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LIBELAR
UNIVERSITY

CALIFORNIA

INTRODUCTION.

THE history of the English Land Law is a history of intentions of Parliament frustrated by the ingenuity of lawyers, of national legislation perverted and thwarted in the interests of a class. The conservative tendencies of the English people have clung to the forms of a by-gone day, though they have served but to fetter the modern spirit. The object of the old technicalities has been defeated by fictions of the most cumbrous and artificial character, which in turn have lingered on in the sanctity of their antiquity long after their original purpose has been answered, while their continued existence has only given rise to expense and uncertainty of title. In the law of England, relics of the feudal ages, when the land was held by tenures whose main object was in turbulent times to provide for its safe culture and for the defence of the nation, have survived, long after the reason for their existence was dead. In this "Herculaneum of feudalism," as it has been called, the legal explorer must still resort to the early centuries of our history to find the original justification of institutions and rules which have no longer any but a historical excuse for their survival. The legislation of this century has patched in to the edifice which the posthumous ambition of landowners has employed the ingenuity of lawyers to erect, and which the evasiveness of lawyers has prevented Parliaments, however earnest in the work, from destroying, modern rules and a modern organization. The Lord Protector Cromwell's words are still true that the "Law of England is a tortuous and ungodly jumble."

A law which has developed by fiction and by accident, rather

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than by direct legislation or clear intent, which has survived by chance and by conservative instincts, rather than through foresight and intelligent maintenance, can only be satisfactorily explained historically. In the following pages I shall therefore endeavour to trace the history of the restrictions on the alienation of and succession to land step by step from the earliest times.

CHAPTER I.

ANGLO-SAXON LAND LAW.

PROPERTY in land in Anglo-Saxon Law falls under two great

classes.

I. Customary Estates: the nature and incidents of which depended not on any writing but either on the customary law of the community, or, as in the case of estates of folc-land, on a grant not embodied in writing, together with customary law.

II. Land held by written grant, or Book-land, the rights of the owner of which depended not on custom, but on the terms of the Book, or written instrument by which it was conferred.

Customary Estates again were divided into three classes:1. Heir-land, or Family Land; Yrfe-land, or ethel; which was owned by individuals'. 2. Community-land, said to be owned by the community in a Mark, and certainly claimed by the Lord in a Manor, in which the members of the free community, or the geburs, villani, and bordarii of a manor, had subordinate rights, their relations to their lord or to the community being determined mainly by custom. 3. Folc-land, owned by the people or state, from which in turn estates might be granted by parol to individual holders.

The subordinate estates carved out of Customary Land also go by the name of Laen-land. Mr Kemble would limit this term to such estates as were held of a lord, but not created by any writing. Mr. Lodge, in his essay on the Anglo-Saxon Land

1 Sometimes called alod, as to the correctness of which term see Pollock, Land Laws, p. 191. Note B.

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