 
 animals only need to be regarded for the present purpose. 
 
 L 
 
146 THE LAND LAWS chap. 
 
 As local jurisdiction passed into the hands of lords of 
 manors, distress became the regular means of compelling 
 persons subject to the lord's jurisdiction to appear in his 
 court, and also, with or without judicial proceedings in 
 the court, of enforcing payment or performance of the 
 rents and services due from tenants. Some local customs 
 even allowed the lord to seize the land itself. By steps 
 of which nothing certain is known, it came to be under- 
 stood that an agreement for the occupancy of land, though 
 it created no feudal tenure, and therefore no service in 
 the proper sense, entitled the owner, if the rent fell into 
 arrear, to seize any goods he could find on the land as a 
 security for its payment. Probably the right was claimed 
 and exercised without dispute by analogy to the rights 
 of the lord of a manor against his freehold tenants. It 
 may have contributed to the readier allowance, as it 
 certainly does to the apparent justice of the proceeding, 
 that in the Middle Ages the live stock of the farm were 
 mostly supplied by the landlord. In such a case, if the 
 tenant became insolvent, a landlord who seized the 
 stock was only resuming his own. Be the early history 
 what it may, the right has existed ever since English 
 common law took a definite shape. ^ In the course of 
 the last two centuries legislation has made it a far 
 more efficient instrument in favour of the landlord ; 
 
 ' The student may consult, besides Sir H. Maine's chapter on 
 the Primitive Forms of Legal Remedies, the chapter on Distraint 
 in Mr. Bigelow's History of Procedure in Englaind. For the com- 
 mon law in its settled form, see Blackstone, hook iii. ch. i. Our 
 early medieval law was in general stricter against self-help than 
 the modern law ; see Pollock and Maitland, Hist. Eng. Law, ii. 573. 
 Nevertheless the landlord's right of distress without judgment grew 
 up apparently without dispute. 
 
VI LANDLORD AND TENANT 147 
 
 whicli has indeed been the tendency of all legislation 
 concerning landlords and tenants until a pretty recent 
 time. 
 
 By the common law things taken in distress were 
 a mere pledge for payment of the rent. Therefore 
 nothing might be distrained which could not be restored 
 in the same condition, such as corn in sheaves ; nor 
 anything which grew out of or was fixed to the soil, 
 such as standing corn ; and the landlord had no power 
 to sell distrained beasts or goods, nor to deal with them 
 in any way as owner, even for the owner's benefit, except, 
 perhaps, in case of evident necessity.^ And, moreover, 
 as Blackstone tells us, "the many particulars which 
 attend the taking of a distress used formerly to make 
 it a hazardous kind of proceeding ; for, if any one 
 irregularity was committed, it vitiated the whole," and 
 the person distraining became a mere trespasser. This 
 has already been noticed by Sir Henry Maine as evi- 
 dence of the archaic nature of the institution. "The 
 excessive technicality of ancient law" clings to all 
 ancient customary remedies unless and until, as in this 
 case, modern legislators remove it for the benefit of the 
 parties, or one of them. In 1689 the power of selling 
 things taken by distress, after notice to the tenant, was 
 first given to the landlord by Act of Parliament ; it was 
 further secured and defined by subsequent statutes of 
 
 ^ It has been said that he had no right to milk a cow. The 
 learned reader may compare the somewhat similar proposition 
 that milking the testator's cow will make a man executor de son 
 tort. But the statement is only in EoUe's Abridgement, i. 673, 
 and is directly contradicted by the report of the same case in 
 Cro. Jac. 147, where things done of necessity and for the owner's 
 benefit are excepted from the general rule. 
 
148 THE LAND LAWS chap. 
 
 the eighteenth century, and the old restrictions on the 
 kinds of things liable to distress were greatly relaxed. 
 "The summary power of sale now exercised has been 
 created by the recent statute law with more attention 
 to the profit of the rich than to the rights which were 
 secured to the poor by our ancient jurisprudence." ^ 
 
 It will be understood that the right of the landlord 
 is other and greater than the tenant could give him by 
 contract : it is to take chattels found on the holding, 
 whether the tenant's property or not. This, if it were 
 simply a matter of agreement, the tenant could of course 
 not enable the landlord to do : contracts cannot impose 
 liabilities on persons who are not parties. In the case 
 of under-tenancies, a thing unknown when the rule of 
 law was fixed, great hardship may be the result, since 
 the goods of a sub-tenant may be distrained for rent 
 due from his immediate lessor to the superior landlord. 
 This " great loss and injustice " (in the words adopted 
 by Parliament) was remedied in the case of lodgers by 
 an Act passed as lately as 1871. The expediency of 
 the right of distress as regards farm holdings has in 
 recent years been much discussed. It is rational to say 
 that, since the landlord cannot help giving credit, he 
 ought to be in some shape and to some extent a preferred 
 creditor : but the existing law of distress gives effect to 
 this principle in the most rough and irrational fashion. 
 It would seem that the advocates of complete " freedom 
 of contract " in the relations between landlord and tenant 
 ought to have been the first to demand the abolition of 
 an anomalous customary privilege which contract could 
 never have been engendered ; but such was by no means 
 ^ Palgrave, English Commonwealth, i. 182. 
 
VI LANDLORD AND TENANT 149 
 
 the case. By the Agricultural Holdings Act of 1883 
 (46 & 47 Vict. c. 61) the landlord's right to distrain, 
 which at common law extended to six years' back rent, 
 is limited to one year as regards holdings within the 
 Act — that is, farm, pasture, and market-garden lands : 
 and hired machinery, and live stock not being the 
 tenant's own property, are exempt from distress — the 
 former absolutely, the latter with certain qualifications. 
 It may be regarded as a kind of set-off to the power 
 of distress that other summary powers and remedies 
 which lessors are in the habit of securing to themselves 
 by contract have lately been mitigated in their opera- 
 tion, so as to prevent them from being abused beyond 
 their true function of securing the landlord's interest. * 
 For a long time it has been the common practice to 
 insert in leases, especially of town property, provisions 
 enabling the landlord to re-enter and put an end to 
 the lease if the tenant fails to perform his obligations. 
 Non-payment of rent is the cause most commonly 
 specified ; another is neglect to keep the premises in- 
 sured, where the tenant has covenanted to insure ; 
 frequently the clause of re-entry extends to breach or 
 neglect of any one of the tenant's covenants. ^ With 
 regard to non-payment of rent, the tenant became 
 entitled, first by the practice of the Court of Chancery, 
 and then by modern Acts of Parliament, to be relieved 
 from forfeiting the lease on payment of the rent in 
 arrear and costs. About twenty years ago neglect to 
 insure was also made remissible on certain conditions. 
 And now by the Conveyancing Act of 1881 (sec. 14) 
 
 ^ Covenant, whicli etymologically is a mere synonym of agree- 
 ment, signifies in English law any promise made by deed. 
 
150 THE LAND LAWS chap. 
 
 the Court has power to grant relief to the tenant in its 
 discretion, and on such terms as it thinks fit, except in 
 the case of non-payment of rent, as to which the former 
 Acts remain in force. 
 
 Another general rule of law which bore hardly on 
 tenants has gradually been relaxed in their favour, 
 namely, that which declares that things affixed to the 
 soil become for legal purposes part of it, and cease to 
 be the tenant's. The truth is, and it may as well be 
 stated at this point, that the law of landlord and tenant 
 has never, at least under any usual conditions, been a 
 law of free contract. It is a law of contract partly 
 express, partly supplied by judicial interpretation, and 
 partly controlled by legislation and sometimes by local 
 custom. So far as the terms and conditions are ex- 
 press, they are in the vast majority of cases framed by 
 landlords or their advisers. The tendency of judicial 
 interpretation has also been, until lately, to incline 
 the scale of presumption in favour of the landlord on 
 doubtful points ; and the same may be said of the 
 ruling tendency of legislation down to the middle of 
 the present century. The allowance of local customs, 
 which might have done much to redress the balance if 
 taken up betimes, depends on the tendency of the 
 judges. When special customs were looked on as a 
 kind of natural enemies of the common law, and strict 
 proof of them was required, they got little help in 
 court. Probably many tenants have in past times failed 
 to establish customary rights, or have been discouraged 
 by the failure of others from asserting them, in cases 
 where the decision would now be the other way.^ As 
 
 1 A good example of the present tendeney to give full effect to 
 
VI LANDLORD AND TENANT 151 
 
 to the point now in hand, it was settled early in the 
 eighteenth century that a tenant might at any time 
 before the end of his term remove fixtures set up by 
 him for purposes of trade. Early in the present century 
 the judges, with unfortunate timidity, declined to ex- 
 tend the same principle to buildings and fixtures pro- 
 vided by a tenant-farmer for purely agricultural use. 
 What they did not see their way to declaring as common 
 law has by successive steps been enacted by Parliament. 
 By an Act of 1851 a tenant who, with the landlord's 
 consent in writing, put up farm buildings or machinery 
 at his own cost, was enabled to remove them as his 
 own property, subject to an option on the landlord's 
 part to take them at a valuation. The Agricultural 
 Holdings Act of 1875 extended this right of the tenant 
 (with some small variations of language in his favour) 
 to engines, machinery, and fixtures affixed to the hold- 
 ing even without the landlord's consent, saving, how- 
 ever, to the landlord a right to object to the erection 
 of a steam-engine : lastly, the Agricultural Holdings 
 (England) Act, 1883, has re-enacted this provision 
 without the saving. ^ 
 
 There remains a serious economical question between 
 landlords and tenants, for which the common law failed 
 to provide a solution. No general rule of law gives an 
 outgoing tenant any compensation for permanent or 
 unexhausted improvements made by him. A tenant 
 who has a pretty long lease may no doubt so order, 
 matters as to get the full benefit of his improvements ; 
 
 established local usage is afforded by the case of Tucker v. Linger, 
 decided by the House of Lords in 1883, Law Rep. 8 App. Ca. 508. 
 1 S. 34. 
 
162 THE LAND LAWS chap. 
 
 though even so it is the worse for the land to make it 
 the tenant's interest to leave nothing in it. But in 
 England yearly tenancy is the rule, and leases for fixed 
 terms the exception. In some parts of the country 
 local customs exist vphich have been found fairly satis- 
 factory, providing a scale of compensation for the 
 tenant's outlay on lime, artiiicial manures, artificial 
 feeding stuffs, and the like. But these are of limited 
 extent, and applicable, as a rule, only to the soils and 
 agricultural usages of the particular districts where they 
 prevail. 
 
 After much discussion, and an experiment by way 
 of permissive legislation in 1875, on which it is no 
 longer necessary to dwell, the matter was dealt with 
 by the Agricultural Holdings Act of 1883. This Act 
 is somewhat clumsy in form, and bears in every part, 
 after the manner of all English legislation involving 
 a conflict of interests, the marks of compromise and 
 abundant caution. It has established, however, in 
 opposition to the old common law, the leading principle 
 that an outgoing tenant who has improved the holding 
 is entitled to get by way of compensation "such sum 
 as fairly represents the value of the improvement to an 
 incoming tenant.'' The improvements for which com- 
 pensation may be obtained are, it is true, defined and 
 classified with excessive minuteness ; and the previous 
 consent of the landlord to permanent improvements 
 (such as building, irrigation, planting, and reclaiming) 
 is a necessary condition of their being a subject of 
 compensation. As to this class of improvements, 
 therefore, the only effects of the Act are to make the 
 landlord's consent, if given, binding on the land and on 
 
VI LANDLORD AND TENANT 153 
 
 his successors (which, however, is important, having 
 regard to the great amount of land in settlement, or in 
 the hands of trustees or public bodies or officers with 
 limited powers), and to throw on the landlord the 
 burden and odium of refusing consent where the im- 
 provement is clearly a proper one. Perhaps it was 
 . impossible to go further consistently with the funda- 
 mental assumption of English leasehold tenure, that the 
 lessor is entitled to have back his land at the end of 
 the term in the same condition in which the lessee took 
 it. As to drainage, a middle course is observed : the 
 tenant need not obtain the landlord's consent for drain- 
 ing the land, but he must give him notice of the in- 
 tended work, and then the landlord may do it himself 
 if he thinks fit, and charge the tenant with an addition 
 to his rent by way of interest. Exhaustible improve- 
 ments, such as liming and manuring, may be made, and 
 will entitle the tenant to compensation, without the 
 landlord's consent. Claims for compensation are to be 
 settled by reference ; the local county court may ap- 
 point a referee or umpire, as the case may require, in 
 default of either of the parties or their referees acting, 
 or either party may call for the nomination of an 
 umpire by the Board of Agriculture. The Act contains, 
 moreover, a number- of minor provisions and safeguards 
 for which the text itself must be consulted. ^ It seems, 
 on the whole, fitted to carry out its objects with as 
 little friction and waste of power as, our system of 
 
 ^ There are some later amendments and extensions of the Act : 
 see the Tenants' Compensation Act, 1890, and the Market Gardeners' 
 Compensation Act, 1895. Similar but distinct provisions were 
 made for tenants of allotments by the Allotments and Cottage 
 Gardens Compensation for Crops Act, 1887. 
 
154 THE LAND LAWS chap. 
 
 legislation being what it is, can fairly be expected. 
 But it remains a misfortune that the principle of com- 
 pensation declared by the Act was not in the first 
 instance adopted by the common law. Local usage 
 and a certain amount of judicial decision would then 
 have settled the method and details of the tenant's 
 compensation much better than the clauses and schedules 
 of a modern Act of Parliament can do it. We are no 
 longer able to declare a broad principle and leave it to 
 work itself out ; we expect every question of detail to 
 be met beforehand, and entangle ourselves in intolerable 
 minuteness without, after aU, being secure against 
 material oversights. And we shall hardly escape or 
 mitigate this evil until either we greatly extend the 
 modern device of delegating legislative powers, or in 
 some way return to the older fashion of legislating by 
 way of general instructions and conferring a large dis- 
 cretion on the executive authority. This, however, 
 belongs to the problems of the general theory of legis- 
 lation. 
 
 Except as regards the special legislation for agricul- 
 tural tenancies which has just been noticed, and which 
 dates only from the middle of the present century, 
 there is no difference in law between urban and 
 agricultural leaseholds. But in practice and custom 
 the difference is very great. Farm holdings are always 
 or almost always taken by the tenant direct from the 
 freeholder, and there is generally something of a personal 
 relation between them (even where the landlord is a 
 college or other corporate body) beyond the mere re- 
 ceipt and payment of rent. The farmer is legally 
 bound to pay the full amount of his agreed rent, 
 
VI LANDLORD AND TENANT 155 
 
 without regard to the goodness or badness of the 
 season ; but in bad years it is the constant practice for 
 the landlord to remit such a percentage of the rent as 
 to leave the tenant answerable only for so much as the 
 farm seems fairly capable of paying under the circum- 
 stances. A great landlord who refused to follow this 
 practice would be entirely within his legal rights, but 
 would certainly be thought the worse of in the country. 
 In many counties, unfortunately, reductions of 15 or 
 20 per cent (sometimes even more) have now been 
 rather the rule than the exception for some years past. 
 The landlord in return expects a certain amount of 
 deference and compliance in various matters from his 
 tenant. Not only does the farmer meet him half-way 
 on questions of shooting rights, and allow free passage 
 to the hunt, but his political support of the landlord is 
 not unfrequently reckoned on with as much confidence 
 as the performance of the covenants and conditions of 
 the tenancy itself. In the case of holdings from year 
 to year it may be not unfairly said that being of the 
 landlord's political party is often a tacit condition of 
 the tenancy. 
 
 In the letting of buildings for occupation, whether 
 for business or as dwelling-houses, and especially in 
 large towns, there is nothing of this kind. The trans- 
 action and the relations of the parties are purely a 
 matter of commerce. The owner of land on which 
 there stands a shop or a factory sells the right to 
 occupy it to the shopkeeper or manufacturer just as he 
 in turn sells his goods, that is, for the highest price he 
 can get. And the same rule holds as to leases of mines 
 and collieries, where the sale is not merely of the right 
 
156 THE LAND LAWS chap. 
 
 to use the land, but of a portion of the land itself, 
 namely, the coal, ores, or other minerals to be worked 
 by the lessee. As regards occupation leases, again, 
 underletting, instead of being the exception, is the rule 
 in the south of England. The freeholder of building 
 land in or near a town makes a lease of it to a builder 
 for a term, which used to be of ninety-nine years, but 
 is now (at least in and about London) commonly not 
 more than eighty. The builder undertakes to cover the 
 ground with a house or number of houses, according to 
 requirements laid down by the landlord in more or less 
 detail. At the end of the term the buildings become 
 the landlord's property, the lessee finding his compensa- 
 tion in such profit as he can make of them during the 
 term by subletting to occupying tenants. In houses of 
 a good class, which are occupied as a whole, there is 
 commonly only one underletting. But there may be 
 more ; and in the case of smaller tenements the actual 
 dweller often has to pay several intermediate profits, 
 getting in return bad quarters and a precarious tenure. 
 The system of building leases is convenient for the free- 
 holder, as it saves him all trouble beyond that of laying 
 out the plan or the general character of the buildings 
 to be put on the land, and ensures him the possession 
 of his property greatly increased in value at the end of 
 the term. He might build himself and let direct to 
 occupiers, thus getting the full profit at once, but he 
 would then incur also the trouble and risk which by 
 the usual arrangement are thrown on the first lessee, 
 commonly known as the "speculative builder.'' For 
 all other parties, and it would seem for the public, the 
 plan is a thoroughly bad one. As the builder has no 
 
VI LANDLORD AND TENANT 157 
 
 permanent interest in Ms work, lie has no motive for 
 making it durable, and is tempted to make it, on the 
 contrary, as bad as the ground landlord's surveyor can 
 be induced to pass, and occupying tenants to accept for 
 their habitation. He buys the use of the land from 
 the freeholder for a limited time, and retails it to the 
 public either directly or through a middleman. All 
 the risks of the retail market fall on him ; some time 
 must elapse at best before he can make a proiit, for it 
 takes time, even with hxuried and flimsy work, to 
 build houses and make them look fit to live in. There 
 is no business in which profits are more uncertain, and 
 none, I believe, in which there is more insolvency ; on 
 the other hand, great fortunes have been made by well- 
 known builders in London and elsewhere. When the 
 builder's or middleman's turn comes, it is of course 
 his interest to make the most he can out of the under- 
 tenant for the time allowed him. Dwelling-houses, 
 therefore, are necessarily rack-rented.^ By well-to-do 
 sorts of people this is perhaps not felt as a grave incon- 
 venience, but the pressure and hardship on the smaller 
 under-tenants are very great. 
 
 It is evidently absurd to speak of freedom of con- 
 tract in relation to such a system. Desirable building 
 ground near towns, and still more the ground of towns 
 and cities already long occupied, and eminently those 
 districts and sites which are favoured by business or 
 fashion, are a monopoly in the hands of the landowner. 
 
 ' Kack-rent, I need hardly explain, is the highest annual rent 
 that can be obtained by the competition of those who desire to 
 becsme tenants. It is not a strictly legal term, though sometimes 
 used in Acts of Parliament ; in legal documents it is represented 
 by " the best rent that can be obtained without a fine." 
 
