A Layman’s Overview to Property and Land Ownership from Saxon Times
This is a top level look at a detailed and complex subject, hopefully presented in a simple manner. It does not intrude into matters of social structure of society.
There were two major ways of holding land within the Saxon period these were Bookland (AKA Bocland or Terra Hereditarii) and Folkland.
Bookland entered Anglo-Saxon law in the seventh century deriving from Roman Law, it referred to land that was granted in perpetuity through means of a charter which to all intent and purpose meant it became freehold. This allowed the land to be donated or conveyed at will at any time in the future. This was its only practical distinction from folkland. The introduction of this class of tenure was due to the embrace of Christianity by the Anglo Saxons and the need for the warriors and the Saxon kings of the land to donate landholdings to the church and clergy to absolve their souls for the taking of lives in battle and other disorder. For theSaxon kings there were also political reasons why this was desirable.* Eventually the religious need declined in favour of more commercial and secular transactions and it became ownership in a more modern sense.
There was a subordinate concept to bookland called landloan which as the name suggests was temporary in nature and might be rendered by the king for example in return for a service.
It is generally accepted these days that all land that was not bookland was folkland. This was not always the case with the academics and opinions differed over time.
Folkland referred to land held by a single person as a representative of a family group. Land could be handed on (inherited) to other family members In the case of Kent this was by the custom of Gavelkind (see below). Thus land remained in possession of the family but ownership was of the state. To transfer the land on a permanent basis outside of the family had to obtain agreement of the king/witan.
Gavelkind was a system of holding by tenants of land chiefly in the county of Kent. This would apply in equal measure to tenants of bookland and holders of folkland and provided:
- A tenant could pass on part or all of his lands from fifteen years of age.
- On conviction for a felony, the lands were not confiscated by the state.
- Generally the tenant could always dispose of his lands to his family in his will.
- In case of intestacy, the land was passed on to all the sons, or their representatives, in equal shares. Although females claiming in their own right were given second preference, they could still inherit through representation.
- A Dowager was entitled to one half of the land.
- A widow may be tenant by courtesy, without having had any issue, of one-half, but only so long as she remains unmarried.
Gavelkind was customary law that preceded the Norman conquest which in turn introduced feudal law into England. As feudal law is based on primogeniture (inheritance of the first born) it seems that the people of Kent were able to extract a concession from William I to retain the Gavelkind tradition. It was legally abolished in Britain in 1925. Gavelkind was to have a adverse circumstances on some estates leading to undesirable fragmentation of the same. This will be addressed later in the text.
Conquest to 1290
As a result of the conquest William needed physically to consolidate his hold upon his new kingdom and one of the ways of achieving this was through the introduction of the primarily continental Feudal System into English law. This embodied the concept of Nulle terre sans seigneur which is French and means literally “no land without a lord”. It was the feudal law and principle that one provides services to the sovereign for the right to receive land, protection and all basic needs from the sovereign lord. Feudalism meant complete dependency on the sovereign lord. The lord paramount remained a grantor after the grant of an estate in a form of freehold called fee simple (where the grantee has the title but ownership of the land is retained by the crown). The grantee provided to the grantor an oath of loyalty (fealty), rent and a right of escheat (Common Law doctrine which transfers the property of a person who dies without heirs to the crown or state, modern equivalent is broadly the rules of intestacy). In return, for these privileges the lord was liable to forfeit his rights if he neglected to protect and defend the tenant or did anything injurious to the feudal relation. The actual split of the land amounted roughly to 25% to the King, 25% to the Church and the remainder to a small group of tenants in chief who assumed the role of providing the army in times of war.
For the county of Kent it was previously noted that concept of Gavelkind was retained as a major concession to the peoples of this County and for the purposes of this narrative we will not dwell on the intricacies the feudal rules of title of those that held land from the lord of the manor (those who wish to may like to explore the subjects of subinfeudation, act of Quia Emptores and the Charter of Liberties).
The hybrid model of continental based land feudalism introduced by William remained in essence largely unchanged until the reign of Edward the first. This did not mean that there were not flaws and iniquities in ownership and tenancy of land and that legal disputes remained common.
In 1274 Edward I began a commission to investigate local government and administration charged with the discovery of where royal rights and properties had been misappropriated. Local juries of important citizens investigated barons and officials abuses of power. This work of the local juries was nationally consolidated into a survey called the Hundred Rolls.
In 1275 the First Statute of Westminster addressed the problems and also codified and consolidated existing laws some of which dated back to Magna Carta. The Statute of Gloucester in 1278 attempted to take this further but aroused great hostility amongst the Barons. A compromise was reached in 1290 whereby the lord could continue to hold the rights and privileges if he could show it had been held by the family since the last year of Richard I reign (1189). This was included in the Statute of Quo Warranto in the common law principal called time out of mind or time immemorial. Stepping back to the year of 1279 the first Statute of Mortmain was introduced with the intention of preserving the kings revenues by preventing land being granted to the church by landholders quite often as a means of circumventing taxes known as incidents that were payable on inheritance or grant. Tax was avoided because a religious corporation in effect was immortal, and so never died, attained majority or could be attainted. The statutes were to control (or prevent) the donation of land to the church without royal consent in order to prevent the avoidance of feudal services and obligations. In 1285 the introduction of the Second Statute of Westminster brought in law reforms that affected the inheritance of widows, the presentation of clergy to livings and the giving of conditional gifts (de donis conditionalibus). This latter clause aimed to ensure that the conditions that the owners gave or bequeathed land were implemented by law. In turn this was followed by the Third Statute of Westminster 1290 (Quia Emptores) which prevented tenants from alienation of their lands to others by subinfeudination, instead requiring all tenants who wished to alienate their land to do so by substitution, along with its companion statute of Quo Warronto as referenced above, was intended to remedy land ownership disputes and consequent financial difficulties that had resulted from the decline of the traditional feudal system from the date of conquest.
