were unknown, the law of inheritance was a fixed institution.1 ity of fam But long before the period when laws and charters begin, the family as such had ceased to hold land. When in the course of historical development the household was supplanted by the individual, the family estate was probably held and administered either by individuals in that capacity alone, or as the heads of households.2 The influence of the family in historic times survived, however, in the exercise of certain rights, and in the inalienability of family land, a principle Inalienabilwhich first yielded to the doctrine that lands were alienable ily land." within the limits and with the consent of the family.3 When wills were introduced by the church, family land became sub- Wills at first depend ject to devise, the validity of the will originally depending for validity upon family consent. The force of family influence gradu- upon family ally gave way, however, as the idea of individual ownership, and the use of written instruments in the alienation of land, became firmly established. In some cases the consent of the king and the witan was substituted for the consent of the family, as a confirmation of the alienation; in other cases the alienation was made without the consent or confirmation of either.1 consent. lands, As the family tie weakened, and as the communal system Common fell into decay, the ethel or alod of the free townsman, embracing both house-land and arable in severalty, arose out of the primitive family estate. The common lands of the marks or townships, and of the other corporations, then remained as the only pure representatives of the communal principle. The history of these common or waste lands is their hiscoextensive with the history of the law of real property, and tensive with the system of common rights by which their enjoyment is law of real regulated is an elementary part of the common law. In property. 1 Tac., Germ., c. 20. 2 Essays in A. S. Law, pp. 69, 74; Maine, Ancient Law, p. 261. 8 Essays in A. S. Law, pp. 75, 76. As to the "ancient difficulties of alienation," and as to "the expedients by which advancing communities endeavored to overcome them," see Maine, Ancient Law, pp. 263, 264. See the will of a certain Ælfred (Cod. Dip., cccxvii.) in which is defined "which of my kin and friends are the men to whom I will my yrfe-land and my boc-land," and comments thereon, in Essays on A. S. 4 Cod. Dip., ccxxv; Essays in A. S. 5 "The historical township is the body of alodial owners who have advanced beyond the stage of land-community, retaining many vestiges of that organization; or the body of tenants of a lord who regulates them or allows them to regulate themselves on principles derived from the same." - Stubbs, Const. Hist., vol. i. p. 85. tory coex Folkland. Growth of great estates; probabilities as to regard to the possession and enjoyment of these lands arose the long controversy concerning inclosures, which has extended down to the present century.1 All the land embraced within a state which belonged neither to individuals nor to corporations was the property of the people in their collective capacity, the folkland, the public domain. The folkland rested upon the principle that royal and public are not the same. Out of the folkland estates were given to the king as a private individual, and estates were given to the crown; but the residue was the public property, the property of all, subject only to the disposition of the witan acting conjointly with the king. A special class of alodial estates now remain to be considered, a class which probably originated, in the main, outside of and apart from the village-communities. When documentary history begins great inequality exists in the distribution of land; great proprietors are found in the possession of great estates. Nothing more substantial than conjecture can explain the origin of such estates. The probabilities are, their origin. however, either that at the time the original conquests were made, large allotments of land were set apart to the king or chief and to his principal followers, to be held by them in severalty; or that as soon as states were organized large allotments were made to the king and to his followers out of the public domain. In some cases it may have been that the extinction of families and the transfer of small estates brought about an accumulation of land in the hands of certain individuals.6 Another great factor that entered into the formation of large estates was the right of redemption from the waste, the bringing of the common lands into cultivation, 1 "The history of inclosures and of inclosure acts is now recognized as of great importance to our general history."- Maine, Village-Communities, p. 85; Essays in A. S. Law, p. 91; Bentham's Works, vol. i. p. 342. 2 Allen and Kemble were the first to ascertain the true nature of folkland and bookland. See Royal Prerogative, p. 129; Saxons in England, vol. i. ch. xi. 8 The folc-land rests on the principle in the constitution that royal and public are not the same thing; that the king, not alone, but only at the head of a process which the great man with many slaves could carry on much more rapidly than his poorer neighbors. The greater land-owners were the king and the crown, the great nobles and the church, - the greatest being the state, possessed of the public domain. The large estate of the great man, like the small estate of the free townsman, was his ethel or alod.2 As population increased, and as the primitive com- The dependent munal system became inadequate to its necessities, landless township; men settled down upon the estates of all the great proprietors and organized thereon village-communities, whose general character was identical with that of the free communities,3 with one vital exception. In the one case the title to the land occupied by the cultivating community was vested in the community itself, the free townsmen looked up to no superior lord; in the other the title was vested in the lord, and the title to its dependent townsmen were his men, or, in the language of vested in later times, his tenants. The distinction is