General Words
| Author | Christopher Jessel |
| Pages | 159-175 |
PART III RIGHTS
Chapter 9 General Words 161 Chapter 10 Common and Pasture 177 Chapter 11 Minerals and Timber 203 Chapter 12 Hunting, Shooting and Fishing 225 Chapter 13 Courts 245 Chapter 14 Rents and Revenues 255 Chapter 15 Tolls 269 Chapter 16 Franchises and Liberties 279 Chapter 17 Mills and Maidens 297 Chapter 18 Fealty and Protection 307
Chapter 9
General Words
9.1 RIGHTS AND THE MANOR
The manor was not only, indeed not principally, land, but also a bundle of rights. There were rights of the lord against the tenants (such as rents and minerals) and of the tenants against the lord (such as commons and being admitted to a copyhold). There were rights of the lord against the Crown (particularly franchises) and of the government against the lord (such as highways). All these rights needed to be clarified and defined. Some were rights in the strict sense of the word, corresponding to a duty on someone else, for example to receive and pay a rent. Some were what are called privileges, such as holding a court, or immunities, such as allowing cattle to stray, or powers, such as approving regulations.
The question of what rights go with a manor usually arises when the manor is sold. When one person ceases to hold it and another takes it, what does the former retain? For example in Doe d Clayton v Williams
The style of drafting is old. A charter of Charles King of the Franks (who later became the Emperor Charlemagne) in 775 granted two villas, one at Luzarches near Paris, the other at Messy near Meaux:
1 Hohfeld, WN, Fundamental Legal Conceptions as appplied in judicial reasoning (Yale
University Press, 1919).
2 (1843) 11 M&W 803, 12 LJ EX 429, 152 ER 1029.
162 The Law of the Manor
with their lands, houses and other buildings, their tenants, slaves, vineyards, woods, meadows, pastures, waters and watercourses, flour mills and other movable and immovable belongings.
By the eleventh century a standard alliterative Anglo-Saxon formula developed in England when land was granted with ‘sac and soc, toll and team, infanthief, bloodwite and weardwite, hamsoc, forestal, grythbrice and mundbrice and all the rights which belong’
A typical seventeenth-century conveyance of a manor might use words such as the following:
all and singular the said manor, messuages, lands, tenements, meadows, pasture, common pasture, demesne lands, waste land, furze and heath, moors, marshes, woods, woodlands and trees, rents, reversions and services, courts leet, views of frankpledge, perquisites and profits of courts and leets, and all which to courts leet and views of frankpledge doth belong, goods and chattels of felons and all other rights, jurisdictions, franchises, liberties, privileges, profits, commodities, advantages, emoluments, and hereditaments whatsoever ... chattels, abandoned goods, impounded strays, chattels of felons, fugitives and suicides, deodands, ... male and female free and unfree and villeins with their families, estovers and common estovers, fairs, markets, tolls, customary tolls and all other rights ...
As a result conveyances became lengthy and full of words that were largely irrelevant to the particular manor. In s 6(3) of the Conveyancing and Law of Property Act 1881 Parliament enacted that certain general words would automatically be included in a conveyance of a manor (and s 1(4) defined a manor as including a reputed manor) so that it was no longer necessary to repeat them in full. That provision was re-enacted in s 62(3) of the Law of Property Act 1925 (with the same definition in s 205(1)(ix)) as follows:
A conveyance of a manor shall be deemed to include and shall by virtue of this Act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof, fishings, fisheries, fowlings, courts leet, courts, baron, and other courts, view of frankpledge and all that to view of frankpledge doth belong, mills, mulctures, customs, tolls, duties, reliefs, heriots, fines, sums of money, amerciaments,
3 McKitterick, R, The Frankish Kingdoms under the Carolingians (Longman, 1983) 82.
4 Edward the Confessor’s grant of Islip to Westminster Abbey.
5 Maitland, FW, Domesday Book and Beyond (Cambridge University Press, 1987; first published
1897) 266.
6 Taken from a confirmatory grant by James I to Sir Warwick Hele dated 6 June 1615 of the Manor of Kenton in Devon. I am grateful to the Earl of Devon (formerly Lord Courtenay) the lord of the manor for his kind permission to quote from the letters patent.
waifs estrays, chief-rents, quitrents, rentscharge, rents seck, rents of assize, fee farm rents, services, royalties, jurisdictions, franchises, liberties, privileges, easements, profits, advantages, rights, emoluments and hereditaments whatsoever, to the manor appertaining or reputed to appertain, or at the time of conveyance, demised, occupied, or enjoyed with the same, or reputed or known as part, parcel, or member thereof
At first sight this looks like an unruly jumble of properties and rights in no particular order. Closer examination shows it to be carefully drafted.
9.2 CORPOREAL AND INCORPOREAL
The first distinction to note is between the words up to ‘and the ground and soil thereof’ and those after. The first group refers to rights over land that can be seen and touched – wastes, warrens, commons, quarries, trees and coppices – and then refers to the ground and soil of the land affected by such rights. The rest of the subsection is primarily concerned with rights of various sorts (although it does include mills, which are tangible, for a reason that will appear). The distinction is one that used to be important between corporeal and incorporeal hereditaments.
A hereditament is property that, on the death of its owner, passed to his heir, as distinct from a chattel, which passed to his family. Originally chattels could be left by will but hereditaments could not. Before the sixteenth century a way round this was found by conveying land to feoffees to the use of the owner’s will, but this was a complex procedure employed by those wealthy enough to have access to legal advice. By the Statute of Wills 1540 most freehold land could be left by will. If the landowner did not leave a will his hereditaments still went to his heir (either directly or, after the Land Transfer Act 1897, through his administrators) but since s 45 of the Administration of Estates Act 1925 came into force there has been no difference in the way that hereditaments and chattels pass on death.
Both hereditaments and chattels can be corporeal (or tangible) or incorporeal (or intangible). Tangible chattels include cattle, tractors, furniture and jewellery. Intangible chattels include debts and copyrights.
7 Bracton, Sir Henry, De legibus et consuetudinibus angliae (SE Thorne (ed)) (Belknap Press of
Harvard University Press, 1977) (c 1257) f 7b.
8 (1584) 6 Co Rep 36b, 76 ER 973.
164 The Law of the Manor
was a corporate thing. Sir William Blackstone,
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