3.3 The Courts, Legal Concepts, and the Law of Property

institutions governing, regulating, and enforcing property rights in land capable of supporting impersonal exchange among elites. The institution of the use to devise land by will and avoid feudal incidents blossomed into the trust, a nascent form of perpetually lived organization that would play a major role in later developments. Landownership moved further outside the direct orbit of the state and became steadily more impersonal. Over the course of the seventeenth century, a mature natural state emerged in England. To understand why, we briefly turn to the law and then to politics.

3.3 The Courts, Legal Concepts, and the Law of Property

As the saying goes, possession is nine-tenths of the law. In England, ownership of land was rooted in possession of land and possession was “seisin”: “the person seised of land was simply the person in obvious occupation, the person ‘sitting’ on the land” (Simpson, 1986, p. 40). The problem with simple notions of occupation or possession in a feudal system is that multiple individuals have claims over the land. Who is seised of what? Milsom argues that the original use of seisin was as a verb to indicate what the lord did when he granted land to an individual: “A tenement is not a lawyer’s long word for a parcel of land, but what a tenant holds of a lord for service. A tenant is not just one physically in possession but one who has been seised by the lord. The lord seises the tenant of his tenament . . . ” (1976, pp. 39–40). Nevertheless, to be seised gradually became a condition rather than an action. To be seised of land, therefore had elements of both proprietary interest and of possessory fact, but far from simple elements. A landlord could be seised in his title to freehold land even if he let it to a tenant for years; the tenant for years was not seised of the land, even though the tenant physically possessed the land. To be disseised, however, was to suffer displacement by the entrance of an intruder onto your land. The simple physical presence of an intruder on land established the intruder’s presumptive claim to seisin, because the intruder established his seisin as soon as he came into possession of the land.

Actions in the courts to establish title appear in the earliest years after the Conquest.14 An early decision held that, according to the custom of the realm, no man needs answer in any court for his freehold land unless commanded to do so by the king’s writ. Glanvill, writing around 1187–9, described that “When anyone claims to hold of another by free service and

14For an introduction to the English courts and the actions relating to land see Maitland (1968).

system of property rights sought by twenty-first-century economists, but ones that served their ends and that solved their immediate problems. The next question before them was the nature of alienability.

As noted earlier, the language of land transfers utilized the terms of gift and transfers, and all alienations of land were treated as gifts and transfers. During the thirteenth century, alienability of land took two distinct courses: with or without conditions. Two pieces of parliamentary legislation implemented the distinction: De Donis Conditionalibus (De Donis) in 1285 governed alienation with conditions and regulated the fee tail (entail ), and Quia Emptores in 1290 governed alienation without conditions and regularized the notion of fee simple and, eventually, free and common socage.

Traditional Whig history portrays the common law courts as always on the side of greater alienability, of supporting a market for land through the creation of clear and transferable titles to land. However, the powerful interests dominating England saw advantages in greater alienability when it suited them and, at other times, the advantages of tying up land so that alienability was virtually impossible. De Donis dealt with cases where land was given or sold conditionally; for example, a parent gifting land jointly to a son, his newly married wife, and their heirs with the right of reversion to the person donating (selling) the land if there was no male issue from the marriage (see Digby, 1897, pp. 222–30). The condition requiring a male heir meant the grant was not a grant in fee simple because not all of the fee had been granted: something had been retained by the grantee (Dibgy, 1897, pp. 224–5).

In contrast to fee tail, land held in fee simple was heritable and alienable. Once land is granted in fee simple, “no further limitation of the estate is possible, for the grantor has alienated his whole interest, which is eternity” (Simpson, 1986, p. 89). After Quia Emptores in 1290, the conditions under which unconditional alienability of fee simple occurred were clear. Eventually, the tenure of free and common socage would enable alienation of land without any continuing obligation of feudal service on the part of the buyer.16

16“ . . . today it is still the law that all land must be ‘held’, and since it must be held by some tenure we say it is held in free and common socage. This is only another way of saying that it is just held, for socage which is free (of services) and common (in the sense of special customary incidents), had no positive characteristics” Simpson (1986, p. 13). As Hughes (1977) stresses, the fact that the original Virginia Company charter issued in 1606 limited land tenure in Virginia to free and common socage had enormous implications for the subsequent development of the American colonies. The English tenure of free and common socage is what Americans today call “fee simple.” American fee simple, therefore, differs from medieval English fee simple.

We are accustomed to think of fee tail (entail ) as a method by which descent of land was restricted to family lines. Although this was certainly a way in which fee tail could be used, fee tail was a much broader category of tenure and contract in which not all of the simple fee was transferred to the tenant. Any conditionality put the tenant in the position of holding in fee tail. What complicated fee tail was the ability of the grantor to retain reversionary rights. Before De Donis reversionary rights existed, but they could not be sold or transferred to another individual because they were merely possible rights. After the statute, it was possible to create reversionary rights and then alienate the reversionary rights (Digby, 1897, pp. 225–6). De Donis and the subsequent interpretations of the statute as authorizing conditional grants of land in perpetuity made it possible to write much more complicated contracts for landownership.

Neither De Donis nor Quia Emptores were imposed on an unwilling nobility by an overreaching monarch. Both acts – and the tenures they modified – were the result of interests operating with the natural state’s dominant coalition. Powerful lords in England wanted the opportunity to alienate land in a way that created free and clear title, and they wanted a way to alienate land with complicated conditions. The acts established the means of doing both.

English land law’s deceptively simple structure hid an enormous complexity. Land law was secure and followed a rule of law: rules that were clear. However, the combination of inheritance rules that mandated transmission of land through collateral lines and the possibility of creating conditional grants and sale of land meant that the security of an individual title was a relative concept. A grant of land conditional on the issue of a male heir with the right of reversion might pass steadily for generations until the lack of an appropriate heir suddenly caused the land to revert, perhaps back to a long-dead individual decades or centuries removed from the present. Conditions need not be limited to male heirs, and the confusion caused by collateral inheritance in the closely interbred English aristocracy created opportunities for mischief.

At the same time, never forgetting that multiple individuals had claims to most land in Britain, the actual occupiers of land could enjoy relatively secure title that they could pass on to their heirs (under the limitation of the inheritance law). Most of the mischief was located at the higher levels of English society, where the aristocracy was seised in title not to the physical possession of land, but to the right to derive a stream of rent from the land’s tenants. The conflicts over higher level titles to land – land wars – were a pervasive element of bastard feudalism.

The last important legal change in the shape of land tenures was finalized in the Statute Abolishing Tenures in 1660, whose formal title was “An Act