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; lest by some collusion the guardian should have received the value, and not brought it to account: but [89] 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 distinction but now all fines for alienation are demolished by the statute of Charles the Second. any 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. (ƒ) 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. III. From the tenure of pure villenage have sprung our present copyhold a tenures, or tenure by copy of court roll at the will of the [90] 12 d Litt. § 123. e Inst. 73. 2 Inst. 65, 66. 67. f Wright, 210. (12) See in general, Bac. Ab. and Com. Dig. tit. Copy hold; 1 Cruise Dig. 293.; Scriven, WatVOL. 1. 58 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 13 are in substance as ancient as the Saxon constitution, though perhaps differing a little, in some immaterial circumstances, from those that exist at this day: (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, because the usual residence of the owner seems to have been a district of ground, held by lords or great personages; who kept in their own hands so much land as was necessary for the use of their families, which were called terrae dominicales or demesne lands: being occupied by the lord, or dominus manerii, and his servants. The other, 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 still are 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 of suitors should so fail as not to [91] leave sufficient to make a jury or homage, that is, two tenants at least, the manor itself is lost. 14 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 h Co. Cop. § 3. g Co. Cop. § 2 & 10. Eins, and Fisher, on Copyhold; Fearne's Con. Rem. 60. et seq.; Preston on Conv. 27. ; and id. inplex, tit. Copyhold. (13) As to manors in general, see the references in last note, and Watkins on Copyhold, 3 ed. 1 to 23. (14) They must be two freeholders, holding of the manor subject to escheat, 3 T. R. 447. Bro. Abr. tit. Cause a remover, plec. pl. 55. 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. 10 East, 259. Watkins on Copyhold, 3 ed. 21. 22. Chitty 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. 15 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 Edward I., were [92] 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 attended it, may seem to have somewhat Danish in its composition. Under the Saxon government there were, as sir William Temple speaks, (1) à 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 was consigned; their rugged masters, like our northern ancestors, esteeming war the only honourable employment of mankind. These villeins, belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land: or else they were in gross, or at large, that is, annexed to the person of the lord, and transferrable by deed from one owner to another. (o) They could [93 } i See the Oxford editions of the charters. 1 Introd. Hist. Engl. 59. k Wright, 215. n 1 Inst. 116. o Litt. § 181. (15) 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." 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. (9) 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 parents; whence [94] they were called in Latin, nativi, which gave rise to the female ap pellation 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 of 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; (2) 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. 17 Neifs 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 p Litt. § 172. q ille qui tenet in villenagio faciet quicquid ei praeceptum fuerit, nec scire debes sero quid facere debet in crastino, et semper tenebitur ad incerta (Bracton. l. 4. tr. 1. c. 28.) (16) s de jure suconum, l. 2. c. 4. ́ t Litt. § 177. w Litt. § 202. x Litt. & 187. y Litt. 187, 188. a Ibid. § 190. c § 204. 5, 6, r c. 8. u Co. Litt. 140. z Ibid. § 139. 194. b Ibid. § 204. (16) 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 may beat his villein, and if it be without cause, he cannot have any remedy. Christian. (17) 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 in dictment on the king's behalf. Litt. s. 194. 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 him- [95] self, and therefore held it an implied manumission. But, in case the lord indicted him for felony, it was otherwise; for the lord could not inflict a capital punishment on his villein, without calling in the assistance of the law. Villeins, by 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 goodnature 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 shew 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. 18 Which affords a very substan- [96] tial 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 f Cop. § 32. d § 208. e F. N. B. 12. g Commonwealth, b. 3. c. 10. (18) Lord Loughborough is inclined to question this origin of copyholds: "I cannot help doubting (observes that learned lord) whether this deduction is founded in mistake. The circumstance which first led me to entertain the doubt is, that in those parts of Germany from whence the Saxons migrated into England, there exists, at this day, a species of tenure exactly the same with our copyhold estates; and there exists likewise, at this day, a complete state of villenage; so that both stand together, and are not one tenure growing out of another, and by degrees assuming its place, &c. &c. What I have stated I found in a very accurate treatise of German law by Selchow, one of the professors of the university of Gottingen, entitled Elementa Juris privati Germanici. This seems sufficient to negative the idea that copyholders sprang out of villeins. In England, villenage has ceased, and copyholders remain; but here, as in other countries, they both prevailed at the same time." Doug. 698. See this subject also discussed in Hallam's Mid. Ages, c. 3. part 3. Christian. |