Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of the Modern English Tenures
ALTHOUGH, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feudal constitution was happily done away, yet we are not to imagine that the constitution itself was utterly laid aside, and a new one introduced in its room; since by the statute 123 Car.II. the tenures of socage and frankalmoign, the honorary services of grand sergeanty, and the tenure by copy of court roll were reserved; nay all tenures in general, except frankalmoign, grand sergeanty, and copyhold, were reduced to one general species of tenure, then well known and subsisting, called free and common socage. And this, being sprung from the same feudal original as the rest, demonstrates the necessity of fully contemplating that ancient system; since it is that alone, to which we can recur to explain any seeming, or real, difficulties, that may arise in our present mode of tenure.
THE military tenure, or that by knight-service, consisted of what were reputed the most free and honorable services; but which in their nature were unavoidably uncertain in respect of the time of their performance. The second species of tenure, or free-socage, consisted also of free and honorable services; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to this day, but has in manner absorbed and swallowed up (since the statute of Charles the second) almost every other species of tenure. And to this we are next to proceed.
II. SOCAGE, in its most general and extensive signification, seems to denote a tenure by any certain and determined service. And in this sense it is by our ancient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton;1 if a man holds by a rent in money, without any escuage or sergeanty, “id tenementum dici potest socagium“: but if you add thereto any royal service, or escuage to any, the smallest, amount, “illud dici poterit feudum militare“. So too the author of Fleta;2 “ex donationibus servitia militaria vel magnae serjantiae non continentibus, oritur nohis quoddam nomen generale, quod est socagium.” Littleton also3 defines it to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other services; so that they be not services of chivalry, or knight-service. And therefore afterwards4 he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner as it is defined by Finch,5 a tenure to be done out of war. The service must therefore be certain, in order to denominate it socage; 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 service, as plowing the lord’s land for three days; or, by fealty only without any other service: for all these are tenures in socage.6
BUT socage, as was hinted in the last chapter, is of two sorts: free-socage, where the services are not only certain, but honorable; and villein-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil,7 and other subsequent authors, by the name of liberi sokemanni, or tenants in free-socage. Of this tenure we are first to speak; and this, both in the nature of its service, and the fruits and consequences appertaining thereto, was always by much the most free and independent species of any. And therefore I cannot but assent to Mr. Somner’s etymology of the word;8 who derives it from the Saxon appellation, soe, which signifies liberty or privilege, and, being joined to a usual termination, is called socage, in Latin socagium; signifying thereby a free or privileged tenure.9 This etymology seems to be much more just than that of our common lawyers in general, who derive it from soca, an old Latin word denoting (as they tell us) a plow: for that in ancient time this socage tenure consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plow, sow, or reap for him; but that, in process of time, this service was changed into an annual rent by consent of all parties, and that, in memory of its original, it still retains the name of socage or plow-service.10 But this by no means agrees with what Littleton himself tells us,11 that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plow-service. Besides, even services, confessedly of a military nature and original, (as escuage itself, which while it remained uncertain was equivalent to knight-service) the instant they were reduced to a certainty changed both their name and nature, and were called socage.12 It was the certainty therefore that denominated it a socage tenure; and
nothing sure could be a greater liberty or privilege, than to have the service ascertained, and not left to the arbitrary calls of the lord, as in the tenures of chivalry. Wherefore also Britton, who describes socage tenure under the name of fraunke ferme,13 tells us, that they are “lands and tenements, whereof the nature of the fee is charged by feoffment out of chivalry for certain yearly services, and in respect whereof neither homage, ward, marriage, nor relief can be demanded.” Which leads us also to another observation, that, if socage tenures were of such base and servile original, it is hard to account for the very great immunities which the tenants of them always enjoyed; of highly superior to those of the tenants by chivalry, that it was thought, in the reigns of both Edward I and Charles II, a point of the utmost importance and value to the tenants, to reduce the tenure by knight-service to fraunke ferme or tenure by socage. We may therefore, I think, fairly conclude in favor of Somner’s etymology, and the liberal extraction of the tenure in free socage, against the authority even of Littleton himself.
TAKING this then to be the meaning of the word, it seems probable that the socage tenures were the relics of Saxon liberty, retained by such persons, as had neither forfeited them to the king, nor been obliged to exchange their tenure for the more honorable, as it was called, but at the same time more burden-some, tenure of knight-service. This is peculiarly remarkable in the tenure which prevails in Kent, called gavelkind, which is generally acknowledged to be a species of socage tenure;14 the preservation whereof inviolate from the innovations of the Norman conqueror is a fact universally known. And those who thus preserved their liberties were said to hold in free and common socage.
