27. THE ENGLISH LAND LAW. Sources and General Characteristics.— The law of land, or "real estate" bears the traces of the different streams of influence that have made English history. It derives its main char acteristics from the feudal organization of so ciety, but these characteristics have been super imposed on other systems, or combined with other elements, which may be of early Ger manic, Celtic, or in some instances even of Roman origin. Again, the land laws have been the subject of frequent legislation; in the usual English method particular evils have from time to time been remedied without any logical re casting of the body of the law, and without the removal of mere anomalies which could not rank as grievances. But the main principle of the law may still be called feudal.
The modern law may be compared to a chalk cliff in which are many fossils; a cliff pierced by works and tunnels for such useful purposes as railways or mines, but left, where modern necessities have not interfered, to the slow de composing action of the elements. The chalk is the feudalized common law, the fossils are pre-feudal survivals, such as land of "copy hold" tenure, the works and tunnels are Parlia mentary statutes and the elements are the forces of public opinion acting byjudicial exposition and construction. Compared to the law as it was in the early years of the 19th century, the modern law of real property is simple, but if it be tested by any more severe standard it still retains many intricacies for which it is easier to find a historical than a logical explanation.
Land on feudal principles is the subject of tenure and not ownership. No man owns Eng lish land unless he be King of England. Land is always °held of" some one — either the King, or a tenant in some degree of the King. Land was thus originally looked on rather as the means of fulfilling a duty than as so much prop erty, and for the comparatively simple concep tion of ownership was substituted the more subtle idea of "estates," i.e., parts of and interests in ownership. Some of these interests were not recognized in the courts of common law but only in "equity," i.e., the extraordinary jurisdic tion of the Chancellor. In time the feudal idea of tenure ceased to express the real state of things, and a tenant in fee simple became and has for many centuries been an absolute owner.
But the inherited complications remained and indeed grew, being constantly developed so as to evade and even counteract Parliamentary statutes which landowners and the legal pro fession viewed with disfavor. In 1832 the English land law was a vast metaphysical system requiring and developing great acuteness of intellect among practitioners but utterly un intelligible to a layman.
The feudal theory of tenure gave to English land holding a certain social character which in many country districts has never been lost. To this day land in rural England is looked on less as a means of livelihood or source of income than as giving a certain social status to which rights and obligations are attached. Indeed it would be difficult'even now to give a better defi nition according to received ideas of the English upper social class than to say that it consists of the owners of the country estates of England.
The legal position of the possessor of land may be considered in three main aspects ; his relations to his predecessors and successors, in cluding what may be called family law; his economic and social relations, including the law of landlord and tenant; and his relations to the community as a whole including his liability to taxation and generally the rights and powers of the State.
Family Law; (1) Settled England is a country of large properties, and most large properties are, to use a legal phrase, "Settled Land." The meaning of this is that by the terms of some deed or will (called for this purpose "a settlement") the land is not at the disposition of a living person to sell, mortgage or give away; the apparent owner is only what is called a "tenant for life," and on his death the land will pass to some other person, gener ally his eldest son, if he has children, but if he has not, then to some collateral relative, with out any effort and without any power of inter ference on his part. A "settlement" of this kind may be looked on as a temporary and conventional "entail"; it originates in the vol untary act of some tenant in fee simple and its duration is limited by law to the life or lives of some person or persons in being when the settlement is made and a further period of 21 years afterward. The practical effect of an ordinary English settlement is to preserve the land for two or even three generations to the eldest living male of the senior line as head of the family to the exclusion of females and younger sons. In most land-holding families as soon as the person who will succeed to the land not merely as a life tenant but with abso lute power of disposition, is next in succession and is 21 years of age, he joins with the exist ing tenant for life— usually his own father— to resettle the land for another two generations. Thus one settlement succeeds another and a tenant in fee simple is rarely, if ever, in pos session. Provision is usually made for a widow of a tenant for life by giving her an annuity known as a "jointure," and younger children are given comparatively small sums of capital known as "portions" which are made charges on the estate. The practice of settlement is permitted but not enjoined by the law; it came into fashion about the middle of the 17th century. It is thought by some observers that the practice now shows some signs of being on the wane, but no direct evidence is available; certainly it still affects nearly all large prop erties, and therefore the greater part of English land. Its result has been to make each eldest son in turn the proprietor of one or more fam ily estates, to prevent the dispersal of land into many hands and to keep for the head of a fam ily' a social prestige and pre-eminence among both relations and neighbors. If there happens to be a peerage or baronetcy in the family, the land practically always goes with the title. In fact it is not uncommon even in cases where there is no title or honor in the family for the settlement to provide that any person succeed ing who does not already bear the family name — e.g., a married daughter, or a daughter's son — shall take the name and armorial bearings of the author of the settlement on pain of exclu sion from the property. Younger sons, on the other hand, after a boyhood spent on the family property are left with slender portions to make their own careers; thus in their case class dis tinctions tend to be obliterated; younger sons of the land-holding class may be found in al mosf every branch of activity, in the navy, the army, in orders in the Anglican Church, in commerce and in the learned professions.