Front Page Titles (by Subject) CHAPTER VI.: OF THE MODERN ENGLISH TENURES. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER VI.: OF THE MODERN ENGLISH TENURES. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF THE MODERN ENGLISH TENURES.
Although, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feodal constitution itself 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 12 Car. II. the tenures of socage and frankalmoign, the honorary services of grand serjeanty, and the tenure by copy of court-roll, were reserved; nay, all tenures in general, except frankalmoign, grand serjeanty, 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 feodal 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.1
The military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services, but which in their nature were unavoidably uncertain in respect to the time of their performance. The second species of tenure, or free socage, consisted also of free and honourable services; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to **79]this day, but has in a 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 determinate 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;(a) if a man holds by rent in money, without any escuage or serjeantry, “id tenementum dici potest socagium:” but if you add thereto any royal service, or escuage, to any the smallest amount, “illud dici poterit feodum militare.” So too the author of Fleta;(b) “ex donationibus, servitia militaria vel magnæ serjantiæ non continentibus, oritur nobis quoddam nomen generale, quod est socagium.” Littleton also (c) 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 afterwards(d) he tells us, that whatsoever is not tenure in chivalry is tenure in socage: in like manner as it is defined by Finch,(e) 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 20s. rent; or, by homage, fealty, and 20s. rent; or, by homage and fealty without rent; or, by fealty and certain corporal service, as ploughing the lord’s land for three days; or, by fealty only without any other service: for all these are tenures in socage.(f)
But socage, as was hinted in the last chapter, is of two sorts: free-socage, where the services are not only certain, but honourable; and villein-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil,(g) 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 **80]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:(h) who derives it from the Saxon appellation soc, 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.(i) 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 plough: 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 plough, 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 plough-service.(k) But this by no means agrees with what Littleton himself tells us,(l) that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plough-service. Besides, even services confessedly of a military nature and original, (as escuage, 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.(m) 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 the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the name of fraunke ferme,(n) tells us, that they are “lands and tenements, whereof the nature of the fee is changed 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 *[*81original, it is hard to account for the very great immunities which the tenants of them always enjoyed; so 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 favour of Somner’s etymology, and the liberal extraction of the tenure in free-socage, against the authority even of Littleton himself.2
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 honourable, as it was called, but, at the same time, more burthensome, 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;(o) 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 serjeanty, tenure in burgage, and gavelkind.
We may remember that by the statute 12 Car. II. grand serjeanty 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, &c. at the coronation) are still reserved. Now, petit serjeanty bears a great resemblance to grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king’s per**82]son. Petit serjeanty, as defined by Littleton,(p) 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,(q) 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 plough, 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 serjeanty. And magna carta respected it in this light when it enacted(r) that no wardship of the lands or body should be claimed by the king in virtue of a tenure by petit serjeanty.3
Tenure in burgage is described by Glanvil,(s) and is expressly said by Littleton,(t) 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.(u) It is indeed only a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature. A borough, as we have formerly seen, is usually 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 insignificancy; 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 could not possibly ever have been held by plough-service; since the te*[*83nants must have been citizens or burghers, the situation frequently a walled town, the tenements a single house; so that none of the owners was probably master of a plough, 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 many of these tenements so held in ancient burgage: the principal and most remarkable of which is that called Borough English,4 so named in contradistinction as it were to the Norman customs, and which is taken notice of by Glanvil,(w) and by Littleton;(x) viz., that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father. For which Littleton(y) gives this reason; because the younger son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. Other authors(z) have indeed given a much stranger reason for this custom, as if the lord of the fee had antiently a right of concubinage 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.(a) 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 to 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 his 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 be*[*84came his heir.(b) So that possibly this custom, wherever it prevails, may be the remnant of that pastoral state of our British and German ancestors, which Cæsar and Tacitus describe. Other special customs there are in different burgage tenures; as that, in some, the wife shall be endowed of all her husband’s tenements,(c) and not of the third part only, as at the common law: and that, in others, a man might dispose of his tenements by will,(d) which, in general, was not permitted after the conquest till the reign of Henry the Eighth; though in the Saxon times it was allowable.(e) A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty.5
The nature of the tenure in gavelkind6 affords us a still stronger argument. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended.7 And as it is principally here that we meet with the custom of gavelkind, (though it was and is to be found in some other parts of the kingdom,)(f) 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.(g) 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.(h) 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 plough.”(i)8 3. In most places he had a power of devising lands by will, before the statute for that purpose was made.(k) 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together;(l) which was indeed anciently the most usual **85]course of descent all over England,(m) though in particular places particular customs prevailed.9 These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is said to be only a species of a socage tenure, modified by the custom of the country; the lands being holden by suit of court and fealty, which is a service in its nature certain.(n) Wherefore by a charter of king John,(o) Hubert, archbishop of Canterbury, was authorized to exchange the gavelkind tenures holden of the see of Canterbury into tenures by knight’s service; and by statute 31 Hen. VIII. c. 3, for disgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands which were never holden by service of socage. Now, the immunities which the tenants in gavelkind enjoyed were such as we cannot conceive should be conferred upon mere ploughmen and 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 feodal nature. Which may probably arise from its ancient Saxon original; since (as was before observed)(p) 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 dispersed through England escaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own insignificancy; 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 *[*86charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton,(q) their number and value began to swell so far, as to make a distinct, and justly envied, part of our English tenures.
However this may be, the tokens of their feodal 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; one of the king, either immediately, or as lord paramount, and (in the latter case) of a subject or mesne lord between the king and his tenant.