As therefore the grand criterion and distinguishing mark of this species of tenure are the having its renders or services ascertained, it will include under it all other methods of holding free lands, by certain and invariable rents and duties: and, in particular, petit sergeanty, tenure in burgage, and gavelkind.
WE may remember, that by the statute 12 Car.II. grand sergeanty is not itself totally abolished, but only the slavish appendages belonging to it; for the honorary services (such as carrying the king’s sword or banner, officiating as his butler, carver, etc, at the coronation) are still reserved. Now petit sergeanty bears a great resemblance to grand sergeanty; for as the one is personal service, so the other is a rent or render, both tending to some purpose relative to the king’s person. Petit sergeanty, as defined by Littleton,15 consists in holding lands of the king by the service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, he says,16 is but socage in effect; for it is no personal service, but a certain rent: and, we may add, it is clearly no predial service, or service of the plow, but in all respects liberum et commune socagium; only, being held of the king, it is by way of eminence dignified with the title of parvum servitium regis, or petit sergeanty. And Magna Carta respects it in this light, when it enacts,17 that no wardship of the lands or body shall be claimed by the king in virtue of a tenure by petit sergeanty.
TENURE in burgage is described by Glanvil,18 and is expressly said by Littleton,19 to be but tenure in socage; and it is where the king or other person is lord of an ancient borough, in which the tenements are held by a rent certain.20 It is indeed only a king o town socage; as common socage, by which other lands are held, is usually of a rural nature. A borough, as we have formerly seen, is distinguished from other towns by the right of sending 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 houses, or lands which were formerly the site of houses, in an ancient borough, are held of some lord in common socage, by a certain established rent. And these seem to have withstood the shock of the Norman encroachments principally on account of their insignificance, which made it not worth while to compel them to an alteration of tenure; as an hundred of them put together would scarce have amounted to a knight’s fee. Besides, the owners of them, being chiefly artificers and persons engaged in trade, could not with any tolerable propriety be put on such a military establishment, as the tenure in chivalry was. And here also we have again an instance, where a tenure is confessedly in socage, and yet is impossible ever to have been held by plow-service; since the tenants must have been citizens or burghers, the situation frequently a walled town, the tenement a single house; so that none of the owners was probably master of a plow, or was able to use one, if he had it. The free socage therefore, in which these tenements are held, seems to be plainly a remnant of Saxon liberty; which may also account for the great variety of customs, affecting these tenements so held in ancient burgage: the principal and most remarkable of which is that called Borough-English, so named in contradistinction as it were to the Norman customs, and which is taken notice of by Glanvil,21 and by
Littleton;22 viz. that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father. For which Littleton23 gives this reason; because the youngest son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. Other authors24 have indeed given a much stranger reason for this custom, as if the lord of the fee had anciently a right to break the seventh commandment with his tenant’s wife on her wedding-night; and that therefore the tenement descended not to the eldest, but the youngest, son, who was more certainly the offspring of the tenant. But I cannot learn that ever this custom prevailed in England, though it certainly did in Scotland, (under the name of mercheta or marcheta) till abolished by Malcolm III.25 And perhaps a more rational account than either may be fetched (though at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent of the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle; and go to seek a new habitation. The youngest son therefore, who continues latest with the father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other northern nations, it was the custom for all the sons but one to migrate from the father, which one became his heir.26 So that possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and German ancestors, which Caesar and Tacitus describe. Other special customs there are in burgage tenures; as that the wife shall be endowed of all her husband’s tenements,27 and not of the third part only, as at the common law: and that a man might dispose
of his tenements by will,28 which, in genera, was not permitted after the conquest till the reign of Henry the eighth; though in the Saxon times it was allowable.29 A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty.
