Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Sixth : Of the Modern English Tenures
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CHAPTER THE SIXTH.
OF THE MODERN ENGLISH TENURES.
ALT7HOUGH, by the means that were mentioned in the preceding chapter, the oppreffive or military part of the feodeal conftitution was happily done away, yet we are not to imagine that the conftitution itfelf was utterly laid afide, and a new one introduced in it,s room; fince by the ftatute 123 Car.II. the tenures of focage and frankalmoign, the honorary fervices of grand ferjeanty, and the tenure by copy of court roll were referved; nay all tenures in general, except frankalmoign, grand ferjeanty, and copyhold, were reduced to one general fpecies of tenure, then well known and fubfifting, called free and common focage. And this, being fprung from the fame feodal original as the reft, demonftrates the neceffity of fully contemplating that antient fyftem; fince it is that alone, to which we can recur to explain any feeming, or real, difficulties, that may arife in our prefent mode of tenure.
THE military tenure, or that by knight-fervice, confifted of what were reputed the moft free and honourable fervices; but which in their nature were unavoidably uncertain in refpect ot the time of their performance. The fecund fpecies of tenure, or free- focage, confifted alfo of free alnd honourable fervices; but fuch as were liquidated and reduced to an abfolute certainty. And this tenure not only fubfifts to this day, but has in manner abforbed and fwallowed up ( fince the ftatute of Charles the fecund)
almoft
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almoft every other fpecies of tenure. And to this we are next to proceed.
II. SICAGE, in it's moft general and extenfive fignification, feems to denote a tenure by any certain and determinte fervice. And in this fenfe it is by our antient writers conftantly put in oppofition to chivalry, or knight-fervice, where the render was precarious and uncertain. Thus Bracton
a; if a man holds by a rent in money, withourt anry efcuage or ferjeanty, “ id tenementum dici “ poteft focagium :” but if you add thereto any royal fervice, or efcuage to any, the fmalletf, amount, “ illud dici poterit feudum “militare.” So too the author of Fleta
b; “ ex donationibus fer-“vitia militaria vel magnae ferjantiae non continentibus, oritur no- “ his quoddam nomen geerale, quod eft focagium.” Littleton alfo
c defines it to be, where the tenant holds his tenement of the lord by any certain fervice, in lieu of all other fervies; fo that they be not fervices of chivalry, or knight-fervice. And therefore afterwards
d he tells us, that whatfoever is not tenure in chivalry is tenure in focage: in like manner as it is defined by Finch
e, a tenure to be done out of war. The fervie muft therefore be certain, in order to denominate it focage; as to hold by fealty and 20 s. rent; or, by homage, fealty, and 20 s. rent; or, by homage and fealty without rent ; or, by fealty and certain corporal fervice,as ploughing the lord's land for three days; or, by fealty only without any other fervice: for all thefe are tenures in focage
f.
BUT focage, as was hinted in the laft chpter, is of two forts: free-focage, where the fervices are not only certain, but honourable; and villein- focage, where the fervices, though certain, are of a bafer nature. Such as hold by the former tenure are called in Glanvil
g, and other fubfequent authors, by the name of liberi fokemanni, or tenants in free-focage. Of this tenure we are firft
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a 1.2.c.16. §.9.
b1.3.c.14. §.9.
c §.117.
d §.118.
e L.147.
f Litt. §.117,119.
g 1.3.c.7.
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to
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to fpeak; and this, both in the nature of it's fervice, and the fruits and confequences appertaining thereto, was always by much the moft free and independent fpecies of any. And therefore I cannot but affent to Mr Somner's etymology of he word
h ; who derives it from the Saxon appellation, foe, which fignifies liberty or privilege, and, being joined to a ufual termination, is called focage, in Latin focagium; fignifying thereby a free or privileged tenure
i. This etymology feems to be much more juft than that of our common lawyers in general, who derive it from foca, an old Latin word denoting ( as they tell us) a plough: for that in antient time this focage tenure confifted in nothing elfe but fervices of hufbandry, which the tenant was bound to do to his lord, as to plough, fow, or reap for him ; but that, in procefs of time, this fervice was changed into an annual rent by confent of all parties, and that, in memory of it's original, it ftill retains the name of focage or plough-fervice
k. But this by no means agrees with what Littleton himfelf tells us
l, that to hold by fealty only, without paying any rent, in tenure in focage; for here is plainly no commutaion for plough-fervice. Befides, even fervices, confeffedly of a military nature and original, ( as efcuage itfelf, which while it remained uncertain ws equifalent ot knight-fervice) the inftant they were reduced to a certainty changed both their name and nature, and were called focage
m. It was the certainty therefore that denominated it a focage tenure; and nothing fure could be a greater liberty or privilege, than to have the fervice afcertained, and not left to the arbitrary calls of the lord, as in the tenures of chivalry. Wherefore alfo Britton, who deferibes focage tenure under the name of fraunke ferme
n, tells us, that they are “ lands and tenements, whereof the nature of he fee is changed “ by feoffment out of chivalry for certain yearly fervices, and in “ refpect whereof neither homage, ward, marriage, nor relief can “ be demanded.” Which leads us alfo to another obfervation,
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h Gavelk.138.
j In like manner Skene in his expofition of the Scots'law, title focage, tells us that it is “ ane kind of holding of lands, quhen “ ony man is infeft freely,”& c.
k Litt. §. 119.