2. Both were subject to the feodal 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 renders) to the oath of fealty, or mutual bond of obligation between the lord and tenant.(r) Which oath of fealty usually draws after it suit 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 reason given by Littleton,(s) that if it be neglected, it will by long continuance of time grow out of memory (as doubtless it frequently hath done) whether the land be holden of the lord or not; and so he may lose his seignory, and the profit which may accrue to him by escheats and other contingencies.(t)
4. The tenure in socage was subject, of common right, to aids for knighting the son and marrying the eldest daugh**87]ter,(u) which were fixed by the statute of Westm. 1, c. 36 at 20s. for every 20l. 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 5l., 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:(w) and therefore Bracton(x) will not allow this to be properly a relief, but quædam præstatio 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 hath used to pay his lord, and shall not be grieved about 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.(y) The statute of Charles II. reserves the reliefs incident to socage tenures; and therefore, wherever lands in fee-simple are holden by a rent, relief is still due of common right upon the death of a tenant.(z)
6. Primer seisin was incident to the king’s socage tenants in capite, as well as to those by knight-service.(a) But tenancy in capite as well as primer seisins are, among the other feodal burthens, 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 does not, nor ever did, belong to the lord of the fee; because in this tenure, no military or **88]other personal service being required, there was 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,10 as was fully explained, together with the reasons for it, in the former book of these commentaries.(b) At fourteen this wardship in socage ceases; and the heir may oust the guardian and call him to account for the rents and profits;(c) 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 of service, that the socage tenures had so 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, might make an improvident choice. Therefore, when almost all the lands in 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, and name a guardian, to prevent an infant heir from 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.(d) For the law in favour 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 infant’s behalf; *[*89lest 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 hath ceased with them. At fourteen years of age the ward might have disposed of himself in marriage, without 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 of 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 alienation were, I apprehend, due for lands holden 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,(e) speak generally of all tenants in capite, without making any distinction: but 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.(f)
Thus much for the two grand species of tenure, under which almost all the free lands of the kingdom were holden till the restoration in 1660, when the former was abolished and sunk into the latter; so that the lands of both sorts are now holden by 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 subdivided into two classes, pure and privileged villenage, from whence have arisen two other species of our modern tenures.
**90]III. From the tenure of pure villenage have sprung our present copy-hold 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 different a little in some immaterial circumstances from those that exist at this day;(g) just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor, manerium, a manendo,11 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 terræ dominicales, or demesne lands, being occupied by the lord, or dominus manerii, and his servants. The other, or tenemental, lands they distributed among their tenants; which, from the different modes of tenure, were 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 the free-socage lands;(h) and from hence have arisen most of the freehold tenants who 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 or pasture to the lord and his tenants. Manors were formerly called baronies, as they are still lordships: and each lord or baron was empowered to hold a domestic court, called the court-baron, for redressing misdemesnors and nuisances within the manor, and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor; and if the number **91]of suitors should so fail as not to leave sufficient to make a jury or homage, that is, two tenants at least, the manor itself is lost.12
In the early times of our legal constitution, 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 holden 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 seignory is frequently termed an honour, not a manor, especially if it hath belonged to an ancient feodal baron, or hath been at any time in the hands of the crown. In imitation whereof, these inferior lords began to carve out and grant to others still more minute estates, 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 feodal 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: and also that the mesne lords themselves were so impoverished thereby, that they were disabled from performing their services to their own superiors. This occasioned, first, that provision in the thirty-second chapter of magna carta, 9 Hen. III., (which is not to be found in the first charter granted by that prince, nor in the great charter of king John,)(i) that no man should either give or sell his land, without reserving sufficient to answer the demand of his lord; and afterwards the statute of Westm. 3, or quia emptores, 18 Edw. I. c. 1, 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.13 But these provisions not extending to the king’s own tenants in capite, the like law concerning them is declared by the statutes of prerogativa regis, 17 Edw. II. c. 6, and of 34 Edw. III. c. 15, by which last all subinfeudations, previous to the reign of king *[*92Edward I., were confirmed, but all subsequent to that period were left open to the king’s prerogative. And from hence it is clear, that all manors existing at this day, must have existed as early as king Edward the First; for it is essential to a manor that there be tenants who hold of the lord; and by the operation of these statutes, no tenant in capite since the accession of that prince, and no tenant of a common lord since the statute of quia emptores, could create any new tenants to hold of himself.
Now, with regard to the folk-land, or estates held in villenage, this was a species of tenure neither strictly feodal, Norman, or Saxon; but mixed and compounded of them all:(k) and which also, on 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,(l) 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 feodal 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.(m) This they called villenage, and the tenants villeins, either from the word vilis, or else, as Sir Edward Coke tells us,(n)a villa; because they lived chiefly in villages, and were employed in rustic works of the most sordid kind: resembling the Spartan helotes, to whom alone the culture of the lands were consigned; their rugged masters, like our northern ancestors, esteeming war the only honourable employment of mankind.
**93]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.(o) 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:(p) and their services were not only base, but uncertain both as to their time and quantity.(q) A villein, in short, was in much the same state with us, as lord Molesworth(r) describes to be that of the boors in Denmark, and which Stiernhook(s) 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.(t)
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,(u) and, by the common law, the lord might also bring an action against the husband for damages in thus purloining his property.(w) For the children of villeins were also in the same state of bondage with their pa**94]rents; whence they were called in Latin, nativi, which gave rise to the female appellation of a villein, who was called a neife.(x) 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 in 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.(y) 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;(z) 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.15 Neifes indeed had also an appeal of rape in case the lord violated them by force.(a)
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:(b) 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;(c) 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 in him an ownership entirely inconsistent with his former state of bondage. So also if the lord brought an action against his villein, this enfranchised him;(d) 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 favour 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 *[*95manumission. 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 these 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.(e)
Thus copyhold tenures, as Sir Edward Coke observes,(f) 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.16 Which *[*96affords 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 Smith(g) 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 especially 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.”17 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 pecuniary quit-rent.(h)
**97]As a further consequence of what has been premised, we may collect these two main principles, which are held(i) to be the supporters of the 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.18
In some manors, where the custom hath 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 instance, 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 by the precarious tenure of his lord’s will.19
The fruits and appendages of a copyhold tenure, that it hath 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 for 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,(j) 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, par*[*98takes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian;20 who usually assigns some relation of the infant tenant to act in his stead; and he, like the guardian in socage, is accountable to his ward for the profits.21 Of fines, some are in the nature of primer seisins, due on the death of each tenant, others are mere fines for the 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 favour of the liberty of copyholds, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate.22 No fine therefore is allowed to be taken upon descents and alienations (unless in particular circumstances) of more than two years’ improved value of the estate.(k) From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath 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; and, where no custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes with an equitable moderation, 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,(l) is such as has been held of the kings of England from the conquest **99]downwards; 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 pure 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 an exalted species of copyhold, subsisting at this day, viz., the tenure in antient 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.
