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Quest for Tenure in the United States
Vance, William
Vance, William
Abstract
It seems a shameful thing to confess that the quest for "tenure" of land in the American States, so busily carried on in modem times, reminds one of the childish game, "Button, button, who has the button ?" It certainly appears disrespectful to such an ancient and honorable institution as English land tenure, to associate it with so silly a game. Yet is there not a resemblance? Lands in Colonial America were undoubtedly granted by the English Crown to be held in free and common socage, "as of our Manor at East-Greenwich, in the County of Kent,"' or, as in the patent given by Charles II to William Penn, "to bee holden of Us Our heires and Successors, Kings of England, as of Our Castle of Windsor in Our County of Berks, in free and comon Socage, by fealty only for all Services, and not in Capite or by Knights Service: Yielding and paying therefore to Us, Our heires and Successors, Two Beaver Skins .... ." Unquestionably there was land tenure in Colonial lands, even though of the mild and somewhat defeudalized type possible after the statute of 12 Car. II, c. 24. Then what has become of it? Look about as you may, you will see none of the familiar signs of English land tenure; no doing of homage, no swearing of fealty, no reliefs, no rent service or distress in case of grants in fee (except in Pennsylvania), no escheat to the original grantor, even though such grantor be the Federal government, but only to the State in which the land lies. There appears to be no tenure at all. Then who has the button? What can have become of that Colonial tenure, which was so very real and active as to keep the colonists in unceasing conflict and turmoil with the royal governors, or unhappy proprietaries, who attempted to take advantage of it and enforce the rendering of services reserved, here nearly always taking the form of quit rents, and which did so much to bring on the Revolution? The answer has puzzled our scholars and judges. Professor Gray thought it not probable that so "fundamental an alteration in the theory of property as the abolition of tenure would be worked by a change of political sovereignty,