158 THE LAND LAWS ohap. 
 
 The landowner dictates his terms to the building lessee, 
 who in turn dictates them to the occupier, making the 
 occupier's obligations, for his own protection, exactly 
 follow those of the original lease. In this way the 
 population of whole cities may be said to live at the 
 will of a few great landlords. Over whole square miles 
 of what is commonly called London the Duke of West- 
 minster or the Duke of Bedford may without appeal or 
 control forbid any given kind of building to exist, or 
 any given kind of business to be carried on. In the 
 eye of the law the Westminster, or Bedford, or Port- 
 man estate is simply so much land in the administrative 
 county of London, which the freeholder need not have 
 built upon, or allowed others to build upon, unless he 
 chose. If he does not choose to sell, and chooses to 
 grant building leases, it is for people to take or leave, 
 —as, where it is difficult to find a tenant for a farm in 
 depressed times, it may be for the landlord to take or 
 leave the tenant. Accidents of site and social con- 
 ditions may give the freeholder a supreme monopoly, 
 but that is his good fortune, an extraneous matter with 
 which the law does not concern itself. That such 
 powers are used, on the whole, with so little ground for 
 complaint as they are, is much to the credit of human 
 nature and of the training of English gentlemen. But 
 the matter involves more than one serious problem for 
 the next generation, if not for our own. The value of 
 land for occupation in towns has increased out of all 
 proportion to the increase in the value of other land ; 
 it is comparatively little affected by the depression of 
 agricultural industry, and no reason appears why 'the 
 increase should not continue. This affords another 
 
VI LANDLORD AND TENANT 159 
 
 potent reason why the fortunate owners of city ground- 
 rents should go on leasing rather than selling ; for to 
 sell the freehold of such ground as the bounds of the 
 city of London encompass is to part — however great be 
 the price in hand — with potential riches beyond all 
 present valuation. We are in sight of an accumulation 
 of wealth and power in a few hands, and concentrated 
 on vital parts of the commonwealth, such as is without 
 example in history, and might conceivably be a danger 
 to the State. But it is far more easy to perceive the 
 danger than to devise a remedy. In Scotland the 
 practice is to grant the land in perpetuity for a fixed 
 rent (which under the feudal rules of Scottish law is 
 easily done by a form of conveyance called ili modern 
 practice a " feu-contract ") ; building leases of the Eng- 
 lish type are, I believe, unknown. In the north of 
 England it is not uncommon to do what comes nearly 
 to the same thing in a less direct form by conveying 
 the land in fee-simple and taking an annual payment 
 out of it under the name of rent-charge. ^ But this is 
 anything but satisfactory, for every part of the land is 
 liable for the whole rent : therefore, if the subject- 
 matter of the original grant is subdivided among other 
 purchasers (which constantly happens), the occupying 
 owner will find himself under liabilities which are un- 
 certain and in possible events may be ruinous. Leases 
 for a very long term, such as 999 years, have sometimes 
 been used for the same object, and are open to the same 
 
 ' Since the statute of Quia emptorcs (p. 70 above) a rent proper 
 cannot be reserved upon a grant in fee-simple except by the Crown. 
 There was never any corresponding enactment in practical force in 
 Scotland, and the statute is not in force in some American States. 
 
160 THE LAKD LAWS chap. 
 
 inconvenience. In other parts of the north country 
 the land is sold off in plots to builders who become 
 absolute owners ; the simplest plan of all, and, if the 
 parties will use it, the most rational. 
 
 It has been proposed to confer on lessees of house 
 and cottage property the power of acquiring the free- 
 hold by way of compulsory purchase, or, to put it in 
 a neater and perhaps more easily understood form, to 
 attach a statutory option of purchase to all leases of a 
 certain length. The terms would have to be in each 
 case settled either by arbitration or by some kind of 
 judicial process if the parties could not agree ; the refer- 
 ence clauses of the Agricultural Holdings Act might 
 serve for' the first lines of a working plan. The first 
 effect of such a law would probably be to check the 
 supply of building land and dwelling-houses by making 
 landowners unwilling to grant new leases, and thus to 
 aggravate for the time the evils of monopoly. What 
 would be the ulterior effects it is not easy to foretell. 
 It seems doubtful whether the acquisition of permanent 
 interests by the people most in want of them would 
 really be much facilitated. And it does not seem clear 
 that building lessees are now, as a rule, anxious to 
 acquire the freehold : for if they were so, they could 
 and would find opportunities even under the present 
 system. Urban freeholders are not often willing to 
 sell, but forced sales are every now and then brought 
 about by various causes. Still, it is something to 
 recognise that a problem has to be faced. The idea of 
 " leasehold enfranchisement " has at least such elements 
 of a solution as to deserve consideration, and in London 
 and one or two parts of the country it has attracted 
 
VI LAN'DLORD AND TENAKT 161 
 
 serious attention. In 1886 a Select Committee of the 
 House of Commons was appointed to consider questions 
 connected with town holdings ; it finally reported 
 on leasehold enfranchisement in 1889.^ The report 
 allowed that some advantages were likely to attend the 
 conversion of leasehold into freehold tenure, but recom- 
 mended only the partial application of the principle 
 through powers to be given to local authorities over 
 limited areas. Nothing has been done to give effect to 
 this report. In later years there has been less heard 
 of local enfranchisement and more of " betterment " 
 and the taxation of ground-rent ; but the intricate con- 
 troversy which has beset the last-mentioned topics is 
 beyond the scope of this work. 
 
 It seems fit to be weighed whether any systematic 
 reform of urban tenure should not aim at making 
 the municipalities rather than individual occupiers the 
 ultimate owners. One or two of our northern cities, 
 by using such occasions as presented themselves from 
 time to time of acquiring property within their own 
 borders, have already made some way in this direction. 
 The recent Allotments Act, of which some account 
 must now be given, is in the same direction so far as 
 it goes. 
 
 Good landlords have long been in the habit of en- 
 couraging labourers dwelling on their estates to become 
 tenants of small allotments, and cultivate them for 
 their own profit and pleasure in spare time. But it 
 has appeared that individual goodwill and enlighten- 
 ment cannot always be trusted to make reasonable 
 
 ' Pari. P. 1889, xv. 1. On the ground-rent question there is a 
 further report of 1892. 
 
 M 
 
162 THE LAND LAWS chap. 
 
 provision of this kind; and Parliament has now con- 
 ferred on local authorities a limited power of acquiring 
 land for allotments if satisfied that adequate voluntary 
 arrangements cannot be made. The Allotments Act, 
 1887, 50 & 51 Vict. c. 48, enables the local sanitary 
 authority, being so satisfied, to buy or hire suitable 
 land, by agreement if possible ; failing agreement, the 
 County Council may, on petition from the sanitary 
 authority, making a provisional order conferring powers 
 of compulsory purchase similar to those exercised by 
 railway companies and other public bodies for other 
 purposes of public interest. The provisional order 
 must be confirmed by Act of Parliament in order to 
 become effective. Parks, gardens, and the private 
 grounds of dwelling-houses are absolutely excepted 
 from compulsory taking. Allotment land acquired 
 under the Act is to be so let and managed as to make 
 the undertaking self-supporting. Allotments are not 
 to exceed one acre, and sub-letting is forbidden. It 
 will be seen that the Act rather holds out a distant 
 prospect of compulsion than attempts any direct inter- 
 ference with private discretion. It was intended to 
 operate as a gentle stimulus to landowners to follow, 
 where practicable and not yet practised, the example 
 already set by the best of them ; and in this way it 
 has done considerable good. Sometimes, I believe not 
 often, the compulsory powers have been exercised. 
 
 By the Small Holdings Act, 1892, local authorities 
 are empowered to acquire land in their own names 
 and sell or let it in small parcels for agricultural 
 occupation; and under the Local Government Act, 1894, 
 parish councils have power (which may be made com- 
 
VI LANDLORD AND TENANT 163 
 
 pulsory by an order of the County Council, on proper 
 cause being shown) to hire land for allotments. It 
 would be useless to give details here.^ 
 
 ■^ Information as to the working of the Allotments and Small 
 Holdings Acts can easily be obtained from the publications of the 
 Rm-al Labourers' League (95 Colmore Row, Birmingham). 
 
CHAPTEE VII 
 
 MODERN REFORMS AND PROSPECTS 
 
 For about a century and a half there was no material 
 change in the English law of real property. There was, 
 indeed, in the early part of the eighteenth century a 
 period of minor reforms, which are at this day perhaps 
 not sufficiently remembered. The mechanism of judicial 
 and other proceedings was in some respects simplified, 
 and some opportunities of fraud still afforded by obsolete 
 doctrines were removed. But the work of the preceding 
 century was in the main left untouched. The statute 
 which abolished the military tenures marks the end of 
 one period of transformation. The Act for the Abolition 
 of Fines and Recoveries passed by the first reformed 
 Parliament marks the beginning of another which is 
 still in progress. As a help to memory, the Restoration 
 and the Reform Act of 1832 may well be thus taken as 
 the landmarks, although the current form of settlement 
 of landed property was not fully worked out until 
 towards the middle of the eighteenth century, and on 
 the other hand the movement leading to the series of 
 legal reforms now to be spoken of was formally begun, by 
 the appointment of a commission of inquiry, some years 
 before it bore fruit, and was in substance due in great 
 
CHAP. VII MODERN REFORMS AND PROSPECTS 165 
 
 measure to the labours of Bentham. And Bentham's 
 criticism was in turn provoked and made possible by Black- 
 stone's artistic exposition of the settled form of the law 
 which in his own time was still recent. So it is every- 
 where, both in nature and in the affairs of man ; what 
 seems to be repose is in truth the preparation of change. 
 It will be convenient to take the modern alterations 
 of the law not in order of time, which would lead to 
 great intricacy and to the confusion of distinct topics, 
 but according to the subject-matter. And first we will 
 take the formal simplification of dealings with land. 
 From the latter part of the sixteenth century onwards 
 the common mode of conveying freehold land, as we 
 have seen, was by the ingeniously artificial process of 
 "lease and release" (p. 106 above), which involved the 
 bulk and expense of two deeds. The length of these 
 documents also steadily increased until about the begin- 
 ning of the present century; partly by reason of the 
 greater complication of the aifairs and interests to be 
 dealt vidth, and the new precautions devised by lawyers 
 to meet newly-discovered dangers to titles, partly because, 
 by an evil usage which has only in the last few years 
 been abated, professional skill was recompensed merely 
 in proportion to the amount of writing produced. In 
 1845 (after one or two rather clumsy experiments, which 
 it is needless to specify) the first of these troubles was 
 removed in a manner so simple and elegant as to com- 
 mand the approval of even the conservative school of 
 conveyancers. The ceremony of feoffment was always in- 
 applicable to an estate in reversion or remainder. Livery 
 of seisin — the formal transfer of possession which has 
 been described elsewhere (p. 75 above) — could be given 
 
166 THE LAND LAWS chap. 
 
 only by one who had the actual possession to one who 
 had it not. A freeholder not having the right of actual 
 possession (as where the land was held by a tenant for 
 life or a lessee) disposed of his interest by deed without 
 other ceremony ; it was an " incorporeal hereditament " 
 which could not be delivered. The same rule applied to 
 such rights over the lands of others, rent-charges, rights 
 of way or common, and the like, as were capable of dis- 
 position and transfer. All rights and interests that could 
 be so dealt with were said to " lie in grant." The Act to 
 amend the Law of Real Property passed in 1845 ex- 
 tended this rule to estates in possession.^ Since it took 
 effect everything which can be done by feoffment, bargain 
 and sale enrolled, or lease and release, can be equally well 
 done by a simple deed ; and although the older forms of 
 conveyance are still open to any one who might choose to 
 make use of them, the readier way provided by this Act 
 has been almost universally followed. Certain further 
 simplifications as to the use of particular words (not all 
 of them really new) have been introduced by the Con- 
 veyancing Act of 1881. They are too technical to be 
 dwelt on here ; only it is worth notice that they do not 
 touch the substance of the old feudal rule — namely, that 
 a grant to a man without specifying what interest he is 
 to have will give him no more than an estate for life.^ 
 
 ' " After the said first day of October, one thousand eight 
 hundred and forty-five, all corporeal tenements shall, as regards 
 the conveyance of the immediate freehold thereof, be deemed to 
 lie in grant as well as in livery." — 8 & 9 Vict. u. 106, s. 6, The 
 capacity which a feoffment formerly had of practically giving a 
 purchaser a better title than his vendor's (p. 82 above) was abolished 
 by the same statute. 
 
 ■' 44 & 45 Vict. 0. 41, s. 49, etc. These provisions have already 
 
VII MODERN REFORMS AND PROSPECTS 167 
 
 As to the other point of the prolixity of deeds, much 
 more was left for the Conveyancing Act to do. In the 
 same year (1845), and I suppose under the same auspices 
 as the Act to amend the Law of Real Property, a statute 
 was made with the laudable intention of substituting 
 short forms for the accustomed verbose ones. It was a 
 complete failure, partly from defects of workmanship 
 which made it positively misleading, but chiefly because 
 no legal practitioner who adopted it would, under the 
 vicious scheme of remuneration then in use, have been 
 tolerably paid for his work. The abbreviated forms 
 provided by the statute were seldom or never used, and 
 for another generation deeds went on being framed as 
 before, though the practice of the best conveyancers was 
 now to study conciseness. At last in 1881 a new Act 
 ("The Conveyancing and Law of Property Act, 1881 ") 
 dealt with the form of deeds relating to land in a far 
 more thorough-going and elaborate manner. The use 
 of a few prescribed words will now incorporate in a 
 deed, according to the nature of the case; one or other 
 of the several accustomed clauses which were formerly 
 inserted at full length ; and in ordinary straightforward 
 cases this may conveniently and safely be done. At the 
 same time another Act (the Solicitors' Remuneration 
 Act) abolished the necessity or supposed necessity of 
 paying for the preparation of deeds according to length, 
 and thus left the way clear for the Conveyancing Act. 
 This last, however, is not compulsory ; people may go 
 on using the old forms as much as they please, but the 
 
 given rise, I believe, to a popular error that the use of the word 
 grant is not only unnecessary but improper, whereas it remains as 
 proper as ever. 
 
168 THE LAND LAWS chap. 
 
 new provisions have been generally adopted. Supple- 
 mentary Acts were passed in 1882, and (for the further 
 protection of lessees) in 1892, but the points dealt with 
 (as well as many of those covered by the Act of 1881) 
 are too technical to be specified in this work. The 
 credit of these measiu'es belongs to both parties in the 
 State ; they were substantially prepared under the 
 direction of Lord Cairns in the later years of the Con- 
 servative Ministry which held oflBce from 1874 to 1880, 
 and were taken up and passed into law with little 
 alteration by the Liberal Ministry which succeeded. 
 The same may be said concerning the Settled Land 
 Act, of which we have to speak later. 
 
 The cumbrous machinery of fines and common re- 
 coveries (which has been described in Chapter IV.) was 
 swept away in 1833, and a tenant in tail is now em- 
 powered, by means of a deed enrolled in Chancery, to 
 make either himself, or any one to whom he wishes to 
 dispose of his estate, a tenant in fee simple. If he is 
 in possession of the freehold, he can generally do this 
 without any other person's consent. If he is not in 
 possession, he must, as a rule, have the consent of the 
 "protector of the settlement," who is commonly the 
 tenant for life, otherwise he can create no greater 
 estate than a hase fee (p. 113 above). The name and 
 function of the " protector " were introduced by the 
 Act of 1833; but the purpose and the effect of the 
 Act were, while simplifying the necessary proceedings, 
 to preserve intact in substance the law and practice of 
 family settlements. Considered as an improvement in 
 form, which is all it professed to be, the Act for the 
 Abolition of Fines and Eecoveries has been of great 
 
VTi MODERN EEFOEMS AND PROSPECTS 169 
 
 service, and has worked with singular freedom from 
 difficulties of any kind. This success is due in some 
 measure to the circumstance (not so common, unhappily, 
 that notice of it should be superfluous) that the framing 
 of the Act was entrusted to a man who thoroughly 
 understood the matter he was to deal with. 
 
 It seems worth while to quote a few sentences from 
 the First Report of the Eeal Property Commissioners to 
 show how the problems of law reform presented them- 
 selves two generations ago to learned and enlightened 
 persons. It will be seen that the limitation of their 
 proposals was the result not of opposition or compromise 
 but of free and deliberate conviction. 
 
 "The owner of the soil is, we think, vested with 
 exactly the dominion and power of disposition over it 
 required for the public good, and landed property in 
 England is admirably made to answer all the purposes 
 to which it is applicable. 
 
 " Settlements bestow on the present possessor of an 
 estate the benefits of ownership, and secure the property 
 to his posterity. The existing rule respecting perpe- 
 tuities has happily hit the medium between the strict 
 entails which prevail in the northern part of the Island, i 
 and by which the property entailed is for ever abstracted 
 from commerce, and the total prohibition of substitutions 
 and the excessive restriction of the power of devising 
 established in some countries on the Continent of 
 Europe.^ In England families are preserved, and pur- 
 
 ^ It was then possible to create inviolable entails in Scotland ; 
 the law has since been changed, and alienation is as easy as in 
 England. 
 
 ^ Meaning probably those which adopted or imitated the Code 
 NapoUon, 
 
170 THE LAND LAWS chap. 
 
 chasers always find a supply of land in the market. A 
 testamentary power is given, which stimulates industry 
 and encourages accumulation ; and while capricious 
 limitations are restrained, property is allowed to be 
 moulded according to the circumstances and wants of 
 every family." 
 
 Thus the Commissioners in 1829.^ Lord St. Leonards 
 would have been in their eyes a rash innovator, Lord 
 Cairns a revolutionist, and for Lord Halsbury parlia- 
 mentary language would have failed them. But we are 
 anticipating. 
 
 Another point where simplification was urgently 
 called for, and was carried out a few years later, was the 
 disposal of land (as well as of other property) by will. 
 The state of things before 1838 (brought about by steps 
 which we need not consider) was that the formalities 
 required for a will of lands were excessive, those for 
 a will of leaseholds or movables absurdly and danger- 
 ously defective. There were also peculiar rules and 
 exceptions (partly by common law, partly by custom, and 
 partly by statute) in particular cases, and, on the whole, 
 it was found on careful inquiry that there were ten 
 difi'erent laws for regulating the execution of wills under 
 different circumstances.^ An Act of 1837, which applies 
 to all wills made since the end of that year, abolished 
 all these intricacies, together with many other incon- 
 veniences and doubts, and established the uniform rule 
 that a will must be signed by the maker of it, and attested 
 by two witnesses. It also applied to wills the rule — 
 still not applicable to deeds — that a simple and unquali- 
 
 1 First Keport, p. 6. 
 ^ Fourth Report of Real Property Commissioners, p. 12. 
 
vn MODERN REFORMS AND PROSPECTS 171 
 
 fied gift is to be taken as disposing of the giver's whole 
 interest. 
 
 It is not the length of deeds, however, nor any for- 
 mality required for either deeds or wills, that is the real 
 source of expense and trouble in dealing with English 
 land. The peculiar system of private conveyance which 
 has grown up under the shadow of the Statute of Uses 
 has made it needful for purchasers to secure themselves 
 against the " constant danger from secret transfers and 
 secret charges " ^ by an examination of the history of the 
 property as evidenced by the title-deeds. Except in the 
 rare cases where estates have been settled by Act of Par- 
 liament, and in the case of land registered under the 
 Land Registry Act of 1875, undisturbed possession 
 under a continuous title for a certain length of time is 
 the only proof of the rightful ownership of land in this 
 country. The title-deeds are the written history of the 
 possession, and of the right in which it has been exer- 
 cised ; and from this point of view their contents are, or 
 in strict prudence ought to be, examined by every 
 purchaser. Almost always this operation requires some 
 professional skill ; often it requires much. In all but 
 the simplest cases the process is a long and costly one. 
 Not only solicitors and counsel have to be paid for 
 their intellectual work, but a good deal of clerical and 
 mechanical labour is involved in making and verifying 
 copies or abstracts,^ searching certain official records 
 
 ^ First Report of Real Property Commissioners, p. 8. 
 