Antient 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.(m) The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies,(n) 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.(o) Others were in a great measure enfranchised by the royal favour: being only bound in respect of their lands to perform some of the better sort of villein services, but those determinate and certain: as, to plough the king’s land for so many days, to supply his court with such a quantity of provisions, or other stated services; all of which are now changed into pecuniary rents: and in consideration hereof they had many immunities and privileges granted to them;(p) as to try the right of their property in a peculiar court of their own, called a court of antient demesne, by a peculiar process, denominated a writ of right close;(q)23 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.(r)
*[*100These tenants therefore, though their tenure be absolutely copyhold, yet have an interest equivalent to a freehold: for notwithstanding their services were of a base and villenous original,(s) yet the tenants were esteemed in all other respects to be highly privileged villeins; and especially for 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: “et ideo,” says Bracton, “dicuntur liberi.” Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes(t) to be “lands and tenements, which are not held by knight-service, nor by grand serjeanty, nor by petit, but by simple services, being, as it were, lands enfranchised by the king or his predecessors from their antient demesne.” And the same name is also given them in Fleta.(u) Hence Fitzherbert observes,(w) that no lands are antient demesne, but lands holden 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 plough, 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 franktenure, and villein-socage or socage of antient demesne.
Lands holden 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 special 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; *[*101yet with this distinction,(x) that in the surrender of these lands in antient demesne, 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.”24
Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both antient 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 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, holdeth lands of the donor to them and their successors forever.(y) The service which they were bound to render for these lands was not certainly defined; but only in general to pray for the soul of the donor and his heirs dead or alive; and therefore they did no fealty, (which is incident to all other services but this,)(z) because this divine service was of a higher and more exalted nature.(a) This is the tenure by which almost all the antient 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;(b) the nature of the service being, upon the reformation, altered, and made conformable to the purer doctrines **102]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 antient 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:(c) just as the Druids, among the antient Britons, had omnium rerum immunitatem.(d) And, even at present, this is a tenure of a nature very distinct from all others; being not in the least feodal, 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 holden; but merely a complaint to the ordinary or visitor to correct it.(e) Wherein it materially differs 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 distrein, without any complaint to the visitor.(f) 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 holden by this tenure.(g) 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 ] The tenure prescribed in all the early colonial charters or patents of this country was free and common socage, being “according to the free tenure of lands in East Greenwich in the county of Kent, in England; and not in capite or by knight’s service.” See the great patent of New England, granted by king James in 1620; the charter of Massachusetts, in 1629; the prior charter of Virginia, in 1606; the charter of the Province of Maine, in 1639; the Rhode Island charter, in 1663; the Connecticut charter, in 1662; the Maryland charter, in 1632: the act of the General Assembly of the Colony of New York of 13th May, 1691; (Bradford’s edit. of Colony Laws, printed 1719;) the charter of Pennsylvania, in 1681; the patent of 1662 of Carolina; the charter of Georgia, in 1732. These charters, or the substance of them, are to be seen in most of our early colonial documentary collections, annalists, and historians; and the substance of them is accurately condensed and stated in Story’s Commentaries on the Constitution of the United States, vol. 1. Kent, vol. 3, 571, note.
In those States in which, by express legislative enactment, lands have not been declared allodial, while tenure exists it is only in theory. All lands are supposed to be held mediately or immediately, of the State, which has succeeded by the Revolution to the feudal position of paramount lord before that period occupied by the crown. Escheat in most of the States is regulated by statute. In Cornell vs. Lamb, 2 Cowen, 652, it was declared by Woodworth, J., that fealty was not in fact due on any tenure in the State of New York, and had become altogether fictitious. In Pennsylvania, it has been decided that the statute of quia emptores was never in force, and subinfeudation always lawful; and though there are some opinions that tenures fell with the Revolution, yet all agree that they existed before, and the better opinion appears to be that they still exist. The principles of the feudal system, in truth, underlie all the doctrines of the common law in regard to real estate, and wherever that law is recognised recourse must be had to feudal principles to understand and carry out the common law. The necessity of words of limitation in deeds,—the distinction between words of limitation and words of purchase,—the principle that the freehold shall never be in abeyance, that a remainder must vest during the continuance of a particular estate or eo instanti that it determines, that the heir cannot take as a purchaser an estate the freehold of which by the same deed is vested in the ancestor,—and many more rules and principles of very great practical importance, and meeting us at every turn in the American as well as the English law of real estate,—are all referrible to a feudal origin. “The principles of the feudal system,” said chief-justice Tilghman, “are so interwoven with our jurisprudence that there is no removing them without destroying the whole texture.” Lyle vs. Richards, 9 S. & R. 333. “Though our property is allodial,” said chief-justice Gibson, “yet feudal tenures may be said to exist among us in their consequences and the qualities which they originally imparted to estates; as, for instance, in precluding every limitation founded on an abeyance of the fee.” McCall vs. Neely, 3 Watts, 71. See Ingersoll vs. Serjeant, 1 Whart, 337. Hubley vs. Vanhorne, 7 S. & R. 188. Hileman vs. Bonsbaugh, 1 Harris, 351.—Sharswood.
