CROMWELL'S ORDINANCES CONFIRMED BY THE

ROYALISTS.

88. The Royalists, the leaders amongst whom were almost all landholders, hastened to use their restored power by adopting Cromwell's ordinance relating to land, which was accordingly embodied in an Act bearing the stamp of 12 Car. II., which, in fact, was the first year of the "Restoration."

FINAL EXTINCTION OF SERVICES.

89. The Act 12 Car. II. c. 24, provided as follows:

"That the court of wards and liveries, and all wardships, liveries, prime seisins, and ousterlemains, values and forfeitures of marriages, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienations, tenures by homage, King's service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the King in capite, be likewise taken away. And that all sorts of tenures, held of the King or others, be turned into fee and common socage; save only tenures in frankalmoign, copyholds, and the honorary services (without the slavish parts) of grand sergeantry.'

90. Progress of Kingly Sentiments.-The difference in kingship between John and Charles II. is very noticeable: while the former declared that the Crown was not worth having, when encumbered with the mild restrictions of Magna Charta (71), Charles II., with the teachings of his exile before him, submitted placidly to the revolutionary Act, which finally deprived the Crown of England of those essential prerogatives relating to the holding of land, upon which the constitution was essentially based.

91. Equivocal Position of the Peers.—It is obvious that the Act 12 Car. II. c. 24, was an entire subversion of the previous constitution, not surprising in Cromwell, but very much so in reference to the Peers, who, in washing their hands of their liabilities, clearly compromised their legal right to take part in the government, which right was dependent upon those very liabilities.

92. The Peers Saving Clause. That the Peers were quite aware of the invidious position in which they were placed, by the abolition of their liabilities to the Crown, is sufficiently clear from the damaging circumstance, that they felt it necessary to append to the Act the following very eloquent saving clause :—

"Provided also that neither this Act nor anything therein contained, shall infringe or hurt any title of honour, feudal or other, by which any person hath, or may have right to sit in the Lords' House of Parliament, as to his or their title of honour, or sitting in Parliament, and the privilege belonging to them as Peers, this Act or anything therein contained to the contrary in anywise notwithstanding."

EXCISE DUTIES PERMANENTLY IMPOSED.

93. Previously to relieving their lands of the just burden of taxation which they had so far borne, the Royalist Parliament took care to revise and substitute those taxes called Excise, which were permanently imposed by 12 Car. II. c. 23: the juxtaposition of the two Acts is very curious, as indicating a deliberate intention on the part of the Peers to remove the burden from themselves to the people; at any rate,

PRESENT BASIS OF TENURE.

94. The enactments of Charles II. are the basis upon which the present tenure of land in fee simple rests, and they account for the anomaly in the present theory of the law, which esteems land to be vested in the Crown, though all the advantage of it is retained by the freeholder; for, though 12 Car. II. c. 24 removes the burdens, it does not in any way militate against the nominal right of the Crown to be Lord Paramount.

95. Ancient Tenants in Burgage.-It appears that all considerable towns, which were in existence at the time of the accession of William I., escaped the partitions to which the rest of the country was at that time subjected, but each holder was esteemed to be a holder under the king, and rendered services or rents, and each holder was a tenant in burgage.

96. Later Tenants in Burgage.--Most of the towns which were constituted after the accession of William I., seem to have arisen out of the Crown manors (41), which were less under personal control and restrictions than the manors of the nobility and gentry : these gradually developed into a state of burgage tenure.

97. Origin of Little Freeholds.—As, for all practical purposes, burgage tenure was but a form of socage (39), the whole of the town lands, as well as those, of the country districts, were released from pecuniary obligations to the Crown by 12 Car. II. c. 24, and became freeholds; but,

to

98. Exception of Copyholds.-The great landlords took care provide in the Act for the continuance of their claims upon copyholders, of whom notice will more particularly appear in due course (273).

MODERN FREEHOLDS.

FEE SIMPLE.

99. Though freehold is the popular name given to land held by virtue of 12 Car. II. c. 24, the legal expression fee simple is still retained by lawyers.

100. Meaning of "Fee."-The word "fee" is the modern rendering of the word feu, or holding, which is still common in Scotland, and is used there as almost equivalent to the English word lease.

101. Signification of "Feu."—The word feu, or feud, is an explanation of feudal tenure, which was, in fact, tenure of the king, and feudum simplex, or fee simple, therefore means a holding simply under the Crown, without the intervention of any inferior lord; for,

FREEHOLDER NOT THE ABSOLUTE LORD.

102. The statute of Quia Emptores (41) is still in force, which forbids any one from making himself the lord of his holding: in selling his holding he merely exercises the right of a freeholder to transfer his tenancy; for,

103. The Queen Lady Paramount.—It is a fundamental rule, applicable to the whole kingdom, that all lands were originally derived from the Crown, and therefore the Queen is sovereign lady or lady paramount, either mediate or immediate, of all and every parcel of land within the realm; so that,

OWNERSHIP OF LAND A DELUSION.