 ^ The digest of documents and facts laid before counsel as the 
 basis of Ms opinion is called an "abstract of title." It is the 
 solicitor's business to verify the contents of this, the counsel's to 
 point out, if necessary, what further verification is required, and 
 to advise whether, assuming the statements to be correct, they 
 
172 THE LAND LAWS chap. 
 
 which might disclose matters affecting the title, and the 
 like. All this falls on the buyer, and in the case of 
 small properties acts as an exorbitant tax added to the 
 purchase-money ; for the cost and difficulties are no less 
 for a small property than for a large one. Indeed large 
 properties are better off; for there are some estates of 
 which the possession and title are historical, and so well 
 known that, if a portion is to be sold or let, the owners 
 can afford to make what terms they please as to dispens- 
 ing with inquiry. Less fortunate sellers have to examine 
 their own titles before going into the market, and to 
 guard themselves against requisitions which it might be 
 impossible or ruinous to comply with by selling only on 
 carefully framed special terms, which are known, if the 
 sale is by auction, as " conditions of sale." Very few 
 landowners are in a position to make out their title if 
 strict proof is required at every step, which it may be ^ 
 in the absence of special conditions. 
 
 One need not dwell on the inconvenience of such a 
 state of things in a great commercial country. It was 
 amended in some particulars by an Act of 1874, which 
 made some of the most usual special conditions part of 
 the general law. The root of the evil, however, is un- 
 touched. Many times it has been proposed to establish 
 an official registry either of deeds or of titles. The whole 
 subject was elaborately considered by the Eeal Property 
 Commissioners in 1830; they collected much informa- 
 
 sufficiently show the vendor to have power to dispose of what he 
 oifers to sell. 
 
 ^ The practice of conveyancers is to be content in sundry matters 
 with less than would be accepted as sufficient evidence in a court 
 of justice ; but even so the burden on the vendor under an "open 
 contract " is a grievous one. 
 
VII MODERN REFORMS AND PROSPECTS 173 
 
 tion both at home and from abroad, and recommended 
 the establishment of a general registry ; but nothing was 
 then done. Since that time the experiment of permissive 
 registration of titles has twice been made, with next to 
 no result. In 1862, in Lord Westbury's chancellorship, 
 an office of land registry was established, and the offer 
 of a State guaranty and great simplicity in future deal- 
 ings was held out to owners who could satisfactorily 
 prove their title. But the requirements of the initial 
 proof were for most owners more formidable than the 
 inconveniences of the existing system. Those incon- 
 veniences, moreover, fall chiefly and visibly not so much 
 on existing owners as on those who buy from them ; 
 while every man can see the mischief of exposing his 
 own title to a rigorous official scrutiny which may dis- 
 close an unsuspected flaw, and must invite his neigh- 
 bours to raise questions of boundaries. It seemed the 
 more prudent part to let sleeping lions alone. Solicitors, 
 again, disliked the scheme, and gave it anything but 
 encoittagement ; as with the attempt to shorten deeds, 
 the matter was complicated by the problem of remunera- 
 tion. In 1875 Lord Westbury's plan, being supposed to 
 have failed through over-ambition, was supplanted by a 
 more tentative and elastic one. But the office of land 
 registry as reconstituted by Lord Cairns's Land Transfer 
 Act, though not now, as it was for several years, an office 
 of sinecures, is still avoided by most landowners.^ The 
 inevitable weakness of every scheme of merely optional 
 
 ' "Registration under this Act is optional, and its success has 
 not been sufficient to justify any lengthened account of it in an 
 elementary work like the present": Joshua Williams on Real 
 Property, 17th ed., by Mr. T. Cyprian Williams, 1892, p. 566. 
 
174 THE LAND LAWS chap. 
 
 registration is that it is not the apparent interest of the 
 landowner, save in exceptional cases,^ to register. It is 
 not found in practice that the selling price of land is 
 sensibly diminished by its being sold under special condi- 
 tions of the ordinary kind. In other words, what is called 
 a " marketable title," that is, a title such as the Court 
 would compel a purchaser to accept upon an "open con- 
 tract," is worth nomore to the owner than a "good holding 
 title," such as the vast majority of titles are. The tempta- 
 tion of acquiring a statutory " marketable title " is there- 
 fore spread in vain in the sight of English freeholders. 
 
 Practically the problem is unsolved. At least three 
 distinct schools of opinion exist among competent per- 
 sons, not counting those who are satisfied with things 
 as they are. Some are for registration of title ; some 
 (now but few) are for only keeping an official record 
 of dealings vnth the land ; others hold that nothing 
 effectual can, or at any rate will be done until the sub- 
 stance of our land laws is greatly simplified ; and per- 
 haps these last are in the right.^ In recent years Land 
 Transfer Bills have been promoted by Chancellors of 
 both parties and approved by the House of Lords. 
 They have included what may be described as a mild 
 and modified compulsion, and a provision, adopted from 
 the Australian colonies, for insuring registered owners 
 against fraud or mistake by means of a special fund. 
 This last provision is thought to be of very great utility 
 and importance by those who have studied the " Torrens 
 system " in detail. 
 
 * As where contiguous lands acquired under different titles are 
 to be thrown together, and sold or let in small parcels. 
 
 ^ For references to recent literature on the subject see Note H, 
 
vii MODERN REFORMS AND PROSPECTS 175 
 
 Local registries of dealings with the land, not of 
 title, were established in the last century in Middlesex 
 and Yorkshire, and are still in use. Unfortunate de- 
 cisions of the Court of Chancery made these county 
 registers far less efficient than they were intended to be, 
 and the Middlesex Eegistry is for this and other reasons 
 worse than useless.^ The Yorkshire Registries (one 
 for each riding) have worked better ; they have been 
 remodelled by Acts of 1884 and 1885. Registration of 
 assurances is well known in other English -speaking 
 countries ; it has long been in force in Ireland, in Scot- 
 land (where the system acts to a great extent as a 
 registry of title also), and in several of the United 
 States. Registration of title exists in most Continental 
 countries, if not in all, and in our own Australian 
 colonies. In England itself every manor has a register 
 of the title to the copyhold property held of it, namely, 
 the court rolls. But the law and the circumstances of 
 English real property are so peculiar that the state of 
 other lands in this respect is rather an object of envy 
 than a presently practicable example for imitation. 
 Neither can the archaic practice of copyhold tenure 
 help us much. One thing seems tolerably clear : English 
 landowners cannot both eat their cake in the form of 
 secret conveyances, informal modes of raising money, 
 and complicated settlements, and have their cake in the 
 form of cheap and easy transfer of land. Either way 
 has its advantages and its drawbacks, but we cannot 
 follow both at once. The country must choose between 
 them. Sir Henry Maine has pointed out that the estab- 
 lishment of a complete registry would tend to have con- 
 1 See Land Transfer, 1886, p. 21. 
 
176 THE LAND LAWS chap. 
 
 siderable ulterior effects on legal doctrines and concep- 
 tions. The passage ^ should be read and considered by 
 every one interested in the subject. Meanwhile, we 
 remain in the condition very fairly described in one of 
 the answers sent in to the Real Property Commissioners : 
 "It is possible to attain to such a degree of certainty 
 as commonly satisfies a prudent man in the ordinary 
 business of life, but with considerable delay, difficulty, 
 and expense ; the great evil is not that titles are un- 
 certain or unsafe, but that the investigation of them is 
 difficult, tedious, and costly.'' Not many titles are 
 really bad, but under the existing law there must 
 always be an unknown element of risk. 
 
 The acquisition and proof of title to land itself, and 
 to rights over the land of others, have been put on a 
 more rational footing by the Prescription Act of 1832, 
 and the Real Property Limitation Acts of 1833 and 
 1874. Broadly stated, the results are as follows: 
 Twelve years' possession of land (whether it begins 
 vnth an appearance of right, or by mere intrusion or 
 " squatting ") gives a good title as against claimants not 
 disabled by infancy or the like from asserting their 
 rights for themselves ; and for the benefit of such per- 
 sons or others claiming in their right, a further time of 
 six years is allowed, counted from the removal of the 
 disability or the death of the person subject to it ; but 
 in no case may the period open for the claims of persons 
 out of possession be extended beyond thirty years in all 
 from the time when possession begins to count against 
 a freeholder entitled to an estate of inheritance. But 
 where there is a tenant for life in possession his acts or 
 ^ Early Law and Custom, pp. 351-61. 
 
vn MODERN REFORMS AND PROSPECTS 177 
 
 neglects cannot affect the title of those in remainder, 
 and therefore when land is in settlement a much 
 longer period may elapse before a title resting merely 
 on adverse possession can become safe. Rights over the 
 land of others are established by twenty years' unin- 
 terrupted enjoyment if they are easements (that is, such 
 rights as that of passage or of having free access of light 
 and air, which do not involve taking anything from 
 the land), thirty years if they are profits, that is, rights 
 of taking something off the land, of which the most 
 familiar case is a right of common. Possession is, of 
 course, not available as a ground of title against a 
 person whose superior title is acknowledged, by the 
 payment of rent for instance, by the person in actual 
 possession. This branch of the law, even with the 
 modern improvements, is not an elementary one ; and 
 it will be understood that there are many special 
 points and distinctions of which I do not profess to say 
 anything here. 
 
 It is an arguable question whether the establishment 
 of titles by long possession is consistent with a complete 
 and efficient system of registration. In Scotland, where 
 there is such a system, there is nothing answering to 
 our Statute of Limitation as regards land. And in 
 England the Land Transfer Act of 1875 has actually 
 excluded the operation of the Statutes of Limitation as 
 regards land which has been put on the register. No 
 amount of adverse possession will prevail against a 
 registered title. This provision, which I believe is not 
 generally known even to lawyers, makes, in the opinion 
 of one of our most learned and experienced real pro- 
 perty lawyers, " a vast and very mischievous change in 
 
178 THE LAND LAWS chap. 
 
 the law." 1 At present " in English law, all title to land 
 is founded on possession," ^ and has been so for at least 
 seven centuries. The reversal of this principle in the 
 case of registered land is likely to give rise to many 
 difficulties apart from the danger of actual fraud. It 
 stereotypes all unsettled questions of boundaries, whereas 
 under the existing and well -understood practice they 
 are constantly disposed of by friendly adjustment, often 
 without even a formulated agreement, and in a genera- 
 tion or so lapse of time cures all. Those who think 
 that registration of title is not compatible with e2q)ecting 
 purchasers to satisfy themselves that the land is held in 
 accordance with the written title, as a prudent purchaser 
 always does now, seem to forget that title is not the 
 same thing as ownership. They have attempted to 
 create a system of registered ownership before the legal 
 profession or the public is ripe even for registered title. 
 More will be heard on this point before the operation of 
 the Land Registry is made general or compulsory. 
 
 We come now to alterations more nearly touching 
 the substance of the law. In 1833 the law of intestate 
 succession was amended in various details. It does not 
 seem worth while to give a particular account of either 
 the old or the new law. The death of a fee-simple 
 holder of land without making a will is in modern times 
 an exceptional case. Popular knowledge of the law of 
 descent is confined to the fundamental rule that the 
 eldest son (or his descendants as representing him) takes 
 the whole of the land to the exclusion of younger 
 
 ' Sir Howard Elpliinstone in Law Quart. Bev., xi. 360 (Oct. 
 1895). 
 
 ^ Williams on Real Pi-operty, 17tli ed., p. 631. 
 
VII MODERN REFORMS AND PROSPECTS 179 
 
 children ; ^ while daughters, on the contrary, share 
 equally in the absence of sons. Nor is it often 
 necessary for the practising lawyer to remember the 
 further rules of collateral succession. The prevalence of 
 settlements, and the complete freedom of disposition by 
 will that has existed since the Restoration, have caused 
 this whole head of the law to shrink into comparative 
 insignificance. Nevertheless, proposals have from time 
 to time been made to change our unique law of inherit- 
 ance as regards land by assimilating it to the law of 
 succession of personal property, which is substantially 
 the same as the Eoman law in its final form and the 
 present law of the rest of Europe. Throughout the 
 States and colonies which took their law from England 
 this change has already been generally made. At home 
 these proposals have been strenuously resisted, and 
 hitherto they have always failed. Why has a point of 
 comparatively slight intrinsic importance been thus made 
 a centre of active controversy ? Simply because the 
 point actually at issue has been understood on both 
 sides to be the symbol of much more. The attack was 
 in form directed upon a rather small anomaly ; but in 
 substance it was aimed at the privileges of landowners 
 and the custom of settling lands from generation to genera- 
 tion on the eldest son. If the legal rule of primogeniture 
 in the strict sense were abolished, the artificial primo- 
 geniture of our family settlements could not long survive 
 
 ^ His title may be subject to the right of his father's widow to 
 dower, i.e. to the enjoyment of one-third of the land for her life. 
 But this right has become in various ways, which it would be too 
 long to specify, practically obsolete in England. In the United 
 States it is still active, and is the subject of quite modern text- 
 books. 
 
180 THE LAND LAWS chap. 
 
 it. Immovable property would become assimilated to 
 movable both in law and in sentiment ; or to speak more 
 correctly, the change in the law would be an all but 
 conclusive mark that public feeling was changed already. 
 As it is, by far the greater number of the well-to-do 
 people who make wills (I say well-to-do, because so much 
 may fairly be inferred from a man sending his will to 
 be settled by a conveyancing counsel) throw their land 
 into a common stock with the rest of their property 
 for equal division among their children. What is called 
 " making an eldest son " is the exception. Sometimes 
 the proposal to abolish the rule of primogeniture on 
 intestacy, leaving intact the power of disposal by will in 
 favour of the eldest son or any one else, is confounded 
 with a proposal to introduce compulsory division of the 
 whole or some considerable part of the heritage, accord- 
 ing to the system which has always prevailed on the 
 Continent. An error of such magnitude barely needs, 
 one would think, to be pointed out. The two plans 
 belong to different orders of legal institutions. Since 
 Tory Ministers have proposed the abolition of primo- 
 geniture (this first happened in 1887), its most ardent 
 supporters can hardly expect to see it last much longer. 
 Already the Intestates Estates Act, 1890, gives land as 
 well as personal property to a widow, if there are no 
 children, where the husband has died intestate and worth 
 less than £500 in all. 
 
 Copyhold lands have been incidentally mentioned in 
 their historical aspect in former chapters. Many of 
 their incidents are relics of an antiquity to which the 
 Norman Conquest is a thing of yesterday. But how- 
 ever venerable its antiquity, and however interesting to 
 
VII MODERN REFORMS AND PROSPECTS 181 
 
 the student of historical jurisprudence . the evidences 
 which it preserves, this tenure is found in many vfays 
 inconvenient in modern practice ; nor is the advantage 
 of copyhold titles being registered on the court rolls of 
 the manor sufficient to outweigh the inconveniences. 
 From imperfect identification of boundaries, and for 
 other reasons, dealings with property of which part is 
 freehold and part copyhold (a very common case) are 
 apt to be exceedingly troublesome. The fines and other 
 payments due from the tenant to the lord of the manor 
 are mostly not a serious burden, but they may be so 
 in exceptional cases. On the whole, the conversion of 
 copyhold into freehold tenure, for which the proper word 
 is enfranchisement, is generally felt to be desirable. It 
 could always be done by agreement between the lord 
 and the tenant ; but the lord had to be willing, and the 
 tenant as well as the lord under no disability, to say no- 
 thing of the possibility of disagreement as to the terms on 
 which the lord's rights were to be extinguished. Under 
 certain modern Acts of Parliament, of which the principal 
 one was passed in 1852, enfranchisement is now compul- 
 sory on the requisition of either the lord or the tenant. 
 Provision is made for valuing the manorial rights if the 
 parties cannot agree. By the operation of these Acts 
 copyhold tenure is gradually but surely disappearing ; 
 and its end is being hastened by yet further legislation. 
 A series of Acts, now consolidated by the Copy- 
 hold Act, 1894,^ have increased the facilities for 
 enfranchisement in various ways. Every new copy- 
 holder must have express notice that he is entitled to 
 
 ' 57 & 58 Vict. c. 46. The latest and most important of the 
 consolidated Acts was passed in 1887. 
 
182 THE LAND LAWS chap. 
 
 enfranchise Ms land on paying the lord's compensation 
 and the steward's fees ; those fees are defined by a new 
 scale ; additional provisions are made for the assessment 
 of compensation to the lord, and paying it in the form 
 of a reni^charge ^ with an option to the tenant to redeem 
 at twenty-five years' purchase ; and in certain cases the 
 Board of Agriculture (formerly the Land Commissioners) 
 has power to enfranchise the copyholds of a manor 
 bodily if such is the desire of two-thirds of the copy- 
 holders. Any rights of common which may be attached 
 to copyhold tenures are expressly saved from being 
 prejudiced by the change of tenure. 
 
 If one form of ancient customary law is becoming 
 obsolete in copyholds, there is another branch of the 
 same stock which, within the memory of the present 
 generation, has been called into fresh life, and recovered 
 much of its old importance : I speak of the law con- 
 cerning rights of common. Such rights may be 
 regarded as the remnant of the ancient communal 
 system of holding and cultivating land. Being useless 
 to modern agriculture, and inconvenient for the larger 
 landowners, they were long looked upon with disfavour 
 by both the judges and the legislature, and were in 
 a way to disappear even faster than copyhold tenure, 
 but for the discovery that they were a valuable means 
 of securing open spaces for public exercise and recrea- 
 tion. Two or three centuries ago, it is almost needless 
 to say, there was no lack of open spaces even in London, 
 nor any visible prospect of it. Wholesale inclosure, 
 
 1 Such rent-charges, though doubtless discoverable by applica- 
 tion to the Board, may in course of time be lions in the path to 
 subsequent purchasers, not knowing (as they sometimes well may 
 not) that the land was ever copyhold. 
 
VII MODERN REFORMS AND PROSPECTS 183 
 
 begun in more or less irregular ways in the sixteenth 
 century, was the deliberate policy of the social reformers 
 and philanthropists of the eighteenth. To bring as 
 much land as possible under cultivation seemed to them 
 the just ambition of the landowner who would serve 
 the commonwealth. As long ago as the thirteenth 
 century the statute of Merton had authorised the lords 
 of manors to " approve," ^ that is, inclose for their own 
 profit, as much of the waste land as would leave enough 
 uninclosed for the use of the commoners.^ Inclosures 
 might also be made without limit if the consent of all 
 persons entitled to rights of common was obtained ; 
 but this was seldom practicable. Many commons were 
 inclosed under local Acts of Parliament, and by various 
 old statutes inclosure for particular purposes, such as 
 planting timber, was encouraged. In 1801 a general 
 Inclosure Act was passed (superseded by a completer 
 
 ^ "Approve" in this sense is not the common \vord = Lat. 
 approhare, neither does it stand for appropriare, as has been con- 
 jectured with some plausibility. It represents an old French verb, 
 aproer or approuer, to profit or enrich, from^'ew ov pivti, itself au 
 obscure word, which in modern French survives in "ni prou ni 
 pen " (of. preux, prouesse). In Latin of the late thirteenth century 
 (Statute of Westminster and Fleta) it appears in reflective construc- 
 tion as se appruare. " Se appruare de" . . . is therefore "to 
 make one's profit of " . . . exactly what in the Statute of Merton, 
 where the word itself does not occur, is expressed by the phrase 
 "commodum suum facere." The corresponding substantive is 
 "approment" or " approwement " in the English of the fifteenth 
 and sixteenth centuries. In the seventeenth century the spelling 
 approve, approvement, and with it the mistaken derivation from ap- 
 probare, came in. See the words in the Oxford English Dictionary. 
 
