This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Sec. 6. The feudal system.
8. The manor.
10. Descent of the feud.
14. Seisin and possession.
16. Livery and grant.
It was before remarked that the emphasis placed by the English law upon the distinction between land and movables was due primarily to the extended development of the doctrine of estates in land and in a less degree to the difference recognized by the law, in the disposition, at the owner's death, of estates of inheritance in land, and of movables. These distinctions themselves were the result, it appears. of the establishment, in connection with land, of the system of feudal tenures, a system which was not readily capable of extension to movables, and as a matter of fact never was so extended. For this reason, that the somewhat artificial distinctions between the English law of land and that of movables, are to so great a degree a result of the system of tenures, and also for the reason that the general structure of the present law of land, and even some still existent rules thereof, cannot be well understood without some understanding of that system,1 it degree, and in fact sometimes there were as many as six or seven persons (mesne lords) standing between the king (the lord paramount) and the lowest in the scale of tenants,-the one who actually enjoyed possession of the land, termed the tenant "in demesne" or tenant "paravail." Each person in the scale, except the tenant in demesne, while tenant merely as to those above him, was lord as regards those below him, and was accordingly termed a "mesne" or "middle" lord.3
1. "The principles of the feudal system underlie all the doctrines of the common law in regard to real estate, and, whereever that law is recognized, recourse must be had to feudal principles to understand and carry out the common law. The neces(16) appears desirable to present an outline of its leading features.
The fundamental principle of the feudal system of property in lands, as it was established in England after the Norman Conquest, was that all land held by a subject was derived originally by grant from the crown, and that the subject held the land merely on condition of his performance of certain duties and services, imposed either by law or the terms of the grant. The relation thus established between the crown and the person to whom, either actually or by fiction of law, the grant was made, was termed "tenure."2 The persons who thus held lands of the crown could themselves make grants of parts of their lands to others, creating thereby a "sub-tenure" between themselves and their grantees, without affecting the tenure already existing between themselves and the crown. These subtenants could again grant out parts of the land held by them to others, who would hold of them. This process of the creation of subtenancies could, in theory, continue to an indefinite sity of words of limitation in deeds,-the distinction between words of limitation and words of purchase,-the principle that the freehold shall never be in abeyance, that a remainder must vest during the continuance of a particular estate or eo instanti that it determines, that the heir cannot take as a purchaser an estate the freehold of which by the same deed is vested in the ancestor, and many more rules and principles of very great practical importance, and meeting us at every turn in the American as well as the English law of real estate, are all referible to a feudal origin. 'The principles of the feudal system,' said Chief Justice Tilghman, 'are so interwoven with our jurisprudence that there is no removing them without destroying the whole texture.' Lyle v. Richards, 9 Serg. & R. 333. 'Though our property is allodial,' said Chief Justice Gibson, 'yet feudal tenures may be said to exist among us in their consequences and the qualities which they originally imparted to estates; as, for instance, in precluding every limitation founded on an abeyance of the fee.' McCall v. Neely, 3 Watts, 71." Sharswood's note, 2 Blackst. Comm. 78.
The above quotations would, however, have to be taken, in many of the states, subject to con siderable qualifications, by reason of statutory changes in the law.
2. 1 Pollock & Maitland, Hist Eng. Law, 210 et seq.; Digby, Hist. Real. Prop. (4th Ed.) 34; Co. Litt. 65a, and Hargrave's note.
While the tenant in demesne alone had the general rights of use in the land, those above him in the scale were all regarded as having certain rights in the land, and, in a sense, as possessed of it. Furthermore, the land itself was regarded as owing the services due by the respective tenants, so that the same land might owe to one of the lords in the scale, on behalf of his immediate tenant, services of one kind, of a military nature, perhaps, and to another of such lords, on behalf of the latter's tenant, another service, the payment of rent, for example, and so on, and the right to any or all of the services due to the various lords of whom the land was held might be enforced against the land by the seizure of chattels found thereon (distress), and sometimes by the recovery of the land itself.4
Land thus held by one as tenant of a superior on condition of the rendition of services was known, at least in certain stages of the development of the system, as a "feud," or "fief," or "fee," all varieties of the same word, "feodum," or "feudum," and was contradistinguished from "allodial" land,-that is, land which was possessed by a man in his own right, not in dependence on another, and without any obligation of rent or service.5 Such allodial land had existed in Anglo-Saxon times in England, and was found in parts of the continent even after the establishment of the feudal system there. but, as stated above, it disappeared from England after the Norman Conquest, as a result partly of the Conquest and partly of the tendency, in those times, of holders of land to put themselves under the protection of their more powerful neighbors.6
3. 1 Pollock & Maitland, Hist. Eng. Law, 211; 2 Blackst. Comm. 59.
4. 1 Pollock & Maitland, Hist. Eng. Law, 215.
5. Co. Litt. 65a, Hargrave's note; 2 Blackst. Comm. 104;
Digby, Hist. Real Prop. 13, 32. As to the meaning of "allodial," see Gray, Perpetuities, Sec. 23.
The word "tenement," however, finally became the established term properly descriptive of lands, as well as "incorporeal things,"