THE nature of the tenure in gavelkind affords us a still stronger argument. It is universally known what struggles the Kentishmen made to preserve their ancient liberties; and with how much success those struggles were attended. And as it is principally here that we meet with the custom so gavelkind, (though it was and is to be found in some other parts of the kingdom30) we may fairly conclude that this was a part of those liberties; agreeably to Mr. Selden’s opinion, that gavelkind before the Norman conquest was the general custom of the realm.31 The distinguishing properties of this tenure are various: some of the principal are these; 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen.32 2. The estate does not escheat in case of an attainder and execution for felony; their maxim being, “the father to the bough, the son to the plow.”33 3. In most places he had a power of devising land by will, before the statute for that purpose was made.34 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together;35 which was indeed anciently the most usual course of descent all over England,36 though in particular places particular customs prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is held to be only a species of a socage tenure, modified by the custom of the country; being held by suit of court and fealty, which is a service in its nature certain.37 Wherefore, by a charter of king John,38 Hubert arch-bishop of Canterbury was authorized to exchange the gavelkind tenures holed of the fee of Canterbury into tenures by knight-service; and by statute 31 Hen.VIII.c.3. for disgavelling the
lands of diverse lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands, which were never held by service of socage. Now the immunities which the tenants in gavelkind enjoyed were such, as we cannot conceive should be conferred upon mere plowmen, or peasants: from all which I think it sufficiently clear, that tenures in free socage are in general of a nobler original than is assigned by Littleton, and after him by the bulk of our common lawyers.
HAVING thus distributed and distinguished the several species of tenure in free socage, I proceed next to show that this also partakes very strongly of the feudal nature. Which may probably arise from its ancient Saxon original; since (as was before observed39) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into such arbitrary consequences as among the Normans. It seems therefore reasonable to imagine, that socage tenure existed in much the same state before the conquest as after; that in Kent it was preserved with a high hand, as our histories inform us it was, and that the rest of the socage tenures differed through England escaped the general fate of other property, partly out of favor and affection to their particular owners, and partly from their own insignificance; since I do not apprehend the number of socage tenures soon after the conquest to have been very considerable, nor their value by any means large; till by successive charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton,40 their number and value began to swell so far, as to make a distinct, and justly envied, part of our English system of tenures.
HOWEVER this may be, the tokens of their feudal original will evidently appear from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry; remarking their agreement or difference as we go along.
1. IN the first place, then both were held of superior lords; of the king as lord paramount, and sometimes of a subject or mesne lord between the king and the tenant.
2. BOTH were subject to the feudal return, render, rent, or service, of some sort or other, which arose from a supposition of an original grant from the lord to the tenant. In the military tenure, or more proper feud, this was from its nature uncertain; in socage, which was a feud of the improper kind, it was certain, fixed, and determinate, (though perhaps nothing more than bare fealty) and so continues to this day.
3. BOTH were, from their constitution, universally subject (over and above all other render) to the oath of fealty, or mutual bond of obligation between the lord and tenant.41 Which oath of fealty usually draws after it suit to the lord’s court. And this oath every lord, of whom tenements are held at this day, may and ought to call upon his tenants to take in his court baron; if it be only for the reason given by Littleton,42 that if it be neglected, it will by long continuance of time grow out of memory (as doubtless it frequently has) whether the land be held of the lord or not; and so he may lose his seigniory, and the profit which may accrue to him by escheats and other contingencies.43
4. THE tenure in socage was subjects, of common right, to aids for knighting the son and marrying the eldest daughter:44 which were fixed by the statute Westm. 1.c.36.at 20 s. for every 20£ per annum so held; as in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right; but were all abolished by the statute 12. Car. II.
5. RELIEF is due upon socage 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£ or one quarter of the supposed value of the land; but a socage relief is one year’s rent or render, payable by the tenant to the lord, be the same either great or small:45 and therefore Bracton46 will not allow this to be properly a relief, but quaedam praestatio loco relevii in recognitionem domini. So too the statute 28 Edw. I. c.1. declares, that a free sokeman shall give no relief, but shall double his rent after the death of his ancestor, according to that which he has used to pay his lord, and shall not be grieved above measure. Reliefs in knight-service were only payable, if the heir at the death of his ancestor was of full age: but in socage they were due, even though the heir was under age, because the lord has no wardship over him.47 The statute of Charles II reserves the reliefs incident to socage tenures; and therefore, wherever lands in fee simple are held by a rent, relief is still due of common right upon the death of the tenant.48
6. PRIMER seizin was incident to the king’s socage tenants in capite, as well as to those by knight-service.49 But tenancy in capite as well as primer seizins, are also, among the other feudal burdens, entirely abolished by the statute.
