before were held absolutely at the lord's will (4). Which affords 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 fo univerfal, that when tenure in villenage was virtually abolished, (though copyholds were referved) by the statute of Charles II, there was hardly a pure villein left in the nation. For fir Thomas Smith & teftifies, that in all his time (and he was fecretary to Edward VI) he never knew any villein in grofs throughout the realm; and the few villeins regardant that were then remaining were fuch only as had belonged to bishops, monasteries, or other ecclefiaftical corporations, in the preceding times of popery. For he tells us, that "the holy fathers, monks, and friars, "had in their confeffions, and specially in their extreme and "deadly fickness, convinced the laity how dangerous a "practice it was, for one chriftian man to hold another in bondage: fo that temporal men by little and little, by " reason of that terror in their confciences, were glad to "manumit all their villeins. But the faid holy fathers, g Commonwealth. b. 3. c. 10. (4) Lord Loughborough is inclined to question this origin of copyholds. "I cannot help doubting (obferves that learned lord) "whether this deduction is not founded in mistake. The circum"stance which first led me to entertain the doubt is, that in those "parts of Germany from whence the Saxons migrated into Eng"land, there exifts, at this day, a fpecies of tenure exactly the fame "with our copyhold eftates; and there exifts likewife, at this day, "a complete ftate of villenage; fo that both ftand together, and "are not one tenure growing out of another, and by degrees af"fuming its place, &c. &c. What I have flated, I found in a very accurate treatise of German law by Selchow, one of the pro"feffors of the univerfity of Gottingen, entitled, Elementa Juris "privati Germanici. This feems fufficient to negative the idea, that "copyholders fprang out of villeins. In England, villenage has "ceafed, and copyholds remain ; but here, as in other countries, "they both prevailed at the fame time." Dong. 698. * with the abbots and priors, did not in like fort by theirs ; "for they also had a scruple in conscience to impoverish and "defpoil the church fo much, as to manumit fuch as were "bond to their churches, or to the manors which the church had gotten; and fo kept their villeins ftill (5)." By thefe feveral means the generality of villeins in the kingdom have long ago sprouted up into copyholders: their perfons being enfranchised by manumiffion or long acquiefcence; but their eftates, in ftrictness, remaining fubject to the fame fervile conditions and forfeitures as before; though, in general, the villein services are ufually commuted for a small pecuniary quit-rent". As a farther confequence of what has been premifed, we [97] may collect these two main principles, which are held to be the fupporters 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 demifeable, by copy of court roll immemorially. For immemorial cuftom is the life of all tenures by copy; fo that no new copyhold can, ftrictly speak ing, be granted at this day. IN fome manors, where the custom hath been to permit the heir to fucceed the ancestor in his tenure, the estates are stiled 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 h In fome 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 ufually finding them meat and drink, and fometimes (as is ftill the ufe in the highlands of Scotland) a minitrel or piper for their diverfion. (Rot. Maner. de Edgware Com. Midd.) As in the kingdom of i Co. Litt. 58. (5) The last claim of villenage, which we find recorded in our courts, was in the 15th of Ja. I. Noy, 27. 11 Harg, St. Tr. 342„ Book II. cafes fo far fuperfeded the will of the lord, that, provided the fervices be performed or ftipulated for by fealty, he cannot, in the first instance, refufe to admit the heir of his tenant upon his death; nor, in the fecond, can he remove his prefent tenant so long as he lives, though he holds nominally by the precarious tenure of his lord's will. THE fruits and appendages of a copyhold tenure, that it hath in common with free tenures, are fealty, fervices, (as well in rents as otherwife) reliefs, and efcheats. The two latter belong only to copyholds of inheritance; the former to thofe for life alfo. But, befides thefe, copyholds have also heriots, wardship, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we fhall fay more hereafter, 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 lefs hardship in it, when all the goods and chattels belonged to the lord, and he might have feifed them even in the villein's lifetime. These are incident to both fpecies of