name a guardian, to prevent an infant heir from improvidently exposing himself to ruin (1). 8. Marriage, or the valor maritagii, was not in socage tenure any perquisite or advantage to the guardian, but rather the reverse. For, if the guardian married his ward under the age of fourteen, he was bound to 8. Marriage. account to the ward for the value of the marriage, even though he took nothing for it, unless he married him to advantage (m). For, the law in favour of infants is always jealous of guardians, and therefore in this case it made them account, not only for what they did, but also for what they might, receive on the infant's behalf; lest by some collusion the guardian should have received the value, and not brought it to account: but the statue having destroyed all values of marriages, this doctrine of course ceased with them. At fourteen years of age the ward might have disposed of himself in marriage, without any consent of his guardian, till the late act for preventing clandestine marriages. These doctrines of wardship and marriage in socage tenure were so diametrically opposite to those in knight-service, and so entirely agree with those parts of king Edward's laws, that were restored by Henry I.'s charter, as might alone convince us that socage was of a higher origin than the Norman conquest. 9. Fines for alienation were, it would seem, due for lands holden of the king in capite by socage tenure, as well as in case of tenure by knight[* 176] service: for the statutes that relate to this point, and sir Edward Coke's comment on them (n), speak generally of all tenants in capite, without making any distinction: but now all fines for alienation are demolished by the statute of Charles II. 9. Fines for alienation. * 10. Escheats are equally incident to tenure in socage, as they were to tenure by knight-service; except only in gavelkind lands, which are (as is before-mentioned) not subject to escheat on attainder of the tenant, though they are to escheats for want of heirs (0). 10. Escheats, except in gavelkind lands. Lands are now of free and Thus much for the two grand species of tenure, under which almost all the free lands of the kingdom were holden till the restoration in 1660, when the former was abolished and sunk into the latter: so that lands of both sorts are now holden by the one universal tenure of free and common socage. common socage tenure only. The other grand division of tenure, mentioned by Bracton as cited in the preceding chapter, is that of villenage, as contradistinguished from liberum tenementum, or frank tenure. And this (we may remember) he or privileged. subdivides into two classes, pure and privileged villenage: from whence have arisen two other species of our modern tenures. Villenage, pure From the tenure of pure villenage have sprung our present copyhold tenures, or tenure by copy of court-roll at the will of the lord: in order to obtain a clear idea of which it will be previously necessary to take Copyholds. a short view of the origin and nature of manors. A manor, manerium (so called (p) from manere, because there usually was a () As to wardship, see Macpherson on Infants, 19 et seq. (m) Litt. s. 123. (n) 1 Inst. 43; 2 Inst. 65, 66, 67. (0) Wright, 210. (p) Lord Coke derives the word from mêner, to govern, but the derivation given in the text has been generally adopted, and seems to be the most probable. The word "mansion," denoting the residence of the lord, seems closely connected with the word manor; it was the place where the tenants rendered their services. (5 M. & Ry. 154 n.) It is to be observed that the word manor is often used merely to denote the locality where land is situate. [*177] * residence for the lord, or mansion, forming a conspicuous feature in it), is a complex artificial quantity comprising not only the ownership of a tract of land but certain other rights and privileges, some of which were, in the times when manors were created, considered essential to its existence as a manor; others, though usually found among its incidents, yet not being so universally, were therefore not deemed essential. Essential con manor. The essential constituent parts of a complete legal manor seem to be, First, the demesne lands, terræ dominicales, that is to say, lands occupied by the lord or his servants. Secondly, seignory or tenemental lands, or lands stituents of a forming part of the original grant to the lord and held of him by freehold tenants. Thirdly, a court called the court baron, for the redress of misdemeanors and nuisances within the manor, and for settling disputes of property among the tenants: in this court the freehold tenants of the manor were both the suitors and the judges. Without these several parts there could be no manor, for without demesne lands there could be merely a seignory; without two freehold tenants at least there could be no court baron (q), which was the distinguishing mark separating the grant of a tract of land as a manor from