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Tenure University Press Scholarship Online Oxford Scholarship Online A History of the Land Law A. W. B. Simpson Print publication date: 1986 Print ISBN-13: 9780198255376 Published to Oxford Scholarship Online: March 2012 DOI: 10.1093/acprof:oso/9780198255376.001.0001 Tenure A. W. B. Simpson DOI:10.1093/acprof:oso/9780198255376.003.0001 Abstract and Keywords This chapter focuses on the doctrines of tenure. The two most striking doctrines of the land law, at least on first acquaintance, are the doctrines of tenure and of estates. Although the importance of tenures is now minimal, the basic doctrine of tenure still exists. The doctrine of tenure has its origin in the state of social organization known as ‘feudalism’. This chapter discusses in detail the diversity and the classification of tenures. The main purpose of classifying tenures is the help in determining the incidents which the tenant must pay. Keywords: tenure, land law, estates, feudalism, social organization, tenants EVEN today the two most striking doctrines of the land law, at least on first acquaintance, are the doctrines of tenure and of estates. Modern writers are at pains to warn the student of the comparative unimportance of tenure in the modern law, and point to a Page 1 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 11 November 2014 Tenure series of statutes which have eliminated from our law almost all the direct effects of the tenurial relationship of lord and tenant, and reduced the types of tenures which can still exist. Indeed, so unimportant have tenures become that nobody certainly knows what sorts of tenure can still exist, and in practice this matters not at all.1 But although the importance of tenures is now minimal, the basic doctrine of tenure is still with us; all land whatsoever is held, mediately or immediately, that is directly or indirectly, of the Crown.2 Intimately connected with this axiom, nulle terre sans seigneur, is the doctrine of estates, whose development, in part at least, was forced upon the common lawyers by the theoretical difficulties raised by the doctrine of tenure. The doctrine of estates too is still with us, though in a guise which would hardly be intelligible to a medieval lawyer. But although the fundamental nature of these two doctrines is avowed in the leading modern textbook on real property,3 estates no longer have the fascination that once they had, and tenure is little discussed. The emphasis of the modern law passes both doctrines by, and rightly so. If we go back into the history of the land law the emphasis changes. In the eighteenth and early nineteenth centuries the ablest property lawyers are concerned to work out the subtleties of the rules governing the limitation of estates, particularly in connection with the elaborate family settlements of the time;4 when we reach the fifteenth (p.2) century Littleton's treatise on the law of real property is traditionally called Tenures,5 and though he deals at length with the doctrine of estates it is the tenurial quality of the law which bulks largest in his analysis. Indeed the farther back we travel in time the more important does tenure become. Feudalism and the Conquest The doctrine of tenure has its origin in the state of social organization known as ‘feudalism’. ‘Feudalism’ is undoubtedly a vague and imprecise term, with a number of connotations. For our immediate purpose it is sufficient to note that the feudal structure of society, which was firmly established in England after the Norman Conquest, involved dependent land holding—the holding of land in return for the rendering of services, typically military service. What was involved was both a personal relationship between superior and inferior, lord and vassal, marked by reciprocal duties of protection and service, and the granting of a benefice, that is, a parcel of landed estate to be enjoyed upon favourable terms, so long as the service due was faithfully performed. In cases where the tenant failed to observe the customary feudal obligations involved in his tenure he could be disciplined, even to the extent of losing his status as tenant and thus his land, and the feudal or seignorial court of his lord, whose function it was to see that custom was observed, resembled a modern military tribunal in that it was concerned as much with discipline as with justice. Even before the Conquest land tenure of a sort was known; the loan of land6 created a relationship between lender and holder which closely resembles the feudal relationship between lord and tenant of post-Conquest times, and the relationship between the Saxon lord and the village community where he held sway could be described in tenurial terms. How widespread tenure was in Anglo-Saxon (p.3) England is a moot point, and a somewhat artificial one; until there was a theory of tenure the question can hardly be asked.7 What is clear is that the Norman administrators did have a theory of tenure, and applied it universally; all land whatsoever was held of some lord, and ultimately of the Crown. This is fully recognized in Domesday Book (1086) and Page 2 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 11 November 2014 Tenure certainly no such rigid doctrine could possibly have existed before 1066; indeed, in England alone was feudalism so universalized.8 On the Continent feudal land-holding did not engulf all land; some tracts of land—called allodial lands—escaped the net. In Domesday Book the compilers sometimes seem puzzled by a landholder who seems to have no lord, but such puzzlement is assumed to arise rather from ignorance of the facts than from any exception to the universal application of the concept of tenure. The consequence of this was that feudal law did not simply become the law of the knightly, aristocratic class, nor the law of some parts of the country alone; it became the common law of England. This triumph of order was made possible by the Conquest, and by the high degree of administrative efficiency attained by King William's staff. The invasion of England by a band of military adventurers made it necessary to quarter this military aristocracy on the conquered land; William had to reward his followers and preserve his military strength for the future. He was able to achieve both these ends by parcelling up the land of the country amongst his followers, who became his tenants for their land, holding by his grant.9 In return he bargained for services; and most of his tenants were bound to serve in the royal army and bring with them a specified number of knights. The tenure thus created was knight-service, the typical feudal (p.4) tenure, and it was wholly Norman.10 The tenant who owed the service of ten knights was said to hold ten knight's fees,11 and so on; there is some evidence to show that the quota of knights due was fixed in multiples of five or ten knights.12 The immediate tenants of the Crown were called his tenants in chief, and there were probably about fifteen hundred of these tenants by 1086. Now when it is said that the country was granted out by the King to his tenants in chief it must not be imagined that any process of wholesale eviction took place; a system of parasitism was involved, and parasites cannot survive the destruction of their hosts. At the bottom of the social scale were those humble peasants who actually wrested the agricultural wealth of the country from the soil; it was their labour which made the whole paraphernalia of knights and castles possible. At the time of the Conquest many were slaves, the property of some Saxon lord; some were free men who had a lord, but who did not hold their lands of their lord, for their personal relationship of dependence was unconnected with their enjoyment of land. Others perhaps could be regarded as tenants, who held of their lords. The greater part of these peasants would be bound by custom to perform various duties of a public nature, such as to repair bridges, and also other duties which were of personal benefit to the Saxon lord of the village community in which they lived—for example they might be bound to provide him with a food rent, or to labour on the land of their lord. The tendency before the Conquest had been for the peasants of a village community to become increasingly dependent upon the local lord, and it has been suggested that it may have often happened that the peasants surrendered their lands into the local lord's hands and received them back again in return for an obligation to labour on their lord's land; in return for a greater degree of subservience the peasants received the protection of a powerful man. In general (p.5) the effect of the Norman Conquest was only to substitute a new, alien, lord for his Saxon Page 3 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com).
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