overruled the authorities, that the steward of a court baron is a ministerial officer only (a), goes a great way towards confirming the opinion expressed in some of the books, that a mandamus will lie to be restored to the stewardship of a court baron.

In the King v. The Churchwardens of Kingscleere (b), Hale, C. J. said, that a mandamus lay for the steward of a court baron," if he be not at will only, because he is an officer of justice." (c) But there are several authorities that a mandamus will not lie for a steward of a court baron, as being a private thing and not concerning the administration of justice.' (d)

In Ile's case, in B. R. (e) Twisden said it was ruled in 1652, in this court, that a mandamus did not lie to be restored to a stewardship of a court baron, but of a court leet it did, for there the steward was judge, but of a court baron the suitors

(a) A mandamus is never granted to compel a mere ministerial officer to do his duty. Rex v. Dr. Walker, 624. Bul. N. P. 199. Ante, pt. 1. p. (b) 2 Lev. 18. (c) Ante, pt. 1. p. 625. And in the King v. Stanton, Cro. Jac. 259, (S. C. Yelv. 192,) Yelverton, Williams, and Croke, held against the opinion of Fleming, C. J. (Fenner doubting) that a quo warranto lies of a court baron, because it is matter of right to hold courts, and to administer justice, and to hold pleas, and to draw assemblies of men together, and to swear officers; which if any doth without right, he is to render an account thereof.' And see Scroggs, 94. Rex v. Stafferton & Brown, 1 Bulst. 54. Br. Quo Warranto, pl. 4.

But in the King v. Hulston, 1 Str. 621, where an information was granted in the nature of a quo warranto,

against the defendant, for exercising the office of steward of a court leet, the court said they would not grant it in the case of a court baron, that being only a private right, and no court of record.

It has been refused for holding a court leet in a manor, being a private right. Rex v. Cann, T. 10 and 11 G. 2. Andr. 14. See further as to quo warranto of court baron. Com. Dig. Quo Warranto. (A) & (B). And see as to quo warranto of court leet, post ch. 21.

(d) See Stamp's case, 1 Sid. 40. Middleton's case, Ib. 169. King v. Street, 8 Mod. 98. Comb. 127. But see Yelv. 191, in Roe v. Staverton, where a court baron is described to be a court of justice.

(e) 1 Vent. 153. Ante, pt. 1. p.

625.

are judges.' Hale said he was of another opinion, the steward being judge of that part of the court which concerns the copyholds, and register of the other.

The steward being the judge of a customary court would seem, however, to be an insufficient reason for a mandamus lying to restore him to the office (a). It is, I apprehend, the public or private nature of the office alone, by which the court of King's Bench would be influenced at the present day, in granting or refusing an application for a mandamus to be restored to the stewardship of a court baron; and it is obvious that the steward of the court baron, where pleas of debt are holden, and real actions were always formerly, and are now sometimes, commenced, is more in the nature of a public officer, than the steward of a customary court, which is for copyhold purposes only, and in which the acts of the steward are chiefly of a ministerial nature.

This section may properly be concluded by reminding the reader, that a grant for life, by deed, of the stewardship of a manor, and of the courts thereto belonging, is good (b); and by referring him to the first part of the present work (c), where I have suggested that an infant, being of years of discretion, may preside in a court baron; and that the stewardship of a court baron may be granted in reversion (d).

(a) An application for a mandamus to swear in a steward of customary court, was once refused by C. J. Holt. See Anon. 12 Mod. 665. Ante, pt. 1. p. 625. n. (b.)

(b) Bartlett v. Downes, 3 Barn. & Cress. 616. S. C. 5 Dow. & Ry. 526. S. C. 1 Car. & Pay. 522. Ante, pt. 1. p. 142.

A grant to two for a term of years is good, for the appointment determines with the lives of the grantees, and will not go to the executors or administrators. Ante, pt. 1. p. 141.

And note. A bishop may grant the stewardship of a manor

for life, notwithstanding the stat. 1 Eliz. c. 19. if usually so granted before that statute. Sir John Trelawney v. Bishop of Winchester. 1 Burr. 219. And see Young v. Stoell, Cro. Car. 279. W. Jones, 310. Young v. Fowler, Cro. Car. 555. S. C. Mar. 38. Ridley v. Pownell, 2 Lev. 136.