[(a) ]L. 2, c. 16, 9.
[(b) ]L. 3, c. 14, 9.
[(c) ] 117.
[(d) ] 118.
[(e) ] L. 147.
[(f) ] Litt. 117, 118, 119.
[(g) ]L. 3, c. 7.
[(h) ] Gavelk. 138.
[(i) ] In like manner Skene, in his exposition of the Scots law, title Socage, tells us that it is “any kind of holding of lands quhen ony man is infeft freely,” &c.
[(k) ] Litt. 119.
[(l) ] 118.
[(m) ] Litt. 93, 120.
[(n) ] C. 66.
[2 ] The learned judge has done Mr. Somner the honour of adopting his derivation of socage, which Mr. Somner himself boasts of as a new discovery with no little pride and exultation, as appears from the following sentence:—Derivatio forte hæc nova et nostratibus adhuc inaudita, qui, à soc quatenus vel aratrum vel saltem vomerem signat, vocem derivare satagunt. Quam male tamen, eorem veniâ fusius a me jam monitum in tractatu de gavelkind, cap. 4, Somn. Gloss. Soca. But, notwithstanding this unheard-of derivation has found an able defender in the learned commentator, the editor is obliged to prefer the old derivation, for the following reasons. Our most ancient writers derive it from soca or soccus, a plough; and sock, in some parts of the north of England, is the common name for a ploughshare to this day. The following description of socage is given by Bracton:—Dici poterit socagium à socco, et inde tenentes sockmanni, eo quod deputati sunt, ut videtur, tantummodo ad culturam, et quorum custodia et maritagia ad propinquiores parentes jure sanguinis pertinebant. C. 35. This is not only adopted by Littleton and lord Coke, (Co. Litt. 86,) who says that socagium est servitium socæ, which is also the interpretation given by Ducange, (voc. Soc.;) but Sir Henry Spelman, whose authority is high in feudal antiquities, testifies that feudum ignobile, plebeium vulgare Gall. fief roturier nobili opponitur, et propriè dicimus, quod ignobilibus et rusticis competit, nullo feudali privilegio ornatum, nos soccagium dicimus. Gloss. voc. Feod. And soccagium he explains by Gall. roture, fief roturier. Heretages en roture. Ib. voc. Soc.
In a law of Edward the Confessor, the sokeman and villein are classed together:—Manbote de villano et sokeman xii oras, de liberis autem hominibus iii marcas. C. 12. If we consider the nature of socage tenure, we shall see no reason why it should have the pre-eminence of the appellation of a privileged possession.
The services of military tenure were not left, as suggested by the learned judge in the preceding page, to the arbitrary calls of the lord: for, though it was uncertain when the king would go to war, yet the tenant was certain that he could only be compelled to serve forty days in the year: the service, therefore, was as certain in its extent as that of socage; and the sokeman likewise could not know beforehand when he would be called upon to plough the land, or to perform other servile offices, for the lord. The milites are everywhere distinguished from the sokemanni; and the wisdom of the feudal polity appears in no view more strongly than in this,—viz.: that, whilst it secured a powerful army of warriors, it was not improvident of the culture of the lands and the domestic concerns of the country. But honour was the invigorating principle of that system; and it cannot be imagined that those who never grasped a sword nor buckled on a coat of mail should enjoy privileges and distinctions denied to the barons and milites, the companions of their sovereign. The sokemanni were indebted only to their own meanness and insignificance for their peculiar immunities. The king or lord had the profits of the military tenant’s estate during his non-age, in order to retain a substitute with accoutrements and in a state suitable to the condition of his tenant: at the same time, he took care that the minor was instructed in the martial accomplishments of the age. But they disdained to superintend the education of the sokemanni; and, as they had nothing to apprehend from their opposition and could expect no accession of strength from their connections, their marriages therefore were an object of indifference to them. Hence, when the age of chivalry was gone, and nothing but its slavery remained, by no uncommon vicissitude in the affairs of men, the sokemanni derived from their obscurity that independence and liberty which they have transmitted to posterity, and which we are now proud to inherit.—Christian.
[(o) ] Wright, 211.
[(p) ] 159.
[(q) ] 160.
[(r) ] Cap. 27.
[3 ] The tenure of petit serjeanty is not named in 12 Car. II., but the statute is not without its operation on this tenure. It being necessarily a tenure in capite, though in effect only so by socage, livery and primer seisin were of course incident to it on a descent, and these are expressly taken away by the statute from every species of tenure in capite, as well socage in capite as knight’s service in capite. But we apprehend that in other respects petit serjeanty is the same as it was before; that it continues in denomination, and still is a dignified branch of the tenure by socage, from which it only differs in name on account of its reference to war. Harg. and Butl. Co. Litt. 108, b., n. 1. The tenure by which the grants to the duke of Marlborough and the duke of Wellington for their great military services are held are of this kind, each rendering a small flag or ensign annually, which is deposited in Windsor Castle.—Chitty.
[(s) ] Lib. 7, cap. 3.
[(t) ] 162.
[(u) ] Litt. 162, 163.
[4 ] See Bac. Abr. and Com. Dig. tit. Borough English. Cru. Dig. 1 vol. 133, id. 3 vol. 476. This custom prevailed in the manors of Ford, Cundover, Wem, and Loppington, in Staffordshire; Bishop-Hampton, Herefordshire; Havenham, Sussex; Malden, Essex; Skidby, East Riding, Yorkshire; and some others.—Chitty.
[(w) ]Ubi supra.
[(x) ] 165.
[(y) ] 211.
[(z) ] 3 Mod. Pref.
[(a) ] Seld. Tit. of Hon. 2, 1, 47. Reg. Mag. l. 4, c. 31.