7. WARDSHIP is also incident to tenure in socage; but of a nature very different from that incident to knight-service. For if the inheritance descend to an infant under fourteen, the wardship of him shall not belong to the lord of the fee; because, in this tenure no military or other personal service being required, in this tenure no military or other personal service being required, there is no occasion for the lord to take the profits, in order to provide a proper substitute for his infant tenant: but his nearest relation (to whom the inheritance cannot descend) shall be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen. The guardian must be such a one, to whom the inheritance by no possibility can descend; as was fully explained, together with the reasons for it, in the former book of these commentaries.50 At fourteen this wardship in socage ceases, and the heir may oust the guardian, and call him to account for the rents and profits:51 for at this age the law supposes him capable of choosing a guardian for himself. It was in this particular, of wardship, as also in that of marriage, and in the certainty of the render or service, that the socage tenures had of much the advantage of the military ones. But as the wardship ceased at fourteen, there was this disadvantage attending it; that young heirs, being left at so tender an age to choose their own guardians till twenty one, they might make an improvident choice. Therefore, when almost all the lands of the kingdom were turned into socage tenures, the same statute 12 Car.II.c.24. enacted, that it should be in the power of any father by will to appoint a guardian, till his child should attain the age of twenty one. And, if no such appointment be made, the court of chancery will frequently interpose, to prevent an infant heir form improvidently exposing himself to ruin.
8. MARRIAGE, or the valor maritagii, was not in socage tenure any perquisite or advantage to the guardian, but rather the reverse. 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, unless he married him to advantage.52 For the law, in favor of infants, is always jealous of guardians, and therefore in this case it made them account, not only for what they did, but also for what they might, receive on the infants’s behalf; lest by some collusion the guardian should have received the value, and not brought it to account: but, the statute having destroyed all values of marriages, this doctrine of course is ceased with them. At fourteen years of out any consent of his guardian, till the late act for preventing clandestine marriages. These doctrines of wardship and marriage in socage tenure were so diametrically opposite to those in knight-service, and so entirely agree with those parts king Edward’s laws, that were restored by Henry the first’s charter, as might alone convince us that socage was of a higher original than the Norman conquest.
9. FINES for alienations were, I apprehend, due for lands held of the king in capite by socage tenure, as well as in case of tenure by knight-service: for the statutes that relate to this point, and Sir Edward Coke’s comment on them,53 speaks generally of all tenants in capite, without making any distinction; though now all fines for alienation are demolished by the statute of Charles the second,
10. ESCHEATS are equally incident to tenure in socage, as they were to tenure by knight-service; except only in gavelkind lands, which are (as is before-mentioned) subject to no escheats for felony, though they are to escheats for want of heirs.54
THUS much for the two grand species so tenure, under which almost all the free lands of lands of the kingdom were held till the restoration in 1660, when the former was abolished and sunk into the latter: so that lands of both sorts are now held by the one universal tenure of free and common socage.
THE other grand division of tenure, mentioned by Bracton as cited in the preceding chapter, is that of villenage, as contradistinguished from liberum tenementum, or frank tenure. And this (we may remember) he subdivides into two classes, pure, and privileged, villenage: from whence have arisen two other species of our modern tenures.
III. FROM the tenure of pure villenage have sprung our present copyhold tenures, or tenure by copy of court roll at the will of the lord in order to obtain a clear idea of which, it will be previously necessary to take a short view of the original and nature of manors.
MANORS are in substance as ancient as the Saxon constitution, though perhaps differing a little, in some immaterial circumstances, from those that exist at this day:55 just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor, manerium, a manendo, because the usual residence of the owner, seems to have been a district of ground, held by lords or great personages who kept in their own hands so much land as was necessary for the use of their families, which were called terrae dominicales, or demesne lands; being occupied by the lord, or dominus manerii, and his servants. The other tenemental lands they distributed among their tenants; which from the different modes of tenure were called and distinguished by two different names. First, book-land, or charter-land, which was held by deed under certain rents and free services, and in effect differed nothing from free socage lands:56 and from hence have arisen all the freehold which hold of particular manors, and owe suit and service to the same. The other species was called folk-land, which was held by no assurance in writing, but distributed among the common folk or people at the pleasure of the lord, and resumed at his discretion; being indeed land held in villenage, which we shall presently describe more at large. The residue of the manor, being uncultivated, was termed the lord’s waste, and served for public roads, and for common of pasture to the lord and his tenants. Manors were formerly called baronies, as they still are lordships: and each lord or baron was empowered to hold a domestic court, called the court-baron, and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor; and if the number of suitors should so fail, as not to leave sufficient to make a jury or homage, that is, two tenants at the least, the manor itself is lost.