 ^ It has been doubted whether the law declared by the statute 
 was really new : Joshua Williams on "Rights of Common, " pp. 107, 
 108; Elton on "Commons and Waste Lands," 177-86; but see 
 Pollock and Maitland, Hist. Eng. Law, i. 612. 
 
184 THE LAND LAWS chap. 
 
 measure in 1845), and a standing commission was 
 establislied to conduct and regulate the inclosure of 
 common lands. The object of this policy was not 
 merely to bring fresh land into cultivation, but also, 
 and as regards the Act of 1845 chieily,^ to get rid of 
 the old customs of cultivation by scattered parcels or 
 shifting allotments in common fields. In 1845, how- 
 ever, there was already a kind of presentiment of coming 
 change ; for village greens were specially saved, and the 
 inclosure of land near large towns was made subject to 
 the consent of Parliament — a consent which some years 
 later was made necessary in all cases. Provision was 
 also made for the devotion of part of the land to public 
 purposes. The Act, however, was still entitled "An 
 Act to facilitate the inclosure and improvement of 
 commons and lands held in common." 
 
 The reversal of the inclosing policy may be dated 
 from 1865. Towards that time the rapid increase of 
 building in the neighbourhood of London conferred a 
 new value on lands which had been worthless to the 
 lords, and created a new danger to the people, who saw 
 themselves being deprived of their playgrounds. The 
 cause of the commoners became the cause of the public. 
 Litigation ensued about various common lands, Hamp- 
 stead Heath among others. In 1865 a Committee of 
 the House of Commons considered the question of 
 preserving open spaces near London, and the Commons 
 Preservation Society was founded by private exertions. 
 In the following year the Metropolitan Commons Act, 
 
 ' This appears from the proceedings of the Select Committee in 
 1884. Probably most of the earlier special Inclosure Acts had the 
 same character. Cp. Seebohm, English Village Community, p. 14. 
 
vii MODERN REFORMS AND PROSPECTS 185 
 
 1866, put a stop to further inclosures within the 
 metropolitan police district, and empowered the In- 
 closure Commissioners^ to prepare schemes for the 
 management and regulation of the commons thus 
 preserved. Some commons, Wimbledon, for example, 
 were separately dealt with by special Acts. 
 
 Meanwhile the movement for reviving and maintain- 
 ing rights of common was extended into the country 
 parts. At Berkhamstead an attempted encroachment 
 on the lord's part was vigorously and successfully 
 resisted. Mr. Augustus Smith, a tenant of the manor, 
 who fortunately had the means of doing right to himself 
 and his fellows, sent down men by train early in the 
 morning, who in a couple of hours demolished about a 
 mile of wire fence erected by the then Earl Brownlow, 
 taking care (as persons abating an unlawful obstruction 
 or inclosure always should) to do no unnecessary damage 
 to the materials. In the litigation that ensued Mr. 
 Smith satisfied the Court of Chancery that his action 
 was lawful, and obtained a decree against any repetition 
 of the encroachment. A series of contests followed, in 
 which the commoners were for the most part, though 
 not uniformly, victorious. In 1871 the rule was 
 declared and acted on by Lord Hatherley, then Chan- 
 cellor, that, where rights of common were shown to 
 have been claimed and exercised for many years, it was 
 the duty of the Court to find, if possible, an account of 
 their origin which would justify them in law. Not 
 that Lord Hatherley professed to lay down any new 
 principle, but there can be no doubt that in fact he 
 
 ^ This body has been transformed first into the Land Commis- 
 sioners and then into the Board of Agriculture. 
 
186 THE LAND LAWS chap. 
 
 dealt with the case in a very different spirit from that 
 of the judges of the Elizabethan age.^ In 1874 the 
 case of Epping Forest was taken up by the City of 
 London. Here the peculiar and once oppressive rights 
 of the Crown under the old forest law were made to 
 play an unexpected part in restraining encroachments 
 on the common. Owners and occupiers of land within 
 a royal forest were .subject by that law to various 
 burdens and restrictions ; thus they might not have 
 fences above a height fitted to allow free passage to 
 deer ; and by way of compensation they were allowed 
 rights of common, subject to the forest rules, over the 
 whole waste of the forest without regard to the 
 boundaries of particular manors. This was an insuper- 
 able bar to the lord of a small or decayed manor law- 
 fully making himself absolute owner of the waste, as 
 has not unfrequently been done elsewhere, by buying 
 up the remaining rights of common. By a mere accident 
 the Corporation of London were owners of a small 
 property within the bounds of the Forest, and were 
 thus entitled to undertake, as no private commoner 
 could effectually have done, the research and expense 
 necessary to establish their rights to the full extent. 
 At the instance of the lords themselves, who thought 
 
 ^ Warrick v. Queen's College, Oxford, L. R. 6 Ch. 716. In the 
 later case of Goodman v. Mayor of Saltash, 7 App. Ca. 633 (1882), 
 a still further application of this principle was made by the House 
 of Lords. The decision established a right (nominally for inhabit- 
 ants of Saltash, practically for the public) to take oysters in the 
 Tamar. I am disposed to think the reasoning by which it was 
 arrived at may be found to support claims to rights over land also, 
 which have hitherto been supposed incapable of legal existence ; 
 this, however, is too speculative a question to dwell upon here, 
 nor have any recent decisions thrown light upon it. 
 
vii MODERN REFORMS AND PROSPECTS 187 
 
 they were choosing the lesser risk, measures were taken 
 by Parliament for preserving the waste land not yet 
 inclosed; but the lawsuit of 1874 (the course of which 
 Parliament refused to stop) showed that many of the 
 inclosures made within the previous twenty years, and 
 untouched by the Act of Parliament, were unlawful. 
 In the result a considerable amount of space (estimated 
 at more than 2000 acres) was not only preserved but 
 restored to the public.^ Meanwhile the Parliamentary 
 Commission proceeded with its work, and in 1878 a 
 new Act of Parliament constituted the Corporation of 
 London conservators of the Forest, with full powers of 
 regulation and management, and with the charge of 
 preserving it "uninclosed and unbuilt on, as an open 
 space for the recreation and enjoyment of the public." ^ 
 In 1876 a general Commons Act was passed, which 
 took the great step of establishing a presumption for 
 rural as well as suburban commons in favour of regula- 
 tion rather than inclosure. Improvement is expressly 
 defined so to include adding to the beauty of a common, 
 a thing never dreamt of in the former Inclosure Acts. 
 Special provision is made for giving facilities for recrea- 
 tion and preserving objects of historical interest. In 
 short, the Act, even where it leaves most to administra- 
 tive discretion, is an emphatic instruction to the Inclosure 
 
 '* See for further details the Report of the Commons Preserva- 
 tion Society, 1877, which is to be had for 6d. 
 
 2 41 & 42 Vict. u. ccxiii. Outstanding questions were by the 
 same Act referred to the absolute arbitration of Sir A. (now Lord) 
 Hobhouse. " All questions of importance in relation to the Forest 
 are now settled, and the arbitrator has made his final award, speci- 
 fying by a map the lands confided to the care of the Corporation 
 of London, and dedicated to the public enjoyment for ever." — 
 (Report of Commons Preservation Society, 1882.) 
 
188 THE LAND LAWS chap. 
 
 Commissioners to reverse the policy of the earlier part of 
 the century. Among other points which mark a new- 
 spirit, it makes encroachment on village greens a public 
 nuisance. The general interest in these matters has con- 
 tinued to increase. Local associations for the preservation 
 of commons and footpaths have been formed in several 
 parts of the country. In some cases they have effectually 
 withstood encroachment ; in others the mere knowledge 
 of their existence has probably prevented it ; sometimes 
 they have been able to promote the adjustment of dis- 
 puted rights in the interest of the public and all parties. 
 
 Finally the Statute of Merton, though not repealed, 
 has been rendered practically inoperative, "approve- 
 ment " being no longer valid without the consent of the 
 Board of Agriculture. '^ 
 
 A new form of encroachment has lately been found 
 to require new vigilance. Eailway companies and such 
 like bodies are prone to put forth their hands on common 
 rather than on inclosed land when there appears to be 
 any choice, that they may have the less compensation 
 to pay ; and their managers naturally take little thought 
 for preserving the beauty or the quietness of the country 
 affected by their schemes. But several projects of this 
 kind have been signally discomfited in Parliament ; and 
 when, at the twenty-first meeting of the Commons Pre- 
 servation Society in 1886, the work done by it since its 
 foundation was summed up by Mr. Shaw-Lefevre and 
 Mr. Bryce, Mr. Bryce was able to say " the railways 
 have begun to fear us." ^ 
 
 ^ Law of Commons Amendment Act, 1893. The whole history 
 may be seen more at large in Mr. Shaw-Lefevre's English. Commons 
 and Forests. ^ Report of Proceedings, 1885-86, p. 34. 
 
VII MODERN REFORMS AND PROSPECTS 189 
 
 Important as the reaction against inclosure of open 
 land may justly be thought, it has, on the whole, been 
 effected through change in the spirit and working of 
 the law rather than by changes in the law itself. One 
 remarkable case of recent change remains to be noticed, 
 — a case where, after the law had repeatedly been de- 
 clared by persons speaking with authority to be perfect 
 and in no need of reform, a large measure of reform, 
 designed by the greatest lawyer of the Conservative 
 party, was accepted almost without a whisper of opposi- 
 tion. We have seen what grievous dislike was incurred 
 by strict settlements of land when they were a novelty. 
 Coke and Bacon, opponents in most things, agreed in 
 denouncing them. Pamphleteers wished " that there 
 might be no estate but absolute, for life or inheritance, 
 without conditions or entails . . . and this would 
 shorten all suits about estates." ^ Until the close of 
 the seventeenth century the judges followed the Chan- 
 cellor's allowance of the new-fashioned dispositions with 
 undisguised reluctance. But when once the rule against 
 perpetuities was fixed, the landowners and conveyancers 
 had things all their own way for some generations. The 
 scheme of settlement devised by certain ingenious coun- 
 sellors of the Restoration passed, in the esteem of land- 
 owners and even of lawyers, into the category of things 
 immemorial and sacred, bulwarks of Church and State. 
 The Eeal Property Commissioners could find no fault 
 in it. Lord St. Leonards, a score of years later, was of 
 the same mind. Objections could, in his view, proceed 
 only from ignorance or perversity. In such words as 
 these he expounded to the English landowner (the 
 ^ 3 Jurid. Soc. Papers, 598. 
 
190 THE LAND LAWS chap. 
 
 farmer had then hardly entered into his reckoning) the 
 beatitudes of an English settled estate : — 
 
 " A desire has often been shown, not merely to im- 
 prove the law of real property, but unnecessarily to alter 
 it, and to admit only simple settlements after the fashion 
 of the Code Napol6on. But the present plan of a strict 
 settlement in this country is free from all objection. It 
 does not place land extra commercium, but within reason- 
 able limits enables the owner to transmit it to all his 
 posterity ; and from its very nature leads to successive 
 settlements, which alone have kept many estates in the 
 same families. . . . 
 
 " Thus are estates quickly resettled, and the State 
 does not, that I am aware of, suffer any inconvenience 
 from such repeated settlements. No man in this country 
 can justly complain that there is not sufficient land in 
 the market on sale. . . . 
 
 " It is objected that these purposes are effected by a 
 complicated and an expensive machinery ; but who ever 
 complained of the complex movements in a well-finished 
 watch ? "We admire the connection of its parts depend- 
 ing on each other, and all necessary to form the combina- 
 tion which produces the desired results." 
 
 Metaphors are dangerous things. A well-finished 
 watch is desirable not for the beauty of its machinery, 
 but that its wearer may know the time of day. He will 
 prefer a cheap watch that keeps fair time to a sidereal 
 chronometer which is out of relation to men's common 
 count of hours. Moreover, a watch is far from being a 
 perfect machine ; the watchmaking trade is peculiar in 
 its constitution and division of labour, and improvements 
 have been introduced only slowly and with great diffi- 
 
\n MODERN REFORMS AND PROSPECTS 191 
 
 culty. But this elaborate combination, it is said, " pro- 
 duces the desired results." Desired by whom and for 
 whom ? There is the point. 
 
 Behind the question of legal machinery there is the 
 question of social policy, which has gradually been forcing 
 itself on men's attention, Lord St. Leonards and other 
 persons of authority notwithstanding. The results of a 
 strict settlement are doubtless desired by its makers, and 
 the purpose is effected with exceeding skill. But are 
 they desirable for the common weal ? Dealing with the 
 land is hampered; not made impossible or impracticable, 
 as sometimes appears to be thought, at least not if the 
 settlement is framed by competent hands ; but hampered 
 it is, and it is idle to deny it. Powers of sale and 
 management are useful, but they are not ownership. I 
 have power to consult any book in a great law library 
 by walking a few score paces from my chambers. But 
 if there is a book I should rather like to consult, but can 
 do without, the chances are that I shall not go. Every 
 scholar knows the difference between having books at 
 one's elbow and having to go out to see them. So it 
 is with attempts to restore the uses of absolute ownership 
 after dismembering its substance. 
 
 And there is a still graver economical objection to 
 strict settlements than any real or supposed want of 
 power to deal with the land. It is that they destroy 
 the ordinary means and motives of an owner for dealing 
 with it in the way of improvement. The life-tenant of 
 a settled estate, " limited owner," as he is expressively 
 called in modern Acts of Parliament, seldom has any 
 capital to put into the land. Incumbrances created by 
 previous settlements commonly leave no margin of 
 
192 THE LAND LAWS chap. 
 
 revenue beyond what is needed for barely keeping up 
 
 the estate. And if the limited owner has other means, 
 
 he is still without much inducement to apply them to 
 
 the improvement of the estate ; if he does so, he spends 
 
 for the exclusive benefit of an eldest son who is already 
 
 preferred by the settlement. He is much more likely 
 
 to use his money for the benefit of younger children ; 
 
 and justly, so far as they and he are concerned ; but 
 
 this divorce of capital from land is a loss to the land 
 
 itself, to the cultivator, and in the long run to the 
 
 commonwealth. 
 
 Much has been said and written of the evils of strict 
 
 settlement since the renewal of law reform which began 
 
 about sixty years ago, and sundry partial measures have 
 
 been taken to palliate them. It is needless to describe 
 
 these, for they have been mostly superseded by the 
 
 Settled Land Act of 1882, due to Lord Cairns as its 
 
 chief author, the object of which is to confer on 
 
 " limited owners '' as large and effectual powers of using 
 
 the land to the best advantage as are compatible with 
 
 settlements existing at all. By this Act a tenant for 
 
 life ^ has powers of selling and leasing, and other powers 
 
 of administration, without any special provision in the 
 
 settlement, and, subject to certain safeguards intended 
 
 to prevent abuse, and not burdensome, he may exercise 
 
 them at his own discretion. He cannot, however, sell a 
 
 principal mansion-house or heirlooms without leave of 
 
 the Court. His powers cannot be released or bargained 
 
 away, and no disposition purporting to abrogate or 
 
 1 Certain other limited owners, whose position differs only 
 technically from that of a tenant for life, are included in the Act. 
 There are later amending Acts of too detailed and technical a 
 nature to call for notice here. 
 
VII MODERN REFORMvS AND PROSPECTS 193 
 
 restrain them is valid. The purchase -money of land 
 sold under the Act may be spent (among other purposes) 
 on the discharge of incumbrances, or on improve- 
 ments of several specified kinds. Expenditure on im- 
 provements is subject to the control of either the Land 
 Commissioners (a body constituted by the amalgamation 
 of the former Inclosure, Copyhold, and Tithe Com- 
 missions) or the Court. No power is given to raise 
 money from the land by mortgage as distinct from sale 
 in order to execute improvements on it; this can be 
 done, by a somewhat tedious process, under an Act of 
 1864. The list of authorised improvements, however, 
 is extended by the Settled Land Act. It must be ob- 
 served that the Act does not alter the beneficial title to 
 the settled land, or the investments representing its 
 value, or the increased value given to part of the land 
 with money obtained by selling another part. The 
 tenant for life cannot enlarge his own interest ; he can 
 only decide in what form the property shall be handed 
 on to those who come after him. He may leave them 
 fewer acres with equal or greater value, in the shape 
 either of incumbrances taken off or of improvements 
 added. He may even leave them money instead of 
 land. So far he can alter the subject-matter of their 
 rights, but the rights themselves he cannot touch. It 
 was reserved for another Tory Lord Chancellor in 1887 
 to carry through the House of Lords a proposal for 
 the automatic expansion of estates tail into fee simple. 
 Even this, however, would in the main operate as a 
 simplification of form. The authors of the Land Trans- 
 fer Bill professed not to interfere with the general 
 principle of family settlements. 
 
194 THE LAND LAWS chap. 
 
 It is still too early to say what will be the economi- 
 cal effects of the Settled Land Act. No such carefully 
 devised measure of administrative reform in our land 
 laws has been passed since the Fines and Recoveries 
 Act. Probably its framers have succeeded in their 
 intention of removing every obstacle to dealing with 
 settled land that is not involved in the very existence of 
 settlements. Experience must show how far the coimtry 
 will be satisfied. Reforms of this kind are most useful 
 for their time, and their promoters deserve all honour. 
 But they all add to the complications of a system abeady 
 too complex ; and the day seems to be at hand when 
 the system will no longer bear this process, and recon- 
 struction must be faced. 
 
 The traditions of English character, the circumstances 
 of an age of commerce, and the example of other Eng- 
 lish-speaking communities, all seem to point to the sim- 
 plification of landholding and the encouragement of 
 absolute ownership. On the other hand, there are cer- 
 tain speculative reformers, of late very loud and busy, 
 who will have it that private ownership of land is 
 altogether wrong, and instead of desiring that, so far as 
 may be, every man should be his own landlord, are for 
 making the State every man's landlord. To discuss 
 such schemes is not within my province. As Lord 
 Hobhouse has well said,^ " they are hardly proposals for 
 the alteration of the laws relating to land, or of any 
 other branch of municipal law commonly so called ; but 
 rather for shifting the very basis of English society, and 
 remodelling it on different theories of property, and of 
 the relation between the State and individuals." 
 
 1 Tlis Dead Hand, 1880, p. 164. 
 
VII MODERN REFORMS AND PROSPECTS 195 
 
 It will be time for lawyers to take a serious view of 
 what is barbarously called " Land Nationalisation " (but 
 it deserves a barbarous name) when its advocates have 
 shown themselves capable, as thus far they have not, of 
 appreciating the enormous difficulties that would beset 
 an attempt to give tangible form to their vast and vague 
 idea. No law could be framed for destroying private 
 property in land, or (what some of these reformers take 
 to be the root of mischief) the relation of landlord and 
 tenant, without hundreds of keen-witted men forthwith 
 setting themselves to evade it. The history we have 
 surveyed has given us, perhaps, examples enough of 
 what happens when the letter of laws is matched against 
 the nature of man and of things. 
 