therefore apparent between the primitive system represented by the independent Teutonic community and the new order of things brought about by the growth of great men and great estates. The growth of the principle of lord and man drew after it a conflict between these two systems, which finally resulted in a loss upon the part of the free communities of their primitive independence. Through various processes the house-lands The free and the arable of the free townsmen became vested in a file lands the lord. communi their inde single lord, and then the waste or common land passed as an pendence. incident. In this way the waste of the once free townsmen became the lord's waste, while the townsmen became his The detenants. After the Conquest the dependent township appears township as the manor of the lord. pendent becomes the manor. The attempt has now been made to define the general na- Bookland. ture of alodial estates, of common lands, and of folkland, in a word, of all such lands as originated in custom, and took tion; " Freeman, Norm. Conq., vol. i. Essays in A. S. Law, p. 89. 5 As to the growth of the manor out of the mark, see Maine, Village-Communities, p. 143; Digby, Law of Real Property, pp. 20-26, 43. Essays in A. S. Law, p. 90. of the community. The new method of conveyancing. their character and attributes from the customary law. With a clear conception of the nature of the three kinds of ownership thus originating in one common source, it will be easier to define the nature of such estates as did not originate in custom but in written instruments, upon whose terms their The witness character depended. Before the introduction of written instruments by the church, whenever a transfer of land was to be made, the parties in interest went to the land with chosen witnesses, and there, in their presence, the actual possession was delivered by the grantor to the grantee. But with the advent of the church a new method of conveyancing was introduced; written instruments were substituted for the witness of the community. These instruments, which were called books, were designed with a twofold object, first, to put in the most solemn and enduring form evidence of the fact that the claims of the nation, of the community, and of the family to the land conveyed were effectually barred; second, to establish evidence of title that would be more potent in litigation than mere oral testimony. This new method of transfer was employed in the conveyance of lands Estate con- both public and private, and the estate usually conveyed was the largest possible, corresponding very nearly to our feesimple. As the primitive method of transfer by actual delivery gave way to the new method of transfer by book, by which absolute estates were generally created, the term "bookland" became nearly if not quite coextensive in meaning with "alodial," which simply meant land held in absolute The alod ownership. In this way the alod disappeared in the bookin the book- land. In the alienation of folkland the new method by book found a wide field for its operation. The king, with the veyed by book usu ally a feesimple. disappears land. 4 Essays in A. S. Law, pp. 102, III. 6 E. g., "quam in semper possideat et post se cui voluerit heredum relinquat." Cod. Dip., cxvii. Cf. Essays in A. S. Law, p. 104. 6 Digby, Law of Real Property, p. 13; « As the primitive allotments gradually lost their historical character, as the primitive modes of transfer became obsolete, and the use of written records took their place, the ethel is lost sight of in the bookland."— Stubbs, Const. Hist., vol. i. p. 76. a grantee consent of the witan, could carve estates out of the folkland and bestow them either upon individuals or religious corporations, and the land so granted was said to be "booked" to the grantee. In this way the king's thegns and the religious houses were enriched without stint out of the public domain.1 Family land, the alod, was primarily a "full, free, and un- Rights of burdened estate," 2 subject only to the inevitable trinoda ne- of bookcessitas, which consisted of the duty of rendering military land, service (expeditio), and of repairing bridges and fortresses (pontis arcisve constructio). To this burden all lands were subject. As a general rule, when a grant was made out of the folkland by book, it was provided that the grantee should hold the land free from all rent or service of any kind, excepting only the trinoda necessitas. It was also generally expressed in the book that the grantee could dispose of the land as he pleased in his lifetime, or dispose of it by will at his death, or, if he died intestate, that it should descend to his heirs. These powers, however, depended upon the terms of the grant, by which the right of alienation could be restricted to the kindred, or the course of descent limited to lineal descendants or to heirs male or female. It thus be- they decame established in the customary law that the rights of the upon the grantee of bookland depended upon the terms of the grant; the grant. and in some of the charters it was expressly provided that any breach of the conditions of the grant should, ipso facto, work a forfeiture of the estate." 5 pended terms of its origin No special reference has so far been made to such inter- Laenland ests in land as were held by those who possessed less than and attrian absolute estate. The general character of estates held butes. absolutely by the great proprietors - the king, the church, and the greater nobles has already been defined. dition, however, to their own estates, certain great individuals 1 Digby, Law of Real Property, pp. 12, 13. 2 K. Maurer, Kritische Ueberschau, i. p. 98. Cf. Essays in A. S. Law, pp. 78-80. 8 Digby, Law of Real Property, p. 134 In ad 5 "The capacity of selling the land is often mentioned in Domesday as a characteristic of absolute ownership." Digby, Law of Real Property, p. 14, and note 3, citing Freeman, vol. iv. p. 732; Allen, On the Royal Prerogative, p. 145. 6 Laws of Alfred, c. 41; Kemble, Saxons in Eng., vol. i. p. 308; Digby, Law of Real Property, p. 14. Cod. Dip., xlvi., ccccvi., dcxli; Es says in A. S. Law, p. 109. |