104. It has recently been thought necessary for an eminent legal authority to point out emphatically, that absolute ownership of land, as popularly understood, is a complete delusion; and the same authority adds, that,

105. No Absolute Owner of Land.-The first thing the student has to do, is to get rid of the idea of absolute ownership such an idea is quite unknown to the English law: no man is in law the absolute owner of lands: he can only hold an estate in them; and

106. Freeholds Liable to Change.-Though a freeholder-free only as regards the right of transfer (110)—is in the position of a leaseholder for ever, at the nominal rent of allegiance to the Crown, there can be no doubt the constitutional power still exists to alter or vary that tenure, or to impose something more than a nominal rent; for,

107. Restoration of Land Services Possible.-The only bar of Crown claims upon freeholders for rent, in lieu of ancient custom, is the Act 12 Car. II. c. .24, which, like any other Act, may be repealed or superseded any time, by an authority of equal power, to wit, the Imperial Parliament.

QUIT RENTS.

108. Though almost all freeholds are really in fee simple, there are some freeholds by custom, which are liable to pay to an intermediate lord what is called a quit rent.

109. Nominal Amounts.—Like other similar payments, the amount of quit rent was originally regulated by the value of one year's holding, but the amount of quit rent is not now calculated by the present value, but upon the annual value paid by predecessors from time immemorial, frequently only a few shillings or pence for land worth annually as many pounds.

FREEDOM OF DEVISE THE ESSENTIAL PRINCIPLE

OF A FEE SIMPLE.

110. The peculiar value of a modern freehold is, not that the holder pays no Crown dues, but his unfettered right of alienation, that is, he can sell or bequeath, or (as the lawyers say) devise, to whomsoever he pleases, his common socage tenure (39).

IMPORTANCE OF THE WORD "HEIRS."

III. Whether a freehold be conveyed by will or by deed, whether bequeathed or sold, in order to effect a complete transfer of the whole freehold interest, it is necessary to make use of the expression "heirs ;" for,

112. Life Holding only.—If a will or deed merely makes over possession, as, for instance, to "John Brown for ever," that would signify only for John Brown's life; thus,

113. Consequence of Omitting "Heirs."-John Brown, on receiving conveyance from William Sharp of an estate "for ever," could sell it again as freely as he bought it, or he could lease the estate to whomsoever he pleased, but, if he died intestate, without having re-sold the estate, it would not pass to his heirs, but would revert to William Sharp, or, if he were dead, would pass to his heirs; so,

114. Essential of Inheritance.-All conveyances should be, and of course always are (when prepared professionally) drawn to include "John Brown, and his heirs for ever," which expresses the continuance of the estate of inheritance in the person of John Brown,

FEOFFMENTS.

115. Previously to the reign of Henry VIII., estates might be transferred by feoffment, that is, the holder, as feoffor, presented the feoffee, or receiver, with some symbol of possession, such as a piece of turf, or a wand, and that ceremony, in the presence of witnesses, was binding; but,

NECESSITY FOR A "DEED" OF CONVEYANCE.

116. All conveyances or feoffments must now be made by deed, signed, sealed, and solemnly delivered to the feoffee, or to another person for his benefit.

117. Preliminary Memorandum.-It is usual for the terms of a. bargain for a freehold to be recorded, in the first instance, in the form of an agreement to sell and purchase, thus :

An agreement made the first day of January, 1870, between William Sharp, of Fleet Street, in the City of London, of the one part, and John Brown, of Plaistow, in the County of Essex, of the other part. The said William Sharp (hereinafter called the vendor) will sell, and the said John Brown (hereinafter called the purchaser) will purchase, the fee simple in possession, free from incumIrances, of all that piece or parcel of meadow land now in the occupation of Robert Strong, at Plaistow aforesaid, with the buildings and appurtenances thereof, for the sum of £1,000, whereof £200 shall be paid immediately on the execution of these presents, and the residue on the first day of February next, at the office of Thomas Smart, solicitor, of Bedford Row, in the County of Middlesex, when the purchase shall be completed. The vendor shall, within three days from the date hereof, deliver to the purchaser's solicitor an abstract of his title to the premises. Upon payment of the remainder of the said sum of £1,000, at the office aforesaid, the vendor, and all other necessary parties (if any) will execute a proper assurance of the premises to the purchaser, such assurance to be prepared by, and at the expense of, the purchaser, and to be left by him at the office aforesaid, not less than seven days before the said first day of February. The possession will be retained by the vendor up to the said first day of February, and as from that day all outgoings shall be discharged, and the possession taken by the purchaser, and such outgoings shall, if necessary, be apportioned between the vendor and purchaser, from any cause whatever the purchase shall not be completed on the said first day of February, the purchaser shall pay interest at the rate of five per cent. per annum on the unpaid purchase-money, from that day until the completion of the purchase. No error, misstatement, or omission in the description of the property shall annul the sale, but compensation shall be allowed, or given, as the case may require, and shall be settled by two arbitrators, one to be named by the vendor and the other by the purchaser, or by an umpire to be appointed by the arbitrators before they enter upon the reference, and the decision of such arbitrators, or their umpire, if they disagree, shall be final. In witness whereof, the above-mentioned parties have set their hands hereto on the day and year first above written. WILLIAM SHARP. JOHN BROWN.

118. Importance of a "Plan.”—All conveyances of land, by sale, should include a plan of the property conveyed; thus,