 As to the question of public economy, I have nothing 
 to say of it. Not only is it not my business here, but I 
 cannot imagine that those who were not convinced by 
 Mr. Fawcett ^ are likely to be convinced by anything I 
 could add. It is said that working men in London are 
 found apt to be taken with these projects of national 
 socialism. It may be so ; too few of them are ballasted 
 in their course by much, or any, of the magic of owner- 
 ship. But the artisans of the north country are already 
 in great part, through the operation of building societies, 
 full owners of the homes they dwell in. Let such a 
 working man understand that our new social reformers 
 will confiscate his well-earned cottage neither more nor 
 less than the squire's mansion and the manufacturer's 
 mill — that he too is to become a rent-paying tenant of 
 the State, or a so-called occupying owner taxed up to 
 
 ^ ' ' State Socialism and the Nationalisation of Land, " Macmillan's 
 Magazine, July 1883 (since republished in pamphlet form). 
 
196 THE LAND LAWS chap, vii 
 
 the rental value of his holding — and I think he will 
 prefer his risks of poverty to such progress as the social 
 enthusiasts of the East or the West have to offer him. 
 The extreme Socialists, after threatening in brave words 
 to extinguish both the great historical parties of our 
 Commonwealth, have now (1895) been signally rebuffed 
 by the electors of Great Britain,^ and have lost what 
 little representation in Parliament they had snatched 
 in the last few years. We may be permitted to trust 
 that the progress of English laws and society will be, as 
 it has been, in a steady course of rational reform ; that 
 men of power and wisdom may be with us in time of 
 need in the future as they have been in the past ; and 
 that the terrible fascination of revolution may remain, 
 as it yet is, alien and impotent among our people. 
 
 Dea magna dea Cybebe, dea domina Dindymi, 
 procul a mea tuus sit furor omnis, era, domo : 
 alios age incitatos, alios age rabidos. 
 
 ^ In Ireland there has never yet been room for them. 
 
APPENDIX 
 
 Note A. — The Germanic Land System 
 
 Few passages have been more discussed than the short account 
 of early German agriculture in the Germania of Tacitus (c. 
 26). The best exposition is still, perhaps, that of Waitz 
 {Deutsche Verfassungs-Geschichte, vol. i. p. 104 sqq., ed. 1865). 
 There are some useful notes in Mr. H. Furneaux' recent 
 edition of the book (Oxford, 1894). The critical words are 
 these : — 
 
 " Agri pro numero cultorum ab universis viois [al. in vices] 
 occupantur, quos mox inter se secundum dignationem parti- 
 untur. Facilitatem partiendi camporum spatia praestant. 
 Arva per annos mutant, et superest ager." 
 
 I would translate to this effect : "The German township 
 as a whole takes up a tract of land according to the number 
 of its husbandmen. The land so occupied is then allotted 
 among the members in proportion to their rank, the extent 
 of open ground making this process a simple one. The 
 parcels under the plough are shifted yearly, and there is land 
 to spare." 
 
 First, what does universi mean 1 It might mean a whole 
 tribe or nation, a State, as we^ may fairly call it, if we 
 remember that it was not organised like the modern State. 
 But the partition of lands, newly occupied or otherwise, 
 between individual cultivators is the work not of the State, 
 but of the smaller community which appears on various 
 scales and under various names, and for English purposes 
 may best be called a township. It is possible, and indeed 
 
198 THE LAND LAWS 
 
 probable, that from tbe earliest times not only the kings but 
 other great men had large portions of the land allotted to 
 them in separate lordship. Such men were not members, 
 but lords of the communities which might be settled on 
 their lands. But it is also probable from what follows that 
 it is a communal system that Tacitus here has in view. 
 
 The alternative reading has much more MS. authority for 
 it, vids being the reading of only one MS. But, though it 
 is defended with great ingenuity by Orelli (1848), and is 
 tempting in some ways, it makes a difficult and ambiguous 
 sentence. It would imply that (1) Tacitus was at a loss to 
 give a more definite name than universi to the German 
 agricultural unit ; (2) the same ground was successively taken 
 up by different communities. We should thus get, at first 
 sight, a closer agreement with Caesar's account (B. G. vi. 22, 
 quoted in Stubbs's Sel. Ch. p. 53). But it is by no means clear 
 that Tacitus meant to agree with Caesar, who appears rather 
 to be describing clans still in a nomadic stage, while Tacitus 
 seems to be speaking of the permanent settlement of fresh 
 tracts, " new takes," as they say on Dartmoor. 
 
 As to the process of partition, it is clear that already 
 there were distinct degrees of rank, that the more worshipful 
 man got more land allotted to him, and the less worshipful 
 less. " Arva per annos mutant " is taken by the best modern 
 authorities to refer to the course of husbandry, and signify 
 the alternation of crop and fallow. But it may also import 
 (what seems otherwise probable) that every man had, or might 
 have, a different parcel allotted to him each year. In like 
 manner " superest ager " may refer to the unallotted common 
 land of the township, or to vacant land not yet appropriated 
 by any township, or to both. 
 
 Fustel de Coulanges considered this passage of Tacitus in 
 his Recherches sur quelques probl^mes d'histoire, Paris, 1885. He 
 thinks that Tacitus wrote it for the information of Eoman 
 readers as farmers rather than as publicists, and that this 
 accounts for the want of technical definition which has given 
 so much trouble to modern commentators. " Tous les termes 
 se rapportent k la culture." It is quite true that the leading 
 word occupantur expresses a bare fact, and does not involve 
 
APPENDIX 199 
 
 any particular inference as to the kind of right in which the 
 acts are done ; on the otlier hand it does not exclude any 
 which is otherwise plausible. References to recent criticism 
 of Fustel's work may be found in the Introduction to the 
 French translation of Maine's Village Oommunities, sub tit. 
 Etudes sur I'histoire du droit, Paris, 1889. An article in the 
 Quarterly Review for October 1895 opens an interesting field 
 of comparison, and a new one to most English readers at any 
 rate, on the history of land communities in Spain. 
 
 Note B. — Symbolic Transfer in Early English 
 Customs 
 
 Professor Sohm, following K. Maurer and Schmid, assumes 
 that the A.S. " book " was the common mode of assurance, 
 and goes so far as to deny that symbolical transfers were used 
 at all before the Conquest. (Frdrikisches Recht und romisches 
 Recht, Weimar, 1880, p. 30.) But the absence of records 
 appears quite inconclusive. It was not a native Anglo-Saxon 
 or Germanic custom, but a foreign practice introduced under 
 clerical influence " iuxta exempla Romanorum," to keep any 
 written records at all. Besides, it is not the case that we 
 find before the Conquest "keine Spur der Investitur." 
 There are half a dozen examples in the God. Dipl. See Nos. 
 12, *37, 104, 114, *177, 1019. In No. 114 a sod from 
 the place is expressed to be delivered along with the book. 
 In the other oases it is mentioned to have been placed on the 
 altar or on the book of the Gospels. Two of the charters, 
 here also noted by an asterisk, are marked by Kemble as 
 forgeries. But the like incident must have been found in 
 genuine originals which the forger was imitating. Two 
 other cases may be added from the Black Book of Peter- 
 borough, in a record printed by Dr. Stubbs in 1861, and 
 accepted by him as genuine. Early in the eighth century 
 " jEthelred, the glorious king of Mercia, on the occasion of 
 a visit to Medesham-stede, gave to the brethren he found 
 there thirty manentes at Lengtricdun, and confirmed the 
 gift by placing on the Gospels' Book a sod taken from the 
 place." Again, a purchase of lands at Cedenanac from the 
 
200 THE LAND LAWS 
 
 king " was ratified at Tonitun (Northampton ?) in the king's 
 chamber by joining of hands, and by placing a sod from 
 Cedenandc on the Gospels' Book, in the presence of Bishop 
 Saxnlf." Here we seem to catch the very moment of the 
 final struggle of the older symbolical ceremony with the 
 " book," which for great occasions was to supersede it — if, 
 indeed, it did so ; for, as Palgrave has observed {Proofs and 
 Illustrations, ocxxviii.), the silence of most charters as to any 
 symbolical delivery really proves nothing. My own belief 
 is that for the common occasions of private persons the 
 symbolical transfer never went out of use. It seems to me 
 no extravagant supposition that many of the symbolical 
 customs still found in copyholds, such as surrender by a 
 straw in the manor of Winteringham, in Lincolnshire 
 {Academy, Nov. 19, 1881, p. 386), are really of immemorial 
 antiquity. On Sohm's and Schmid's theory they would be 
 late medieval imitations of the Franco-Norman custom. 
 
 It seems far-fetched, however, to find in the laws of 
 Alfred an attempt to convert book-land into family or 
 customary land by way of reaction towards pure Teutonic 
 principles (Mr. Lodge in Essays in Anglo-Saxon Law, pp. 
 70, 71). The law says that a man who has inherited 
 book-land from his kindred must not give it from the 
 family " if there be writing or witness that it was forbidden 
 by those men who at first acquired it, and by those who 
 gave it to him, that he should do so." Probably this was 
 only a confirmation of existing law (compare the preamble), 
 and it rather goes to show that restrictive clauses were 
 often disregarded than anything else. But it does seem 
 to allow validity to restrictions of this kind not expressed 
 in the book itself, but only declared by the donor in the 
 presence of witnesses — a point not noticed by Mr. Lodge. 
 So far we may say that the peculiar quality and privileges 
 of book-land were kept in check by the old family principles. 
 
 Note C. — Thb Origins op the Manor 
 It may be useful to state in a summary way the different 
 
APPENDIX 201 
 
 theories as to the origin of manorial tenures and customs 
 which have prevailed among English authors at different 
 times. For shortness' sake they will have to be put rather 
 in their extreme forms than with the reserves and q^ualifica- 
 tions which their more cautious maintainers have introduced. 
 But this will not involve any injustice, for the object is not 
 to give an exact account of this or that author's opinions, 
 but to indicate the successive tendencies of historical specula- 
 tion, the changes of fashion, as one might say, if the dignity 
 of history siiffered it. Those who desire a more careful 
 and detailed study of the different schools may find it 
 in the Introduction to Mr. Paul Vinogradoff's Villainage 
 m England, and Dr. Andrews' work on The Old English 
 Manor.^ 
 
 Down to the middle of this century, or later, the common 
 opinion, founded probably on Blackstone's account, was that 
 at the date of the Norman Conquest, and for some centuries 
 afterwards, the greater part of English land was held at the 
 absolute will and pleasure of the lords of manors. The 
 medieval customs evidenced in surveys and court rolls were 
 supposed to have arisen (so far as any rights of the tenant 
 were concerned) out of mere sufferance, " by a long series of 
 immemorial encroachments on the lord." ^ It was not 
 uncommonly stated or assumed that before the Conquest 
 the land was to a great extent in the hands of free yeo- 
 men or peasant proprietors. These were supposed to have 
 been either evicted or reduced to villenage by the Norman 
 lords, leaving little or no trace in records of the Anglo- 
 Norman or any later period. 
 
 Kemble's great work, The Saxons in England, was pub- 
 lished in 1848, but the opinions of his school were not fully 
 established in the acceptance of scholars and the general use 
 of teachers till about twenty years later. However, the 
 acceptance, when it fairly set in, was so complete and un- 
 
 1 Mr. Scrutton's Commons and Common Fields (Cambridge, 
 1887) may also be usefully consulted. 
 
 ^ Blackstone's Comm., i. 95. It is not clear whether Blackstone 
 thought this process dated from before, the Conquest or not, but I 
 think he would not have put it much before in any case. 
 
202 THE LAND LAWS 
 
 questioning as almost to invite a reaction. According to 
 this school the original type of the Germanic community 
 was, among the Saxon conquerors of Britain as elsewhere, 
 an association of free men equal in rights, if not in social 
 rank or wealth. The village or township was a group of 
 joint owners, acknowledging no superior except for military 
 service and other purposes of public order and justice, and 
 regulating its own internal affairs. Personal lordship, how- 
 ever, was among the early Germanic institutions, and 
 territorial lordship was already growing up some con- 
 siderable time before the Conquest ; i in fact feudalism was 
 impending, and the Conquest only accelerated the reception 
 and definition of feudal rules. Probably no serious writer 
 of this school would have denied that many details remained 
 obscure as to dates and otherwise. Nevertheless it was 
 agreed in the main that, whether the process began earlier 
 or later, servile tenants did not encroach on the lords as 
 supposed by Blackstone and the modern law-books, but on 
 the contrary the lords encroached on rights and liberties of 
 the occupiers, which were more ancient than their own. It 
 was not disputed that the Saxon freemen, like the citizens 
 of a Greek or Roman city, had below them a considerable 
 class of unfree men, slaves in fact. This indeed has never 
 been disputed by any one, though in some popular descrip- 
 tions of the free village community the existence of slavery 
 may have been allowed to fall a good deal into the back- 
 ground. The German word " mark " and the phrase " mark 
 system" were freely adopted by writers of this school, and 
 their doctrine is often called the " mark theory," though 
 there is really no English authority for the use of " mark " 
 as a synonym of " village community " or " township." 
 Maine's Village Communities is justly esteemed the best 
 general exposition of the theory for English readers, and 
 this for the very reason that Sir Henry Maine professed, 
 
 ^ In Kemble's view (Saxons in England, i. 307), "the ruin of 
 the free cultivators and the overgrowth of the lords " had already 
 gone far before the time of .fflthelred. In other words, the ancient 
 free institutions had broken down at least a century before the 
 Normans came. (Cp. Freeman, JV. C v. 462.) 
 
APPENDIX 203 
 
 as regards European institutions, only to take the results of 
 the prevailing Germanic school as he found them. It must 
 be added that this school has never regarded the village com- 
 munity, township, or " mark," as a mere association of other- 
 wise unconnected households or individuals, like a modern 
 club or commercial company. Some bond of kinship, 
 traditional if not absolutely historical, is always tinderstood 
 to have made the association possible in the first instance. 
 Kemble and Maine are both express, nay emphatic, on this 
 point.i It is needless to remind educated readers how in- 
 timately it is connected with the importance of Adoption in 
 archaic societies. A fictitious brotherhood was the founda- 
 tion of the Germanic comitatus, and played a considerable 
 part in the early stages of feudalism, as M. Flach has lately 
 shown. 
 
 The Blackstonian theory (as we may call it for con- 
 venience) had taken its facts from the legal formulas of the 
 later Middle Ages, as interpreted by the still later classical 
 text-writers of English law. The Germanic theory, dis- 
 carding this unreal treatment of a large and complex 
 historical process, corrected the former view, as we have just 
 seen, by taking account of political and economic develop- 
 ments, and bringing the purely English history into line 
 with the general mass of Teutonic learning and tradition. 
 But the later extensions of this method in such hands as 
 Nasse's ^ prepared the way for a critical reaction. 
 
 It was found that close attention to the details of medi- 
 eval agriculture and administration raised new problems 
 which the Germanists, if not as unconscious of them as the 
 Blackstonians, had left in the background. Anglo-Saxon 
 documents, when they do go into detail, show us the tillers 
 of the soil in a condition not materially different from the 
 villenage of the thirteenth century. The labour-dues, well- 
 known in post-Norman inquests and court rolls, are there ; 
 a lord to whom they are rendered is there ; the highly 
 
 ^ See especially Kemble's Appendix A on patronymic place- 
 names. 
 
 2 The Agricultural Community of the Middle Ages. (Eng. 
 trans, by Col. Ouvry, Cobden Club, 1871.) 
 
204 THE LAND LAWS 
 
 artificial system of common-field cultivation, though, not 
 described in terms, is plainly there too when one has learnt 
 to trace it.i Free communities are not visibly there, only 
 supposed survivals of ancient freedom, which after all may 
 be regarded as ambiguous. Hence, when Teutonic enthusi- 
 asm and the brilliance of Kemble's exposition had spent 
 their early charms, the question became inevitable : Was 
 the free village community ever there at all? Why should 
 not the usual medieval relations between the lord of a 
 manor and his tenants in villenage be as old as anything 
 else in the manorial system ? Is not the whole system really 
 of one piece ? These and such like points were raised by 
 Mr. Seebohm's work in this country. Soon after his English 
 Village Community had begun to engage serious attention, 
 M. Fustel de Coulanges independently attacked the German 
 school on the Continent. In addition to destructive criticism 
 of the German "mark theory," some writers, and notably 
 Fustel, have undertaken to maintain that the supposed 
 Teutonic village community is nothing btit a continuation of 
 the Eoman villa, which beyond any doubt was a great man's 
 estate cultivated by servile work. Neither Fustel's methods 
 nor his results have been generally accepted in his own 
 country. M. Paul VioUet, M. Flach, M. Dareste, and M. 
 Glasson, have all criticised his work (partly by way of self- 
 defence) with more or less severity, and have pointed out that, 
 although he constantly and justly insisted on strict accuracy 
 in distinguishing fact from conjecture, his own use of authori- 
 ties was not always adequate or even exact. M. Flach is of 
 opinion that even in Gaul there was nothing like a general 
 survival of Eoman municipal institutions. It is to be 
 observed, in any case, that Fustel de Coulanges never 
 examined English facts or documents himself, nor, so far as 
 I know, expressed any opinion whether his conclusions, which 
 were strictly limited to the materials before him, would be 
 applicable to the English settlement in Britain. Whoever 
 wishes to rely on Fustel's work for English purposes ought 
 
 ^ This is less material ; for if there were no Anglo-Saxon 
 evidence at all it would be impossible to believe that such a system 
 was introduced after the Conquest. 
 
APPENDIX 205 
 
 to be prepared to show that the determining conditions, as to 
 the continuity of Roman institutions and otherwise, were 
 not materially diiferent in Britain and in Gaul ; and Mr. 
 Ashley, now of Harvard University, the only English writer 
 who has followed Pustel without reserve, has not to my 
 knowledge attempted anything of the kind. Thus the 
 new " villa " school of early English history, if one may call 
 it so by way of contrast to the " mark " school, is a Roman- 
 ising one, and stands more or less committed to alliance with 
 the late Mr. Coote and other students who have from time to 
 time endeavoured to show that the persistence of Roman 
 elements in our civilisation has been underrated. Much 
 learning and ingenuity have been spent on this endeavour. 
 Without entering here on the subjeot,i I am bound to state 
 it as my considered opinion that on the whole this expendi- 
 ture has been in vain. It is possible, however, to deny or 
 not to be satisfied that free village communities existed in 
 England within historic times, and yet not to accept the pro- 
 posed derivation of the dependent community from the 
 Roman villa. Maine has suggested with much force ^ that 
 it may have been the Roman villa that was influenced by 
 the barbarian village, Teutonic or other. It would be quite 
 natural for the internal economy of a great Roman estate in 
 the provinces, or even in Italy, to be modelled to some extent 
 on the customs with which the majority of the slaves doing 
 out-door work had been familiar in their old homes. 
 
 The '' villa " theory may be said to be, to a limited extent, 
 a restoration of the Blaokstonian or older manorial theory. 
 So far as the facts from the Conquest to the thirteenth or 
 fourteenth century are concerned, its upholders agree with 
 Blackstone in regarding the law of the king's judges as a 
 correct expression of those facts. But, instead of holding 
 that both facts and law dated from the Norman Conquest, . 
 this theory carries them back as far as the English conquest 
 of Britain. There seems to be in this school a tendency, and 
 almost an avowed wish, to encourage modern optimist views 
 of social progress by representing the tillers of the soil as 
 
 ^ Cp. Andrews, The Old English Manor, pp. 34-40. 
 ^ Early Law and Custom, p. 332. 
 
