The laws of property from early until modern times were based upon feudalism, and in our law, even to-day, we see the influences of feudalism though the system itself no longer exists.
Space will not permit us to go at length into a discussion of the subject of feudalism, and the reader is referred to other authors for extensive inquiry therein.23 But we should take occasion to examine very briefly this system which entered so extensively into the life of our European ancestors and from which our laws of property have been historically developed.
Feudalism concerned itself almost wholly with real property. Personal property in those days was inextensive in quantity and had little value. Only real property was held in feudal tenure.
Feudalism was a military system whereby all land was held from the sovereign, mediately or immediately, who parcelled it out in return for fealty and service.
Whatever may have been the origin of feudalism, it was established in Europe by the tribes that swept over Europe at the decline of the Roman empire. It was firmly established on the continent by 800; and in England under William the Norman.
23. See Blackstone's Commentaries, Cooley's Ed. Bk. II, ch. IV. Pomeroy, Municipal Law, ch. 2.
By the feudal system the absolute ownership was in one person, a lord, or "landlord," while the use was in another known as the tenant, to whom the possession, or, as it was called, the "seisin" was given.
In England the ultimate owner was the king. But in course of time the tenant further parcelled out the land in the same way to his vassals, and these in turn, again, so that the actual occupiers and users of the soil might be many times removed from the king in whom the true ownership theoretically existed.
The system was in its origin and early development entirely military. The lord allotted the lands in return for fealty and service.
These allotments were known as "feoda, feuds, fiefs or fees." The holder of the feud was said to be enfeoffed.
The manner of enfeofment was as follows: First, the vassal established his homage to the lord. This was a ceremony in which the vassal entered into submission to his lord and became his "man," saying apt words to that end. After homage came an oath of fealty. Then came the transfer of the land.
This was done by conferring the present possession either by actual yielding of possession or by symbol. By the first method the land was given over before witnesses, the tenant going upon the land and publicly taking possession. By the second method a twig, piece of sod, or other symbol taken from the land was handed over in view of witnesses. No method of conveying land to take effect in the future was known, From this practice, it came to be said that in the conveyance of the fee by deed of feofment there must be livery of seisin.
The service which the vassal was to furnish was originally of military character and the system was purely military and arose out of military needs. The vassal was under obligation to furnish military aid as his lord might call upon him. If a vassal of the crown were called upon he could bring in a large array of his retainers to whom he in turn had granted lands.
Blackstone says that fiefs were at first granted at the lord's will, but others doubt this, and assert they were granted for life subject to fealty. In course of time they became inheritable.
At first the lord could not transfer his right of allegiance nor the tenant his land. But after a time the tenant was permitted to alien the land. Rules of descent came to be established and it became the law that the descendants of the tenant were to be his successors in the possession and ownership of the fee, but in order to keep this inheritance from division, the eldest son was the particular descendant in whom the right vested. Thus arose the rule of primogeniture.
The incidents or consequences of the feudal estate were as follows:
(1) Escheats. If the vassal died leaving no heir, his estate would return to the lord, who owned it; also, by disloyalty the estate escheated.
(2) Aids. Aids were payments of money made to the lord for certain purposes; to ransom his person; to pay the expense of the knighting of the eldest son; to raise a marriage portion for the lord's daughter. These payments were probably voluntary at first, but came later to be demanded as of right, and new causes of aids were invented until they became a source of great burden. Magna Charta provided that no aids should be demanded except for the three purposes mentioned.
(3) Reliefs. A relief was a sum of money to be paid by the heir upon coming of age and taking the inheritance. It was at first an arbitrary sum and grew to be so burdensome that a law was passed to fix the amount payable.
(4) Primer Seisin. This was a sum payable to the king by the crown's vassals equal to the first year's profits when the heir came into possession; it was in addition to the relief.
(5) Fines upon Alienation. A fine payable by the vassal to his lord upon the conveyance of the fee.
(6) Wardship. Where the tenant died before the heir was of age, the lord had the right to be guardian of the heir and take the profits of the fee until he arrived of age. This was a very onerous incident.
(7) Marriage. A lord who had a female ward (the tenant having died before the heir was of age), could dispose of her in marriage. If she would not accept the proffered husband she was liable to a heavy fine. This power was supposed to be based on the right of the lord to have no one except his friends and supporters marry the female occupiers of the fee.
These burdens became so great as not to be borne. By statute in the time of Charles II they were utterly abolished.
The relation which the tenant had to his lord was governed by the tenure or kind of holding by which the tenant held the land. Tenures were very numerous, but were principally of three general kinds:
(1) The Military Tenure, whose incidents we have just mentioned, the services to be granted being of a military nature. This is the true or proper feudal tenure.
(2) Tenures in Free Socage to which by statute all tenures were ultimately reduced. The services to be rendered were not those of war, yet such as were not regarded as base in nature, as, to pay a sum as rent. These are not pure feudal tenures, but are a natural development with the growth of society. These tenures had all the burdens as those above mentioned except of wardship and marriage.
(3) Tenures in Villenage or Base Tenures. Tenures in villenage were tenures calling for what were then regarded as base services, that is, menial duties. These tenants lived in villages near the lord's castle, and were called villeins. There were two sorts of tenures in villenage, those in pure villenage in which the tenant must give all services called for, and villenage in socage, in which the amount of the services he could be called upon to do was limited.
This was the system of feudalism so far as we may notice it here. It made great distinctions between real and personal property which are preserved to some extent to-day. It made personal property subject to seizure for the ancestor's debts, but not real property. This is not wholly true to-day, but the personal property of a deceased person is first subject to the ancestor's debts, before the land can be taken. This is a remnant of the feudal system. So doubtless is the rule that passes the real estate direct to the heir but puts the title to personal property in the executor or administrator.
Land in America is held allodially, that is, by all owners in equality without superior.
The fee (a term which we get from the feudal system), is in America held allodially. There is in theory no superior. An owner can indeed rent his land for services to be rendered, but there is here nothing resembling the feudal system. Land is not held of the government, and there is but one sort of tenure.
As the age became commercial, personal property grew in importance and a large body of law concerning it developed.
In the day of feudalism personal property was of little importance. The activities were those of war and agriculture. With the dawn of our commercial age, personal property became of much importance and there are now more litigated cases concerning personal property than concerning real property. A great portion of this law deals with sales.