I §.118.
m Litt. §.98.120.
nc .65.
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that
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that , if focage tenures were of fuch bafe and fervile original, it is hard to account for the very great immunities which the tenants of them always enjoued; of highly fuperior to thofe of the tenants by chivalry, that it was thought, in the reigns of both Edward I and Charles II, a point of the utmoft importance and value to the tenants, to reduce the tenure by knight-fervice to fraunk ferme or tenure by focage. We may therefore, I think, fairly conclude in favour of Somner's etymology, and the liberal extraction of the tenure in free focage, againft the authority even of Littleton himfelf.
TAKING this then to be the meaning of the word, it feems probable that the focage tenures were the relicks of Saxon liberty, retained by fuch perfons, as had neither forfeited them to the king, nor been obliged to exchange their tenure for the more honourable, as it was called, but at the fame time more burthen-fome, tenure of knight-fervice. This is peculiarly remarkable in the tenure which prevails in kent, called gavelkind, which is generally acknowleged to be a fpecies of focage tenure
o; the prefervation whereof inviolate from the innovatfons of the Norman conqueror is a fact univerfally known. And thofe who thus preferved their liberties were faid to hold in free and common focage.
A 3 therefore the grand criterion and diftinguifhing mark of this fpecies of tenure are the having it's renders or fervices afcertained, it will include under it all other methods of holding free lands, by certain and invariable rents and duties : and, in particular, petit ferjeanty, tenure in burgage, and gavelkind.
WE may remember, that by the ftatute 12 Car.II. grand ferjeanty is not itfelf totally abolighed, but only the flavifh appendages belonging to it; for the honorary fervices ( fuch as carrying the king's fword or banner, officiating as his butler, carver, & c, at the coronation) are ftill referved. Now petit ferjeanty bears a great refemblance to grand ferjeanty; for as the one is perfonal
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o Wright. 211.
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fervice,
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fervice, fo the other is a rent or render, both tending to fome purpofe relative to the king's ferfon. Petit ferjeanty, as defined by Littleton
p , confifts in holding lands of the king by the fervice of rendering to him annually fome fmall implement of war, as a bow, a fword, a lance, an arrow, or the like. This, he fays
q, is but focage in effect; for it is no perfonal fervice, but a certain rent: and, we mary add, it is clearly no predial fervice, or fervice of the plough, but in all refpects liberum et commune focagium; only, being held of the king, it is by way of eminence dignified with the title of parvum fervitium Regis, or petit ferjeanty. And magna carta refpects it in this light, when it enacts
r, that no wardfhip of the lands or body fhall be calimed by the king in virtue of a tenure by petit ferjeanty.
TENURE in burgage is defcribed by Glanvil
s, and is expreffly faid by Littleton
t, to be but tenure in focage; and it is where the king or other perfon is lord of an antient borough, in which the tenements are held by a rent certain
u. It is indeed only a king o town focage; as common focage, by which other lands are holden, is ufually of a rural nature. A borough, as we have formerly feen, is diftinguifhed from other towns by the right of fending members to parliament; and, where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. Tenure in burgage therefore, or burgage tenure, is where houfes, or lands which were formerly the fcite of houfes, in an antient borough, are held of fome lord in common focage, by a certain eftablifhed rent. And thefe feem to have withftood the fhock of the Norman encroachments principally on account of their infignificancy, which made it not worth while to compel them to an alteration of tenure; as an hundred of them put together would fcarce have amounted to a knight's fee. Befides, the owners of them, being chiefly artificers and perfons engaged in trade, could not with any tolerable propriety be put on fuch a
. {FS}
p § .159.
q §.160.
rcap.27.
s Iib.7.cap.3.
t §.152.
u Litt. §.162,163.
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military
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military eftablifhment, as the tenure in chivalry was. And here alfo we have again an inftance, where a tenure is confeffedly in focage, and yet is impoffible ever to have been held by plough-fervice; fince the tenants muft have been citizens or burghers, the fituration frequently a walled town, the tenement a fingle houfe; fo that none of he owners was probably mafter of a plough, or was able to ufe one, if he had it. The free focage therefore, in which thefe tenements are held, feems to be plainly a remnant of Saxon liberty ; which may alfo account for the great variety of cuftoms, affecting thefe tenements fo held in antient burgage : the principal and moft remarkable of which is that called Borough- Englifh, fo named in contrazdiftinctionas it were to the Norman cuftoms, and which is taken notice of by Glanvil
w, and by Littleton
x; viz. that the youngeft fon, and not the eldeft, fucceeds to the brugage tenement on the death of his father. For which Littleton
y gives this reafon; becaufe the youngeft fon, by reafon of his tender age, is not fo capable as the reft of his brethren to help himfelf. Other authors
z have indeed given a much ftranger reafon for this cuftom, as if the lord of the fee had antiently a right to break the feventh commandment with his tenant's wife on her wedding- night; and that therefore the tenement defcended not to the eldeft, but the youngeft, fon, who was more certainly the offspring of the tenant. But I cannot learn that ever this cuftom prevailed in England, though it certainly did in Scotland, )under the name of mercheta or marcheta) till abolifhed by Malcolm III
a. And perhaps a more rational account than either may be fetched (though at a fufficient diftance) from the practice of the Tartars ; among whom, according to father Duhalde, this cuftom of defcent ot the youngeft fon alfo prevails. That nation is compofed totally of fhepherds and herdfmen ; and the elder fons, as foon as they are capable of leading a patforal life, migrate from their father with a certain allotment of cattle ; and go to feek a new habitation. The youngeft fon
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w ubi fupra.
x §.165.
y §.211.
z 3 Mod.Pref.
a Seld.tit.of hon.2.1.47. Reg.Mag. 1.4.c.31.
