[*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 (7) 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 Latin, nativi, which gave rise to the female appellation of a villein, who [*94] 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 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 (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. (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 quid facere debet in crastino, et semper tenebitur ad incerta. ÇBracton, l. 4, tr. 1, c. 28.) (r) C. 8. (8) De jure Sueonum, l. 2, c. 4. (w) Litt. 8. 202. (x) Ibid. s. 187. (a) Ibid. s. 190. (b) Ibid. s. 204. (t) Litt. s. 177. (u) Co. Litt. 140. (11) [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 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. 8. 194. 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 himself, and therefore held it an implied *manu[*95] mission. 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 grounds on their lord; 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. (13) For the good-nature 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) (14) Thus copyhold tenures, as Sir Edward Coke observes, (ƒ) 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 immemoral encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord's will. Which *affords a very substantial reason for the great variety of [*96] 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 throughout the realm; and the few villeins regardant that were then remaining, were such only as had belonged to bishops, monasteries, or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that "holy fathers, monks, and frairs, had in their confessions, and especially in their extreme and deadly sickness, convinced the laity how dangerous a practice it was, for one Christian man to hold another in bondage: so that temporal men, by little and little, by reason of that terror in their consciences, were glad to manumit all their villeins. But the said holy fathers, with the abbots and priors, did not in like sort by theirs: for they also had a scruple in conscience to impoverish and despoil the church so much, as to manumit such as were bond to their churches, or to the manors which the church had gotten; and so kept their villeins still." By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders; their persons being enfranchised by manumission or long acquiescence; but their estates, in strictness, remaining subject to the same servile conditions and forfeitures as before; (f) Cop. s. 32, (e) F. N. B. 12. (g) Commonwealth, b. 3, c. 10. (13) As to the final disappearance of villenage in England, see Cooley, Constitutional Limitations, 295-299. (14) [See this subject very ingeniously handled in Hallam's Middle Ages, c. viii, part 3,] Chap. 6.] COPYHOLDS. though, in general, the vellein services are usually commuted for a small pecuniary quit-rent. (h) [*97] *As a further consequence of what has been premised, we may collect these two main principles, which are held (i) to be the supporters of the copyhold tenure, and without which it cannot exist: 1. That the land be parcel of, and situate within that manor, under which it is held. 2. That they have been demised, or demisable, by copy of court-roll immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day. (15) In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are styled copyholds of inheritance; (16) 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 cases so far superseded the will of the lord, that, provided the services be performed or stipulated for by fealty, he cannot, in the first instance, refuse to admit the heir of his tenant upon his death, nor, in the second, can he remove his present tenant so long as he lives, though he holds nominally by the precarious tenure of his lord's will. (17) The fruits and appendages of a copyhold tenure, that it hath in common with free tenures, are fealty, services (as well in rents as otherwise), reliefs, and escheats. The two latter belong only to copyholds of inheritance; the former to those for life also. But besides these, copyholds have also heriots, wardship, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we shall say more hereafter, (j) 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 vellein tenure; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seised them even in the villein's lifetime. These are incident to both species of copyhold; but wardship and fines to those of inheritance only. Wardship, in copyhold (h) In some 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 usually finding them meat and drink, and sometime (as is still the use in the highlands of Scotland) a minstrel or piper for their diversion. (Rot. Maner, de Edgware Comm. Mid.) As in the kingdom of Whidah, on the slave coast of Africa, the people are bound to cut and carry in the king's corn from off his demesne lands, and are attended by music during all the time of their labor. (Mod. Un. Hist. xvi, 429.) (i) Co. Litt. 58. (j) See ch. 28. (15) [1 Watk. Cop. 33; 2 T. R. 415; 3 B. and P. 346; Doe d. Lowes v. Davidson, 2 M. and S. 175; 2 B. and Ald. 189; Boulcott v. Winmill, 2 Camp. 261; Paine v. Ryder, 