Tenures

• Pages: 57-82

TENURES

In early English land law, land could not be owned; it was the subject of

tenure, i.e., land could only be held of some lord, and ultimately of the

King, on condition of service rendered to the lord or the King. This is the

effect of feudalism instituted by William the Conqueror after the Norman

conquest in 1066. This system distinguishes the law of property in land

under the English common law from the law of property in land under the

civil law system, which allows full ownership of land; and it is also

markedly different from the law of property in chattels, which can be

owned absolutely.

Feudalism was practised in other parts of Europe. The Continental

feudalism, however, involved military services rendered by a tenant to

his immediate overlord. It did not therefore conduce to a strong central

government. William the Conqueror had the ambition to establish a

strong central government in England. He instituted a feudal system

under which all land in England was held mediately or immediately from

the Crown.

The common law which was received in1or imposed2on the English

Commonwealth Caribbean would arguably encompass some, if not all, of

the elements of this land law system which was developed in England. A

similar hypothesis provided the basis for the view that tenure was received

as part of the land law in the original thirteen states of the United States

of America.3The American Revolution ended any tenurial relationship

between the English King and American landowners.4The view was

maintained that tenure continued to be in force in some of the states in the

US, and that the state had stepped into the position of the English King as

the “lord”. In other states the doctrine of tenure was abolished by statutes

or constitutional enactments.5

The issue as to the existence of the English land law doctrine of tenure

and its effect on beneficial ownership of land in Australia was the subject

1Patchett, “Reception of Law in the West Indies” (1973) Jamaican Law Journal, 17–35, 55–67;

Morrison, “The Reception of English Law in Jamaica” (1979) West Indian Law Journal 43.

2Rose-Marie Antoine, Commonwealth Caribbean Law and Legal Systems, London, Cavendish

Publishing Ltd., 1999, pp. 57–58.

3American Law of Property (ed. A. James Casnor), Boston, Mass., Little, Brown, 1952–54,

pp. 57–59.

4Ibid., p.58.

5Ibid.

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of intense controversy in the Australian case of Mabo v. Queensland6. The

Australian High Court in this case decided that the beneficial ownership

of land vested in the Merian people but not in the Crown. The answer to

this question as to whether by virtue of the doctrine of tenure beneficial

ownership of land in the Caribbean is vested in the English Crown or the

governments of the various states and not the people in the region is not

free from doubt. To explore this issue it would be worthwhile to consider

the various aspects of the doctrine and thereafter examine its status in the

Caribbean.

THE FEUDAL BASIS OF TENURE

Feudalism has been described as

a state of society in which the main social bond is the relation between lord

and man, a relation implying on the lord’s part protection and defense; on

the man’s part protection, service and reverence – This personal relation,

the tenure of land – the man holds land of the lord, the man’s service is a

burden on the land.7

Feudalism was a social phenomenon of which land tenure was an impor-

tant incident. In England it afforded the Crown the means of raising troops.

It also provided a rudimentary type of fiscal organisation. By this system

the chief lieutenants of the King were rewarded and at the same time the

King was assured continued military service by his followers.

William the Conqueror under this system vested all lands in England

in himself, and, in his capacity as the King and owner of all lands, he

granted or re-granted them to tenants who had to render continuing

services to him in accordance with the terms attached to their grants. Those

to whom the King made grants of land were described as tenants-in-capite,

i.e., tenants-in-chief.

The tenants-in-chief could also, in turn, in a process termed subinfeuda-

tion, parcel out the lands so granted to them to other tenants on corre-

sponding terms of services. The tenants who received their grants of land

from tenants-in-chief were described as mesne tenants, who, in turn,

made grants to other tenants on terms of services to be rendered to them.

These latter tenants were demesne tenants, who were at the bottom of the

pyramid of which the King was at the top.

6(1992) 175 C.L.R. 1. This case is referred to with immense gratitude to Professor Gordon

Woodman, who drew my attention to it and many other such invaluable sources used in

this book during a stint of six months’ leave in the Faculty of Law, Cave Hill Campus.

7Maitland, Constitutional History of England, Cambridge, Cambridge University Press,

1908, vol. 1, p. 330.

Commonwealth Caribbean Land Law

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