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L 2
therefore,
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therefore, who continues lateft with the father, is naturally the heir of his houfe, the reft being already provided for. And thus we find that, among mary oter northern nations, it was the cuftom for all the fons but one to migrate from the father, which one became his heir
b. So that poffibly this cuftom, wherever it prevails, may be the remnant of that paftoral ftate of our Britifh and German anceftors, which Caefar and Tacitus defcribe. Other fpecial cuftoms there are in burgage tenures; as that the wife fhall be endowed of all her hufband's tenements
c, and not of the third part only, as at the common law : and that a man might difpofe of his tenements by will
d, which, in genera, was not permitted after the conqueft till the reign of Henry the eighth; though in the Saxon times it was allowable
e. A pregnant proof that thefe liberties of focage tenure were fragments of Saxon liberty.
THE nature of the tenure in gavelkind affords us a ftill ftronger argument. It is univerfally known what ftruggles the kentifhmen made to preferve their antient liberties; and with how much fuccefs thofe ftruggles were attended. And as it is principally here that we meet with the cuftom fo gavelkind, ( though it was and is to be found in fome other parts of the kingdom
f) we may fairly conclude that this was a part of thofe liberties; agreeably to Mr Selden's opinion, that gavelkind before the Norman conqueft was the general cuftom of the realm
g. The diftinguifhing properties of this tenure are various : fome of the principal are thefe ; 1. The tenant is of age fufficient to aliene his eftate by feoffment at the age of fifteen
h. 2. The eftate does not efcheat in café of an attainder and execution for felony; their maxim being, “ the “ father to the bouth, the fon to the plough
i.” 3. In moft places
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b Pater cunctos filius adultos a fe pelhbat, peacter unum quem beredem fui juris relinquebat,(Walfing'o. Upodgn. Neuftr.c.1.)
c Litt. §.166.
d §. 167.
e Wright.172.
f Stat.32. Hen.VIII.c.29. Kitch. of
g In toto regno, ante ducis adventum, frtquens et ufitata fuit: poftea caeteris adempta, fed privates quorundam locorum confuetudinibus alibi poftea regerminans : Cantianis folum integra et inviolate remanfit. ( Analect.1.2.c.7.)
h Lamb. Peramb.614.
ILamb .634.
.
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Gourts,200.
he
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he had a power of devifing land by will, before the ftatute for that purpofe was made
k. 4. The lands defcend, not to the eldeft, youngeft, or any one foa only, byt to all the fons together
l ; which was indeed antiently the moft ufual courfe of defcent all over Engaland
m, though in particular places particular cuftoms prevailed. Thefe, among other properties, diftinguifhed this tenure in a moft remarkable manner: and yet it is held to be only a fpecies of a focage tenure, modified by the cuftom of the country; being holden by fuit of court and fealty, which is a fervice in it's nature certain
n. Wherffore, by a charter of king John
o, Hubert arch-bifhop of Canterbury was authorized to exchange the gavelkind tenures holed of the fee of Canterbury into tenures by knight-fervice ; and by ftatute 31 Hen.VIII.c.3. for difgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be defcendible for the future like other lands, which were never holden by fervice of focage. Now the immunities which the tenants in gavelking ejoyed were fuch, as we cannot conceive fhould be conferred upon mere ploughmen, or peafants: from all which I think it fufficiently clear, that tenures in free focage are in general of a nobler original than is affigned by Littleton, and after him by the bulk of our common lawyers.
HAVING thus diftributed and diftinguifhed the feveral fpecies of tenure in free focage, I proceed next to fhew that this alfo partakes very ftrongly of the feodal nature. Which mary probably arife from it's antient Saxon original; fince (as was before obferved
p) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into fuch arbitrary confequences as among the Normans. It feems therefore reafonable to imagine, that focage tenure exifted in much the fame ftate before the conoueft as after ; that in Kent it was preferved with a high hand, as our hiftories inform us it was,
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k F.N.B.198.Cro.Car 361.
l Litt. §.210.
m Glanv.1.7.6.3.
nwright. 211.
o Spelm.cea vet. Leg. 355.
p pag.48.
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and
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and that the reft of the focage tenures differed through England efcaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own infignificancy ; fince I do not apprehend the number of focage tenures foon after the conqueft to have been very confiderable, nor their value by any means large; till by fucceffive charters of enfranchifement granted to the tenants, which are particularly mentioned by Britton
q, their number and value began to fwell fo far, as to make a fiftinct, and juftly envied, part of our Englifh fyftem of tenures.
HOWEVER this mary be, the tokens of their feodal original will evidently appear from a fhort comparifon of the incidents and confequences of focage tenure with thofe of tenure in chivalry; remarking their agreement or difference as we go along.
1. IN the firft place, then both were held of fuperior lords; of the king as lord paramount, and fometimes of a fubject or mefne lord between the king and the tenant.