an ordinary grant of the land. ties. But manors usually involved many other peculiarities which in the present day are their most prominent characteristics. Lords of manors, besides granting Other peculiari- by deed part of their lands to free tenants to be held of them according to the ordinary feudal tenures, usually distributed parts of what would otherwise be their demesne lands amongst the common people or villeins. The lands so given were held at the mere arbitrary will of the lord, who might at pleasure revoke his gift. The tenants of these lands were compelled to render services to their lord of a base or menial kind, and were, as we shall see more at length presently, in a condition of bondage now [* 178] unknown in any part of Europe. These precarious holdings have become by lapse of time, notwithstanding their mean origin, the most important incidents of a manor, being, in fact, no other than our modern copyholds, the arbitrary power of revocation originally possessed by the lord being gradually converted into the seignorial rights which now exist. As a natural accompaniment of this villein tenancy, there was established in every manor a court called the customary court, differing from the court baron, though held commonly at the same time; in this customary court the lord or his steward alone exercised judicial power. In many manors also there was a court leet, similar in its jurisdiction to the sheriffs' court, being created by the king's charter (r). In most manors also there was a considerable portion of the land which was not capable of culture, at least according to the state of agriculture in the early times when manors were created. This waste land the lord allowed his tenants generally to use for pasture, recreation, or for roads, as occasion might require, it having probably been so used by the inhabitants immemorially. This permission, like that from which copyhold tenure has sprung, became in course of time irrevocable, and thus arose the rights of common of pasture, and other commons of the present day. It will be seen from this description that in order to constitute a manor there must exist on the part of the lord a power of sub-infeudation or of granting (q) Roll. Abr. Manor, F. 121; Glover v. Lane, 3 T. R. 447; R. v. Mein, 4 T. R. 480; Doe v. Williams, 11 M. & W. 807; Doe v. (r) Mirr. c. 1, s. 10. lands to be held of him in fee. This in the early times of our legal constitution was exercised without question as to its legal foundation. But more than this, the great barons, holding large territories under the crown, granted not only lands to be held of them in fee as lords of a manor, but frequently granted out of their great manors smaller mauors to be held of themselves, the seignory * reserved by them being then frequently called an honour (s). In [*179] imitation of this, the inferior lords made similar sub-grants, the pro cess being continued downwards ad infinitum. As a consequence of this method of sub-infeudation, the superior lords observed that they lost all their feudal profits of wardships, marriages, and escheats, which fell into the hands of the mesne or middle lords, who were the immediate superiors of the terretenant, or him who occupied the land: and also that the mesne lords themselves were so impoverished, that they were disabled from performing their Statutes against services to their own superiors. This occasioned, first, that prosub-infeudation. vision in the thirty-second chapter of magna carta, 9 Hen. III. (which is not to be found in the first charter granted by that prince, nor in the great charter of king John (†) ), that no man should either give or sell his land, without reserving sufficient to answer the demands of his lord; and, afterwards, the statute of Westm. 3, or Quia emptores, 18 Edw. 1, c. 1, which directs, that, upon all sales or feoffments of land, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it (u). But these provisions not extending to the king's own tenants in capite, the like law concerning them is declared by the statute of Prerogativa regis, 17 Edw. 2, c. 6, and 34 Edw. 3, c. 15, by which last all subinfeudations, previous to the reign of king Edward I., were confirmed: but all subcan be created sequent to that period were left open to the king's prerogative. since statute 18 And from hence it is clear, that all manors existing at this day must have existed as early as king Edward I.: it being essential to a manor, that there be tenants who hold of the lord; and, by the [*180] operation of these statutes, no tenant in capite since the accession of that prince, and no tenant of a common lord since the statute of Quia emptores, could create any new tenancies to be held of himself (x). No new manor Edw. 1, c. 1. Having mentioned the various heterogeneous elements composing a manor, we will somewhat more at length dwell upon their several peculiarities, with reference to the present state of things, premising that manors