« PreviousContinue »
CHAPTER THE FIFTH,
OF THE ANTIENT ENGLISH TENURES.
TN this chapter we shall take a short view of the antient I tenures of our English eftates, or the manner in which lands, tenements and hereditaments might have been holden; as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other ; being fruits of, and deduced from, the feodal policy.
ALMOST all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon and holden of some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or poffeffor of this property. The thing holden is therefore filed a tenement, the possessors thereof tenants, and the manner of their poffeffion a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king; who is stiled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and, thus partaking of a middle nature, were called mesne, or middle, Jords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold
of A, and A of the king; or, in other words, B held his lands immediately of A, but mediately of the king. The king therefore was stiled lord paramount; A was both tenant and lord, or was a mesne lord; and B was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit, of the land a. In this manner are all the lands of the kingdom holden, which are in the hands of sub
jects: for according to fir Edward Cokeb, in the law of · England we have not properly allodium; which, we have
seen is the name by which the feudifts abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature,
- ALL tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did d.
This distinction ran through all the different sorts of tenure; of which I now proceed to give an account.
I. There seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced : the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier, or a freeman, to perform; as to serve under his lord in the wars, to pay a sum of money; and the like. Base services were such as were fit only for peasants, or persons of a servile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean. employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exte ceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depende ed upon unknown contingencies : as, to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services : or to do whatever the lord fhould command; which is a base or villein service.
a 2 Inst. 296.
d In the Germanic conftitution, the electors, the bishops, the secular prin
ces, the imperial cities, &c, which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate ones, Mod. Un, Hift. xlii. 61.
FROM the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which fubfist to this day. Of these Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account, of any author antient or moderne; of which the following is the outline or abstract f. “Tenea “ ments are of two kinds, frank-tenement, and villenage. “ And, of frank-tenements, fome are held freely in con“ fideration of homage and knight-service; others in free“ focage with the service of fealty only.” And again, “ of “ villenages fome are pure, and others privileged. He that “ holds in pure villenage shall do whatsoever is commanded “ him, and always be bound to an uncertain service. The “ other kind of villenage is called villein-focage ; and these “ villein-focmen do villein services, but such as are certain “ and determined.” Ofwhich the sense seems to be as follows; first, where the service was free, but uncertain, as military service with homage, that tenure was called the tenure in
el, 4. tr. 1.6. 28.
f Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenea tur libere pro humagio et servitio militari; aliud in libero focagio cum fidelitate tane tum. S. L
& Villeragiorum aliud pururi, aliud
privilegiatum. Qui tenet in puro villenagio faciet quicquid ei praeceptum fuerit, et femper tencbitur ad incerta. Aliud genus villenagii dicitur villanum focagium ; et hujufmodi villani focmanni-villana faciunt servitia, sed certa et determinata. f. 5.
chivalry, per fervitium militare, or by knight-service. Secondo ly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &c, that tenure was call. ed liberum focagium, or free focage. These were the only free holdings or tenements; the others were villenous or servile : as, thirdly, where the service was base in it's nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in it's nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum ; or it might be still called focage (from the certainty of it's services) but degraded by their baseness into the inferior title of villanum focagium, villein-focage.
1. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin fervitium militare, and in law-French chivalry, or service de chivaler, answering to the fief d'haubert of the Normans", which name is expressly given it by the mirrouri. This differed in very few points, as we shall presently fee, from a pure and proper feud, being entirely military, and the genuine effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's see, feodum militare; the value of which, not only in the reign of EdWard II«, but also of Henry II', and therefore probably at it's original in the reign of the conqueror, was stated at 201. per annum; and a certain number of these knight's fees were requisite to make up a barony. And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon m: which attendance was his reditus or return, his rent or service, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion". And there is reason to h Spelm. Glej: 219.
m See writs for this purpose in Memoi c. 2. §. 27.
rand. Scacch. 36. prefixed to Maynard's k Stat. de milit, i Edw, II, Co. Litt. yearbook. Edw. II.
n Litt. §. 95 | Glanvil. l. 9.6.4:
apprehend, that this service was the whole that our ancestors meant to subject themselves to; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system. ,
This tenure of knight-service had all the marks of a strict and regular feud : it was granted by words of pure donation, dedi et conceflio; was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it. these seven fruits and consequences, as inseparably incident to the tenure in chivalry; viz. aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat : all which I shall endeavour to explain, and shew to be of feodal original.
1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress P; but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three: first, to ransom the lord's person, if taken prisoner ; a necessary consequence of the feodal attachment and fidelity; infomuch that the neglect of doing it, whenever it was in the vasal's power, was by the strict rigour of the feodal law, an absolute forfeiture of his estate 2. Secondly, to make the lord's eldest son a knight; a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capa-" ble of bearing arms?: the intention of it being to breed up : the eldest son, and heir apparent of the feignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion : for daughters' portions were in those days extremely slender ; few lords being able to save much out of
o Co. Litt. 9.
P Auxilia fiunt de gratia et non de jure-cum dependeant ex graria tenentium
et non ad voluntatem dominorum, Bracton