24 Beav. 154. As to where there is a special custom, see the provision made by 4 and 5 Vic. c. 35, s. 91.] (16) [It is to be noticed that the heir of copyhold lands is to be ascertained by the custom of the manor, and often according to rules very different from those which regulate the descent of freehold lands. There often exists considerable difficulty in ascertaining the customary heir. A similar difference See Lock v. Colman, 1 M. and Cr. 423; 2 id. 42 and 635; Trask v. Wood, 4 M. and Cr. 324; Muggleton v. Barnett, 2 H. and N. 252; Bickley v. Bickley, Law R. 4 Eq. 216. between the customary and common law exists as to the rights of a widow in her deceased husband's lands. See Smith v. Adams, 5 D. G. M. and G. 712.] (17) [As soon as the death of a copyhold tenant is known to the homage, it should be presented at the next general court, and three several proclamations should be made at three successive general courts for the heir or other person claiming title to the land whereof such copyholder died seised, to come in and be admitted. Proclamation is said to be unnecessary where the heir appears in court, either personally or by attorney; but, until such presentment and proclamations, the heir, though of full age, is not bound to come into court to be admitted. If, after the third proclamation, no such person claims to be admitted, a precept may be issued by the lord, or steward, to the bailiff of the manor, to seize the lands into the lords hands for want of a tenant. Watkins on Copyholds, 239; H. Chitty's Descent's 165; 1 Keb. 287; Kitch. 246; 1 Leon. 100; 3 id: 221; 4 id. 30; 1 Scriv. 341, 342. But the seizure must be quousque, etc., and not as an absolute forfeiture, unless there be a custom to warrant it. 3 T. R. 162. The admittance is merely as between the lord and the tenant, Cowp. 741, and the title of the heir to a copyhold is, as against all but the lord, complete without admittance. If the heir is refused admittance, he shall be terre-tenant, even though the lord loses his fine. Comyn, 245. For the lord is only trustee for the heir, and merely the instrument of the custom for the purpose of admittance. 1 Watk. Cop. 281; Cro. Car. 16; Co. Cop. s. 41.] 389 estates, *partakes both of that in chivalry and that in socage. Like that [*98] in chivalry, the lord is the legal guardian; (18) who usually assigns some relation of the infant tenant to act in his stead; and he, like the guardian in socage, is accountable to his ward for the profits. Of fines, some are in the nature of primer seisins, due on the death of each tenant, others are mere fines for the alienation of the lands; in some manors only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom; but, even when arbitrary, the courts of law, in favor of the liberty of copyholds, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate. No fine therefore is allowed to be taken upon descents and alienations (unless in particular circumstances) (19) of more than two years' improved value of the estate. (k) (20) From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath always shewn to this species of tenants; by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express 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 suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes with an equitable moderation, and will not suffer the lord to extend his power so far as to disinherit the tenant. Thus much for the ancient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally descended from it. IV. There is yet a fourth species of tenure, described by Bracton under the name sometimes of privileged villenage, and sometimes of villein-socage. This, he tells us, (7) is such as has been held of the kings of England from the conquest *downwards; that the tenants herein, "villana faciunt servitia, sed certa [*99] et determinata;" that they cannot aliene or transfer their tenements by grant or feoffment, any more than pure villeins can: but must surrender them to the lord or his steward, to be again granted out and held in villenage. And from these circumstances we may collect, that what he here describes is no other than an exalted species of copyhold, subsisting at this day, viz.: the tenure in ancient demesne; to which, as partaking of the baseness of villenage in the nature of its services, and the freedom of socage in their certainty, he has therefore given a name compounded out of both, and calls it villanum socagium. Ancient demesne consists of those 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 Confessor, or William the Conqueror; and so appear to have been by the great survey in the exchequer called domesday-book. (m) The (k) 2 Ch. Rep. 134. (l) L. 4, tr. 1, c. 28. (m) F. N. B. 14, 16. (18) [This authority of the lord must be by virtue of a special custom in a manor; for, by the 12 Car. II, c. 24, s. 8 and 9, a father may appoint a guardian by his will as to the copyholds of his child; and though this custom is not abolished in terms, nor can be said to be taken away by implication in this statute, yet, where the custom does not exist in a manor, the better opinion is that the statute will operate, and even where the custom prevails, Mr. Watkins thinks, the father may by this statute appoint a guardian of the person of his child, if not of his copyhold property. See 2 Watk. on Copyh. 