copyhold; but wardship and fines to those of inheritance only. Ward[98] fhip, in copyhold estates, partakes both of that in chivalry and that in focage. Like that in chivalry, the lord is the legal guardian; who ufually affigns fome relation of the infant tenant to act in his ftead: and he, like guardian in focage, is accountable to his ward for the profits. Of fines, fome are in the nature of primer seifins, due on the death of each tenant, others are mere fines for alienation of the lands; in fome manors only one of these forts can be demanded, in fome both, and in others neither. They are fometimes ar bitrary and at the will of the lord, fometimes fixed by cuf tom: but, even when arbitrary, the courts of law, in favour of the liberty of copyholders, have tied them down to be reasonable in their extent; otherwise they might amount to a difherifon of the estate. No fine therefore is allowed to be taken upon descents and alienations, (unless in particular circumftances) of more than two years improved value of * See ch. 28. the the eftate (6). From this inftance we may judge of the favourable difpofition that the law of England (which is a law of liberty) hath always fhewn to this fpecies of tenants; by removing, as far as poffible, every real badge of flavery from them, however fome nominal ones may continue. It fuffered custom very early to get the better of the exprefs 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 fuffered to grow up to the prejudice, of the lord, as in this case of arbitrary fines, the law itself interpofes with an equitable moderation, and will not suffer the lord to extend his power so far, as to difinherit the tenant. THUS much for the antient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally defcended from it. IV. THERE is yet a fourth fpecies of tenure, defcribed by Bracton under the name fometimes of privileged villenage, and fometimes of villein-focage. This, he tells us, is fuch as has been held of the kings of England from the conqueft downwards; that the tenants herein, "villana faciunt fervitia, [99] "fed certa et determinata;" that they cannot aliene or transfer their tenements by grant or feoffment, any more than pure .villeins can but must furrender them to the lord or his fteward, to be again granted out and held in villenage. And from thefe circumstances we may collect, that what he here 1.4. tr. 1. c. 28. k2 Ch. Rep. 134. (6) It is now established as an univerfal rule, that, where the fine upon the descent or alienation of a copyhold is arbitrary, it cannot be more than two years improved value. In afcertaining the yearly value, the quit-rents must be deducted, but not the land-tax. Doug. 697. The fine may be recovered by the lord in an action of affumpfit. Ib. But he has no right to it till the admittance of the tenant. 2 T. R. 484. VOL. II. I defcribes Book II. defcribes is no other than an exalted fpecies of copyhold, fubfifting at this day, viz. the tenure in antient demesne; tó which, as partaking of the baseness of villenage in the nature of it's fervices, and the freedom of focage in their certainty, he has therefore given a name compounded out of both, and calls it villanum focagium. ANTIENT demefne confifts of thofe 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 confeffor, or William the conqueror; and fo ap'pear to have been by the great furvey in the exchequer called domesday-book". The tenants of thefe lands, under the crown, were not all of the fame order or degree. Some of them, as Britton teftifies", continued for a long time pure and abfolute villeins, dependent on the will of the lord: and those who have fucceeded them in their tenures now differ from common copyholders in only a few points. Others were in great measure enfranchised by the royal favour: being only bound in respect of their lands to perform some of the better fort of villein fervices, but thofe determinate and certain; as, to plough the king's land for fomany days, to supply his court with such a quantity of provifions, or other stated services; all of which are now changed into pecuniary rents: and in confideration hereof they had many immunities and privileges granted to them; as, to try the right of their property in a pe culiar court of their own, called a court of antient demefne, by a peculiar process denominated a writ of right close (7); not to pay toll or taxes; not to contribute to the expences of knights of the fhire; not to be put on juries; and the like. (7) In an action of ejectment, it may be pleaded in abatement, that the lands are part of a manor which is held in antient demefne; but such a plea must be fworn to, and is not favoured. 2 Burr. 1046. THESE |