BEFORE the statute 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 smaller manors to inferior persons to be held of themselves; which do therefore now continue to be held under a superior lord, who is called in such cases the lord paramount over all these manors: and his seigniory is frequently termed an honor, not a manor, especially if it has be longed to an ancient feudal baron, or has been at any time in the hands of the crown. In imitation whereof, these inferior lords began to carve out and grant to other still more minute states, to be held as of themselves, and were so proceeding downwards in infinitum; till the superior lords observed, that by this method of subinfeudation they lost all their feudal profits, of wardships, marriages, and escheats, which fell into the hands of these mesne or middle lords, who were the immediate superiors of the terre-tenant, or him who occupied the land. This occasioned the statute of Westm.3.3 or quia emptores, 18 Edw. I. to be made; which directs, that upon all sales or feoffments of land, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it. And from hence it is held, that all manor existing at this day, must have existed by immemorial prescription; or at least ever since the 18 Edw. I. when the statute of quia emptores was made. For no new manor can have been created since that statute: because it is essential to a manor, that there be tenants who hold of the lord, and that statute enacts, that for the future no subject shall create any new tenants to hold of himself.
NOW with regard to the sold-land, or estates held in villenage, this was a species of tenure neither strictly feudal, Norman, or Saxon; but mixed and compounded of them all:57 and which also, no account of the heriots that usually attend it, may seem to have somewhat Danish in its composition. Under the Saxon government there were, as Sir William Temple speaks,58 a sort of people in a condition of downright servitude, used and employed in the most servile works, and belonging, both they, their children, and effects, to the lord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folk-land, from which they were removable at the lord’s pleasure. On the arrival of the Normans here, it seems not improbable, that they, who were strangers to any other than a feudal state, might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them, as well as others, to the oath of fealty; which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition.59 This they called villenage, and the tenants villeins, either from the word vilis, or else, as Sir Edward Coke tells us,60 a villa; because they lived chiefly in villages, and were employed in rustic works of the most sordid kind: like the Spartan belotes, to whom alone the culture of the lands was consigned; their rugged masters, like our northern ancestors, esteeming war the only honorable employment of mankind.
THESE villeins, belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land; or else they were in gross, or at large, that is, annexed to the person of the lord, and transferable by deed from one owner to another.61 They could not leave their lord without his permission; but, if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels. They held indeed small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased: and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord’s demesnes, and any other the meanest offices:62 and these services were not only base, but uncertain both as to their time and quantity.63 A villein, in short, was in much the same state with us, as lord Molesworth64 describes to be that of the boors in Denmark, and Stiernhook65 attributes also to the traals or slaves in Sweden; which confirms the probability of their being in some degree monuments of the Danish tyranny. A villein could acquire no property either in lands or goods; but, if he purchased either, the lord might enter upon them, oust the villein, and seize them to his own use, unless he contrived to dispose of them again before the lord had seized them; for the lord had then lost his opportunity.66
IN many places also a fine was payable to the lord, if the villein presumed to marry his daughter to any one without leave from the lord:67 and, by the common law, the lord might also bring an action against the husband for damages in thus purloining his property.68 For the children of villeins were also in the same state of bondage with their parents; whence they were called in Latin, nativi, which gave rise to the female appellation of a villein, who was called a neife.69 In case of a marriage between a freeman and a neife, or a villein and a freewoman, the issue followed the condition of the father, being free if he was free, and villein if he was villein; contrary to the maxim of the civil law, that partus sequitur ventrem. But no bastard could be born a villein, because by another maxim of our law he is nullius filius; and as he can gain nothing by inheritance, it were hard that he should lose his natural freedom by it.70 The law however protected the persons of villeins, as the king’s subjects, against atrocious injuries of the lord: for he might not kill, or maim his villein;71 though he might beat him with impunity, since the villein had no action or remedy at law against his lord, but in case of the murder of his ancestor or the maim of his own person. Niefes indeed had also an appeal of rape, in case the lord violated them by force.72
VILLEINS might be enfranchised by manumission, which is either express or implied: express; as where a man granted to the villein a deed of manumission:73 implied; as where a man bound himself in a bond to his villein for a sum of money, granted him an annuity by deed, or gave him an estate in fee, for life, or years:74 for this was dealing with his villein on the footing of a freeman; it was in some of the instances giving him an action against his lord, and in others vesting an ownership in him entirely inconsistent with his former state of bondage. So also if the lord brought an action against his villein, this enfranchised him;75 for, as the lord might have a short remedy against his villein, by seizing his goods, (which was more than equivalent to any damages he could recover) the law, which is always ready to catch at any thing in favor of liberty, presumed that by bringing this action he meant to set his villein on the same footing with himself, and therefore held it an implied manumission. But, in case the lord indicted him for felony, it was otherwise; for the lord could not inflict a capital punishment on his villein, without calling in the assistance of the law.
