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Quest for Tenure in the United States, 33 Yale Law Journal 248 (1923)

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,

Date of Authorship for this Version

1923

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