2. BOTH were fubject to the feodal return, render, rent,or fervice, of fome fort or other, which arofe from a fuppofition of an original grant from the lord to the tenant. In the military tenure, or more proper feud, this was from it's nature uncertain; in focage, which was a feud of the improper kind, it was certain, fixed, and determinate, (though perhaps nothing more than bare fealty) and fo continues to this day.
3. BOTH were, from their conftitution, univerfally fubject (over and above all other render) to the oath of fealty, or mutual bond of obligation between the lord and tenant
r. Which oath of fealty ufually draws after it fuit to the lord's court. And this oath every lord, of whom tenements are holden at this day, may and ought to call upon his tenants to take in his court baron; if it be only for the reafon given by Littleton
s, that if it be ne-
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q c.66.
r Litt. §. 117.131.
s § 130.
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glected,
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glected, it will by long continuance of time grow out of memory (as doubtlefs it frequently has) whether the land be lolden of the lord or not ; and fo he mary lofe his feignory, and the profit which mary accrue to him by efcheats and other contingences
t.
4. THE tenure in focage was fubjects, of common right, to aids for knighting the fon and marrying the eldeft daughter
u : which were fixed by the ftatute Weftm .1.c.36.at 20 s. for every 20
l. per annum fo held ; as in knight-fervice. Thefe aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right; but were all ablolifhed by the ftatute 12. Car.II.
5. RELIEF is due upon focage tenure, as well as upon tenure in chivalry : but the manner of taking it is very different. The relief on a knight's fee was 5
l. or one quarterof the fuppofed value of the land ; but a focage relief is one year's rent or render, payable by the tenant to the lord, be the fame either great or fmall
w: and therefore Bracton
x will not allow this to be properly a relfef, but quaedam praeftatio loco relevii in recognitionem domini. So too the ftatute 28 Edw.I.c.1. declares, that a free fokeman fhall give no relief, but fhall double his rent after the death of his anceftor, according to that which he hath ufed to pay his lord, and fhall not be grieved ablove meafure. Reliefs in knight-fervice were only payable, if the heir at the death of his anceftor was of full age : but in focage they were due, even though the heir was under age, becaufe the lord has no wardfhip over him
y. The ftatute of Charles II referves the reliefs incident to focage tenures; and therefore, wherever lands in fee fimple are holden by a rent, relief is ftill due of common right upon the death of the tenant
z.
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t Eo maxim, praeftandum eft, ne dubium reddatur jus domini et vetuftate temporis obfcuretur, ( Corvin. Jus feud. l. 2. t. 7.)
u Co.Litt.91.
w Litt. § .126.
x l. 2. c. 37. § 8.
y Litt. §.127.
z 3 Lev.145.
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6. PRIMER
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6. PRIMER feifin was incident to the king's focage tenants in capite, as well as to thofe by knight-fervice
a . But tenancy in capite as well as primer feifins, are alfo, among the other feodal burthens, intirely abolifhed by the ftatute.
7. WARDSHIP is alfo incident to tenure in focage; but of a nature very different from that incident to knight-fervice. For if the inheritance defcend to an infant under fourteen, the wardfhip of him fhall not belong to the lord of the fee; becaufe, in this tenure no military or other perfonal fervice being required, in this tenure no military or other perfonal fervice being required, there is no occafion for the lord to take the profits, in order to provide a proper fubftitute for his infant tenant: but his neareft relation (to whom the inheritance cannot defcend) fhall be his guardian in focage, and have the cuftody of his land and body till he arrives at the age of fourteen. The guardian muft be fuch a one, to whom the inheritance by no poffibility can defcend; as was fully explained, together with the reafons for it, in the former book of thefe commentaries
b. At fourteen this wardfhip in focage ceafes, and the heir may ouft the guardian, and call him to account for the rents and profits
c : for at this age the law fuppofes him capable of chufing a guardian for himfelf. It was in this particular, of wardfhip, as alfo in that of marriage, and in the certainty of the render or fervice, that the focage tenures had of much the advantage of the military ones. But as the wardfhip ceafed at fourteen, there was this difadvantage attending it; that young heirs, being left at fo tender an age to chufe their own guardians till twenty one, they might make an improvident choice. Therefore, when almoft all the lands of the kingdom were turned into focage tenures, the fame ftatute 12 Car.II.c.24. enacted, that it fhould be in the power of any father by will to appoint a guardian, till his child fhould attain the age of twenty one. And, if no fuch appointment be made, the court of chancery will frequently interpofe, to preventan infant heir form improvidently expofing himfelf to ruin.
.{FS}
a Co.Litt.77.
b page 449.
c Litt. §. 123. Co. Litt. 89.
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8. MAR-
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8. MARRIAG,or the valor maritagii, was not in focage tenure any perquifite or advantage to the guardian, but rather the reverfe. For, if the guardian married his ward under the age of fourteen, he was bound to account to the ward for the value of the marriage, even though he took nothing for it, unlefs he married him to advantage
d. For the law, in favour of infants, is always jealous of guardians, and therefore in this café it made them account, not only for what they did, but alfo for what they might, receive on the infants;s behalf; left by fome collufion the guardian fhould have received the value, and not brought it to account: but, the ftastute having deftroyed all values of marriages, this doctrine of courfe is ceafed with them. At fourteen years of out any confent of his guardian, till the late act for preventing clandeftine marriages. Thefe doctrines of wardfhip and marriage in focage tenure were fo diametrically oppofite to thofe in knight-fervice, and fo entirely agree with thofe parts king Edward's laws, that were reftored by Henry the firft's charter, as might alone convince us that focage was of a higher original than the Norman conqueft.