[(b) ]Pater cunctos filios adultos a se pellebat, præter unum quem hæredem sui juris relinquebat. Walsingh. Upodigm. Neustr. c. 1.
[(c) ] Litt. 166.
[(d) ] 167.
[(e) ] Wright, 172.
[5 ] Custom, if properly pleaded and proved, seems to be conclusive in all questions as to descent in borough English. In Chapman vs. Chapman (March. 54, pl. 82) a custom respecting certain lands in borough English—that, if there were an estate in fee in those lands, they should descend to the younger son, according to the custom: but if the estate was in tail, they should descend to the heir at common law—was held to be good. The customary descent may, in particular places, be confined to estates in fee-simple, (Reeve vs. Malster, W. Jones, 3[Editor: illegible character]3 and see Append. to Robins. on Gavelk.;) but it may extend to fee-tail, or any other inheritance. Lord Coke says, (1 Inst. 110, b.,) “If lands of the nature of borough English be letten to a man and his heirs during the life of J. S., and the lessee dieth, the youngest son shall enjoy it.” And in the same place he tells us “the customary descent may, in particular places, extend to collaterals;” but then it must be specially pleaded, for the custom is in most places confined to cases of lineal descent, (Bayley vs. Stevens, Cro. Jac. 198. Reve vs. Barrow, Cro. Car. 410;) and where lands would at common law descend to the issue of the eldest son jure repræsentationis, they will, by the custom of borough English, descend upon the issue of the youngest. Clements vs. Scudamore, 2 Lord Raym. 1024, S. C. 1 P. Wms. 63; and 1 Salk. 243. The course of descent of lands held in gavelkind or in borough English cannot be altered by any limitation of the parties; for customs which go with the land and direct the course of inheritance can be altered only by parliament. Co. Litt. 27, a. Jenkins Cent. page 220. S. P. Dyer, 179, b. Roe vs. Aistrop, 2 W. Blacks. 1229. 2 Hale’s Hist. of Com. L. 103. But there is a great difference between the descent of such land and the purchase thereof; for if upon such purchase a remainder be limited to the right heir of the purchaser, or of any other person, the heir at common law will take it, and not the customary heir. For the remainder, being newly created, could not be considered within the old custom. Counden vs. Clerk, Hob. 31. On the other hand, if a man seized in fee of lands in gavelkind make a gift in tail, or a lease to a stranger for life, with remainder to his own right heirs, it seems all his sons will take; for the remainder, limited to the right heirs of the donor, is not a new purchase, but only a reversion, which will follow the customary course of descent. Co. Litt. 10, a. Chester vs. Chester, 3 P. Wms. 63.
If the court of chancery is called upon to administer a will creating an executory trust respecting lands held in borough English or gavelkind, and the cestuis que trust are to take as purchasers, the lands will be directed to be conveyed not to heirs according to the custom, but to the heirs at common law. Roberts vs. Dixwell, 1 Atk. 609. Starkey vs. Starkey, 7 Bac. Abr. 179. And all gavelkind and borough-English lands are now devisable; but since the statute of frauds (29 Car. II. c. 3) the devise of these, as of other lands, must be in writing.—Chitty.
[6 ] See in general Robinson on Gavelkind; Bac. Abr. and Com. Dig. tit. Gavelkind; Cru. Dig. 1, 106, 132, 144, 2, 541, 3, 475, 499; Fearne’s Con. Rem. 154; Preston on Conveyancing, 1 vol. 287, 290; H. Chitty on Descents, index, tit. Gavelkind.—Chitty.
[7 ] The best historians show that the Kentish men owed what the learned commentator calls the preservation of their ancient liberties not, as supposed by him, to their successful resistance of the invader, but to their policy in yielding a ready and apparently spontaneous submission to his authority. See authorities in Bac. Abr. Gavelkind, A.—Chitty.
[(f) ] Stat. 32 Hen. VIII. c. 29. Kitch. of Courts, 200.
[(g) ]In toto regno, ante ducis adcentum, frequens et usitata fuit: postea cæteris adempta, sed privatis quorundam locorum consuetudinibus alivi postea regerminans: Cantianis solum integra et inviolata remansit. Analect. l. 2, c. 7.
[(h) ] Lamb. Peramb. 614.
[(i) ] Lamb. 634.
[8 ] But if tenant in gavelkind, being indicted for felony, absent himself and is outlawed, after proclamation made for him in the county, (or if formerly he had taken sanctuary, and had abjured the realm,) his heir shall reap no benefit by the custom, but the lands shall escheat to the lord; and the king shall have year day and waste in them, if holden of another, in like manner as the common law directs as to lands which are not subject to the custom of gavelkind. Rob. Gav. 229.—Chitty.
[(k) ] F. N. B. 198. Cro. Car. 561.
[(l) ] Litt. 210.
[(m) ] Glanvil. l. 7, c. 3.
[9 ] Gavelkind and borough English, being customs already acknowledged by law, need not be pleaded: it is sufficient to show that the lands are affected and regulated by the same; but all other private customs must be pleaded. H. Chitty on Descents, 162. It is also proper to observe that there cannot be any ancient descent with respect to tithes, because laymen were incapable of holding them before the dissolution of the monasteries. See Doe, dem. Lushington vs. Bishop of Llandaff, 2 New R. 491, where a rectory in Kent, formerly belonging to one of the dissolved monasteries, having been granted by Hen. VIII. to a layman, to be holden in fee by knight-service in capite, it was held that the lands were descendible according to the custom of gavelkind, but the tithes according to the common law. See also H. Chitty’s Descents, 200.—Chitty.
[(n) ] Wright, 211.
[(o) ] Spelm. cod. vet. leg. 355.
[(p) ] Page 48.
[(q) ] C. 66.
[(r) ] Litt. 117, 131.
[(s) ] Litt. 130.
