CHAP. I. the law of tenure was tempered by the infusion of uses in a legal form, and a substituted code of equitable interests was created under the appellation of TRUSTS; Law and Equity advancing together, but each within the limits of its peculiar jurisdiction, till we reach the maturity of the present system. We shall then pause to take a retrospective view of the ground which we have been treading, and to deduce the general result of our observations. In conclusion, the alterations effected by the statutes of the present reign will occupy our attention. Thus, we hope to illustrate the connection between the earliest and the latest fashion of the law, and to impart a practical interest to every stage of our history.

Existing divi

sion of the

terests.

THE most striking feature in that branch of our civil ownership into jurisprudence which concerns the rights of Real Prolegal estates and perty, is the division of the ownership into the legal equitable inestate, and the equitable or beneficial interest. Lord Mansfield, while seeking to subvert the distinction, or at least to confound the administrative functions of the separate tribunals by which Law and Equity are dispensed, described it as peculiar (a) to this country: observing, that in all other countries, the possession of property and the right of property are inseparable. Here, however, the line of demarcation is strongly drawn; it runs through our laws and our judicature, dividing Westminster Hall into two parts. Till this peculiarity, if such it may be termed, is completely mastered, the system cannot be understood.

(a) 1 Term R. 759, n. But see Ersk. Inst. B. 3, T. 1, S. 32,

T. 5, S. 8.

The patriarch of the pastoral age was the judge and CHAP. I. chancellor of his tribe, tempering justice with equity. The same relief was afterwards dispensed by the chieftain in his hall. But no rule or precedent was known; rights were enforced, and injuries redressed, upon principles which the great authority already quoted was wont to call "eternal;"-the principles lodged in the breast of the individual judge. After civilization had instituted positive ordinances, Law and Equity still continued to go hand in hand, and formed, in other European states, an intimate connection, acknowledging the same judicature, if not uniting to compose one system.

distinction.

But, in this country, particular circumstances produced Origin of the a different result. The simple institutions of our Saxon ancestors were superseded by the feudal polity of their Norman conquerors. Those soldiers of fortune gave permanence to victory by a regular scheme of military confederation, which, on the decline of the chivalrous. spirit, when the personal services of the knight were commuted for the pay of the mercenary, degenerated into a system of fiscal extortion. Under either form, its maxims were inimical to the just rights of property, and at the same time opposed to the territorial aggrandizement of the Church. Freedom of alienation would have loosened, and at length dissolved, the strict connection of lord and vassal; while the unlimited acquisition of land by the religious houses would have exposed the seigniory to civil death. In order to elude the severity of those rules which restrained the one and prohibited the other, recourse was had to an artificial distinction between the property in the soil and the abstract right to the enjoyment. A refinement, thus originating in the

CHAP. I. exclusive spirit of monastic policy, (a) was adopted and perpetuated by the enlarged desires of the laity. Though flowing from a source which appeared but little calculated to supply the means of promoting the free interchange of possessions, it was soon turned, by the ingenuity of lawyers and the exigencies of mankind, into the channels of commerce, and has diffused itself through the complicated machinery of our Law of Real Property. The history of this distinction is, therefore, intimately connected not merely with the technical character of the system, but with the progress of manners, wealth, and enterprise.

Condition of real property before the dis

tinction was known,

-characterized by TENURE.

WHILE the simplicity of the ancient law remained uncorrupted, the ownership was patent and notorious. Men looked for the proprietor in the possessor. The law acknowledged no other title to the land than the visible title which actual investiture conferred. That substantial interest which every landowner had in the subject itself, might, indeed, as contrasted with the refinements of aftertimes, be emphatically termed real property. As the wants of society increased, different forms and degrees of ownership were invented; but still the owner, whether for a longer or a shorter period, was, to the extent of his interest, the owner for all purposes and in every court:-the dominion was single; it had only one aspect, which looked directly to the soil.

. The grand characteristic of real property was TEnure. Every subject of the realm, possessed of land, held it in subordination to some superior. The king, at once the source of property and the fountain of justice and

(a) 2 Black. Com. 262, 328; Gilbert on Uses, 3.

honour, had bestowed large territories on the great CHAP. I. barons who immediately surrounded the throne, and who again distributed his bounty through the channels of their numerous dependents. In legal contemplation, at least, all the landowners of the kingdom had thus derived their estates. On this hypothesis, so consonant to the genius and history of feuds, the system of tenures was built; a system which linked every feudatory, by a chain more or less extended, to the crown, and rendered his fief eventually liable to resumption by the sovereign power, from which it had, or was assumed to have, originally proceeded. In all societies, indeed, it seems requisite to constitute an ultimus hæres. Among the nations who conceived, in the forests of Northern Germany, the first rude design of our institutions, land was restored, on a vacancy of the possession, to the community or state; here it revested in the king, as the supreme head of the federal body.

copyhold

rived.

The chief who received a grant of land, dedicated the Freehold and greater portion to arms and ambition, parcelling it out tenures, whence among his martial followers, to be held by the honoura- severally deble tenure of military service; another portion he allotted to an inferior, yet not degraded caste, to be held by socage tenure, which some writers (for the learned are not agreed upon the point) interpret to mean ploughservice; and the residue he retained to be cultivated by. his villeins, or serfs, who were attached to the soil, rather by the chain of slavery, than by the bond of tenure. From the two former classes have proceeded the freeholders, and from the latter class the copyholders of the present day. It is the history of freehold property in land which we purpose now to trace.

CHAP. I.

Gradual extension of the

tenant's interest

Some time elapsed after the institution of feuds before the right of inheritable succession was established. In their primitive state, the tenure was precarious, or to a fee-simple. for a short term only: afterwards it was for life, the lord resuming the tenement on the death of the tenant, and granting it out anew. At length, the son of the tenant was permitted to succeed; an indulgence which was followed by the extension of the grant, first, to the tenant and his issue (i. e. in fee-tail); and finally to him and his heirs, (i. e. in fee-simple,) (a) the law marking out a course of descent, which, enlarging by degrees, embraced his relations, lineal and collateral, male and female. On failure of heirs, the land returned, as before, to the lord: and unless express mention was made of the heirs, the grant still expired with the life of the grantee; whence the rule of law requiring the word heirs to convey the fee by deed.

Middle lords and sub-tenure.

The tenant who, under a grant to him and his heirs, had acquired a permanent interest, was competent to carve out various interests of less extent, called in law PARTICULAR ESTATES; as, an interest to continue during a given number of years, or during the life of A., or during A.'s life and the existence of issue proceeding from him (i. e. an estate tail). Before the statute of quia emptores, (b) a tenant in fee was competent to convey the land to a stranger and his heirs, to be held of the tenant making the conveyance and of his heirs, just as such tenant held of his immediate superior; so that, by means of sub-grants, or sub-infeudations, leaving no

(a) Note, in legal language, fee, without more, always imports fee-simple.

(b) 18 Edw. 1, c. 1, and see (as to tenants in capite) 17 Edw. 2, c. 6; 34 Edw. 3, c. 15.