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 *charters of enfranchisement granted to the tenants, which are particularly [*86] 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 system of tenures. However this may be, the tokens of their feudal original will evidently appear from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry; remarking their agreement or difference as we go along. 1. In the first place, then, both were held of superior lords; 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. (5)

2. Both were subject to the feudal return, render, rent, or service of some sort or other, which arose from a supposition of an original grant from the lord to the tenant. In the military tenure, or more proper feud, this was from its nature uncertain; in socage, which was a feud of the improper kind, it was certain, fixed, and determinate (though perhaps nothing more than bare fealty), and so continues to this day.

3. Both were, from their constitution, universally subject (over and above all other 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. (1) 4. The tenure in socage was subject, of common right, to aids for knighting the son and marrying the eldest daughter: (u) which were fixed by the statute of Westm. 1, c. 36, at 20s. for every 201. per annum so held; as [*87] in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as a 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 51. 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 (2) 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)

(q) C. 66.

(r) Litt. 117, 131.

(mLitt. 126.

(s) 130.

(Eo maxime præstandum est, ne dubium reddatur jus domini et vetustate temporis obscuretur, (Corvin. jus feod. l. 2, t. 7.) (u) Co. Litt. 91. (y) Litt. 127.

(x) L. 2, c. 37, § 8.

(z) 3 Lev. 145.

(5) Justice Coleridge says, there is some mistake in introducing the word "one" into this sentence, because both might be held of the king in chief, and both of him as lord paramount. (6) [Where the tenure is by fealty only, of course there can of common right, be no relief, being a year's rent, it cannot be calculated if no rent be payable. Co. Litt. 93. a. But by

[Book II.

6. Primer seisin was incident to the king's socage tenants in cupite, as well as to those by knight-service. (a) But tenancy in capite as well as primer seisins are, among the other feudal 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 [*88] lord of the fee; because in this tenure, no military or *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; 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 or service, that the socage tenures had so much the advantage of the military ones. ceased at fourteen, there was this disadvantage attending it; that young heirs, But as the wardship 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 maritugii, 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 favor of infants is always jealous of guardians, and therefore, in this case it made them account, not only for what they did, but also for what they might, receive on the infant's behalf; [*89] *lest by some collusion the guardian should have received the value, and not brought it to account; but the statute having destroyed all values of marriages, this doctrine of course 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 men(b) Book I, page 461. (e) 1 inst. 43. 2 Inst. 65, 66, 67.

(a) Co. Litt. 77. (d) Litt s. 123.

(c) Litt. s. 123. Co. Litt. 89.

custom or express reservation there may be a relief wholly unconnected with the yearly rent, and this, it is presumed, may be payable when there is no yearly rent. In Hargrave and But ler's Co. Litt. is a learned note by the former, p. 93, a. n. 2, pointing out several differences between socage relief proper and improper, or payable only by special custom or express reservation.]

384

tioned) 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 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 copy [90] 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 differing a little, in some immaterial circumstances, from those that exist at this day; (9) just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor, manerium, a manendo, (7) 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 minerii, 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. (8) 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 misdemeanors 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 leave sufficient to make a jury or homage, that is, two tenants at least, the manor itself is lost. (9)

[*91]

(7) [Although a mansion house is not now a necessary part of a manor, yet such an appendage appears formerly to have been always included in the notion of a manor, as the place at which the tenants were to render and perform their services and duties. See 5 Man. and R. 154, n.]

(8) [The lands here designated folk lands are no other than the modern copyholds, and seem rather to form part of the demesne lands of the lord of the manor.]

(9)[In the case of Glover v. Lane, 3 T. R. 447, Lord Kenyon said that to constitute a manor it was necessary, not only that there should be two freeholders within the manor, but two freeholders holding of the manor subject to escheats.

The reason assigned for this number is, that freemen could only be tried by their peers, and if there be one tenant only, he has no peer or judge. But this reason would evince the recessity of there being more than two, for if one were plaintiff and the other defendant, no court at all could be holden to try the cause. In Brooke's Abr. tit. cause a remover plea pl. 35, it is said that the parol was removed from the court baron because there were only four suitors, and he makes a quere of the smallest competent number. The reference is to the Register, f. 11, where such a precedent is given in a mort d. anncestor.]

VOL. I.-49

385

In the early times of our legal constitution, the king's greater barous, 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 feudal 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 feudal profits of wardships, marriages, and escheats, which fell into the hands of these mesne or middle lords, who were the immediate superiors of the terre-tenant, or him who occupied the land; 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. 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 confirmed: but all subsequent [*92] 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. (10)

Now with regard to the folk-land, or estates held in villenage, this was a species of tenure neither strictly feudal, Norman, or Saxon; but mixed and compounded of them all: (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, (7) a sort of people in a condition of downright servitude, used and employed in the most servile works, and belonging, both they, their children and effects, to the lord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folk-land, from which they were removable at the lord's pleasure. On the arrival of the Normans here, it seems not improbable, that they who were strangers to any other than a feudal state might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them, as well as others, to the oath of fealty; which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition. (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.

(i) See the Oxford editions of the charters.
(1) Introd. Hist. Engl. 59. (m) Wright. 217.

(k) Wright, 215.

(n) 1 Inst. 116.

(10) [See, however, 5 Man, and Ry. 156, n, and a case arising out of certain patents granted by Charles II, of lands in Ireland, giving rights to create manors notwithstanding Quia Emptores Delacherois r. Delacherois, 11 H. L. 62.]

[*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. (0) 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) (11)

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 they were called in [*94] 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, o1 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 sequiter 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 (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. (12) 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

(0) Litt. s. 181.

(p) 1bid. s. 127.

(q) Ille qui tenet in villenagio faciet quicquid ei præceptum fuerit, nec scire debet sero quia facere debet in crastino, et semper tenebitur ad incerta. CBracton, l. 4, tr. 1, c. 28.)

(u) Co. Litt. 140.
(z) Ibid. s. 189, 194.
(d) Litt. s. 208.

(11) [Villeins were not protected by magna charta; nullus liber homo capiatur vel impriso netur, &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!]

(12) [In case of mayhem, he had no remedy by action or appeal, for the damages recovered in either case might immediately have been seized by the lord, and so the proceeding would have been illusory. But the lord was subject to an indictment at the king's suit. Litt. s. 194.