9. FINES for alienations were, I apprehend, due for lands holden of the king in capite by focage tenure, as well as in café of tenure by knight-fervice: for the ftatutes that relate to this point, and fir Edward Coke's comment on them
c, fpeack generally of all tenants in capite, without making any diftincation; though now all fines for alienation are demolifhed by the ftatute of charles the fecond,
10. ESCHEATS are equally incident to tenure in focage, as they were to tenure by knight-fervice; except only in gavelkind lands, which are ( as is before-mentioned ) fubject to no efcheats for felony, though they are to efcheats for want fo heirs
f.
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d Litt. §123.
e 1 Inft. 43. 2 Inft. 65, 66, 67.
f Wright. 210
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VOL.II.
M
THUS
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THUS much for the two grand fpecies fo tenure, under which almoft all the free lands of lands of the kingdom were holden till the reftoration in 1660, when the former was abolifhed and funk into the latter: fo that lands of both forts are now holden by the one univerfal tenure of free and common focage.
THE other grand divifion of tenure, mentioned by Bracton as cited in the preceding chapter, is that of villenage, as contradif- tinguifhed from liberum tenementum, or frank tenure. And this (we may remember) he fubdivides into two claffes, pure, and privileged, villenage : from whence have arifen two other fpecies of our modern tenures.
III. FROM the tenure of pure villenage have fprung our prefent copyhold tenures, or tenure by copy of court roll at the will of the lordl in orderto obtain a clear idea of which, it will be previoufly neceffary to take a fhourt view of the original and nature of manors.
MANORS are in fubftance as antient as the Saxon conftitution, though perhaps differing a little, in fome immaterial circumftances, from thofe that exift at this day
g : juft as we obferved of feuds, that they were partly known to our anceftors, even before the Norman conqueft. A manor, manerium, a manendo, becaufe the ufual refidence of t he owner, feems to have been a diftrict of ground, held by lords or great perfongesl who kept in their own hands fo much land as was neceffary for the ufe of their families, which were called terrae dominicales, or demefne lands; being occupied by the lord, or dominus manerii, and his fervants. The other tenemental lands they diftributed among their tenants; which from the different modes of tenure were called and fiftinguifhed by two different names. Firft, book- land, or charter-land, which was leld by deed under certain rents and free fervices, and in effect differed nothing from free focage lands
h : and from
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g Co.Cop. §. 2. & 10
h Co.Cop. §. 3.
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hence
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hence have arifen all the freehold which hold of particular manors, and owe fuit and fervice to the fame. The other fpecies was called folk- land, which was held by no affurance in writing, but diftributed among the common folk or people at the pleafure of the lord, and fefumed at his difcretion; being indeed land held in villenage, which we fhall prefently defcribe more at large. The refidue of the manor, being uncultivated, was termed the lord's wafte, and ferved for public roads, and for common of pafture to the lord and his tenants. Manors were formerly called baronies, as they ftill are lordfhips : and each lord or baron was empowered to hold a domeftic court, called the court-baron, and for fettling difputes of property among the tenants. This court is an infeparable ingredient of every manor ; and if the number of fuitors fhould fo fail, as not to leave fufficient to make a jury or homage, that is, two tenants at the leaft, the manor itfelf is loft.
BEFORE the ftatute of quia emptores, 18 Edw.I. the king's greater barons, who had a large extent of territory held under the crown, granted out frequently fmaller manors to inferior perfons to be held of themfelves; which do therefore now continue to be held under a puperior lord, who is called in fuch cafes the lord paramount over all thefe manors: and his feignory is frequently termed an honour, not a manor, efpecially if it hath be longed to an antient feodal baron, or hath been at any time in the hands of the crown. In imitation whereof, thefe inferior lords began to carve out and grant to other ftill more minute ftates, to be held as of themfelves, and were fo proceeding downwards in infinitum; tillthe fuperior lords obferved, that by this method of fubinfeudation they loft all their feodal profits, of wardfhips, marriages, and efcheats, which fell into the hands of thefe mefne or middle lords, who were the immediate fuperiors of the terre-tenant, or him who occupied the land. This occafioned the ftatute of Weftm.3.3 or quia emptores, 18 Edw. I. to be made; which directs, that upon all fales or feoffments of land, the feoffee
M 2
fhall
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fhall hold the fame, not of his immediate feoffor, but of the chief lord of he fee, of whom fuch feoffor himfelf held it. And from hence it is held, that all manor exifting at this day, muft have exifted by immemorial prefcription; or at leaft ever fince the 18 Edw.I. when the ftatute of quia emptores was made. For no new manor can have been created fince that ftatute : becaufe it is effential to a manor, that there be tenants who hold of the lord, and that ftatute enacts, that for the future no fubject fhall create any new tenants to hold of himfelf.
