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TEN 



of the lord always subsists. This teignory is now of leu 

 value than il was. lmt still it subsists. Tin- nature of the 

 old feud was this : the truant had the use of the land, but 

 the ownership remained in the lord: and this is Mill the 

 case. The owner of a fee has in fact a more profitable 

 than he iincc had : but he Mill owes services, fealty 

 at least, and the ownership of the land is really in the 

 lord and ultimately in the kins. For all practical jm: 

 the owner's power of enjoyment is as complete as if his 

 land were allodial. l>ut the circumstance of it* not being 

 allodial has several important practical consft|nenccs. 



No land in England can l>e without an owner. If the 

 last owner of the fee has died without heirs, and without 

 -ing of his fee by will, the lord takes the land by vir- 

 tue of Ins seignory. If land is aliened to a person who 

 has a capacity to acquire but not to hold land in Eng- 

 land, the king takes the land ; this happens in the case of 

 being sold to an alien. The forfeiture of lands to 

 the kinc for high treason and to the lord in cases of petty 

 treason and murder are also consequences of tenure. 



The case of church lands seems something peculiar. 

 They are held by tenure, though no temporal sen-ices are 

 due. This tenure was originally the tenure in frankal- 

 moigne. By the tenure in frankalmoigne the tenant was 

 bound 'to make orisons, prayers, masses, and other divine 

 es for the soul of his'grantor or feoffor,' &c. . I.itt.. 

 s. 1:}T>; ; but he did no fealty. If land was given 

 for ' certain divine service in certain to be done,' &c. 

 Litt.. s. 137), the lord might distrain, snd in this case it 

 seinied the lord might have fealty; this tenure by cer- 

 tain service was not called tenure in frankalmoigne, but 

 tenure by divine service. Coke, in hi* ' Commentary on 

 Littleton' (96, 6) observes, 'for this divine sen'ice certain 

 the lord hath his remedy, as it here appears by our author, 

 in f'irii .v< ciilun .- for here it appears that if the lord dis- 

 train for not doing of divine service, which is certain, he 

 shall upon his avowry recover damages at the common 

 law, that is, in the king's temporal court, for the not doing 

 of it.' 



The Act which abolished military tenures could not from 

 its terms affect tenure in frankalmoigne; but for greater 

 caution it was declared that this act should not subject 

 tenures in frankalmoigne to any greater or other sen-ices. 

 Tenure in frankalmoigne therefore is now exactly what it 

 was before the 12th of Charles II. was passed. Church 

 lands then, which are held in frankalmoigne, still owe no 

 services; but the lord of whom they are held must be 

 considered the owner. And this conclusion is con- 

 sistent with and part of the law of tenure, by which no 

 land in England is ever without an owner. Church land 

 differs from land held by laymen in this, that the beneficial 

 ownership can never revert to the lord, for all spiritual 

 persons are of the nature of corporations, and when a 

 parson dies, the corporation sole (as he is termed by an 

 odd contradiction in terms) is not extinct, and it is the 

 duty and right of some definite person to name a succes- 

 sor. It is stated by Blackstone (i. 470) that the law- hits 

 wisely ordained that the parson, qu<i/i'>iu.\ parson, shall 

 nc\er die any more than the king, by making him and his 

 Miccessors a corporation ; by which means all the original 

 rights of the parsonage are presen-ed entire to the succes- 

 sor : for the present incumbent and his predecessors who 

 lived seven centuries ago, are in law one and the same per- 

 But notwithstanding this ingenious attempt to make 

 a man, together with others not ascertained, a corporation, 

 the difficulty really is, th.it when a parson dies, there is 

 no person who has a legal ownership of the land until 

 a successor is appointed, if Blackstone's theory is true. 

 The comparison of the case of a parson with that of 

 the king is unapt, for the successor to a deceased 

 king is ascertained by the death of his predecessor; 

 hut the successor of a parson is generally ascertained 

 by the will of some other person being exercised, and 

 till the person entitled to appoint a parson has nainei! 

 one, and he has been duly instituted, the lands of the 

 church have no legal owner, unless the lord is the owner. 