A bishop grants the stewardship of a manor for life, and says not for whose life, it shall be for the life of the grantee. Cook v. Younger, Cro. Car. 16.

(c) p. 136. (d) p. 141.

SECTION II.

Of the Services due from Freehold Tenants.

We have fully discussed the nature of the services due to the lord of a manor, in respect of copyhold land, and partially also the nature of those due in respect of land of freehold tenure (a). It may, however, be proper to take a brief view of the obligations imposed on the tenant, by the original grants, under which socage lands are held derivatively at this period. And although it is very far from my intention to enter upon a minute consideration of the nature and origin of the feudal polity, or doctrine of tenure, yet a few preliminary observations on the contrasted properties of ancient and modern English tenure, may not be deemed unacceptable, or inapplicable to the immediate subject of our inquiries.

The feudal constitution, (described by Sir Martin Wright (b) to be a military policy of the northern conquering nations,) which by degrees established itself over the western world, to the exclusion of the Roman laws, seems not to have been universally adopted in this country, till about the middle of the reign of William the Conqueror (c).

Previous to its introduction into England, the possessions of land were allodial, a word signifying positive unqualified right, the owner having the complete and absolute property, and not holding of any particular lord; whereas a feud, fief, or fee,

(a) Ante, pt. 1. ch. 8.

(b) Ten. p. 6. And Sir W. Blackstone, [2d vol. Com. p. 45,] observes, that "the constitution of feuds had its origin from the military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the

Vandals, and the Lombards, who all
migrating from the same officina gen-
tium, as Crag very justly entitles it,
poured themselves in vast quantities
into all the regions of Europe, at the
declension of the Roman empire."
(c) Ante, p. 688. n. (a).

denoted stipendiary property, or a tract of land, held by gratuitous donation, on condition of performing certain stipulated services, chiefly of a military nature. These gifts were originally dependent on the will and pleasure of the grantor, but afterwards were extended to a term of one or more years, subsequently to the life of the feudatory (a), and ultimately were made hereditary.

Such grants as were purely military were denominated proper feuds, and those in which the consideration moving to the grant, or the services reserved, were not strictly conformable to that character, were deemed improper feuds (b).

The fundamental maxim of feudal tenure is, that all lands were originally granted by the king, and are therefore holden immediately or mediately of the crown (c).

Until the middle of the seventeenth century, a considerable (and according to Sir William Blackstone (d) the greatest) part of the lands in England, were holden by knight-service (e), (a tenure implying personal military duty,) and principally of the king in capite.

(a) Feudatory or beneficiary estates, when granted at will only, were called Munera, and when afterwards granted for life, they were termed Beneficia, which word is still retained amongst ecclesiastics, whose estates are called Benefices; and the term Feuda was first used when estates began to be granted in perpetuity. Spelm. Posth. Treat. of Feuds, 4, 6, 9. Wright's Ten. 19. Vide as to the distinction between allodial and beneficiary possessions, Roberts. Hist. Emp. Charles 5th, p. 258.

feuds, in the early part of Chief Baron Gilbert's treatise on tenures, and also, the 4th chap. of the 2d vol. of Sir William Blackstone's Commentaries. Et vide Harg. & Butl. notes to Co. Lit. 64. a, 191. a.

(c) Ante, p. 688. n. (a.) The note here referred to shows that our ancestors were not originally beneficiaries, but voluntarily submitted to this fiction of tenure.

(d) 2 vol. Com. 73.

(e) It should seem that knightservice was the implied tenure, if no particular services were reserved on a grant by the king, prior to the 12. Car. 2. See Dalr. on Feud. Prop.

(b) For a full illustration of this obsolete doctrine, the author would urge an attentive perusal of Sir Martin Wright's introduction to the p. 24. law of tenures; and of the history of

Escuage is sometimes confound

The tenure by knight-service was abolished by 12 Car. 2. c. 24 (a), and differed very little from a proper feud, being created by pure words of donation (b), transferred by livery or investiture, and perfected by homage or fealty. This tenure drew to it the advantages of relief, and primer seisin (c), wardship, livery (d), aid for knighting the lord's eldest son, and marrying his eldest daughter, and for ransoming the lord's person (e), and also escheat.