VILLEINS, by this and many other means, in process of time gained considerable ground on their lords; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an interest in many places full as good, in others better than their lords. For the good nature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the common law, of which custom is the life, now gave them title to prescribe against their lords; and, on performance of the same services, to hold their lands, in spite of any determination of the lord’s will. For, though in general they are still said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the custom of the manor; which customs are preserved and evidenced by the rolls of the several courts baron in which they are entered, or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And, as such tenants had nothing to show for their estates but these customs, and admissions in pursuance of them, entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court roll, and their tenure itself a copyhold.76
THUS copyhold tenures, as Sir Edward Coke observes,77 although very meanly descended, yet come of an ancient house; for, from what has been premised it appears, that copyholders are in truth no other but villeins, who, by a long series of immemorial encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord’s will. Which affords a very substantial reason for the great variety of customs that prevail in different manors, with regard both to the descent of the estates, and the privileges belonging to the tenants. And these encroachments grew to be so universal, that when tenure in villenage was virtually abolished, (though copyholds were reserved) by the statute of Charles II, there was hardly a pure villein left in the nation. For Sir Thomas Smith78 testifies, that in all his time (and he was secretary to Edward VI) he never knew any villein in gross throughout the realm; and the few villeins regardant that were then remaining were such only as had belonged to bishops, monasteries, or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that “the holy fathers, monks, and friars, had in their confessions, and specially in their extreme and deadly sickness, convinced the laity how dangerous a practice it was, for one Christian man to hold another in bondage: so that temporal men, by little and little, by reason of that terror in their consciences, were glad to manumit all their villeins. But the said holy fathers, with the abbots and priors, did not in like sort by theirs; for they also had a scruple in conscience to impoverish and despoil the church so much, as to manumit such as were bond to their churches, or to the manors which the church had gotten; and so kept their villeins still.” By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders: their persons being enfranchised by manumission or long acquiescence; but their estates, in strictness, remaining subject to the same servile conditions and forfeitures as before; though, in general, the villein services are usually commuted for a small
As a farther consequence of what has been premised, we may collect these two main principles, which are held80 to be the supporters of a copyhold tenure, and without which it cannot exist; 1. That the lands be parcel of, and situate within, that manor, under which it is held. 2. That they have been demised, or demisable, by copy of court roll immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day.
IN some manors, where the custom has been to permit the heir to succeed the ancestor in his tenure, the estates are styled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only: for the custom of the manor has in both cases so far superseded the will of the lord, that, provided the services be performed or stipulated for by fealty, he cannot, in the first in stance, refuse to admit the heir of his tenant upon his death; nor, in the second, can he remove his present tenant so 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 has in common with free tenures, are fealty, services (as well in rents as otherwise reliefs, and escheats. The two latter belong only to copyholds of inheritance; the former to those life also. But, besides these, copyholds have also heriots, wardship, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we shall say more hereafter, are a render of the best beast or other good (as the custom may be) to the lord on the death of the tenant. This is plainly a relic of villein tenure; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seized them even in the villein’s lifetime. These are incident to both species of copyhold; but wardship and fines to those of inheritance only.
Wardship, in copyhold estates, partakes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian, who usually assigns some relation of he infant tenant to act in his stead: and he, like guardian in socage, is accountable to his ward for the profits. Of fines, some are in the nature of primer seizins, due on the death of each tenant, others are mere fines for alienation of the lands; in some manors only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom: but, even when arbitrary, the courts of law, in favor of the liberty of copyholders, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate. No fine therefore is allowed to be taken upon descents and alienation, (unless in particular circumstances) of more than two years improved value of the estate.81 From this instance we Mary judge of the favorable disposition, that the law of England (which is a law of liberty) has always shown to this species of tenants; by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands; by declaring, that the will of the lord was to be interpreted by the custom of the manor:, whereon custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes in an equitable method, and will not suffer the lord to extend his power so far, as to disinherit the tenant.
THUS much for the ancient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally descended from it.