206 THE LAND LAWS 
 
 moving slowly but steadily throughout the early Middle 
 Ages from a worse to a better position. Its adherents are 
 therefore really very far from having returned to the Black- 
 stonian point of view ; they take in a much wider field, and 
 aim at much more complete explanation. They have 
 certainly done good by demanding and enforcing a fresh 
 examination of the evidence. And Mr. Seebohm has been 
 the first modern writer to exhibit and prove what a yardland 
 in the common fields really was.^ Meanwhile the conclusions 
 of this school cannot be said to have established themselves 
 either here or on the Continent. Mr. Elton,^ Mr. Kenelm 
 Digby,3 and, I think, most of our legal scholars, adhere to 
 the Germanic doctrine in the main, though not to the in- 
 cautious generalities of secondhand expounders which are 
 still repeated now and again in semi-popular writings. From 
 Russia the Germanic champions are reinforced by Mr. 
 Vinogradoff and Mr. Kovalevsky, — strong allies both, 
 Vinogradoff with a knowledge of the English documents, 
 published and unpublished, in which perhaps only Mr. 
 Maitland can rival him, Kovalevsky with wide command of 
 analogous facts and developments in Slavonic societies at 
 every stage of civilisation. Mr. Kovalevsky derives the 
 Russian village community from the expansion of a patri- 
 archal family,* and calls attention to the fact that indepen- 
 dent and dependent communities have actually existed in 
 Russia side by side in historical times. This is of great 
 importance when equally universal and unqualified claims 
 are made on behalf of either type as the proximate original 
 of the English manor. 
 
 ^ It would be rather interesting to know when people began to 
 forget what it was, but this could be ascertained (save by good 
 luck) only with more labour than it would be worth. In some 
 manors, e.g. Berkhamsted, name and thing had disappeared as 
 early as the reign of James I. 
 
 ^ Article on Mr. Vinogradoffs Villaiiiage in England, Law 
 Quart. Rev., viii. 117 ; and see "Early Forms of Landholding, " 
 Eng. Hist. Rev., i. 427. 
 
 ^' Introduction to the History of the Law of Real Property, 4th ed. 
 Oxford, 1892. 
 
 * Modem Customs and Ancient Laws of Russia, Lend. 1891 
 ch, iii. 
 
APPENDIX 207 
 
 I may add that the number and position of English land- 
 holders who were certainly free at the time of the Domesday 
 Survey, or at the date of King Edward's death, to which the 
 Survey constantly refers, are among the elements to be most 
 carefully considered in dealing with this problem of origins 
 as a whole. That number was much underrated by Mr. 
 Seebohm in consequence of his not allowing enough for the 
 variety of Domesday terminology. The " thanes " of Wessex, 
 e.g., are mostly not lords but rather small freeholders ; and 
 many tenants of the same class are entered merely by name. 
 Thus the supposed "fact that Domesday does not mention 
 free tenants in the greater part of England " (Mr. Ashley in 
 Econ. Rev., iii. 165) is an illusion. 
 
 With regard to the manorial courts, Mr. Maitland's 
 researches (Select Pleas in Manorial Gowis, published by the 
 Selden Soc, 1888; and see Mr. G. H. Blakesley, "Manorial 
 Jurisdiction," Law Quart. Rev., v. 113) have proved, in my 
 opinion, that the .jurisdiction is feudal and derived from 
 tenure, and independent .alike of any earlier popular 
 institutions and of economic organisation. The distinction 
 between the " court baron " of the freeholders and the " cus- 
 tomary court " of the base tenants is a relatively modern 
 formalism ; early medieval records know only of a curia 
 legalis when there is any adjective at all. I now have no 
 doubt that private jurisdiction is very ancient, and grew up 
 not by transformation of any more ancient popular court, 
 but in direct competition with the hundred court. There 
 is no sufficient reason to think that there was ever any 
 popular court less than the hundred court, and the " mark- 
 moot," which students were for some time taught to believe 
 in as if it were as well known as the King's Bench, is a 
 creature of ingenious but unwarranted conjecture. 
 
 From all this it is a long and dangerous leap to the 
 conclusion that the origin of our medieval land system is to 
 any considerable extent not Germanic but Roman. I am no 
 more disposed to accept any such conclusion myself than I 
 was when I first wrote this book. 
 
 In 1893 Prof. Earle suggested in the Economic Journal 
 that the syllable well or wil in English place-names may 
 
208 THE LAND LAWS 
 
 sometimes be a survival of a Roman villa. I know no 
 reason a priori why villa should not have survived sometimes, 
 as castrum certainly often did, but even if the evidence came 
 up to the mark of conviction, as I can hardly think it does, 
 I do not see that our general view of the history of civilisa- 
 tion in this island would be much affected. 
 
 Note D. — Villenage, Villein Tenure, and Coptholds 
 
 The first condition for a clear understanding of the " base 
 tenures" of our books is to keep in view the distinction 
 between the tenure of the land and the personal condition 
 of the tenant. For this, as recognised in the thirteenth 
 century, the classical authority is Bracton. He mentions 
 tenants on the king's demesne, whose ancestors held by free 
 services, but were put out by the strong hand, and were 
 allowed to take back their holdings to be holden in villenage 
 by base but certain and assigned services (cp. as to this Dial, 
 de Scaccario, I. c. x.). These tenants are personally free, 
 " since they perform their services not in regard of their 
 persons, but in regard of their holdings." Compare as to 
 this the old English document called Bectitudines Singularum 
 Personarum, § 2, p. 372, in Schmid's collection: the "cot- 
 setla," who renders labour-rent such as after the Conq^uest 
 was called servile, is personally free, for " he is to give his 
 hearth-penny on Holy Thursday as every free man ought " ; 
 so Kemble has well noted, Saxons m England, i. 323. To 
 return to the demesne tenants in Bracton, they cannot bring 
 the ordinary real actions, " but only the little writ of right 
 according to the custom of the manor " ; that is, the jurisdic- 
 tion was in the king, not as king, but as lord of the parti- 
 cular manor. Yet a tenant in ancient demesne might have 
 the assize of novel disseisin against a stranger, and under 
 exceptional conditions he or his feoffee might have it even 
 against the lord, see the opinion set out in Mr. Horwood's 
 Preface to Y. B., 20 & 21 Ed. I. p. xviii. They were called 
 glebae ascriptitii (cp. again the Dial, de Scacc., loc. cit.), but 
 Bracton regarded this as expressing not a bondage, but a 
 right ; not that they might not go elsewhere, for " they shall 
 
APPENDIX 209 
 
 not be enforced to hold such a tenement unless they will," 
 hut that the lord cannot remove them as long as they per- 
 form the services (fo. 7a). Though not properly tenants in 
 socage, they are regularly called socmen ; cp. Old Nat. Brev. 
 tit. "Briefe de recto olauso," fo. 11, ed. 1584. Again, 
 " the tenement changes not the condition of a free man any 
 more than of a slave. For a free man may hold in mere 
 villenage, doing whatever service thereto belongs, and shall 
 none the less be free, since he does this in regard of the 
 villenage and not in regard of his person. . . . Mere villen- 
 age is a tenure rendering uncertain and unlimited services, 
 where it cannot be known at eventide what service hath to 
 be done in the morning, that is, where the tenant is bound 
 to do whatever is commanded him" (Bracton, fo. 26a). 
 Again, "another kind of tenement is villenage, whereof 
 some is mere and other privileged. Mere villenage is that 
 which is so held that the tenant in villenage, whether free or 
 bond, shall do of villein service whatever is commanded 
 him, and may not know at nightfall what he must do on 
 the morrow, and shall ever be held to uncertain dues ; and 
 he may be taxed at the will of the lord for more or for 
 less . . . yet so that if he be a free man he doth this in 
 the name of villenage and not in the name of personal ser- 
 vice . . . but if he be a villein [by blood], he shall do all 
 these things in regard as well of the villenage as of his 
 person" (fo. 2086). The only difference in the services was 
 in the merchetum on marrying a daughter, which was an 
 incident of personal servitude (being a fine paid to the lord 
 for depriving him of a slave. As to the origin of the custom 
 and word see Mr. Pike's Introduction to the Year-BooJc of 
 15 Edw. III. in the EoUs Series. I venture to guess that 
 not only, as he suggests, the word has to do with mearc, and 
 means a fine for marrying beyond the manor boundary, but 
 the original form was mearc -sceat, cp. the Domesday form 
 circet = dric-sceat, which removes an otherwise serious objec- 
 tion : it occurs in Sussex, D. B. i. 296, and in Oxfordshire 
 (twice) 1545). Merchet was not of right demandable from 
 the free man holding in viUenage : "nee enim tenebitur ad 
 merchetum de iure, quia hoc non pertinet ad personam liberi 
 
210 THE LAND LAWS 
 
 sed villani " ; and even on this point tlie evidence is not 
 
 uniform as in later books. Bracton's de iure suggests 
 
 doubt whether the practice was fixed in his own time. 
 
 Privileged villenage is then described as the tenure of the 
 
 personally free men already mentioned in the passage fi.rst 
 
 cited. Bracton also mentions a kind of qualified villenage 
 
 in which the services are defined by express agreement, 
 
 " ex conventione " ; this is not properly called privileged, 
 
 but the terms agreed upon are enforceable against the lord 
 
 (fo. 209a). But I have some doubt whether these sentences 
 
 belong to the original text. I suppose the personally free 
 
 man who held in villenage, privileged or not, might always 
 
 perform the services by deputy if he could find one. Cp. 
 
 Bracton, fo. 199, 200, on the "exceptio villenagii," and 
 
 cases 70, 80, 281 in Bracton's iVote-BooA:, ed. Maitland, 1887. 
 
 Thus in Bracton it is quite clear that the conditions of 
 
 the tenure and the personal status of the tenant have no 
 
 necessary connection. Not only a free man may hold servile 
 
 land, but a bondman may hold and deal with free land as 
 
 against everybody but his own lord (fo. 266), and he may in 
 
 general sue any one but his own lord, and in some cases 
 
 even him (1556) ; cp. Pollock and Maitland, Hist. Eng. Law, 
 
 i. 399. It is not uncommon for a group of unfree villeins 
 
 to find one man for particular works : this would usually be 
 
 one of themselves, but I doubt whether the lord cared who 
 
 did the work so long as it was done. And in Littleton, 
 
 and Coke's commentary on his text, the distinction is equally 
 
 clear (compare Co. Litt. 576, 58a, with Litt. s. 172, and 
 
 Co. Litt. 116, 117). There is already a source of confusion, 
 
 however, in the double meaning of villanus. At the time 
 
 of Domesday the serf by blood was called servus (later 
 
 nativus), never villanus. But gradually, by a kind of 
 
 euphemism, the word servus was dropped, and villanus came 
 
 to mean sometimes, as aforetime, a man holding by a 
 
 certain kind of service, but often a man personally unfree. 
 
 In Glanvill we see the terminology in a state of transition. 
 
 He always calls the bondman nativus, but his condition (not 
 
 merely the tenure, but his personal state) is called villen- 
 
 agium ; a reclaimed bondman is said to be in villenagio 
 
APPEISTDIX 211 
 
 positus, or in vilknagium clamatus. Bracton freely uses 
 mllanus as synonymous with nativus. By Littleton's time 
 the word villein seems, as a rule, to have imported personal 
 servitude, though a careful man might speak of a " villein 
 in blood" if he meant to secure himself against mistake. 
 The distinction in substance, as above said, is still perfectly 
 clear. Coke, perhaps, misinterprets Littleton in one place, 
 s. 209. Littleton says that the lord of a manor cannot 
 prescribe for a fine payable by every tenant within the 
 manor who marries a daughter without the lord's licence ; 
 " for none ought to make such fine but only villeins." 
 Coke's gloss on this is as follows : " that is, either villeins 
 of blood, or freemen holding in villenage or base tenure." 
 Comparing Bracton's more explicit statement, it seems 
 Littleton should have meant to exclude, not to include, 
 freemen holding in villenage (s. 174, which suggests the 
 contrary, and is cited by Coke, is not part of Littleton's own 
 text, but an interpolation. See the note in Tomlins' edition, 
 1841). But Coke's view may be supported by Y. B. 10 
 Ed. IIL 22, pi. 41, and 43 Ed. Ill 5, pi. 13. And if he 
 is wrong, it is only on a detail. When we come to Black- 
 stone '{Comm. II. 92-96) the confusion is complete. He 
 writes as if wholly unaware that villanus ever meant any- 
 thing but a personal serf : the liber homo tenens in villenagio 
 somehowi escapes his notice altogether, and the early copy- 
 holder is represented by him as an enfranchised bondman 
 and nothing else. Blackstone's confused and misleading 
 account has been adopted, so far as I know, by all modern 
 text-writers before Mr. Kenelm Digby, who, going back to 
 Littleton and Bracton, restored the distinction which Black- 
 stone had obscured. The blundering of Blackstone's Gom- 
 mentaries on this point is the more remarkable, inasmuch as 
 his Considerations on Copyholds show that he at one time 
 read and to some extent appreciated the earlier authorities. 
 Putting the tract and the Gommentaries together, his theory, 
 so far as he had one, appears to have been that personally 
 free men holding in villenage existed, but were a very small 
 class, and were ultimately represented by the customary 
 tenants not said to hold at the will of the lord ; that the 
 
212 THE LAND LAWS 
 
 ordinary copyholder always represented a nativus ; and that 
 the tenure of the nativus was not only burdensome, but 
 wholly precarious until long after the Conquest. This is 
 a long way from the facts, though perhaps not much further 
 than the opposite one of regarding the normal township as 
 a self-governing corporation, and villenage as a post- Norman 
 development or abuse of Anglo-Saxon serfdom. 
 
 As to the personal condition of the nativi, modern scholars 
 seem pretty well agreed that legally it might have been one 
 of great hardship, but in practice they were for the most 
 part not so very badly off. The least favourable view of 
 their position I have met with is Nasse's, the most favour- 
 able, Mr. Larking's (Domesday of Kent, note 57) and Mr. 
 Thorold Rogers's {History of Prices, vol. i.). These last writers 
 appear, however, at least as much concerned to make out the 
 state of the modern labourer worse as to make out the state 
 of the old nativus better. Mr. Thorold Rogers certainly 
 underrates the positive evidence that personal servitude, as 
 distinct from attachment to the soil, was known long after 
 the Conquest. For example, it was elaborately discussed in 
 1302 whether a neif marrying a free man became free 
 absolutely or only during the coverture (Y. B., 30 '& 31 
 Ed. I. p. 164). Again, in 1305, it is pointedly stated by 
 the Court, the question being whether free or villein service 
 is due from certain land, that a plea of the tenant's personal 
 freedom is irrelevant as regards the land (Y. B., 33 Ed. I., p. 
 10). Probably it was not common for bondmen to be sold 
 apart from the land, but there is no doubt that it was some- 
 times done (Madox, Form. Anglic. Nos. 756-62). In the 
 absence of evidence it would be a plausible theory that the 
 ignorance or carelessness of Norman surveyors and judges 
 confused the lowest classes of free men with the bondmen, 
 in which process the dependent free man lost something, but 
 the bondman who formerly had no rights at all ultimately 
 gained much. Such a view has been taken by the Bishop of 
 Oxford (Const. Hist., I. 429) and also by Mr. Freeman. But 
 the evidence shows a shifting (if anything) rather than a 
 confusion of the names, and possibly to some extent the 
 actual state, of different .classes, a Standesverschiebung as one 
 
APPENDIX 213 
 
 might say in German. In the Exchequer Domesday we find 
 on the manors of St. Paul's four distinct kinds of tenants, 
 Villani, Bordarii, Cotarii, Servi. In the Domesday of St. 
 Paul's, A.D. 1222, or in round numbers a century and a 
 quarter later, we find Tenentes of several descriptions (lihere 
 tenentes, tenentes per vilenagium, tenentes terras operarias, 
 tenentes de terra assisa, and others), Cotarii, and Nativi. 
 It may he difficult to assign the true relation of this classi- 
 fication to that of the Conqueror's surveyors (see Scrutton, 
 Gommans and Common Fields, pp. 25 sqq.); but anyhow there 
 is the fact that in the thirteenth century the minuter distinc- 
 tions which the Conquest might he supposed to efface were 
 as far from having disappeared as ever, and went on under 
 changed or shifted names. It by no means follows, of 
 course, that all these terms imply differences of personal 
 status. It is hardly possible (especially after Mr. Seebohm's 
 work) to maintain that bordarius and cotarius signify any- 
 thing but the general nature and size of the holding. But 
 the leading types are well enough marked. In the eleventh 
 century there was the free man in the fullest sense compatible 
 with having a lord at all, who might "go where he would 
 with his land," or, if he chose, alienate it, " vendere vel dare 
 potuit," " potuit vendere cui voluit," in the phrases of Domes- 
 day Book. Then there was the dependent free man, who 
 might seek a new lord if he chose, but at the cost of leaving 
 the land : " potuit ire quo volebat, sed non cum terra." 
 Such are the coliberti of Domesday in Dorset, elsewhere 
 called "sokemen" (Eyton, p. 46),^ and the thanes in the 
 western counties who held church lands and " could not be 
 separated from the church." Then we have the still more 
 dependent holder {ascriptitius in the language of the twelfth- 
 thirteenth century authorities, such as Dial. Scacc, II. 14), 
 who cannot quit the land without the lord's consent. Last 
 of all comes the thrall or servus. In the thirteenth century, 
 
 1 Eyton treats the villani, in Dorset at any rate, as an unfree 
 class ; but I fail to see why. Doubtless they were inferior to the 
 censores, who already paid a fixed money-rent for all service ; but 
 payment of labour-rents is quite compatible with personal freedom, 
 otherwise no free man could ever have held in villenage. 
 
214 THE LAND LAWS 
 
 I apprehend, these distinctions were by no means out of use, 
 except that the power of seeking a new lord " cum terra sua" 
 had disappeared, as being repugnant to feudal principles. 
 The liber homo, ascriptitius, and servus, were still separate and 
 defined conditions of men. The "ascriptitii qui villani 
 dicuntur " of Dial. Scacc., I. x., seem to be not serfs, but 
 degraded free men. Again, we know that villenage by blood, 
 as distinct from villein or customary tenure, existed and was 
 recognised not only in books but in practice down to the 
 seventeenth century. "Queen Elizabeth in 1574 issued a 
 commission for the enfranchisement of most of the bond- 
 servants in the manors belonging to the Crown. And there 
 is a case reported ' as late as the fifteenth year of James I., 
 in which an issue as to villenage was tried " (Elton, Custom 
 and Tenant-right, p. 29). In the face of this it is impossible 
 to hold that the sections of Littleton on villenage, for 
 example, are the mere survival of legal pedantry describing 
 obsolete institutions as if they were still alive.^ 
 
 Thus much of the persons. Now for the tenure. It 
 should really be needless at this day to contradict Black- 
 stone's story that all our customary tenures were invented 
 after the Conquest by the more or less capricious indulgence 
 of the lords of manors. Still it may be worth while to re- 
 capitulate the facts. 
 
 1. There is no reason whatever to suppose that the actual 
 tillers of the land were materially disturbed by the Conquest, 
 except where, as in Yorkshire, the land was harried as a 
 punishment for stubborn resistance.^ 
 
 2. Customary tenants are, in point of fact, found existing 
 from Domesday till now without any discontinuous change 
 in their tenure or its incidents : unless we are to count for 
 
 ^ As to the frequent and early commutation of services for money 
 payment, see the Glastonbury Inquest, pp. 37, 69,100 ; in the two 
 latter passages it appears as already of long standing. Even the dis- 
 tinction between fixed and arbitrary service as a test of the character 
 of the holding is not always and absolutely to be relied on : see the 
 Peterborough Book (Appendix to Ohron. Petrob. Camd. Soc, 1849, 
 p. 160), where we find sokemen bound for certain days in summer 
 time to do "quidquid iusserit dominus." 
 
