Enfranchisement of villeins. of 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. 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; 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.20 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; 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; 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 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 favor of liberty, presumed that, by bringing this action, he meant to [95] set his villein on the same footing with himself, and, therefore, neld it an implied manumission. 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 ground on their lords, 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. 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 Litt., 187, 188. z Ibid., 189, 194. a Ibid., § 190. (20) This is incorrect, for the damages recovered for the maim of his own person might be immediately seized by his lord, and so no benefit could have accrued to him from such a suit. But b Ibid., § 204. e Ibid., § 204, 205, 206. the lord was subject to an indictment (21) An estate held by copy of court 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 show 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" Thus copyhold tenures, as Sir Edward Coke observes,f 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 immemorial encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord's will:23 which affords a very substantial [96] 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 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 Pure villenthe nation; for Sir Thomas Smithg testifies that in all his time age ceased (and he was secretary to Edward VI.) he never knew any vil- Charles II. lein 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 "the holy fathers, monks, and friars 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 e F. N. B., 12. Commonwealth, b. 3, c. 10. . Cop., § 32. roll, according to the custom of the manor, is a copyhold for all purposes at the present day, though not expressed to be held at the will of the lord. (2 Cr., M. & R., 503.) a species of tenure exactly the same (22) See Hallam, Mid. Ages, vol. ii., suming its place, &c., &c. What I have p. 304, et seq. stated I found in a very accurate treatise of German law by Selchow, one of the (23) Lord Loughborough is inclined professors of the University of Gottinto question this origin of copyholds: "I gen, entitled Elementa Juris privati can not help doubting (observes that Germanici. This seems sufficient to learned lord) whether this deduction is negative the idea that copyholders sprang not founded in mistake. The circum- out of villeins. In England, villenage stance which first led me to entertain has ceased, and copyholds remain; but the doubt is, that, in those parts of Ger- here, as in other countries, they both many from whence the Saxons migrated prevailed at the same time." (Doug., into England, there exists, at this day, 698.)-[CHRISTIAN.] before [97] Principal yhold ten ures. 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; though, in general, the villein services are usually commuted for a small pecuniary quit rent.h As a further consequence of what has been premised, we may collect these two main principles, which are held to be rules in cop the supporters of the copyhold tenure, and without which it can not exist: 1. That the lands be parcel of, and situate with1. Parcel of in 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." manor. 2. Demisa ble immemorially by copy of court roll. Inheritable or for life, according to In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are styled the custom. 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 cases, so far superseded the will of the lord, that, provided the services be performed or stipulated for by fealty, he can not, 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." h In some manors the copyholders diversion.-(Rot. Maner., De Edgware were bound to perform the most servile Com. Mid.) As in the kingdom of offices, as to hedge and ditch the lord's Whidah, on the slave coast of Africa, grounds, to lop his trees, and reap his the people are bound to cut and carry corn, and the like; the lord usually in the king's corn from off his demesne finding them meat and drink, and some- lands, and are attended by music during times (as is still the use in the Highlands all the time of their labor.-(Mod. Un. of Scotland) a minstrel or piper for their Hist., xvi., 429.) i Co. Litt., 58. (24) The last claim of villenage which we find recorded in our courts was in the 15 Jac. I. (Pigg v. Caley, Noy, 27; 11 Harg., St. Tr., 342.)-[CHRISTIAN.] See Barrington on the Statutes, 307. (25) This is no more than to say, that every copyhold estate is parcel of the manor of which it is held. But a piece of land wholly isolated from the rest of the manor, and in a different parish, may be parcel of a manor, and so within it. (4 Rep., 26.) (26) See 1 Watkins on Copyhold, tit. Grants, pages 33, 51, &c.; 2 T. R., 424. According to 3 Bos. & P., 346; 2 M. & Sel., 504; 2 B. & Al., 489; and 2 Campb., 264-5, without a special custom, the lord can not make a new grant of waste to hold as copyhold, thongh slight evidence of a custom will suffice. [CHITTY.] As to the destruction of the copyhold tenure, see infra, p. 149, n. (27) As soon as the death of a copyhold tenant is known to the homage, it copyhold The fruits and appendages of a copyhold tenure, that it hath Incidents of in common with free tenures, are, fealty, services (as well in tenures. 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 Heriots. a Danish custom, and of which we shall say more hereafter,k 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, less hardship in it, when all the goods and chattels belonged to the lord, and he might have seized 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 copy- Wardship. hold estates, partakes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian," [98] who usually assigns some relation of the infant tenant to act in his stead, and he, like guardian in socage, is accountable to his ward for the profits. Of fines, some are in the nature of Fines. primer seizins, due on the death of each tenant; others are * See ch. 28. 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 seized, 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 lord's hands for want of a tenant (Watkins on Copyholds, 239; H. Chitty on Descents, 165; 1 Keb., 287; Kitch., 246; 1 Leon., 100; 3 Id., 221; 4 Id., 30; 1 Scriv., 341-2); but the seizure must be quousque, &c., 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. The ceremony of admittance is said to be for the lord's sake only; and therefore, in one case, the court refused a mandamus to the lord to admit a person who claimed by descent. But a mandamus ought to be granted, if a proper case be laid before the court. (1 Wils., 283.) And in one (28) This authority of the lord must IV. Privi leged villenage. mere fines for 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 copyholders, 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) of more than two years' improved value of the estate.k1 From this instance we may judge of the favorable disposition that the law of England (which is a law of liberty) hath always shown 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 2 Ch. Rep., 134. (29) As in the case where the lord is not bound to renew, or, being so bound by the custom, the copyholder is allow ed to put in more than one life at a time; and, consequently, several admis sions are made at the same time, for which an increased fine may be fairly demanded. The rule generally is, to take for the second life half what the immediate tenant for life pays, and for the third half what the second pays. But this must be understood of persons taking successively; for if they take as joint tenants, or as tenants in common, the single fine only would be due, to be apportioned in the latter case, each paying severally. (Watk. on Copyh., vol. i., 312; Scriven on Copyh., 374.) It seems that coparceners are entitled to be admitted to copyhold tenements as one heir, and upon payment of one set of fees.-(3 B. & Cr., 173.-[CHITTY.] (30) As where the admission is a vol untary act of the lord; which it is in some copyholds, grantable for lives, without renewal, &c. (31) It is now established as a universal rule, that where the fine upon the descent or alienation of a copyhold is arbitrary, it can not be more than two years' improved value. In ascertaining the yearly value, the quit-rents must be deducted, but not the land-tax. (Doug., 724.) The fine may be recovered by the lord in an action of assumpsit. (Ib.) But he has no right to it till the admittance 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. But the assessment need not be entered on the roll of the court. (6 East, 56.) · [CHRISTIAN.] See, as to fines, Doug., 724, n.; 7 Bingh., 327; 2 B. & Ad., 350; 5 Mee. & W., 608; 10 Ad. & El., 236; 3 Scott, 623. |
