Sivut kuvina

effected by the statute 20 Geo. II. c. 43. King James's plan for exchanging our military tenures seems to have been nearly the same as that which has been since pursued; only with this difference, that, by way of compensation for the loss which the crown and other lords would sustain, an annual fee-farm rent should be settled and inseparably annexed to the crown, and assured to the inferior lords, payable out of every knight's fee within their respective seignories. An expedient, seemingly much better than the hereditary❤ excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages, were destroyed at one blow by the statute 12 Car. II. c. 24. which enacts, "that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriages, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienations, tenures by homage, knights-service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyholds, and the honorary services (without the slavish part) of grand serjeanty." A statute, which was a greater acquisition to the civil property of this kingdom than even magna carta itself: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour; but the statute of king Charles extirpated the whole, and demolished both root and branches.*

g By another statute of the same year (20 Geo. II. c. 50.) the tenure of wardholding (equivalent to the knight-service of England) is forever abolished in Scotland.

9 Ninth edition reads, "was to have been."

9 Ninth edition inserts, "(having during the usurpation been dis continued)."

*Cited, 7 Cranch, 619; 18 Johns. 186,


(18) The thing holden is therefore styled a tenement, the possessors tenants, and the manner of their possession, a tenure, page 59.

Tenure in its first technical sense meant feudal ten.' ure; the vassal "held" of his lord: he did not own the land. "Allodial tenure" was never heard of, until in modern times the term was introduced, to denote the "alod" or "odal right" of the pre-feudal time. At first there is but one kind, freehold. The unfreeman did not "hold" the land: he and his land were held together. Gradually as the church gave practical effect to its doctrine of the brotherhood of man, and as feudalism proved that subordination and freedom could exist together, the relation of the unfreeman to his land' was conceived of as "servile" or "base" tenure, out of which grew the later copyhold tenure. This shows its nature as a true variety of holding, capable of assuming all the forms of estate without changing its character as a tenure.

Leasehold tenure, on the other hand, is not a tenure at all in the feudal sense, because the lessee has no "hold" or tenure of the land: no seisin, as the law of England expressed it. But he was necessarily a freeman, and therefore could not be reckoned among the serfs. The easiest escape from the difficulty was to say that he held by a different kind of tenure, and was a freeman, but had not a freehold. Therefore there is no variety of estates in leasehold, answering to those of freehold, or even of copyhold. It is a single form of estate, less than freehold, but always held by a freeman. That it is not a tenure in the feudal sense is shown by its survival to the present day, when it is in constant use, although feudal tenures have long been obsolete.

Copyhold depending on immemorial custom cannot now be created, nor can freehold be changed into it.

2 BLACKST.-12.

But it may be turned into freehold by a mere conveyance of the freehold to the copyholder by the lord, or by a release to him of the seignorial rights; and such transmutation is called enfranchisement. Or on the other hand, the copyholder may convey to the lord, and this will be an extinguishment of the copyhold, (1 Stephen's New Com. 229, n. f.)

How closely connected all these terms are-tenure, estate, title and how easily they pass into one another, is shown by the fact that the statute which did most to destroy feudalism had no reference to tenure at all, but was intended to affect estates, and operated most directly upon titles. This was stat. Quia Emptores, 18 Edw. I. which regulated the sale of hereditaments, changed the transfers from feudal to allodial in their nature, broke up subinfeudation, and prevented the formation of new fees and therefore of manors. Every sale since that time has been the transfer of an old fee, not the creation of a new one. This began the process that ended with the stat. 12 Car. II. ch. 24, or rather with the reforms of the commonwealth, preserved by that statute, in the abolition of all strictly feudal tenures.

(19) In imitation of the Danish heriots, page 65.

The relation of the heriot to the relief has been one of the chief battle-fields on which the fight of different theories of the early law has been waged. The date of the origin of the heriot has been material only as bearing upon this; and most of those who have studied the subject do not doubt their identity, or at least that it was upon the plan of the heriots that the Norman conquerer fashioned his plan of relief, as Blackstone (Cf. 2 Com. 423) says. The main distinction recognized between them is that the heriot is the act of the leaving, relief of the incoming tenant or heir. (Kemble, Saxons in England, i. 178.) This is exactly the difference we should expect to find, if heriot were the rule before the

notion of hereditary estates was thought of, and relief took its place when the succession of the heir came to be considered a right. Indeed it would become ipso facto the new form if the rights of the deceased were regarded as instantly passing to the heir, from whom anything left by the ancestor must be demanded.

Kemble supposes that the heriot began in the comitatus-therefore among freemen-and was extended to the unfree tenants by imitation. I know no authority for this. It is certain that in the tenth century the lord took the unfreeman's chattels at his death without exception. (See Rect. Sing. Pers. in Thorpe's Ancient Laws, vol. 1, pp. 431-445.) If the "best beast," or "best chattel" was all that he got in the eleventh under Canute, we might rather infer that this was an amelioration of the former custom than a new hardship inflicted on the helpless class. The notion of a hereditary estate in land was not yet formed; but when it was introduced after the Conquest, it would be natural to impose some condition analogous to that of the tenants who remained in possession of their land, because ascripti gleba, which might well be the relief. The fixing of the amount, as a year's rent or something of the kind, would be the next step in the natural order of the development of individual rights and their increased certainty.

(20) Provided he held a knight's fee, page 69.

All our American editors limit this by adding “in capite under the crown," and to the same effect prefix "king's" to the word "vassals" below on same page. This reading will be found in the notes at the foot of the page, as indicated by the figure 9, referring thither, signifying that they were first added in the ninth or posthumous edition.

Although the subject is of no present interest it illustrates the reasons which induced the editor to reject the

additions thus made from the text, and follow that of the eighth edition, the last which was certainly Blackstone's own work. There is reason to believe that some of these changes Dr. Burns, the editor of the ninth edition, made without any authority from Blackstone's papers, and entirely on his own. By reference to book 1, page 404, the reader will see that the same change was made there in the same way, after Blackstone had left the passage unaltered through the eight editions printed in his lifetime.

The chief ground for thinking that this limitation to the king's tenants was a discovery made by Dr. Burns, and not by the author of the Commentaries, is the fact that there is no evidence for its truth in the original authorities. See Coke on the stat, de militibus, 2 Inst. 593, and the commissions of Edw. VI. and Q. Elizabeth in 15 Rymer's Foedera, 124, 493; with the stat. 16 Car. I. c. 20, and 2 Rushw. Coll. 70; cited by Mr. Christian, who first pointed out the inaccuracy of this addition to the text in his note to this passage, saying, "I do not find that this prerogative was confined to the king's tenants," though apparently without suspecting the authorship.

It is a little hard that Blackstone should thus be made responsible for the errors of his posthumous editor, and at the same time accused of learning from the same posthumous editor all that he knew on such subjects.

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