NOW with regard to the fold-land, or eftates held in villenage, this was a fpecies of tenure neither ftrictly feodal, Norman, or Saxon; but mixed and copounded of them all
I : and which alfo, no account of t he heriots that ufually attend it, may feem to have fomewhat Danifh in it's compofition. Under the Saxon government there were, as fir William Temple fpeaks
k, a fort of people in a condition of downright fervitude, ufed and employed in the moft fervile works, and belonging, both they, their children, and effects, to the lord of the foil, like the reft of the cattle or ftock upon it. Thefe feem to have been thofe who held what was called the folk-land, from which they were removeable at the lord's pleafure. On the arrival of the Normans here, it feems not improbable, that they, who were ftrangers to any other than a feodal ftate, might give fome fparks of enfranchifement to fuch wretched perfons as fell to their fhare, by admitting them, as well as others, to the oathe of ealty; which confereed a right of protection, and raifed the tenant to a kind of eftate fuperior to downright flavery, but inferior to every other condition
l . This they called villenage, and the tenants villains, either from the word vilis, or elfe, as fir Edward Coke tells us
m,a villa; becaufe they lived chiefly in villages, and were employed in ruftic works of the moft fordid kind : like the Spartan belotes, to whom alone the culture of the lands was configned; their rugged mafters, kike our northern anceftors, efteeming war the only honourable employment of makind.
.{FS}
I Wright .215.
k Introd. Hift.Encl.c0.
l Wright .217.
m § . Inft.116.
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THESE villains, belonging principally to lords of manors, were either villains regardant, that is, annexed to the manor or land; or elfe they were in grofs, or at large, that is, annexed to the perfon of the lord, and transferable by deed from one owner to another
n . They could not leave their lord without his permiffion; but, if they ran away, or were purloined from him, might be claimed and recovered by action, like beafts or other chattels. They held indeed fmall portions of land by way of fuftaining themfelves and families; but it was at the mere will of the lord, who might difpoffefs them whenever he pleafed : and it was upon villein fervices, that is, to carry out dung, to hedge and ditch the lord's demefnes, and any other the meaneft offices
o: and thefe fervices were not only bafe, but uncertain both as to their time and quantity
p. A villein, in fhort, was in much the fame ftate with us, as lord Molefworth
q defcribes to be that of the boors in Denmark, andStiernhook
r attributes alfo to the traals or flavesin Sweden; which confirms the probability of their being in fome degree monuments of the Danifh tyranny. A villein could acquire no property either in lands or goods; but, if he purchafed either, the lord might enter upon them, ouft the villein, and feife them to his own ufe, unlefs he contrived to dipofe of them again before the lord had feifed them; for the lord had then loft his opportunity
s.
IN many places alfo a fine was payable to the lord, if the villein perfumed to marry his daughter to any one without leave from the lord
t : and, by the common law, the lord mightalfo bring anaction againft the hufband for damages in thus purloining his property
u . For the children of villains were alfo in the fame ftate of dondage with their parents ;whence they were
.{FS}
n Litt. §
o Ibid. §172.
p Ille quit tenet in villenagio facie : quicquid si praeceptam fuerit, nee fcire debet fero quid facere denet in craftino, et femper tenebitur ad incerta. ( Bracton.
l .4.tr.1.c.28.)
q c.8.
r de jure Sueonum.
l.2.co.4.
s Litt. §. 177.
t Co. Litt. 40.
u Litt. § 202.
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of cufoms that prevail in different manors, with regard both to the defcent of the eftates, and the privileges belonging to the tenants. And thefe encroachments grew to be fo univerfal, that when tenure in villenge was abolifhed, (though copyholds were referved) by the ftatute of Charles II, there was hardly a pure villein left in the nation. For fir Thomas Smith
f teftifies, that in all his time ( and he was fecretary to Edward VI) he never knew any villein in grofs throughout the realm; and the few villains regardant that were then remaining were fuch only as had belonged to bifhops, monafteries, or other ecclefiaftical corporations, in the preceding times of popery. For he tells us, that “ the holy fathers, monks, and friars, had in their confeffions, “ and fpecially in their extreme and deadly ficknefs, convinced the “ laity how dangerous a practice it was, for one chriftain man to “ hold another in bondage: fo that temporal men, by little and “ little, by reafon of that terror in their confciences, were glad “ to manumit all their villains. But the faid holy fathers, with “ the abbots and priors, did not in kike fort by theirs; for they “ alfo had a fcruple in confcience to empoverifh and defpoil the” church fo much, as to manumit fuch as were bond to their “ churches, or to the manors which the church had gotten; and “fo kept their villains ftill.” By thefe feveral means the generality of villains in the kingdom have long ago fprouted up into copyholders: their perfons being enfranchifed by manumiffion or long acquiefcence; but their eftates,in ftrictnefs, remaining fubject to the fame fervile conditions and forfeitures as before; though, in general, the villein fervices are ufually commuted for a fmall percuniary quit-rent
g.
.{FS}
f Commonwealth. B.3.c.10
g In fome manors the copyholders were bound to perform the moft fervile office, as to hedge and ditch the lord's grounds, to lop his trees, to reap his corn, and the like; the lord ufually finding them meat and drink, and fometimes ( as is ftill the ufe in the highlands of Scotland) a minftrell or piper for their diverfion. ( Rot. Maner. De Edg ware Com. Midd.) As in the kingdom of Whidah, on the flave coaft of Africa, the people are bound to cut and carry in the king's corn from off his demefne lands, and are attended by mufic during all the time of their Iabour .( Mod. Un. Hift.xvi. 429.)