[(t) ]Eo maxime præstandum est, ne dubium reddatur jus domini et vetustate temporis obscuretur. Corvin. jus feod. l. 2. t. 7.
[(u) ] Co. Litt. 91.
[(w) ] Litt. 126.
[(x) ]L. 2, c. 37, 8.
[(y) ] Litt. 127.
[(z) ] 3 Lev. 145.
[(a) ] Co. Litt. 77.
[10 ] Mr. Hargrave, in his 5th note to Co. Litt. 88, b., intimates that this rule should be confined to possibility of immediate descent. If this be not so, supposing an infant were entitled to lands and his father living, the father might be deprived of the guardianship; for the infant’s heir might be a person to whom the father might be heir.
The guardianship of a father, by our law, (which, in this instance, is founded on the law of nature,) continues, with respect to his son and heir-apparent, till that son attain the age of twenty-one years; but it so continues with respect to the custody of the body only. The King vs. Thorp, Comyns, 28, S. C. Carth. 386. According to the strict language of our law, an heir-apparent alone can be the subject of guardianship by nature. Ratcliffe’s case, 3 Rep. 38. But this technical construction must not lead us to conclude that parents have not any right to the custody of their other children; for our law gives the custody of them to their parents till the age of fourteen by the guardianship of nurture. S. C. And the statute of 12 Charles II. c. 24 empowers a father, though himself under twenty-one, by deed or will attested by two witnesses, to appoint guardians to all his children under twenty-one, and unmarried at his decease, or born after; such guardianship to last till the children attain the age of twenty-one, or for any less time, and the appointment to be effectual against all claiming as guardians in socage or otherwise, the testamentary guardian having the custody not only of the children’s persons, but of their estate, both real and personal.
Thus it seems a father may, by will, delegate to any stranger whom he chooses to select a much more extensive power than the letter of the law gives to himself whilst he lives; for the guardianship of nurture, as we have just seen, expires at the same time as guardianship in socage does,—namely, when the infant attains the age of fourteen.
There is no sort of doubt that the court of chancery, representing the king as parens patriæ, has a jurisdiction now perfectly established to control the right of a father to the possession of his child whenever the welfare of the child imperatively requires so strong a measure. In the words of lord Eldon, “The court has interposed in many instances of this sort; but the application is one of the most serious and important nature. The interposition of the court stands upon principles which it ought not to put into operation without keeping in view all the feelings of a parent’s heart and all the principles of the common law with respect to a parent’s rights.” Wellesley vs. The Duke of Beaufort, 1 Russ. 19; and see Lyons vs. Bleakin, Jacob’s Rep. 262. Shelley vs. Westbrooke, ibid. 266. De Manneville vs. De Manneville, 10 Ves. 61. Whitfield vs. Hales, 12 Ves. 492. In the reports of the cases cited, most of the other instances in which the jurisdiction in question has been exercised are adverted to; and whoever examines them will find that the power has been wielded by considerate hands.
The control of the court of chancery over the property of infants who are made its wards is of course absolute; and many statutes (the marriage act and others) in effect recognise the chancellor as the constitutional depositary of that part of the king’s prerogative or paternal duty (whichever it may most properly be called) which consists of the guardianship of his infant subjects.—Chitty.
[(b) ] Book i. page 461.
[(c) ] Litt. 123. Co. Litt. 89.
[(d) ] Litt. 123.
[(e) ] 1 Inst. 73. 2 Inst. 65, 66, 67.
[(f) ] Wright, 210.
[(g) ] Co. Cop. 2 and 10.
[11 ] Mr. Watkins, (1 Treat. of Copyh. 7,) following lord Coke, (Copyh. p. 52,) prefers that derivation of the word “manor” which brings it from the Norman French word mesner, to guide, as most agreeing with the nature of a manor, all the tenants of which were under the guidance of the lord thereof. Lord Coke held this etymology most probable, because (he says) a manor signifies the jurisdiction and royalty incorporate, rather than the land or scite. Whatever the derivation of the word may be, it is certain that the jurisdiction was, as our author himself informs us, at least as essential to the constitution of a manor (or lordship, or barony) as a mansion-house ever was.—Chitty.
[(h) ] Co. Cop. 3.
[12 ] They must be two freeholders, holding of the manor subject to escheat. 3 T. R. 447. Bro. Abr. tit. Cause a remover, plec. pl. 35. A manor by reputation, but which has ceased to be a legal manor, by defect of suitors to the court, may yet retain some of its privileges, as a preserve for game, and the lord may still appoint a gamekeeper. 1. East. 259. Watkins on Copyhold, 3 ed. 21, 22.—Chitty.
[(i) ] See the Oxford editions of the charters.
[13 ] The words of the act are, “That it shall be lawful to every freeman to sell, at his own pleasure, his lands and tenements, or part of them, so that the feoffee shall hold the same of the chief lord of the same fee, by such service and customs as his feoffor held before.”—Chitty.
[(k) ] Wright, 215.
[(l) ] Introd. Hist. Eng. 59.
[(m) ] Wright, 217.
[(n) ] 1 Inst. 116.
[(o) ] Litt. 181.
[(p) ] Ibid. 172.
[14 ] This is an eloquent description of slavery. Villeins were not protected by magna charta; nullus liber homo capiatur vel imprisonetur, &c. was cautiously expressed to exclude the poor villein; for, as lord Coke tells us, the lord might beat his villein, and, if it be without cause, he cannot have any remedy. What a degraded condition for a being endued with reason!—Christian.
[(r) ] C. 8.
[(s) ]De jure sueonum, l. 2, c. 4.
[(t) ] Litt. 177.
[(u) ] Co. Litt. 140.
[(w) ] Litt. 202.
[(x) ] Ibid. 18.
[(y) ] Ibid. 187, 188.
[(z) ] Ibid. 189, 194.