IV. THERE is yet a fourth species of tenure, described by Bracton under the name sometimes of privileged villenage, and sometimes of villein-socage. This, he tells us,82 is such as has been held of the kings of England from the conquest downward; that the tenants herein “villana faciunt servitia, sed certa et determinata“; that they cannot aliene or transfer their tenements by grant or feoffment, any more than our villeins can; but must surrender them to the lord or his steward, to be again granted out and held in villenage. And from these circumstances we may collect, that what he here describes is no other than exalted species of copyhold, subsisting at this day, viz, the tenure in ancient demesne: to which, as partaking of the baseness of villenage in the nature of its services, and the freedom of socage in their certainty, he has therefore given a name compounded out of both, and calls it villanum socagium.
Ancient demesne consists of those lands or manors, which, though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the confessor, or William the conqueror; and so appear to have been by the great survey in the exchequer called domesday book.83 The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies,84 continued for a long time pure and absolute villeins, dependent on the will of the lord: and those who have succeeded them in their tenures now differ from common copyholders in only a few points.85 Others were in great measure enfranchised by the royal favor: being only bound in respect of heir lands to perform some of the better sort of villein services, but those determinate and certain; as, to plow the king’s land, to supply his court with provisions, and the like; all of which are now changed into pecuniary rents: and in consideration hereof they had many immunities and privileges granted to them;86 as, to try the right of their property in a peculiar court of their own, called a court of ancient demesne, by a peculiar process denominated a writ of right close;87 not to pay toll or taxes; not to contribute to the expenses of knights of the shire; not to be put on juries, and the like.88
THESE tenants therefore, though their tenure be absolutely copyhold, yet have an interest equivalent to a freehold: for, though their services were of a base and villenous original,89 yet the tenants were esteemed in all other respects to be highly privileged villeins; and especially in this, that their services were fixed and determinate, and that they could not be compelled (like pure villeins) to relinquish these tenements at the lord’s will, or to hold them against their own: “it ideo,” say Bracton, “dicuntur liberi.” Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes90 to be “by grand sergeanty, nor by Petit, but by simple service, being from their ancient demesne.” And the same name is also given them in Fleta.91 Hence Fitzherbert observes,92 that no lands; are ancient demesne, but lands held in socage: that is, not in free and common socage, but in this amphibious, subordinate class, of villein-socage. And it is possible, that as this species of socage tenure is plainly founded upon predial services, or services of the plow, it may have given cause to imagine that all socage tenures arose from the same original; for want of distinguishing, with Bracton, between free-socage or socage of frank-tenure, and villan-socage or socage of ancient demesne.
LANDS held by this tenure are therefore a species of copyhold, and as such preserved and exempted from the operation of the statute of Charles II. yet they differ from common copyholds, principally in the privileges before-mentioned: as also they differ from freeholders by one especial 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 rest; but must pass by surrender to the lord or his steward, in the manner of common copyholds: yet with this difference,93 that, in these surrenders of lands in ancient demesne of frank tenure, it is not used to say “to hold at the will of the lord” in their copies, but only “to hold according to the custom of the manor.”
THUS have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both ancient and modern, in which we cannot but remark the mutual connection and dependence that all of them have upon each other. And upon the whole it appears, that, whatever changes and alterations these tenures have in process of time undergone, from the Saxon era to the 12 Car. II, all lay tenures are now in effect reduced to two species; free tenure in common socage; and base tenure by copy of court roll.
I MENTIONED lay tenures only; because there is still behind one other species of tenure, reserved by the statute of Charles II, which is of a spiritual nature, and called the tenure in frankalmoign.
V. TENURE in frankalmoign, in libera eleemosyna, or free alms, is that, whereby a religious corporation, aggregate or sole, holds lands of the donor to them and their successors for ever.94 The service, which they were bound to render for these lands was not certainly defined; but only in general to pray for the souls of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other services but this95) because this divine service was of a higher and more exalted nature.96 this is the tenure, by which almost all the ancient monasteries and religious houses held their lands; and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this day;97 the nature of the service being upon the reformation altered, and made conformable to the purer doctrines of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shown to religion and religious men in ancient times. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions:98 just as the druids, among the ancient Britons, had omnium rerum immunitatem99. And, even at present, this is a tenure of a nature very distinct from all others; being not in the least feudal, but merely spiritual. For if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are held; but merely a complaint to the ordinary or visitor to correct it.100 Wherein it materially differed from what was called tenure by divine service: in which the tenants were obliged to do some special divine services in certain; as to sing so many masses, to distribute such a
sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrain, without any complaint to the visitor.101 All such donations are indeed now out of use: for, since the statute of quia emptores, 18 Edw. I, none but the king can give lands to be held by this tenure.102 So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II, and therefore subsists in many instances at this day. Which is all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures.