Great as this period of legislation was (it earned Edward the unofficial title of the English Justinian) it did not solve the land tenure problems entirely and evasions subsequently appeared, it was not until Henry the eighth that further great steps were taken.
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Legal Definitions
Actum - Actum est. It is done. It is over or finished.
Grant, in free and pure alms - It will be noticed that a great deal of land was passing into the possession of the Church. This land was generally held of the donor by a spiritual service called frank almoign, free alms, libera elemosina. The service was indefinite in amount—a share in the prayers of the donee. When the spiritual service consisted of the performance of certain specific actions, the tenure was usually called, not frank almoign, but tenure by divine service. This distinction, however, is probably not much older than the reign of Edward I.
The formula generally used in grants of land in frank almoign is 'in free, pure, and perpetual alms'; and often there are added the words 'free and quit of all secular service, custom, and exaction.' A gift in frank almoign generally implied that no secular service was due from the donee to the donor. But sometimes such a service was reserved. Something perhaps turned on the omission of the word 'pure'; and the final concords of the thirteenth century, like charters in an earlier age, afford instances of gifts in 'free and perpetual' alms where a temporal service is to be performed to the donor.
Inspeximus - [ Latin , we have inspected.] The first word of ancient charters in England, confirming a grant made by a former king; hence, a royal grant.
Quitclaim - A transfer of all one's interest, as in a parcel of real estate, especially without a warranty of title. Origin: 1275–1325; Middle English quitclayme < Anglo-French quiteclame, derivative of quiteclamer to declare quit.
A quitclaim deed (sometimes erroneously referred to as a "quick-claim" deed) is a legal instrument by which the owner of a piece of real property, called the grantor, transfers his or her interest to a recipient, called the grantee. The owner/grantor terminates (“quits”) his or her right and claim to the property, thereby allowing claim to transfer to the recipient/grantee.
Unlike most other property deeds, a quitclaim deed contains no title covenant and thus, offers the grantee no warranty as to the status of the property title; the grantee is entitled only to whatever interest the grantor actually possesses at the time the transfer occurs. This means that the grantor does not guarantee that he or she actually owns the property at the time of the transfer, or if he or she does own it, that the title is free and clear. It is therefore possible for a grantee to receive no actual interest, and – because a quitclaim deed offers no warranty – have no legal recourse to recover their losses. Further, if the grantor should acquire the property at a later date, the grantee is not entitled to take possession, because the grantee can only receive the interest the grantor held at the time the transfer occurred. In contrast, other deeds often used for real estate sales (called grant deeds or warranty deeds, depending on the jurisdiction) contain warranties from the grantor to the grantee that the title is clear and/or that the grantor has not placed any encumbrance against the title.
Because of this lack of warranty, quitclaim deeds are most often used to transfer property between family members, as gifts, placing personal property into a business entity (and vice-versa) or in other special or unique circumstances. Quitclaim deeds are rarely used to transfer property from seller to buyer in a traditional property sale; in most cases, the grantor and grantee have an existing relationship or is the same person.
Notarial Instrument - A notarial act (or notarial instrument or notarial writing) is any written narration of facts (recitals) drawn up by a notary public or civil-law notary authenticated by his signature and official seal and detailing a procedure which has been transacted by or before him in his official capacity. A notarial act is the only lawful means of proving those facts of which it is the recognized record, whereas on other matters it is usually inadmissible, because, being beyond the powers entrusted to the notary by law, it is non-official. In most common-law countries, multiple-page acts are bound together using a sewn or knotted ribbon (referred to as silk), the ends of which are secured by a wafer impressed with the notary's seal. This is called annexing or annexure.
Seisin - an old feudal term for having both possession and title of real property. The word is found in some old deeds, meaning ownership in fee simple (full title to real property).
Surcease - surcease 1. To cease, or to bring something to an end. 2. Etymology: from Anglo-French surseser; from Old French sursis, past participle of surseoir, 'to refrain, to delay'; from Latin supersedere, 'to sit on top of, to stay clear of, to abstain from, to forbear, to refrain from'; from super, 'above' + sedere, 'to sit'.
Subinfeudination - The process whereby, under the feudal system of tenure, a person receiving a grant of land from a lord, could himself become a landlord by subdividing and subletting that land to others.
Or, from wikipedia, = In English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands.
The tenants were termed mesne lords, with regard to those holding from them, the immediate tenant being tenant in capite. The lowest tenant of all was the freeholder, or, as he was sometimes termed tenant paravail. The Crown, who in theory owned all lands, was lord paramount.
The great lords looked with dissatisfaction on the increase of such subtenures. Accordingly in 1290 a statute was passed, Quia Emptores, which allowed the tenant to alienate whenever he pleased, but the person to whom he granted the land was to hold it for the same immediate lord, and by the same services as the alienor held it before.
Frank Withers