[15 ] The damages recovered for the maim of his own person might be immediately seized by his lord, and so no benefit accrued to him from such a suit. But the lord was subject to an indictment on the king’s behalf. Litt. 194.—Chitty.
[(a) ] Ibid. 190.
[(b) ] Ibid. 204.
[(c) ] 204, 205, 206.
[(d) ] Litt. 208.
[(e) ] F. N. B. 12.
[(f) ] Cop. 32.
[16 ] In the second note to the case of Grant vs. Astle (Doug. 725) we are informed that lord Loughborough doubted whether those who, like our author, refer the origin of copyhold tenure to a mitigation of the state of villenage are not mistaken. His lordship founded his doubts upon the fact that, in those parts of Germany from which the Saxons migrated into England, there are still coexisting a species of tenure exactly the same with our copyhold estates, and likewise a complete state of villenage. But the last editor of Doug. Rep. observes, this is by no means a conclusive argument. All villenage may not have been done away with throughout a country, but a partial mitigation of that state may have taken place; and, in those instances, the privileged villeins may hold by tenure resembling our copyhold, whilst, at the same time, others less favoured may remain in a state of pure villenage. It is highly improbable that in our own country all villeins were at once elevated into the rank of copyholders: indeed, we have every reason to be assured that the contrary was the fact. Lord Loughborough’s doubts, therefore cannot shake our author’s statement in the text above, which is supported by all our best, law-writers on the subject, and is confirmed by the evidence of history, which furnishes distinct examples of the change of villein tenure into copyhold.—Chitty.
[(g) ] Commonwealth. b. 3, c. 10.
[17 ] The last claim of villenage which we find recorded in our courts was in the 15 Jac. I. Noy, 27. 11 Harg. St. Tr. 342.—Christian.
[(h) ] In some manors the copyholders were bound to perform the most servile offices, as to hedge and ditch the lord’s grounds, to lop his trees, and 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. Rol. Maner. de Edgware Comm. Mid. 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 labour. Mod. Un. Hist. xvi. 429.
[(i) ] Co. Litt. 58.
[18 ] See this point considered (1 Watkins on Copyhold) in the very able edition of that work by Vidal, tit. Grants, pages 33, 51, &c. According to 3 Bos. & Pul. 346, 2 M. & S. 504, 2 Bar. & Ald. 189, and 2 Camp. 264, 265, without a special custom the lord cannot make a new grant of waste to hold as copyhold, though slight evidence of a custom will suffice; but a custom for the lord to grant leases of the wastes of a manor without restriction is bad. 3 B. & A. 153.—Chitty.
[19 ] As soon as the death of a copyhold tenant is known to the homage, it should be presented at the next general court, and three several proclamations should be made at three successive general courts for the heir or other person claiming title to the land whereof such copyholder died seized to come in and be admitted. Proclamation is said to be unnecessary where the heir appears in court, either personally or by attorney; but until such presentment and proclamations, the heir, though of full age, is not bound to come into court to be admitted. If, after the third proclamation, no such person claims to be admitted, a precept may be issued by the lord or steward to the bailiff of the manor to seize the lands into the lord’s hands for want of a tenant, (Watkins on Copyhold, 239. H. Chitty’s Descents, 165. 1 Keb. 287. Kitch. 246. 1 Leon. 100. 3 id. 221. 4 id. 30. 1 Scriv. 341, 342;) but the seizure must be quousque, &c., and not as an absolute forfeiture, unless there be a custom to warrant it. 3 T. R. 162.
The admittance is merely as between the lord and the tenant, (Cowp. 741,) and the title of the heir to a copyhold is as against all but the lord complete without admittance. The ceremony of admittance is said to be for the lord’s sake only; and therefore in one case the court refused a mandamus to the lord to admit a person who claimed by descent. But a mandamus ought to be granted if a proper case be laid before the court. 1 Wils. 283. Recently the court, as a matter of right, granted a mandamus to admit a person claiming by descent. 3 Bar. & Cres. 172. If the heir is refused admittance, he shall be terre-tenant, even though the lord loses his fine, (Comyn. 245;) for the lord is only trustee for the heir, and merely the instrument of the custom for the purpose of admittance. 1 Watk. Copyh. 281. Cro. Car. 16. Co. Copyh. s. 41. So also is the steward; and therefore an admittance by him will be good though he acts by a counterfeit or voidable authority, it being sufficient if in appearance he be steward. Co. Copyh. 124.—Chitty.
[(j) ] See ch. 28.
[20 ] The statute of 9 Geo. I. c. 29 in relation to the copyholders who are under age, and who are entitled by descent or surrender to the use of a last will, provides that, if they do not come in to be admitted in person, or by their guardians, or (having no guardians) by their attorneys, (which the act enables them to appoint,) at one of the three then next courts, the lord or steward, on due proclamation made, may appoint such guardians for the purpose of admission, and thereupon impose the just fines, (as to which see note 25.) And if such fines are not paid as directed by that act, the lord is empowered to enter and take the profits (but without liberty to fell timber) till such fines and the consequent expenses are satisfied, rendering an account to the persons entitled. If the guardians pay such fines, then they may reimburse themselves in the like manner.
In the construction of this act it was held, both by lord Eldon and lord Erskine, that the court of chancery is not at liberty to speculate upon what the legislature might mean, beyond what it has expressed. The court, it was said, must abide by the words of the act, which confine its operation to cases of descent or surrender to the use of a will, and do not apply to a title under a deed. Therefore, to a bill by a lord praying a discovery, in aid of an action under the statute, for recovery of fines alleged to be due, a demurrer was allowed. Lord Kensington vs. Mansell, 13 Ves. 240.
However, as the statute of 55 Geo. III. c. 192 has since enacted that all dispositions of copyhold estates by will shall be as effectual to all intents and purposes, although no surrender shall have been made to the use of the will, as the same would have been if a surrender to the use of the will had been made, the statute of Geo. I. is, in this respect, enlarged. And it is evident the last-named statute materially qualifies the statement in the text, that “the lord is the legal guardian.”