104, 105.] (19) [These are where the lord is not compellable to admit, and where the grant on his part is voluntary, as in case of copyholds for lives where there is no right of renewal, or even where there is a binding custom to renew, but which allows the copyholder to put in more than one life at a time, for there in fact two admissions take place at once, and therefore there can be no hardship in a double fine. See Scriven on Copyholds, 374.] (20) [It is now established as a universal 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 ascertaining 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 assumpsit. But he has no right to it until the admission of the tenant. 2 T. R. 484. The lord assesses the fine at his peril; if he assess it too high, he is not entitled to recover it. See as to fines, Doug. 724, n.; 7 Bing. 327; 2 B. and Ad. 350; 5 Mees. and W. 608; 10 Ad. and El. 236; 3 Scott, 623.] tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies, (n) continued for a long time pure and absolute villeins, dependent on the will of the lord; and those who have succeeded them in their tenures now differ from common copyholders in only a few points. (0) Others were in a great measure enfranchised by the royal favour; being only bound in respect of their lands to perform some of the better sort of villein services, but those determinate and certain; as, to plough the king's land for so many days, to supply his court with such a quantity of provisions, or other stated services: all of which are now changed into pecuniary rents: and in consideration hereof they had many immunities and privileges granted to them; (p) as to try the right of their property in a peculiar court of their own, called a court of ancient demesne, by a peculiar process, denominated a writ of right close; (q) not to pay toll or taxes; not to contribute to the expenses of knights of the shire; not to be put on juries; and the like. (r) *These tenants therefore, though their tenure be absolutely copyhold, [* 100 ] yet have an interest equivalent to a freehold for notwithstanding their services were of a base and villenous original, (s) yet the tenants were esteemed in all other respects to be highly privileged villeins; and especially for that their services were fixed and determinate, and that they could not be compelled (like pure villeins) to relinquish these tenements at the lord's will, or to hold them against their own: "et ideo," says Bracton, "dicuntur liberi," Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes (t) to be "lands and tenements which are not held by knight-service, nor by grand serjeanty, nor by petit, but by simple services, being, as it were, lands enfranchised by the king or his predecessors from their ancient demesne." And the same name is also given them in Fleta. (u) Hence Fitzherbert observes (w) that no lands are ancient demesne, but lands holden in socage; that is, not in free and common socage, but in this amphibious subordinate class of villein-socage. And it is possible, that as this species of socage tenure is plainly founded upon predial services, or services of the plough, it may have given cause to imagine that all socage tenures arose from the same original; for want of distinguishing, with Bracton, between free socage or socage of frank tenure, and villein-socage or socage of ancient demesne. Lands holden by this tenure are therefore a species of copyhold, and as such preserved and exempted from the operation of the statute of Charles II. Yet they differ from common copyholds, principally in the privileges before mentioned: as also they differ from freeholders by one special mark and tincture of villenage, noted by Bracton, and remaining to this day, viz.: that they cannot be conveyed from man to man by the general common-law conveyances of feoffment, and the rest; but must pass by surrender, to the lord or his steward, in the manner of common copyholds: *yet with this distinction, (x) that in the surrender of these lands in ancient demesne, it is not used to say [* 101 ] "to hold at the will of the lord" in their copies, but only, "to hold according to the custom of the manor." Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both ancient and modern, in which we cannot but remark the mutual connection and dependence that all of them have upon each other. And upon the whole it appears, that whatever changes and alterations these tenures have in process of time undergone, from the Saxon æra to 12 Car. II, all lay tenures are now in effect reduced to two species; free tenure in common socage, and base tenure by copy of court-roll. I mentioned lay tenures only; because there is still behind one other species of tenure, reserved by the statute of Charles II, which is of a spiritual nature, and called the tenure in frankalmoign. V. Tenure in frankalmoign in libera eleemosyna, or free alms, is that whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them. (n) C. 66. (t) C. 66. (p)4 Inst. 269. (q) F. N. B. 11. |