 ^ Cp. Domesday of St Paul's, Introd. p. xxx. 
 
APPENDIX 215 
 
 such the final allowance, temp. Ed. IV., of their right to 
 maintain their title in the King's courts even as against their 
 own lord. 
 
 3. The customs themselves hear every mark of archaic 
 origin. Transfer by symholic ceremonies (which Blackstone 
 mentions in a sufficiently appropriate context, Gomm. II. 313, 
 but without seeing its real significance) ; a variety of rules 
 of descent, showing affinities to early customs preserved in 
 other parts of Europe ; and the record and attestation of 
 title by the manorial coTirts, in forms apparently modelled 
 on ancient popular procedure ; all these things point not to 
 feudalism or to usages springing up under feudalism, but to 
 a state of society far older. 
 
 4. The country where common fields abound, as we learn 
 from the facts collected and discussed by Nasse, is also the 
 country of small copyholds. We know that common fields 
 represent a primitive system of agriculture. If copyholds 
 equally represent a primitive system of tenure, it is natural 
 that where the one persists the other should persist also. 
 If, as the account formerly received would have it, copyholds 
 are of post-Norman origin, the coincidence is inexplicable. 
 
 When Sir Edward Coke said that copyholders come of an 
 ancient house, he spoke more truth than he knew. The 
 ancient customary holders of land under a lord who were 
 not great men enough to hold their estates by charter before 
 the Conquest, and have them confiscated after it, are repre- 
 sented by the modern copyhold tenants, and in most cases 
 we may well think that the customary tenant practically 
 had a, fixed tenure from the first. There is a significant 
 entry in the St. Paul's inquisition of 1222 (Domesday of St. 
 Paul's, ed. Hale, p. 52) : " Terre akermannorum qiias dominus 
 potest capere in manu sua cum vult sine iniuriis hereditarie 
 successionis." The words as they stand might be clearer ; 
 but, "iniuriis"' seems to stand for the more usual "calumpniis," 
 i.e. claims, and the meaning to be that in these particular 
 holdings a deceased tenant's heir had not any customary 
 right to succeed. This implies that in other cases there was 
 such a customary right, especially when we bear in mind 
 the canon of inquiry that in medieval surveys what is un- 
 
216 THE LAND LAWS 
 
 usual, not what is usual, is specially noted outside the 
 common forms of description. 
 
 After all, there is no reason to suppose that the lawyers 
 of Westminster in the thirteenth century were less dogmatic 
 or more disposed to pay attention to the real facts and 
 working of local usage than their followers in the sixteenth 
 or nineteenth. Their confusion of villanus and servus may 
 have been to some extent deliberate (Pollock and Maitland, 
 Hist. Eng. Law, i. 413). 
 
 I do not say that in every case copyhold is an ancient 
 customary holding. It is possible that servile tenements of 
 the most precarious kind may, in the course of the Middle 
 Ages, have grown to some extent into customary estates. 
 Nay, I think there is one class of copyholds which may with 
 considerable probability be referred to such an origin, the 
 copyholds of so-called imperfect tenure which are still fre- 
 quent in the western counties (Elton, Custom and Tenant- 
 right, p. 63). These are the copyholds for lives or years 
 where the fines are still uncertain, and there is no strict 
 right of renewal, — a kind of estate which, in Mr. Elton's 
 words, "by the severity of the lord's exactions, and the re- 
 currence of a servile phraseology, is shown to have descended 
 from the precarious holdings of the natives who could call 
 nothing their own." Long as it has taken to establish even 
 an inchoate tenant-right, I should be disposed to put back 
 the origin of these holdings far beyond the Norman Conquest. 
 They prevail only in the west of England, if indeed they 
 are found at all elsewhere. There is no reason why this 
 should be so if they began as the holdings of English serfs 
 or degraded free men. But there is every reason why it 
 should be so if they began as the holdings of a conquered 
 British population who remained as the serfs and tenants at 
 will of the English invaders on the land which had formerly 
 been their own. In the east and south-east the British 
 tillers of the soil were slain or dispersed. The remnant 
 who may have been reduced to servitude left no distinct 
 traces on the new form of society. In the west the English 
 conquest was milder and more gradual. Still it was a 
 conquest by the strong hand, and the relation of mere 
 
APPENDIX 217 
 
 ■sufferance which Blackstone imagined between the Korman 
 lord and the English customary tenant is like enough to 
 have really existed between the victorious English settler 
 and the Welshmen who were the captives of his spear. It 
 seems a fair conjecture that the servile holdings of the West- 
 Welsh, little or not at all affected by the Norman Conquest, 
 have all these centuries been growing into what we now 
 know as copyholds of imperfect tenure. 
 
 In the case of the peculiar " convention ary " holdings of 
 the Cornish mining country, where the tenant has an in- 
 heritable interest, but must be readmitted every seven 
 years, something like proof of a Celtic origin is attainable. 
 This custom, fully described in Concanen's special report of 
 Rowe V. Brenton, presents distinct analogies to the customs 
 of Brittany.i Considering, again, the extreme antiquity of 
 tin mining in Britain, it seems at least probable that the 
 "tin -bounding " custom of Cornwall (and formerly of the 
 contiguous parts of Devon also), and the similar customs 
 which exist in the mining district of Derbyshire, come down 
 to us from a time earlier than the English occupation ; and, 
 indeed, when we remember tliat in Cornwall the English 
 occupation is allowed to have been of the most superficial 
 kind, even by those who are least favourable to the preserva- 
 tion of Celtic elements elsewhere, there is hardly room for 
 two opinions on this point. 
 
 What is above suggested as to the origin of the imperfect 
 copyholds of the west of England may perhaps be strengthened 
 by consideration of the manner in which personal villenage 
 was distributed over the country at the date of the Domesday 
 survey. The Abstract of Population in the second volume 
 of Ellis's Introduction gives the facts ready to hand ; and in 
 Mr. Seebohm's English Village Gommunity they are exhibited 
 with the help of graphical charts (p. 86). We find that the 
 proportion of servi to the whol? population steadily diminishes 
 as we go from the southern and western parts northward and 
 eastward. In Cornwall and Gloucestershire, the former still 
 really a West- Welsh county, the latter still half- Welsh, the 
 
 1 Coutumier Qiniral, iv. 409 (usances locales du domaine conge- 
 able de Cornoaille). 
 
218 THE LAND LAWS 
 
 servi are almost one in four. In Devonshire tliey are little 
 short of one -fifth, in Shropshire over one -sixth, in Dorset 
 and Somerset not much under, and in Hampshire they are 
 over one -seventh; in Worcestershire and Wiltshire it is 
 about the same.^ As we cross from west to east there is a 
 notable change ; the average in the southern midlands, such 
 as Berks, Oxfordshire, Warwickshire, is roughly one-eighth. 
 As we go on to Leicestershire, Nottinghamshire, Stafford- 
 shire, Norfolk, and Suffolk, we find the serfs ten per cent of 
 the population at most. In Derbyshire there are hardly any 
 serfs, and in Lincolnshire, Huntingdonshire, Kiitland, and 
 Yorkshire there are none at all. In the north-west, again, 
 Cheshire shows a small proportion, less than one- twelfth. 
 In the south-east the distribution seems irregular ; in Essex 
 the serfs are about one-ninth, in Kent something less than 
 one-tenth, in Surrey something more, while in Sussex they 
 are less than one -twentieth. Local accidents of forest and 
 fenland may in part account for these diversities ; the less 
 profitable soil would be more in servile occupation, and serfs 
 would be employed as herdsmen in the uncleared or half- 
 cleared forests. In any case the average is much below that 
 of the western counties. In one word, the serfs are fewer in 
 proportion as the English settlement of the country is more 
 complete. This decreasing ratio from west to east cannot be 
 an accident, and we are led to infer that both the descent 
 and the tenures of the nativi represented by the present 
 " imperfect copyholders " of the west were not English but 
 Welsh. Not that there is anything I know of to exclude 
 the possibility that the Welsh themselves before the English 
 invasion had serfs, who may not have been Celts or even 
 Aryans, or that these people left a permanent mark. Mr. 
 Elton {Origins of English History, ch. viii.) has collected a 
 mass of facts tending to show that the preference of younger 
 to elder sons, which in this country survives in the form of 
 borough-English, is derived from non-Aryan sources. And 
 ethnologists appear to be satisfied that the physical characters 
 of a prehistoric race of short and dark men who were 
 
 ^ In Herefordshire the proportion is evidently high, but the 
 numbers seem to be uncertain. 
 
APPENDIX 219 
 
 certainly neither Teutons nor Celts are amply visible in 
 modem England. But for the present purpose I keep 
 within historic limits. 
 
 How the king's courts came to assume, as they did at 
 least as early as the beginning of the fourteenth century 
 (Y. B., 30 & 31 Ed. I. 168), that there was no villenage in 
 Kent is an unsolved riddle. The doctrine went so far that 
 a man's freedom was established by showing that any of his 
 ancestors was born in Kent, " quia esset impossible servum 
 procreare liberum" (Y. B., 33 Ed. I. 15). But in Kent itself 
 such was not the opinion or practice, for villenage certainly 
 existed there much later, as Somner has shown (Treatise on 
 Gavelkind, pp. V3-75); to say nothing of the difficvilty of 
 accounting for the total disappearance, within two centuries 
 or thereabouts, of the servile class registered in Domesday. 
 The legal doctrine, which no less certainly was acted upon 
 by the courts out of Kent, is a curious example of the rapid 
 growth and acceptance of fictions even when the facts con- 
 tradicting them are not remote or difficult of access. 
 
 Note E. — Primogeniture in Socage Lands 
 
 There is still much obscurity about the manner in which 
 primogeniture was extended from lands of military tenure to 
 socage lands. It is certain that when Glanvill wrote — that 
 is, about a century after the Conquest — gavelkind was still 
 the prevailing rule. In Glanvill's chapter on inheritance 
 (L vii. c. 1) the rule of primogeniture, as a rule of common 
 law, " secundum ius regni Angliae," is expressly confined to 
 lands held by military service. As to the land of a " free 
 soc-man," it has to be ascertained whether the land was 
 partible by ancient custom. If so, the sons take equally, 
 saving that the first-born has the chief dwelling-house, on the 
 terms of making recompense in value to the others. If the 
 land is not partible, then, " according to the custom of some, 
 the first-born shall have the whole inheritance ; according to 
 the custom of others, however, the last-born son is heir." 
 Thus primogeniture and borough-English appear as local 
 customs on an equal footing. The best specific evidence of 
 
220 THE LAND LAWS 
 
 customary primogeniture I know of is the case of certain 
 inferior tenants of the Prior of Canterbury, who were called 
 Kberi sohmanni, but whose J:enure had servile incidents (Elton, 
 Tenures of Kent, 106). It has been suggested that in this 
 case the rule was imposed after the Conquest on socagers who 
 were driven by need or the strong hand to accept grants in 
 base tenure (Kenny, Essay on Primogeniture, Cambridge, 
 1878, p. 31); but this, considering Glanvill's language, 
 appears by no means a safe inference. There are also local 
 rules of inheritance in various customary tenures, showing a 
 preference of the eldest (or sometimes the youngest) daughter. 
 (Elton, Custom and Tenant-right, Appendix D.) These evi- 
 dently have nothing to do with feudalism. See further as to 
 customary primogeniture or indivisible holding Mr. (after- 
 wards Sir R.) Morier's "Report on Tenure of Land in the 
 Grand Duchy of Hesse," Pari. Papers, 1870, Ixvii. 193, 197. 
 
 In Bracton, writing after the lapse of nearly another 
 century, we find a significant difference, though not at first 
 sight a great one (fo. 76a). It is still a question in each case 
 whether the heritage is by ancient usage partible or not. 
 But if not, then primogeniture becomes the rule without 
 further inquiry. Local custom is to be considered only in the 
 case of villein tenure. Fleta (1. 5, c. 9, § 15) copies Bracton 
 almost word for word. Bracton's language shows the tendency 
 of primogeniture to increase, and the desire of lawyers to 
 hasten the process. We cannot accept it, however, as show- 
 ing how far matters had really gone ; and for this reason, that 
 it proves too much. What Bracton says does not admit of 
 the existence of borough-English in any land of freehold 
 tenure. But we know that there must have been borough- 
 English freeholds in Bracton's day ; for there were such when 
 Littleton wrote, and there are still such in our own day. 
 Therefore, what we really learn from Bracton is that the 
 lawyers of the thirteenth century, in their zeal to improve 
 the position of primogeniture, were ready to outrun the 
 actual law and practice as they existed then and have existed 
 ever since. 
 
 Again, Bracton does not say or suggest that there was any 
 presumption for or against the partibility of socage lands. 
 
APPENDIX 221 
 
 Mr. Kenny {Essay on Primogeniture, p. 20) has called atten- 
 tion to a case, decided in the year 1200, as showing that by 
 that time the burden of proof was on those who claimed 
 under the custom of division. The record is short enough to 
 quote in full (Placita de term. S. Mich., 2 Joh., Abbrev. 
 Placit. p. 286 ; since published from the original roll by the 
 Selden Society, Select Oivil Pleas, vol. i. ed. W. P. Baildon, 
 1890, pi. 61):— 
 
 " Rutland. Gilebertus de Beivill [petit] versus Willelmum 
 de Beivill duas virgatas terre cum pertinentiis in Gunetorp 
 que eum [sic] contingunt de socagio quod fuit patris eorum 
 in villa, et Willelmus venit et defendit ius eius et quod 
 socagium illud nunquarn partitum fuit nee debet partiri et 
 hoc offert defendere per quendam liberum hominem suuni. 
 [Gilbert offers two marks to the king to have an inquest 
 instead of trial by battle on the issue] utrum terra ilia 
 partiri solet et sit partibilis. Et ipse voluit ponere se in 
 iuratam inde et quia Gilebertus nullam probam produxit 
 consideratum est quod Willelmus eat sine die et quietus." 
 
 This, however, does not show that there was a presump- 
 tion in favour of primogeniture ; it only shows that there 
 was no presumption to the contrary. The holding might or 
 might not be divisible by ancient custom ; whether it was so 
 was a question of fact. It was the plaintiff's business, as in 
 any other case, to prove the facts on which he relied, and 
 among them that the land had from ancient times been divis- 
 ible. Failing to prove this, he lost his cause. It does not 
 appear that if the elder son had been plaintiff he would not 
 in like manner have been called on to prove that primogeni- 
 ture was the local rule. 
 
 It is certain, however, that during the thirteenth century 
 primogeniture made great advances. Before the century was 
 out it had come to be spoken of as the common law of 
 England. In 1292 we find it said that "in some places as 
 well the tenements holden in socage as other tenements are 
 governed by the common law" ; and the custom of Kent is 
 already spoken of as peculiar (Y. B., 20 Ed. I. in Record 
 Office Series, pp. 327, 329): but then, and some years later, 
 it was still an open question of fact whether given socage lands 
 
222 THE LAND LAWS 
 
 were partible or not (30 Ed. I. p. 50, a.d. 1302). There 
 came a time, no doubt, and probably not long after this, when 
 by making the rules of evidence more stringent the partible 
 tenure, except in Kent, was extinguished. But specific evi- 
 dence of the steps by which the process was completed appears 
 to me to be still wanting. 
 
 Note F. — " Cestui que use " at Common Law 
 
 The action of assumpsit was about contemporaneous with 
 the doctrine of uses in its introduction and development : it 
 became at last the common method of enforcing simple con- 
 tracts, but originally was not an action on the promise itself, 
 but on the breach of a duty incident to the promise, a " tort 
 founded in contract," as the modern phrase runs. The object, 
 in fact, was to get a remedy where the contract itself could 
 not be sued on in any of the recognised forms of action. I 
 do not know what there was to prevent the judges, if they 
 had chosen, from holding that a conveyance to uses created a 
 duty in the feoffees which would support an action of assump- 
 sit in case of breach or neglect. Again, they might well 
 enough have given cestui que we an action of account for the 
 profits, or an action on the case analogous to it. Neither 
 of these remedies, however, would have been anything like so 
 effectual as the Chancellor's decrees. 
 
 Bacon's summary of the mischiefs aimed at by the statute 
 is worth citing. {Works, ed. Spedding, vii. 418.) "The par- 
 ticular inconveniences by the law rehearsed may be reduced 
 to four heads : first, that these conveyances in use are weak 
 for consideration " {i.e. made without fitting deliberation) ; 
 " secondly, that they are obscure and doubtful for trial ; 
 thirdly, that they are dangerous for want of notice and pub- 
 lication ; fourthly, that they are exempted from aU such 
 titles as the law subjecteth possession unto." 
 
 Notwithstanding the dislike of the common lawyers to 
 uses, the sages of the law did not scruple to employ them for 
 their own convenience. Littleton had lands in use, and in 
 1481 disposed of the use by his will (see it set out in the 
 
APPENDIX 223 
 
 notes to his life in Tomlins's edition of his Tenures, 1841, p. 
 xxxiv.). 
 
 Note G. — Settlements and Perpetuity 
 
 Estates for life, followed by one or more estates tail in 
 remainder, were a known form of disposition as early as the 
 fourteenth century. In the Calendar of Patent EoLs for 7 
 Ed. II. (p. 76, ed. 1802) this grant occurs :— 
 
 " Rex contirmavit Ricardo de Pynelesdon pro vita, rem' 
 diversis filiis suis in generali tallio omnia sua hereditamenta 
 in Worthynbury in partibus de Maylorseysenells per servic' 
 quartae partis unius feodi milit'." 
 
 On the next page is a grant of successive estates tail with- 
 out a preceding life estate : — 
 
 " Rex confirmavit Johanni de EUerker in generali tallio 
 rem' aliis in generali tallio cert' haeredit' in Ellerker ei 
 dat' per Episcopum Dunolm' \sic] pro annuo reddit' 3s. 9d." 
 
 In the later time of Edward I. there appear several grants 
 in tail, often to a man and his wife, and sometimes there is 
 a remainder in fee-simple (ib. p. 51, coL 2 at foot) ; but for 
 the most part the grants abstracted are in fee-simple. 
 
 The history of the further development of settlements was 
 traced by the late Mr. Joshua Williams (Transactions of the 
 Juridical Society, i. 45). He states, as the result of a care- 
 ful examination of documents preserved in the MS. collections 
 of the British Museum, that limitations in substantially the 
 modern form to the use of a man for life, remainder to his 
 first and other sons in tail, were not uncommon in the latter 
 part of the sixteenth century ; the parties being content 
 apparently to take the risk of the contingent remainders 
 being destroyed by the feoffment (or other act amounting to a 
 discontinuance), or forfeiture by waste, etc., of the tenant for 
 life. The introduction of trustees to preserve contingent 
 remainders in order to meet this risk is ascribed by a pro- 
 fessional tradition, which was established by the middle of 
 the last century (Blackstone, Comm. II. 172 ; cp. Lord Hard- 
 wick in Garth v. Cotton, 1 Dick. 188, 191, and the argu- 
 
224 THE LAND LAWS 
 
 ments of the same case, 1 Ves. Sr. 524, 548), to Orlando 
 Bridgman and Geffrey Palmer, whose invention, it is sug- 
 gested, was sharpened by the troubles of the Civil Wars to 
 the better securing of their clients' estates. 
 
