Page:Encyclopædia Britannica, Ninth Edition, v. 14.djvu/728

704 LITTLETON judge of the common pleas, and in 1475 a knight of the Bath. He died, according to the inscription on his tomb in Worcester cathedral, on August 23, 1481. He married Joan, widow of Sir Philip Chetwind of Ingestre in Stafford shire, and by her had three sons, through whom he became ancestor of the families in which are the existing peerages of Lyttelton and Hatherton. The work on tenures was probably written late in his life. It is addressed to his second son Richard, who went to the bar, and whose name occurs in the year books of the reign of Henry VII. The book, both historically and from its intrinsic merit, may be characterized as the first text book upon the English law of property. The law of pro perty in Littleton s time was mainly concerned with rights over land, and it was the law relating to this class of rights which Littleton set himself to digest and classify. The time was ripe for the task. Ever since the Conquest regu lar courts of justice had been at work administering a law which had grown out of an admixture of Teutonic custom and of Norman feudalism. Under Henry II. the courts had been organized, and the practice of keeping regular records of the proceedings had been carefully observed. The centralizing influence of the royal courts and of the justices of assize, working steadily through three centuries, had made the rules governing the law of property uniform throughout the land ; local customs were confined within certain prescribed limits, and were only recognized as giving rise to certain well-defined classes of rights, such, for instance, as the security of tenure acquired by villeins by virtue of the custom of the manor, and the rights of freeholders, in some towns, to dispose of their land by will. Thus, by the time of Littleton (Henry VI. and Edward IV.), an immense mass of material had been acquired and preserved in the rolls of the various courts. Reports of important cases were published in the "yearbooks." A glance at Statham s Abridgment, the earliest digest of de cided cases, published nearly at the same time as Littleton s Tenures, is sufficient to show the enormous bulk which reported cases had already attained as materials for the knowledge of English law. Littleton s treatise was written in French, or rather in that peculiar dialect compounded of Norman-French and English phrases called law French. Although it had been provided by a statute of 36 Edward III. that viva voce proceedings in court should no longer be conducted in the French tongue, " which was much unknown in the realm," the practice of reporting proceedings in that language, and of using it in legal treatises, lingered till a much later period, and was at length prohibited by a statute passed in the time of the Commonwealth in 1650. Unlike the preceding writers on English law, Glanville, Bracton, and the authors of the treatises known by the names of Britton and Fleta, Littleton borrows nothing from the sources of Roman law or the commentators. He deals purely and exclusively with English law. The book is written on a definite system, and is the first attempt at something like a scientific classification of rights over land. Littleton s method is to begin with a definition, usually clearly and briefly expressed, of the class of rights with which he is dealing. He then proceeds to illustrate the ^ various characteristics and incidents of the class by stating particular instances, some of which refer to decisions which had actually occurred, but more commonly they are hypothetical cases put by way of illustration of his prin ciples. He occasionally but rarely refers to reported cases. His book is thus much more than a mere digest of judicial decisions ; to some extent he pursues the method which gave to Roman law its breadth and consistency of principle. In Roman law this result was attained through the practice of putting to jurisconsults hypothetical cases to be solved by them. Littleton, in like manner, is constantly stating and solving by reference to principles of law cases which may or may not have occurred in actual practice. In dealing with freehold estates Littleton adopts a classification which lias been followed by all writers who have attempted to systematize the English law of land, especially Sir M. Hale and Sir William Blackstone. It is indeed the only possible approach to a scientific arrangement of the intricate " estates in land " known to English law. He classifies estates in land by reference to their duration, or in other words by reference to the differences between the persons who are entitled to succeed upon the death of the person in possession or " tenant." First of all, he describes the character istics of tenancy in fee simple, an interest in lands which devolves on the death of the tenant to his heir, whether such heir be of the same line or collateral. This is still as it was in Littleton s time the largest interest in land known to the law. Next in order comes tenancy in fee tail, the outcome, as Littleton informs us, of the Statute of Westminster II., 13 Edw. I. c. 1, " De Douis Condition- alibus," which enacted in the interest of the great lords that a gift to a man and "the heirs of his body " should no longer bear the construction which the courts had put upon the words, holding the donee to be thereby invested with full power over the land so soon as he had issue born, but should descend according to the form of the gift to lineal descendants so long as lineal descendants should exist. The various classes of estates tail are sketched by Littleton with brevity and accuracy, but he is silent as to the important practice, which first received judicial recognition shortly before his death, of " suffering a recovery," whereby through a series of judi cial fictions a tenant in tail was enabled to convert his estate tail into a fee simple, thus acquiring full power of alienation. After discussing in their logical order other freehold interests in land, he passes to interests in land called by later writers interests less than freehold, namely, tenancies for terms of years and tenancies at will. With the exception of tenancy from year to year, now so familiar to us, but which was a judicial creation of a date later than the time of Littleton, the first book is a complete statement of the principles of the connnon law, as they for the most part still exist, governing and regulating interests in lands. The first book con cludes with a very interesting chapter on copyhold tenures, which marks the exact point at which the tenant by copy of court roll, the successor of the villein, who in his turn represented the freeman reduced to villenage by the growth of the manorial system, acquired security of tenure by the judicial recognition of the fact that the " will of the lord " was controlled by and could only be exercised in accordance with the " custom of the manor." The second book relates to the reciprocal rights and duties of lord and tenant, and is mainly of historical interest to the modern lawyer. It contains a complete statement of the law as it stood in Littleton s time relating to homage, fealty, and escuage, the money compensation to be paid to the lord in lieu of military service to be rendered to the king, a peculiar characteristic of English as distin guished from Continental feudalism. Littleton then proceeds to notice the important features of tenure by knight s service with its distinguishing incidents of the right of wardship of the lands and person of the infant heir or heiress, and the right of disposing of the ward in marriage. The non-military freehold tenures are next dealt with ; we have an account of "socage tenure," into which all military tenures were subsequently commuted by a now unrecognized Act of the Long Parliament in 1650, afterwards re-enacted by the well-known statute of 12 Charles II. c. 24, and of " frankalmoign," or the spiritual tenure by which churchmen held, their duty being " to make orisons, prayers, masses, and other divine services for the souls of their grantor or feofl or, and being bound to no fealty to the lord because that this divine service is better for them before God than any doing of fealty." In the description of burgage tenure and tenure in villenage, the life of which consists in the validity of ancient cus toms recognized by law, we recognize survivals of a time before the iron rule of feudalism had moulded the law of land in the interests of the king and the great lords. Finally he deals with the law of rents, discussing the various kinds of rents which may be reserved to the grantor upon a grant of lands and the remedies for recovery of rent, especially the remedy by distress. 1 The third and concluding book of Littleton s treatise deals mainly with the various ways in which rights over land can be acquired and terminated in the case of a single possessor or several possessors. This leads him to discuss the various modes in which several persons may simultaneously have rights over the same land, as parceners : daughters who are co-heiresses, or sons in gavelkind ; 1 These two books are stated, in a note to the table at the conclusion of the work, to have been made for the better understanding of certain chapters of the Antient Book of Tenures. This refers to a tract called The Old Tenures, said to have been written in the reign of Edward III. By way of distinguishing it from this work, Littleton s book is called in all the early editions " Tenores Novelli."