59 CHAPTER V. OF THE ANCIENT ENGLISH TENURES. Of the antient All lands supposed to be superior lord. In this chapter we shall take a short view of the antient tenures of our English estates, 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 holden of some policy of our laws, supposed to be granted by, dependent upon, and holden of, some superior lord (1), by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement (2), the possessors thereof Thus tenants, and the manner of their possession a tenure. 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 The king, lord paramount; (1) See the last chapter, p. 51 and note (12) thereto. (2) See ante, chap. 2, p. 17, and notes (4), (5) thereto. mesne lords. vail. those inferior persons, as they were still tenants with respect to the king: and, thus partaking of a middle nature, his grantees, were called mesne, or middle, lords. 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; [60] 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 ten- Tenants paraant; 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 subjects: for, according to Sir Edward Coke (b), in the law of England we have not properly allodium; which, we have seen (c), is the name by which the feudists 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 (3). (a) 2 Inst. 296. (b) 1 Inst. 1. (c) Page 47. HIGH. LAW LIBRARY methods of proceeding soon began to (3) "It is to the conquest, and to the consequences of that revolution, that the juridical historian is to direct his particular attention. A new order of things then commenced. The nature of landed property was entirely chang ed; the whole constitution was altered; and, after fluctuating on a singular policy, pregnant with the most opposite consequences of freedom and slavery, by degrees settled into peace and orderly government. In short, a state of things then took place, from which, after innumerable alterations, arose the present frame of English jurisprudence....The doctrine of tenures being once established, all the foreign learning concerning them of course followed. The Norman rules of property and a feudal light, mediately or imme The king's im called tenants in cupite. All tenures being thus derived, or supposed to be derivmediate tenants ed, 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 four, and were be reduced: the grand criteria of which were the natures of distinguished by the nature of the 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; I. The principal species of lay tenures were services due in respect of them: which were free, or (d) In the Germanic constitution, the electors, the bishops, the secular princes, the imperial cities, &c. which hold directly from the emperor, are diately to the king." Reeves's Hist. Craig (in his Jus Feud. lib. 1, dieges. called the immediate states of the empire; all other landholders being denominated mediate ones. Mod. Un. Hist. xlii. 61. ones, soon became general. Improper feuds, (as our author informed us in p. 58), were those which did not in point of acquisition, or of services, strictly conform to the nature of the pure military feud: and the definition above stated obviously cannot include feuds which were sold or bartered for an equivalent, or in consideration of any rent or certain return, or of the performance of any base services, or which were granted free from all services. The presumption of law, certainly, always was, that a feud was a proper one, unless the contrary appeared, which could only be proved by a reference to the original investiture. (See ante, notes (17) & (18) to chapter 4, and Wright's L. of Ten. 36, 37). as to serve under his lord in the wars, to pay a sum of mo- or other mean employments. The certain services, whether certain, or free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated. annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies; as, to do uncertain. 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 should command; which is a base or villein service. From the various combinations of these services have arisen Bracton's acthe four kinds of lay tenure which subsisted in England, till count of tenures. the middle of the last century; and three of which subsist 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 modern (e); of which the following is the outline or abstract (f). "Tenements are "of two kinds, frank-tenement and villenage. And, of "frank-tenements, some are held freely in consideration of homage and knight-service; others in free-socage, with "the service of fealty only." And again (g), "of villenages some 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-socage; and these "villein-socmen do villein services, but such as are certain 66 (e) 1. 4, tr. 1, c. 28. (f) Tenementorum aliud liberum, aliud villenagium. Item, liberorum aliud tenetur libere pro homagio et servitio militari; aliud in libero socagio cum fidelitate tantum. s. 1. (g) Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio faciet quicquid ei praeceptum fue rit, et semper tenebitur ad incerta. Tenure by knight-service. [ *62 ] Free socage. Absolute villenage. "and determined." Of which 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 *chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &c. that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villenous or servile, as thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenaPrivileged ville- gium privilegiatum; or it might be still called socage. nage, or villein- (from the certainty of its services), but degraded by their baseness into the inferior title of villanum socagium, villein-socage. socage. 1. The first species of tenure was by knightservice. Quantity and value of land necessary to constitute it. Duties it imposed on the tenant. I. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitium militare; and in law-French chivalry, or service de chivaler, answering to the fief d'haubert of the Normans (h), which name is expressly given it by the Mirrour (). This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general 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 fee, feodum militare; the measure of which in 3 Edw. I. was estimated at twelve plough-lands (k), and its value (though it varied with the times ()) in the reigns of Edward I. and Edward II. (m) was stated at 201. per annum. And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the (h) Spelm. Gloss. 219. (i) C. 2, s. 27. (k) Pasch. 3 Edw. I. Co. Litt. 69. (2) 2 Inst. 596. (m) Stat. Westm. 1, c. 36. Stat. de milit, 1 Edw. II. Co. Litt. 69. |