 In Orlando Bridgman's Precedents of Conveyances the 
 limitation to a trustee, after the determination of the tenant 
 for life's estate, and during his natural life, "upon trust 
 only for preserving the contingent uses and estates herein- 
 after limited, and to make entries for the same if it shall be 
 needful," appears in regular use (though sometimes it is 
 omitted), and in that form it does not appear to occur earlier. 
 Limitations curiously similar in form, though differing from 
 this in substance, as careful examination will show, were, 
 however, in use nearly a century before. In Holcroft's case, 
 Moore, 486, we find an estate settled by fine in the second 
 year of Mary (1554-55) to the use of Sir John Holcroft the 
 younger for life " so long and until he attempt to alien, and 
 then to the use of Hamlet [Holcroft], and the heirs males of 
 his body during the life of Sir John the younger ; and im- 
 mediately after his death " remainders to the first and other 
 sons of Sir John the younger in tail male, down to the fourth 
 son inclusive, remainder to Hamlet Holcroft in tail male, re- 
 mainders over. The estate limited to Hamlet during Sir 
 John's life comes exactly in the place where, in Bridgman's 
 and later settlements, the estate of the trustees to preserve 
 contingent remainders would come. But, for whatever pur- 
 pose it was inserted, it cannot well have been to preserve the 
 remainders to Sir John's unborn sons ; for supposing that no 
 son was in existence when Hamlet entered upon Sir John's 
 attempt to alien (and assuming, which is not clear, that the 
 " attempt to alien " refers to a tortious conveyance of the fee, 
 and not merely to alienation of the life estate), then Hamlet's 
 estate tail pur aider vie and his remoter estate tail in re- 
 mainder would coalesce and shut out the intermediate con- 
 tingent remainders. It seems to have been intended merely 
 as a check on the tenant for life. Only one step, however, was 
 needed to make an estate of this kind a protection for the 
 remainders as well, and that step was taken by Bridgman and 
 Palmer when they limited it to a trustee specially appointed 
 
APPENDIX 225 
 
 for the purpose, and with an express declaration of the trust. ' 
 Modern conveyancing as a wliole, and the regular use of 
 settlements in their modern form, certainly date from about 
 Bridgman's time. A brief but clear and admirably written 
 account of the elements of the subject, both doctrinal and 
 historical, is given in the part of Blackstone's Commentaries, 
 already referred to (Book II. ch. ii.) ; it ought to be needless 
 to mention this, but the text of Blackstone is nowadays un- 
 duly neglected, partly by reason of exaggerated criticisms 
 which have obtained currency, partly from the ravages it has 
 suffered at the hands of so-called editors. Advanced students 
 will of course con,sult the late Mr. Davidson's exhaustive in- 
 troduction to his volume on Settlements. 
 
 As to the history of the rule against perpetuities, the 
 following dates may be not without curiosity for readers of 
 this note : — 
 
 1681-85. Duke of Norfolk's case (3 Ca. Ch.) Limita- 
 tions to take effect within lives in being held good, and an 
 attempted distinction between terms of years and freehold 
 interests rejected. 
 
 1697. Lloyd v. Carew (Pre. Ch. 72, 106, and Shower, 
 Ca. Pari. 137). Twelve months after lives in being, good. 
 
 1699. Scattergood v. Edge, 12 Mod. 287. Still doubt- 
 ful whether a life or lives in being were not the extreme 
 limit : " It was a great policy of the common law that 
 alienation should be encouraged; for it is the greatest 
 preserver and promoter of industry, trade, arms, and study ; 
 and this was visible from the making of the statute Ve Bonis, 
 until common recoveries were found out ; and these executory 
 devises had not been long countenanced when the judges 
 repented them, and if it were to be done again, it would 
 never prevail ; and therefore there are bounds set to them, 
 viz. a life or lives in being ; and further they shall never go 
 by my consent, let Chancery do as they please " : per 
 Treby, C. J. 
 
 1736. Stephens v. Stephens. (Ca. temp. Talbot, 228.) 
 Executory devise to an unborn child of a living person when 
 he shaU attain the age of twenty-one years held good. This 
 was the conclusive decision. 
 
 Q 
 
226 THE LAND LAWS 
 
 1765. Blackstone. (Comm. IL 174.) "The utmost 
 length that has been hitherto allowed for the contingency of 
 an executory devise of either kind to happen in, is that of 
 a. life or lives in being, and one-and-twenty years afterwards.'' 
 
 1787. Jee v. Audley, 1 Cox, 324, 1 Rev. Rep. 46. (Sir 
 Lloyd Kenyon, M. R.) The rule considered to be settled : 
 " it is grown reverend by age, and is not now to be broken 
 in upon." 
 
 1833. Cadell v. Palmer, in House of Lords, 1 CI. & 
 F. 372. The term not exceeding twenty-one years which 
 may be added to lives in being is a term in gross, i.e. it need 
 not have reference to any minority. 
 
 A very full history of the doctrine is contained in 
 Hargrave's argument in Thellusson v. Woodford, 4 Ves. 247 
 sqq. (also separately printed in his Juridical Arguments, 
 vol. ii.), and Sir E. Sugden's in Cadell v. Palmer. 
 
 The allowance of the period of gestation when gestation 
 exists (but not as a term in gross of nine or ten months) is 
 properly treated by the best writers on the subject as being 
 not a special clause or pait of this rule, but an application of 
 the general principle that an unborn child is _ treated, when- 
 ever it will be for his benefit, as being actually in existence ; 
 and I have so stated it in the text. It is now judicially 
 settled, after much difference of opinion, that remainders are 
 also subject to another rule which is not merely a particular 
 example of ' the rule against perpetuities, namely, that an 
 estate cannot be limited to any child or issue (as purchasers) 
 of a person not in existence : Whitby v. Mitchell (1890) 44 
 Ch. Div. 85. Much might be said about the history of the 
 doctrine, but this is hardly the place for it. The learned 
 reader may consult Williams on Seal Property, 17th ed. 
 p. 380, and the preface to voL viii. of the Revised Reports. 
 
 A question in some measure connected with the doctrine 
 of perpetuity is how far there can exist at common law a 
 fee-simple determinable otherwise than by failure of heirs, 
 or by the re-entry of the grantor or his heirs for a condition 
 broken. To put the question in a concrete instance : apart 
 from the Statute of Uses, and apart from any question of 
 perpetuity, is a grant good in this form ; To J. S. and his 
 
APPENDIX 227 
 
 ieirs as long as Lincoln's Inn Hall, or as a certain tree, 
 shall stand ? Plowden thought such a grant was good, and 
 operated hy way of limitation, not condition (which distinction 
 must be carefully observed) : Plowden, 557, cp. Scholastioa's 
 case, ih. 414. And Coke in Seymor's case (10 Rep. 976) 
 says there is a fee -simple determinable by limitation, as 
 distinguished from one determinable by condition ; " as if A 
 enfeolfs B of the manor of D to have and to hold to him 
 and his heirs, so long as C has heirs of his body, and that is 
 called a fee-simple limited and qualified." No remainder or 
 reversion can be expectant on it. There is also a fee-simple 
 determinable "implicit, and derived out of an estate tail," 
 which is known as a base fee ; its nature is comparatively 
 common learning. In Liford's case (11 Eep. 49a) we read 
 that " a man may have an inheritance in fee-simple in lands, 
 as long as such a tree shall grow, because a man may have 
 an inheritance in the tree itself." But this appears to be 
 said only in the course of argument. The Year-Book referred 
 to (27 Hen. VIII. 296) gives the fanciful reason that an estate 
 may as well depend on the life of a tree as of a man. This 
 also appears to be extra-judicial. Neither the reason in 
 Coke's report nor that in the Year-Book can be said to 
 strengthen the proposition. 
 
 On the other hand, Coke's contemporary Anderson, Chief 
 Justice of the Common Pleas, appears to have been of the 
 contrary opinion ; according to what is given in his reports 
 (2. 138, 139) as the resolution of the Court in Corbet's case, 
 the only determinable fee-simple (not upon condition) known 
 to the law is a base fee, as, when a villein is tenant in tail, 
 and his lord enters on him, or tenant in tail is attainted of 
 high treason, the lord or the Crown has a fee-simple deter- 
 minable on the failure of issue inheritable under the gift in 
 tail : he seems to think parties cannot make a gift in fee- 
 simple determinable in any other way than by entry for 
 condition broken, which is a different matter. The cases 
 and opinions in the Year-Books referred to in Anderson are 
 partly unverifiable by reason of wrong or misprinted refer- 
 ences, partly not to the point, being concerned with condi- 
 tions against alienation by a tenant in tail, and in one place 
 
228 THE LAND LAWS 
 
 (13 H. VIL 24) there is aa unresolved difference of opinion. 
 If there be a feoffment in fee for " so long as J. S. has issue," 
 it is asserted on the one part and denied on the other that 
 the "condition" (but a condition in the proper sense can 
 hardly be meant) is void ; the reporter adds " ideo quaere." 
 Modern writers are not agreed either. Some, and notably 
 Mr. Challis, following Preston, are confident that such estates 
 can exist, some that they cannot. 
 
 On the whole, it appears that the point has never been 
 settled. I cannot help thinking that the silence of Coke's 
 commentary on Littleton (where surely he would have ex- 
 plained the nature of such estates, and distinguished them 
 from estates upon condition, had he deliberately allowed 
 them : see especially 2 1 46) weighs much against the dicta 
 in his reports. Also it is strange that Littleton himself (ss. 
 380, 381, etc.) had nothing to say of such estates, if in his 
 time they were known to the law. It may be that after the 
 statute De Bonis an estate to A and his heirs as long as B 
 shall have heirs of his body (as put in Seymor's case) was 
 exceptionally allowed, or thought allowable, by analogy to 
 a base fee. 
 
 If a fee-simple determinable on an arbitrary event is a 
 possible estate at common law, it seems to be not within the 
 rule against perpetuities. It also seems probable that since 
 the statute of Quia emptores the possibility of reverter would 
 belong not to the grantor or his heirs, but to the chief lord 
 of the fee. Whether such possibility (if any such there can 
 be) is a " possibility coupled with an interest " within 8 & 9 
 Vict t. 106, s. 6, so that it may now be disposed of by deed, 
 is a point that may be considered at leisure by the curious. 
 
 The learned reader is further referred to the remarks of 
 Prof. J. C. Gray, of Harvard University, and Mr. H. W. 
 Challis on Determinable Fees in the Law Quarterly Review, 
 iii. 399, 403. 
 
 Note H 
 
 The law relating to the settlement and transfer of land, 
 and various proposals for its amendment, are considered in 
 the following recent publications : — 
 
APPENDIX 229 
 
 Land Transfer. Published by order of the Bar Committee. 
 London : Butterworths, 1886. Cp. Law Quarterly Review, 
 ii. 397. 
 
 Statement on the Land Laws. By the Council of the 
 Incorporated Law Society of the United Kingdom. London : 
 Butterworths, 1886. Cp. the articles cited below. 
 
 On the Transfer of Land. By H. W. Elphinstone. In 
 Law Quarterly Review, 1886, ii. 12. At p. 23V of the same 
 volume the same writer gives a concise critical account of 
 a number of tracts and articles on the subject, of which the 
 titles are there collected. 
 
 The Council of the Incorporated Law Society on the Land 
 Laws. Articles in the Solicitors' Jowrnal, 1886, January 30 
 to March 6 inclusive. 
 
 Registration of title to land, and how to establish it without 
 cost or compulsion. By Charles Fortescue-Brickdale. London : 
 E. Stanford, 1886. Cp. Law Quarterly Review, iii. 86. 
 
 The Land Transfer Bill. Solicitor's Journal, April 9, 16, 
 1887. The second article gives a list of publications, in- 
 cluding documents on the Torrens system in the Australian 
 Colonies. 
 
 Transfer of Land by Registration of Title. By T. R. 
 Colquhoun Dill. London : Cassell and Co., 1893. 
 
 Notes on Land Transfer in various Countries. By Charles 
 Fortescue-Brickdale. London: Law Times O&ce, 1894. 
 
INDEX 
 
 The figures to which an asterisk is added refer to places whose techni- 
 cal terms are explained : thus the entry " Entail, 68*," shows that 
 the legal definition of entail will be found at page 68. 
 
 Abstract of title, 171* 
 Agricultural Holdings Act, 149, 
 
 151, 152 
 Aids, 62* 
 
 Alienation of land, 66 
 Allotments Act, 162 
 Alodium, 27* 
 Approvement, 183*, 188 
 Aryan household, 118 
 Assize of arms, 108 
 Assizes, 77 
 
 Bacon on perpetuities, 120 
 
 on uses, 96 
 
 Bargain and sale, 105 
 
 Base fee, 113*, 227, 228 
 
 Betterment, 161 
 
 Bondmen, 45-48, 61 
 
 Book-land, 20*, 23, 24, 26, 28, 
 
 35, 199, 200 
 Borough-English, 49*, 219 
 Building leases, 156 
 
 Cestui que use, 94*, 99 
 Church, lands held by, 89 
 Common lands, 5, 18, 22, 38, 39, 
 
 40, 115, 183, 184, 222 
 Common, rights of, 18, 41-43 
 
 their revived importance, 182 
 
 Communal property, 21 
 
 Compensation for improvements, 
 152 sqq. 
 
 " Conveutionary " tenants, 51 
 
 Conveyances, secret, 104 
 
 Conveyancing Act, 166, 167 
 
 Copyhold Act (1894), 181 
 
 Copyholds, 19, 39, 43, 44, 48-51, 
 60 
 
 enfranchisement of, 181 
 
 origin of, 214 
 
 Crown lands, 37 
 
 Crown, sovereignty of the, 65 
 
 Customary rights, 41 
 
 Customs, local, as between land- 
 lord and tenant, 51, 150 
 
 Dartmoor, 14, 42 
 
 Be Bonis (statute), 22, 68, 80, 88, 
 
 89, 91, 123 
 Deeds, 75 
 
 shortening of, 167 
 
 Devise, 129* 
 Distress for rent, 145 sqq. 
 Domesday, 35, 37 
 Dower, 179* 
 
 Basements, 177* 
 Enfranchisement of copyholds, 181 
 
 of leaseholds, 160 
 
 Enrolments, statute of, 105, 106 
 
232 
 
 INDEX 
 
 EntaU, 68*, 80, 87, 112, 123, 124 
 Epping Forest case, 186 
 Equitable estate, 115 
 Equity of redemption, 134* 
 Esclieat, 65* 
 
 Pee simple, 66* 
 
 tail, 68 
 
 Peoifment, 76* 
 
 Peudalism, 8, 30, 54 sqq., 80 
 
 Pine, 87 
 
 Pines and recoveries, abolition of, 
 
 168 
 Fixtures, law of, 150 
 Folk-land, 20*, 24, 37 
 Foreshore, rights of public on, 13 
 Forest (royal), 41* 
 Prankalmoigne, 36*, 90, 131 
 
 Gavelkind, 58 
 
 Grant, conveyance of freehold in 
 
 possession by, 166 
 Guardian, 63 
 
 Heielahd, 22 
 
 Heriots, 44 
 
 Highway, rights of public on, 13 
 
 Impeovemefts by tenant, com- 
 pensation for, 151 sqq. 
 Inclosure, 38 
 Inclosure Acts, 183, 184 
 Income tax, 132 
 Inheritance, modern law of, 178 
 
 Jews, civil rights of, in Middle 
 
 Ages, 17 n. 
 Jurisdiction, private, 27 
 
 L^N-LAND, 28* 
 
 Lammas lands, 6, 38* 
 
 Land, ownership of, 12 
 
 Land-tax, 62, 132 
 
 Land Transfer Act, 177 
 
 Lease and release, conveyance by, 
 
 106, 107 
 Leaseholding, 141 sqq. 
 Leasehold tenure, peculiarities of, 
 
 142 
 
 Leaseholds, 7 
 
 proposal for compulsory en- 
 franchisement of, 60 
 
 urban, 154 
 
 Leases for lives, 141 
 
 for years, 72 
 
 Limitation Acts, 176 
 Limitations, in settlements, 112 
 Limited owner, 9 
 Livery of seisin, 75*, 104 
 Lord and man, 29 
 
 Magna Charta, 71, 77, 91 
 
 Manor, 10, 34, 41-44, 200 sqq. 
 
 Mark, 202* 
 
 Merchet, 209* 
 
 Merton, Statute of, 183, 188 
 
 Military tenures, abolition of, 130 
 
 Mines, leases of, 155 
 
 Mining customs, 51 
 
 Mortgage, 132 sqq. 
 
 equitable, 136 
 
 Mortmain, 91, 92 
 
 " Nationalisation " of land, 195 
 
 Oath of allegiance, 65 
 
 Open spaces, preservation of, 184 
 
 Paeish lands, 39 
 
 Perpetuities, 111, 225 
 
 Bacon on, 120 
 
 the rule against, 122, 128 
 
 Personal laws, 17 
 
 Possession, 73 
 
 ■ symbolic delivery of, 74 
 
 Power of sale, statutory, in mort- 
 gages, 135 
 
 Powers in settlements, 116 
 
 Prescription Act, 176 
 
 " Primer seisin, "63* 
 
 Primogeniture, 57 
 
 relation of legal to customary, 
 
 179, 219 
 
 Public, rights of, on open lands, 14 
 
 Quia emptores (Statute of), 70 
 Raok-eent, 157 n. 
 
INDEX 
 
 233 
 
 " Real actions," 76 
 
 Real Property Commissioners, 
 
 Report of, 169, 172, 176 
 Real Property Law Amendment 
 
 Act, 166 
 Recovery, common, 83 
 Redemption, equity of, 134* 
 Registry of titles or assurances, 
 
 172, 175 
 Relief, 63 
 
 Remainder, 80*, 112, 123 
 Remoteness, dispositions void for, 
 
 126, 128 
 Rents, conversion from labour into 
 
 money, 140 
 
 in kind, 8 
 
 Reversion, 128 
 
 St. Leonards, Lord, on settle- 
 ments, 190 
 Scotland, leasing customs in, 159 
 
 old law of entail in, 169 
 
 registration of assurances in, 
 
 177 
 Seals, use of, 75 
 Serfs, 46, 61 
 Serjeanty, grand, 131 
 Settled Land Act, 192-194 
 Settlements, 9 
 
 Lord St. Leonards on, 190 
 
 strict, nature of. 111, 117 
 
 . strict, disadvantages of, 191 
 
 opinion of Real Property 
 
 Commissioners on, 169 
 Small Holdings Act, 162 
 Socage land, 28*, 59 
 
 military tenures converted 
 
 into, 130 
 
 Subinfeudation, 70 
 [ Succession, intestate, to land, 178 
 [ Symbols in land transfer, 74 
 
 Tenube, 12 
 
 conventionary, 51 
 
 customary, 48 
 
 military, 33, 53 
 
 military, abolition of, 130 
 
 servile, 47, 61 
 
 Tin-bounding, 61, 217 
 
 Titles, investigation of, 171 
 
 registration of, 172 
 
 Town holdings, report of Com- 
 mittee on, 161 
 
 Transfer of land, publications on, 
 229 
 
 Trespass, actions of, 15 
 
 Trusts, 104 (and see Uses) 
 
 Uses, 93 
 
 Bacon on, 96 
 
 shifting, 125 
 
 Statute of, 2, 93, 99-109, 115, 
 
 122, 129, 137, 171 
 
 Village greens, 40 
 Villein, 45* 
 Villenage, 45, 48 
 Vouchee, common, 86 
 
 Wardship, 63 
 
 Warranty, 82* 
 
 Wills Act, 170 
 
 Wills of land, 95, 100, 129 
 
 Wimbledon Common, 14, 185 
 
 Writ of right, 77, 88 
 
 Yearly tenancy, 142 
 
 THE END 
 
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