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AS
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As a farther confequence of what has been premifed, we may collect thefe two main principles, which are held
h to be the fupporters of a copyhold tenure, and without which it cannot exift; 1. That the lands be parcel of, and fituate within, that manor, under wich it is held. 2. That they have beendemifed, or demifable, by copy of court roll immermorially. For immemorial cuftom is the life of all tenures by copy; fo that no new copyhold can, ftrictly fpeaking, be granted at this day.
IN fome manors, where the cuftom hath been to permit the heir to fucceed the anceftor in his tenure, the eftates are ftiled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only : for the cuftom of the manor has in both cafes fo far fuperfeded the will of the lord, that, provided the fervices be performed or ftipulated for by fealty, he cannot, in the firft in ftance, refufe to admit the heir of his tenant uponhis death; nor, in the fecond, can he remove his prefent tenant fo long as he lives, though he holds nominally be the precarious tenure of his lord's will.
THE fruits and appendages of a copyhold tenure, that it hath in common with free tenures, are healty, are fealty, fervices (as well in rents as otherwife reliefs, and efcheats. The two latter belong only to copyholds of inheritance; the former to thofe life alfo. But, befides thefe, copyholds have alfo heriots, wardfhip, and fines. Heriots, which I think are agreed to be a Danifh cuftom, and of which we fhall fay more hereafter, are a render of the beft beaft or other good (as the cuftom may be) to the lord on the death of the tenant. This is plainly a relic of villein tenure ; there being originally lefs hardfhip in it, when all the goods and chattels belonged to the lord, and he might have feifed them even in the villein's lifetime. Thefe are incident to both fpecies of copyhold ; but wardfhip and fines to thofe of inheritance only.
.{FS}
h Co. Litt.58.
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N
Ward-
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Wardfhip, in copyhold eftates, partakes both of that in chivalry and that in focage. Like that in chivalry, the lord is the legal guardian, who ufually affigns fome relation of he infant tenant to act in his ftead: and he, like guardian in focage, is accountable to his ward for the profits. Of fines, fome are in the nature of primerfeifins, due on the death of each tenant, others are mere fines for alienation of the lands; in fome manors only one of thefe forts can be demanded, in fome both, and in others neither. They are fometimes arbitrary and at the will of the lord, fometimes fixed by cuftom : but, even when arbitrary, the courts of law, in favour of the liberty of copyholders, have tied them down to be reafonable in their extent; otherwife they might amount to a difherifon of the eftate. No fine therefore is allowed to be taken upon defcents and alienation, (unlefs in particular circumftances) of more than two years improved value of the eftate
I . From this inftance we Mary judge of the favourable difpofition, that the law of England (which is a law of liberty ) hath always fhewn to this fpecies of tenants ; by removing,as far as poffible, every real badge of flavery from them, however fome nominal ones may continue. It fuffered cuftom very early to get the better of the experfs terms upon which they held their lands; by declaring, that the will of the lord was to be interpreted by the cuftom of the manor :, whereon cuftom has been fuffered to grow up to the prejudice of the lord, as in this café of arbitrary fines, the law itfelf interpofes in an equitable method, and weill not fuffer the lord to extend his power fo far, as to difinherit the tenant.
THUS much for the antient tenure of pure villenage, and the modern one of copyhold at the wil of the lord, which is lineally defcended from it.
IV. THERE is yet a fouth fpecies of tenure, deferibed by Bracton under the name fometimes of privileged villenge, and fometimes of villein- jocage. This, he tells us
k, is fuch as has been held of
.{FS}
I 2 Charles. Rep.134.
k I . 4. tr.1.c.28.
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the
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the kings of England from the conquet downward; that the tenants herein “ villana faciunt fervitia, fed cerata et determinate;” that they cannot aliene or transfer their tenements by grant or feoffment, any more than pur villains can; but muft furrender them to the lord or his fteward, to be again granted out and held in villenage. And from thefe circumftances we may collect, that what he here defcribes is no other than exalted fpecies of copy hold, fubfiffing at this day, viz, the tenure in antient demefne: to which , as partaking of the bafenefs of villenage in the nature of it's fervices, and the freedom of focage in their certainty, he has therefore given a name compounded out of both, and calls it villanum focagium.
ANTIENT demefne confifts of thofe lands or manors, which, though now perhaps granted out to private fubjects, were actually in the hands of the crown in the time of Edward the confeffor, or William the conqueror; and fo appear to have been by the great furvey in the exchequer called domefday book
l . The tenants of thefe lands, under the crown, were not all of the fame order or degree. Some of them, as Britton teftifies
m , continued for a long time pure and abfolute villains, dependent on the will of the lord : and thofe who have fucceeded them in their tenures now differ from common copyholders in only a few points
n. Others were in great meafure enfranchifed by the royal favour: being only bound in refpect of heir lands to perform fome of the better fort of villein fervices, but thofe determinate and certain; as, to plough the king's land, to fupply his court with provifions, and the like; all of which are now changed into pecuniary rents : and in confideration hereof they had many immunities and privileges granted to them
o; as, to try the right of their property in a peculiar court of their own, called a court of antient demefne, by a peculiar procefs denominated a writ of right clofe
p; not to pay toll or taxes; not to contribute to the expenfes o knights of lthe fhire; not to be put on juries, and the like
q.
