Tenure

Holding.

A term used in discussing and classifying the various rights in virtue of which a person may maintain, before the law, his occupancy and enjoyment of any thing. The word is chiefly used of the various rights in real property; but does not exclusively belong to that field: tenure of office is an equally proper legal expression, and signifies both manner of holding the office, and the duration or term.

See People v. Waite, 9 Wend. 58.

In real-property law, tenure is chiefly used of the English feudal tenures, or that system of holding lands or tenements in subordination to some superior, which, in the feudal times, was the leading characteristic of real property. The king, who was at once the source of property and the fountain of justice and honor, had bestowed large territories on the great barons who immediately surrounded the throne, and these again had distributed his bounty through the channels of their numerous dependants. In legal contemplation, at least, all the land-owners of the kingdom thus derived their estates. On this hypothesis, so consonant to the genius and history of feuds, the system of tenure was built, — a system which linked every feudatory, by a chain more or less extended, to the crown, and rendered his fief eventually liable to resumption by the sovereign power from which it had, or was assumed to have, originally emanated. The nature of the tenure, or, in other words, the manner in which lands were held, was characterized by appropriate terms; thus, lands held by the honorathe lord in the wars, &o. — were distinguished by the corresponding name of tenure by knight service (see Brown); lands held by rendering services in husbandry, or like services, or payments which could be made certain in amount (a privilege, in the estimation of many tenants, which outweighed the honor of the onerous and variable military service), were known by the name of tenure in socage; and there were other kinds, of less interest to American readers. For some brief general explanations of the introduction and incidents of these tenures, see Feud. Wharton gives the following list of tenures which were ultimately developed: Lay Tenures. I. Frank tenement, or freehold.

1.

The military tenures (abolished, except grand sergeanty, and reduced to freesocage tenures) were: Knight service proper, or tenure in chivalry; grand sergeanty; cornage.

2.

Free socage, or plough-service; either petit sergeanty, tenure in burgage, or gavelkind.

II. Villeinage. 1.

Pure villeinage (whence copyholds at the lord's (nominal) will, which is regulated according to custom).

2.

Privileged villeinage, sometimes called villein socage (whence tenure in ancient demesne, which is an exalted species of copyhold, held according to custom, and not according to the lord's will), and is of three kinds: Tenure in ancient demesne; privileged copyholds, customary freehol(P, or free copyholds; copyholds of base tenure. Spiritual Tenures. I. Frankalmoigne, or free alms; II. Tenure by divine service. In England, the practical consequences and rules of law deduced from this theory of tenures have been largely modified in modern times; the system has been greatly simplified, and its burdens reduced; but the assumption or theory that every possessor of real property is a tenant in respect of that property, that he is to be considered as holding it of some superior lord, and law. To this system may also be referred the origin of the present freehold and copyhold tenures, into the one or the other of which nearly all the various tenures which existed during the feudal period have merged. Throughout the United States, the strong and general tendency has been to disclaim this theory or fiction of a holding from a superior as a basis of realproperty rights, and to re-establish the notion of allodial title, or absolute, independent ownership. The idea of tenure, in the feudal sense, however, pervades the law of landed property; and many of the terms derived from the English system are, with modified meanings, in general use. Under the word tenure is included every holding of an inheritance; but the signification of this word, which is a very extensive one, is usually restrained by coupling other words with it; tliis is sometimes done by words which denote the duration of the tenant's estate; as, if a man holds to himself and his heirs, it is called tenure in fee-simple. At other times, the tenure is coupled with the words pointing out the instrument by which an inheritance is held; thus, if the holding is by copy of court-roll, it is called tenure by copy of court-roll. At other times, this word is coupled with words that show the principal service by which an inheritance is held; as, where a man held by knight service, it was called tenure by knight service. Jacob. Tenure in capite, was an ancient tenure, whereby a man held lands of the king immediately as of the crown, whether by knight service or in socage. This tenure was likewise called tenure holding of the person of the king; and a person might hold of the king, and not in capite; that is, not immediately of the crown, but by means of some honor, castle, or manor belonging to it. According to Kitchen, one might hold land of the king by knight service, and not in capite; because it might be held of some honor in the king's hands, descended to him from his ancestors, and not immediately of the king, as of his crown. (Kitch. 129; Dyer, 44; Fitz. Nat. Brev. 5.) This ancient tenure in capite was of two sorts; the one principal and general, and the other special or subaltern. The principal and general was of the king, as caput regni, et caput generalissimum omnium feodorum, the fountain whence all feuds and tenures have their main original; the special was of a particular subject, as caput feudi, sen terrce illim, so called from his beingthe first that granted the land in such manner of tenure; from whence he was Car. II. ch. 24, all tenures are turned into free and common socage; so that tenures hereafter to be created by the king are to be in common socage only, and not by cajnte, knight service, &c. {Blount.) Jacob.