 This seignory may be worth nothing, but it still 

 The difficulty may indeed be solved without the s; 

 tion of a seignory still existing, and in the following man- 

 ner. There is succession in the case of one parson suc- 

 ceeding another, for which the notion of a corporation is 

 not necessary. The notion of succession is this: the right 

 which is the object of the succession, continues the same : 

 Hie subject, that is, the person, changes. In order to con- 



stitute strict succession, the new ownership or right mu-t 

 begin at the moment when the ]. 1 the new 



ownership or right is derived from and ti nudcd on a 

 former ownership or right. Tins is ti 

 to the crown. In the case of a parson, win 

 appointed, his right by a fiction of law commences at the 

 time when hi- predecessor's right ceased, though an inter- 

 val has elapsed between the time of In s^or's 

 death and his own appointment ; and this was the doc- 

 trine which the Romans applied to the case, of a heres who 

 did not take possession of the hereditits till some tune after 

 the death of the- testator or intestate. This subject i- 



i by Savigny. Ny */''' i/'-v H'" /i/v, &,-., 



vol. iii. When then the parson dies, the freehold m; 1 

 considered to be in abeyance till the appointment of Ins 

 --or. one of the tew" instances in the English law in 

 which it is said that a freehold estate can he in abeyance. 



No seignory, in the sense above explained, can now be 

 created except by the king. It was enacted by the statute 

 Quia Emptores (J H Kdw. 1.), that all feott'nients of land 

 in fee simple must be so made that the feoffee mm*t hold 

 of the chief, that is, the immediate lord of the aliening 

 tenant, by the same services by which the tenant held. 

 Therefore all seignories exist now which existed at the 

 time when the statute of Qui.i Emptores was passed. A 

 lord may relcsise the MTV ices to a tenant ; but it would In- 

 consistent that the king could not release the services due 

 to him, for if that were the case land iniirht become 

 allodial, and on the death of a person without heir* then- 

 might be land without an owner, which is i 

 with the fundamental principles of law relating to Eng- 

 lish land. Still it is said that the king can release to bis 

 tenant all services, and yet that the tenant holds of him : 

 by this assumption of a "still subsisting tenure the c 

 quencc above mentioned is avoided. 



Tenure of an imperfect kind may be created at present. 

 Wherever a particular estate' is created, it is held of the 

 rcversioner by an imperfect tenure : this is the common 

 case of landlord and tenant. If no rent or other services 

 are rcsen-ed from the tenant of the particular estate for 

 life or years, the tenure is by fealty only, and he may be 

 required to take the oath of fealty. But the right of the 

 reversioner to whom sen-ices are due is solely incident to 

 the reversion, and is created at the same tune with it. 

 The perfect tenure originated in the pure feudal system, in 

 which the seignory of the lord was the legal ownership of 

 the land, and the tenant owed his sen-ices for the enjoy- 

 ment of it. The only perfect tenure now existing is Soeage 

 tenure, the sen ices of which are certain, and consist, be- 

 sides fealty, of some certain annual rent. [SocAOK.] 



The right of wardship was one of the incidents to mili- 

 tary tenures. The lord had a right to the wardship of his 

 infant tenant until he was twenty-one years of age; and 

 this light was in many respects prejudicial to the in! 

 of the heir. This right was abolished with the abolition of 

 military tenures. The right of guardianship to an infant 

 tenant in socage only continues to the age of fourteen ; 

 but the. act of Charles II. (12, c. 24) gave a farther power 

 by deed or will, executed as the statute preserib. 

 appoint a guardian to any of bis children till their full age 

 of twenty-one, or for any less. time. The guardian in so- 

 cage was the next of kin to the heir, and he was chosen 

 from that line, whether paternal or maternal, from which 

 the lands had not descended to the heir, and consequently 

 such guardian could never be the heir of the infant. This 

 wardship then had no relation to tenure. 



If the services due in respect of a perfect tenure are not 

 rendered by the tenant to the lord, he may distrain, that is. 

 take any chattels that are on the land in respect of which 

 the services are due ; and an imperfect tenure so far re- 

 sembles a perfect one, that a reversioner can distrain for 

 the services due from the tenant of the particular estate. 



A right still incident to n seignory such as a subject may 

 have is that of escheat, which happens when the tenant in 

 fee imple dies without leaving any heir to the land, and 

 without having incurred any forfeiture to the crown, as for 

 high treason. It has been observed that the acquisition by 

 escheat is not a purchase, because the escheated land de- 

 scends as the seignory would have descended. When 

 lands are forfeited to the king for treason, or to the lord 

 for petty treason or murder, the tenure is extinguished ; 

 and generally, in whatever wa\ lands come to the king or 

 lord, the tenure is of necessity extinguished. 



The nature of tenure a* it exist* at present will be bat- 