.{FS}
l F.N.B. 14.16.
m C. 66.
nF. N. B. 228.
o 5. Inft. 269.
p F. N. B. II.
q Ibid. 14.
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THESE tenanats therefore, though their tenure be abfolutely copyhold, yet have an intereft equivalent to a freehold: for, though their fervices were of a bafe and villenus orighinal
r, yet the tenants were eftcemed in all other refpects to be highly privileged villeims; and efpecially in this, that their fervices were fixed and determinate, and that they could not be compelled ( like pure villains) to relinquifh thefe tenements at the lord's will, or to hold them againft their own : “ et ideo, fay Bracton, dicuntur liberi.” Britton alfo, from fuch their freedom, calls them abfolutely fokemans, and their tenure fokemanries; which he defcribes
s to be “ by grand ferjeanty, nor by Petit, but by fimple fervice, being “ from their antient demefne.” And the fame name is alfo given them in Fleta
t. Hence Fitzherbert obferves
u, that no lands ; are antient demenfne, but lands holden in focage: that is, not in free and common focage, but in this amphibious, fubordinate clafs, of villein-focage. And it is poffible, that as this fpecies of focage tenure is plainly foundedupon predial fervices, or fervices of the plough, it Mary have given caufe to imagine that all focage tenures arofe fromthe fame original; for want of diftinguifhing,with Bracton, between free-focage or focage of frank-tenure, and villan-focage or focage of antient demefne.
LANDS held by this tenure are therefore a fpecies of copyhold, and as fuch preferved and exempted from the operation of the ftatute of Charles II. yet they differ from common copyholds, principally in the privileges before-mentioned : as alfo they differ from freeholders by one efpecial mark and tincture of villenage, noted by Bracton and remaining to this day; viz. that they cannot be conveyed from man to man by the general common law conveyances of feoffment, and the reft; but muft pafs by furrender to the lord or his fteward, in the manner of common
.{FS}
r Gilb. Hift.of the exch.16.& 30.
s c.66.
t l .1.c.8.
u N.B.13.
.{FE}
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copyholds: yet with this difference
w, that, in thefe furrenders of lands in antient demefine of frank tenure, it is not ufed to fay “ to “ hold at the will of the lord” in their copies, but only “to hold “according to the cuftom of the maner.”
THUS have we taken a compendious view of the principal and fundamental points of the doctrione of tenures, both antient and moderin, in which we cannot but remark the mutual connexion and dependence that all of them have upon each other. And upon the whole it appears, that, whatever changes and alterations thefe tenures have in procefs of time undergone, from the Saxon aera to the 12 Car.II, all lay tenures are now in effect reducedto two fpecies; free tenure in common focage; and bafe tenure by copy of court roll.
I MENTIONED lay tenures only; becaufe there is ftill behind one other fpecies of tenure, referved by the ftatuteof Charles II, which is of a fpiritual nature, and called the tenure in frankalmoign.
V.TENURE in frankalmoign, in libera eleemofyna, or free alms, is that, whereby a religious corporation, aggregate or fole, holdeth lands of the donor to them and their fucceffors for ever
x. The fervice, which they were bound to render for thefe lands was not certainly defined ; but only in general to pray for the fouls of the donor and his heirs, dead or alive; and therefore they did no fealty, ( which is incident to all other fervices but this
y ) becaufe this divine fervice was of a higher and more exalted nature
z. this is the tenure, by which almoft all the antient monafteries and religious houfes held their lands; and by which the parochial clergy, and very many ecclefiaftical and eleemofynary foundations, hold them at this day
a ; the nature of the fervice being upon the reformation altered, and made conformable to the purer doctrines
.{FS}
w Kitchen on courts.194.
x Litt. § 133.
y Ibid. 131.
z Ibid.135.
a Bradcton.
l .4. tr. 1. c. 28. §. 1.
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of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great refpect that was fhewn to religion and religious men in antient times. Which is alfo the reafon that tenants in frankalmoing were difcharged of all other fervices, except the trinodaz neceffitas, of repairing the highway, among the antient Britons, had omnium rerum immunitatem
c. And, even at prefent, this is a tenure of a nature very diftinct from all others; being not in the leaft feodal, but merely fpiritual. For if the fervice be neglected, the law gives no remedy by diftrefs or otherwife to the lord of whom the lands are holden; but merely a complaint to the ordinary or vifitor to ccrrect it
d. Wherein it materially differed from what was called tenure by divine fervice : in which the tenants were obliged to do fome fpecial divine fervices in certain; as to fing fo manry maffes, to diftribute fuch a fum in alms, and the like; which, being expreffly defined and prefcribed, could with no kind of propriety be called free alms; efpecially as for this, if unperformed, the lord might diftrein, without any complaint to the vifitor
e. All fuch donations are indeed now out of ufe: for, fince the ftatute of quia emjptores, 18 Edw. I, none but the king can give lands to be holden by this tenure
f . So that I only mention them, becaufe frankalmoign is excepted by name in the ftatute of Charles II, and therefore fubfifts in many inftances at this day. Which is all that fhall be remarked concerning it; herewith concluding our obfervations on the nature of tenures.
.{FS}
b Seld. Jan.1.42.
c Caefar de bell.Gall.
l.6.c.13.
d Litt. § .136.
eIbid.137.
f