This authority of the lord must be by virtue of a special custom in a manor; for by the 12 Car. II. c. 24, s. 8 and 9, a father may appoint a guardian by his will as to the copyholds of his child; and though this custom is not abolished in terms, nor can be said to be taken away by implication in this statute, yet, where the custom does not exist in a manor, the better opinion is that the statute will operate; and even where the custom prevails, Mr. Watkins thinks, the father may, by this statute, appoint a guardian of the person of his child, if not of his copyhold property. See 2 Watk, on Copyh. 104, 105.—Chitty.
[21 ] There is some obscurity as to this point; but I imagine the account given of it in the text cannot be the correct one. As the tenure clearly savoured more of socage than chivalry, the lord, without a special custom warranting it, cannot well be supposed to be the guardian, but the nearest relation to whom the inheritance cannot descend. And, accordingly, in 2 Rolle’s Abr. tit. Garde, P. pl. 1, it is laid down by the court that “if a copyhold descend to an infant within the age of fourteen, his prochein amy, to whom the land cannot descend, shall have the custody of it, as he would of a freehold, unless there be a custom appointing it to another. If there be such a custom, that will still operate and is not affected by the statute of Car. II. See ante, p. 88. But the present question is, Who shall now be guardian where there is no custom? Whether, though the statute will not operate to defeat a custom, it shall take place in the absence of any custom? Mr. Watkins is of opinion that it will; and even where there is a custom he thinks that the father, by will under the statute, may appoint a guardian of the body of his child. It is desirable that the law should be as he states it, but I am not aware that any decision to that effect has taken place. See 2 Watk. on Copyholds, 104.—Coleridge.
[22 ] As, in the case where the lord is not bound to renew, or, being so bound by the custom, the copyholder is allowed to put in more than one life at a time, and consequently several admissions are made at the same time, for which an increased fine may be fairly demanded. The rule generally is to take for the second life half what the immediate tenant for life pays, and for the third half what the second pays. But this must be understood by persons taking successively; for if they take as joint tenants, or as tenants in common, the single fine only would be due: to be apportioned in the latter case, each paying severally. Watk. on Copyh., 1 vol. 312. Scriven on Copyh. 374. It seems that coparceners are entitled to be admitted to copyhold tenements as one heir, and upon payment of one set of fees. 3 Bar. & C. 173.—Chitty.
[(k) ] 2 Ch. Rep. 134.
[(l) ]L. 4, tr. 1, c. 28.
[(m) ] F. N. B. 14, 56.
[(n) ] C. 66.
[(o) ] F. N. B. 238.
[(p) ] 4 Inst. 269.
[(q) ] F. N. B. 11.
[23 ] In an action of ejectment, it may, by leave of the court, be pleaded in abatement that the lands are part of a manor which is held in ancient demesne; but such a plen must be sworn to, and is not favoured. 2 Burr. 1046.—Chitty.
[(r) ] Ibid. 14.
[(s) ] Gilb. Hist. of Exch. 16 and 30.
[(t) ] C. 66.
[(u) ]L. 1, c. 8.
[(w) ] N. B. 13.
[(x) ] Kitchen on Courts, 194.
[24 ] Besides the ancient demesne lands held freely by the grant of the king, and those called customary freeholds, held of a manor which is ancient demesne but not at the will of the lord, there is a third class, often, as in the text, but erroneously, called tenants in ancient demesne, who hold of a manor which is ancient demesne, but hold by copy of court-roll at the will of the lord, and are called copyholders of base tenure. The neglect to keep in mind these distinctions sometimes produces perplexity and confusion in questions respecting the tenure in ancient demesne. See Scriven on Copyholds, 656.—Chitty.
It is only the freeholders of the manor who are truly tenants in ancient demesne; and their lands pass by common-law conveyances. They form the court of ancient demesne, which is analogous to the court-baron. The copyholders form the customary court. See Third Real Property Report, p. 13. 3 B. & P. 382.
There are some estates held according to the custom of a manor, but not by copy of court-roll nor at the will of the lord. “These customary estates, known by the denomination of tenant-right, are peculiar to the northern parts of England, in which border-services against Scotland were anciently performed before the union of England and Scotland under the same sovereign. And although these appear to have many qualities and incidents which do not properly belong to villenage tenure, either pure or privileged, (and out of one or other of these species of villenage all copyhold is derived,) and also have some which savour more of military service by escuage uncertain,—which, according to Litt. s. 99, is knights’ service; and although they seem to want some of the characteristic qualities and circumstances which are considered as distinguishing this species of tenure, viz., the being holden at the will of the lord, and also the usual evidence of title by copy of court-roll; and are alienable, also, contrary to the usual mode by which copyholds are aliened, viz., by deed and admittance thereon, (if, indeed, they could be immemorially aliened at all by the particular species of deed stated in the case, viz., a bargain and sale, and which at common law would only have transferred the user;) I say, notwithstanding all these anomalous circumstances, it seems to be now so far settled in courts of law that these customary tenant-right estates are not freehold, but that they in effect fall within the same consideration as copyholds, that the quality of their tenure in this respect cannot properly any longer be drawn into question.” Per lord Ellenborough, C. J., 4 East, 288. See 2 Bos. & P. 378. 4 Per. & D. 579; infra, p. 148.—Sweet.
[(y) ] Litt. 133.
[(z) ] Ibid. 131.
[(a) ] Ibid. 135.
[(b) ] Bracton, l. 4, tr. 1, c. 28, 1.
[(c) ] Seld. Jan. 1, 42.
[(d) ] Cæsar de Bell. Gall. l. 6, c. 13.
[(e) ] Litt. 136.
[(f) ] Ibid. 137.
[(g) ] Ibid. 140.