TENURE,. The general nature of tenure and its origin and history in Eng land are explained in the article FEUDAL Lew. A few remarks may be made here ou tenure as at present ekisting by the law of England, for which purpose a short recapitulation is necessary.
All land was and is held of the king either mediately or immediately. All tenures were distributable under two general heads, according as the services were free or base ; and consequently there was the general division of tenures into Frank-tenement or free-holding, and Villeinage. The act of Charles II. (12 Car. II. e. 24) abolished military ten ures, which were one kind of free ser vices, and changed them into the other species of free services, namely free and common socage. Thus one tenure in socage was established for all lands held by a free tenure, which comprehended all lands held of the king or others, and all tenures except tenures in frankalmoigne, copyhold, and the honorary services of grand-serjeanty ; and it was enacted by the same act that all tenures which should be created by the king in future, should he in free and common socage. It is par ticularly provided in the act which abo lishes military tenures, that it shall not alter or change any tenure by copy of court-roll, or any services incident thereto. nor take away the honorary services of grand-serjeanty. other than charges inci dent to tenure by knights' service.
Thus it appears that tenure is still a fundamental principle of the law relating to land in England.
All land in England which is in the hands of any layman is held of some lord, to whom the holder or tenant owes some service. It is by doing this service that the tenant is entitled to hold the land : his duty is a service, and the right of the lord is a Seiguory. The word tenure comprehends the notion of this duty and of this right, and also the land in respect of which the duty is due : the land is a Tenement. As already ob served. all land is held either mediately or immediately of the king ; and ulti mately all land is held of the king. He who is the owner of land in fee simple, which is the largest estate that a man can have in laud, is not absolute owner : he owes services in respect of his fee (or fief), and the seignory of the lord always subsists. This seignory is now of less value than it was, but still it subsists.
The nature of the old feud was this : the tenant had the use of the land, but the ownership remained in the lord ; and this is still the case. The owner of a fee has in fact a more profitable estate than he once had ; but be still owes services, fealty at least, and the ownership of the land is really in the lord and ultimately in the king. For all practical purposes the owner's power of enjoyment is as complete as if his land were allodial ; hut the circumstance of its not being allodial has several important practical conse quences.
No land iu England can be without an owner. If the last owner of the fee has died without heirs, and without disposing of his fee by will, the lord takes the land by virtue of his seignory. If land is aliened to a person who has a capacity to acquire but not to hold land in England, the king takes the land; this happens in the case of lands being sold to an alien. If a man commits treason, his freehold lands are liable to be forfeited to the king, and his copyhold estates to the lord of the manor, in the form and under the limitations and conditions explained in LAW, CRIMINAL, p. 183. If a man com mits a felony, his freehold and copyhold lands are subject to forfeiture in the manner stated in LAW, CRIMINAL, p. 185. These forfeitures are consequences of tenure.
The case of church lands seems some thing peculiar. They are held by tenure
though no temporal services are due. This is the tenure in frankalmoigne, which is explained under FRANRAL MOIGNE.
Tenure in frankalmoigne is now ex actly what it was before the 12th of Charles II. was passed. Church lands then, which are held in frankalmoigne owe no temporal services, but they owe spiritual services, and the lord of whom they are held must be considered the owner. And this conclusion is consistent with and part of the law of tenure, by which no land in England is ever without an owner. Church land differs from land held by laymen in this, that the beneficial ownership can never revert to the lord, for all spiritual persons are of the nature of corporations, and when a parson dies, the corporation sole (as he is termed by an odd contradiction in terms) is not extinct, and it is the duty and right of some definite person to name a succes sor. It is stated by Blackstone (i. 470) that "the law has wisely ordained that the parson, quatentes parson, shall never die any more than the king, by making him and his successors a corporation ; by which means all the original rights of the parsonage are preserved entire to the successor : for the present incumbent and his predecessors who lived seven centuries ago, are in law one and the same person." But notwithstanding this ingenious at tempt to make one man, together with others not ascertained, a corporation, which term means one juristical person composed of more than one natural person, the difficulty really is, that when a parson dies, there is no person who has a legal ownership of the land until a suc cessor is appointed, if Blackstone's theory is true. The comparison of the case of a parson with that of the king is unapt, for the successor to a deceased king is ascer tained by the death of his predecessor ; but the successor of a parson is generally ascertained by the will of some other person being exercised, and till the per son entitled to appoint a parson has named one, and he has been duly insti tuted, the lands of the church have no legal owner, unless the lord is the owner. This seignory may be worth nothing, but it still exists. The difficulty may indeed be solved without the supposition of a seignory still existing, and in the follow ing manner. There is succession in the ease of one parson succeeding another, for which the notion of a corporation is not necessary. The notion of succession is this : the right which is the object of the succession, continues the same ; the subject, that is the person, changes. In ceder to constitute strict succession, the new ownership or right must begin at the moment when the former ceases, and the new ownership or right is derived from and founded on a former ownership or right. This is the case of succession to the crown, and also of the heirat-law succeeding to real property. In the case of a parson, when a new one is appointed, his right by a fiction at law commences at the time when his predecessor's right ceased, though an interval has elapsed between the time of his predecessor's death and his own appointment ; and this was the doctrine which the Romans applied to the case of a hexes who did not take possession of the hereditas till some time after the death of the testator or intestate: This subject is discussed by Savigny, System des Romischen Rechts, &c., vol. in. When then the parson dies, the freehold may, according to this doc trine, be considered to be in abeyance till the appointment of his successor, one of the few instances in the English law in which it is said that a freehold estate can be in abeyance.