1. 1.2.c.16. § 9.
2. 1.3.c.14. § 9.
3. § 117.
4. § 118.
6. Litt. § 117,119.
9. In like manner Skene in his exposition of the Scots’ law, title socage, tells us that it is “anè kind of holding of lands, quhen ony man is infeft freely,”etc.
10. Litt. § 119.
11. § 118.
12. Litt. § 98.120.
13. c. 65.
14. Wright. 211.
15. § 159.
16. § 160.
19. § 152.
20. Litt. § 162,163.
21. ubi supra.
22. § 165.
23. § 211.
24. 3 Mod.Pref.
25. Seld.tit.of hon.2.1.47. Reg.Mag. 1.4.c.31.
26. Pater cunctos filios adultos a se pellebat, praeter unum quem haeredem sui juris relinquebat. (Walsingh. Upodigm. Neustr.c.1.)
27. Litt. § 166.
28. § 167.
30. Stat.32. Hen.VIII.c.29. Kitch. of
31. In toto regno, ante ducis adventum, frequens et usitata fuit: postea caeteris adempta, sed privatis quorundam locorum consuetudinibus alibi postea regerminans: Cantianis solum integra et inviolata remansit. ( Analect.1.2.c.7.)
32. Lamb. Peramb. 614.
33. Lamb. 634.
34. F.N.B.198.Cro. Car 361.
35. Litt. § 210.
36. Glanv. 184.108.40.206.
37. wright. 211.
38. Spelm. cea vet. Leg. 355.
41. Litt. § 117.131.
42. § 130.
43. Eo maxime praestandum est, ne dubium reddatur jus domini et vetustate temporis obscuretur. (Corvin. Jus feud. l. 2. t. 7.)
45. Litt. § 126.
46. l. 2. c. 37. § 8.
47. Litt. § 127.
48. 3 Lev.145.
50. page 449.
51. Litt. § 123. Co. Litt. 89.
52. Litt. §123.
53. 1 Inst. 43. 2 Inst. 65, 66, 67.
54. Wright. 210
55. Co. Cop. § 2. & 10
56. Co. Cop. § 3.
57. Wright. 215.
58. Introd. Hist.Encl.c0.
59. Wright. 217.
60. § Inst.116.
61. Litt. §
62. Ibid. §172.
63. Ille qui tenet in villenagio faciet quicquid ei praeceptum fuerit, nec scire debet sero quid facere debet in crastino, et semper tenebitur ad incerta. (Bracton.l. 4.tr.1.c.28.)
65. de jure Sueonum.l.2.co.4.
66. Litt. § 177.
67. Co. Litt. 40.
68. Litt. § 202.
69. Litt. § 187.
70. Ibid. § 187, 188.
71. Ibid. § 189, 194.
72. Ibid. .
73. Ibid. § 204.
74. § 204, 5, 6.
75. § 208.
76. F. N. B. 12.
77. Cop. § 32.
78. Commonwealth. B. 3. c. 10
79. In some manors the copyholders were bound to perform the most servile office, as to hedge and ditch the lord’s grounds, to lop his trees, to reap his corn, and the like; the lord usually finding them meat and drink, and sometimes (as is still the use in the highlands of Scotland) a minstrel or piper for their diversion. (Rot. Maner. De Edg ware Com. Midd.) As in the kingdom of Whidah, on the slave coast of Africa, the people are bound to cut and carry in the king’s corn from off his demesne lands, and are attended by music during all the time of their labor. ( Mod. Un. Hist.xvi. 429.)
80. Co. Litt.58.
81. 2 Charles. Rep.134.
82. I. 4. tr.1.c.28.
83. F. N. B. 14, 16.
84. C. 66.
85. F. N. B. 228.
86. 5. Inst. 269.
87. F. N. B. II.
88. Ibid. 14.
89. Gilb. Hist. of the exch.16.& 30.
91. l. 1.c.8.
93. Kitchen on courts. 194.
94. Litt. § 133.
95. Ibid. 131.
97. Bracton. l. 4. tr. 1. c. 28. § 1.
98. Seld. Jan.1. 42.
99. Caesar de bell. Gall.l. 6. c. 13.
100. Litt. § 136.