themselves might be held upon any of the various kinds of free tenures which we have described, being however in ancient times chiefly held by knight-service, and now since the abolition of military tenures, with few exceptions, in common socage: and, moreover, a manor when in the hands of the king himself, through escheat or otherwise, was not considered as absorbed in the supreme lordship of the crown, but continued in contemplation of law to exist. The demesnes of a manor being in the absolute disposal of the lord without any restriction arising from claims of tenants of the manor, can be granted by (8) See Hutton v. Gifford, sub. nom. Anon., Saville, 24. (t) See the Oxford editions of the charters. (u) The words of the act are, "That it shall be lawful to every freeman to sell, at his own pleasure, his lands and tenements, or part of them, so that the feoffee shall hold the same VOL. I.-67 of the chief lord of the same fee, by such service and customs as his feoffor held before." (x) See, however, 5 Man. & Ry. 156, n., and a case arising out of certain patents, granted by Charles II., of lands in Ireland, giving rights to create manors notwithstanding quia emptores. Delacherois v. Delacherois, 11 H. L. 62. the lord for years, for life, or in tail, without affecting the manor (y), though (since the statute Quia emptores) during the continuance of such an estate they cease to be parcel of the manor. If granted in fee they are severed for ever from the manor, and cannot be reannexed to it, even if repurchased by the lord (z). *Next, as to the free tenemental lands. These are now held in [* 181] common socage, and only differ from ordinary freehold lands in respect that the seignory is in the lord of the manor instead of the crown, and a small rent is still often payable: therefore, in cases of escheat, which is now the most valuable quality of such seignory, the lord of the manor regains possession. They again become part of the demesnes, the tenancy being extinguished in the seignory (a). If, however, the union of the tenancy and seignory arise from purchase, as if the lord purchase the tenemental lands, they do not become again part of the manor, but are severed from it for ever (b). If all of the freehold lands become vested in one person, or if the lord purchase all the freehold lands, or all but those of one owner, the manor is extinguished. Because in either case there can be no court baron, for which, as we have already remarked, two suitors at least are requisite: though it would revive if the freeholds after being united in one person should become separated again by alienation or otherwise. In this instance the law is the same as to purchase and escheat (c). Since, however, by a recent act (d) the jurisdiction of the court baron has been taken away in all cases except such as relate to the rights of a widow in her husband's lands, the legal existence of a manor has become of [* 182] small consequence, for we may remark that manors thus *extinguished or suspended may still remain manors in reputation and retain many of the incidents which attached to them in their perfect state (e). In particular the jurisdiction of the lord to hold customary courts, accept surrenders, and make grants of copyholds, which is now the most notable power possessed by the lord, remains after the extinction of the manor (f). By far the greater number of manors of the present day are but manors by reputation, the instances where freeholds can be proved to be held of a manor being comparatively rare. We come now to the consideration of those parts of the lands within a manor which, formerly held in realty at the will of the lord, are now so held only in name. These, though originally of slight consideration and not part of the (y) Litt. s. 591. (2) If one, seised of a manor, grants in fee part of the demesnes, and afterwards repurchases them, and then grants or devises the whole manor, the demesnes repurchased (not being specifically mentioned) will not pass. Though they may do so by reputation if the unity of possession continue for a long time. Thetford's Case, 1 Lev. 204; R. v. Duchess of Buccleugh, 6 Mod. 151. See also Lee v. Brown, 2 Mod. 69; Lemon v. Blackwell, Skinn. 192; R. v. Bishop of Rochester, 2 Mod. 2. (a) Brett v. Rigden, 1 Plowd. 343; Shep. Touchstone, 439; Prest. ed. Co. Litt. 313 a; 314 a; Anon., 12 Mod. 138. See Delacherois v. Delacherois, 11 H. L. 62; where much discussion was had, and diverse opinions were held upon the point. (b) Anon., 12 Mod. 138; Mountjoy's Case, 5 Rep. 6a; Temple v Cooke, Jenkins' Centuries, s. c. Dyer, 265 b. If the lord has only a limited interest in the manor, as, for instance, a life interest, then the severance is only temporary, and on the death of the lord, or expiration of his limited interest, his heirs would be entitled to the tenemental lands as such. Litt. ss. 559, 560, 561, and Coke's Comm. thereon; Com. Dig. Suspension, A. & B.; Roe v. Vernon, 5 East, 51. (c) Roll. Abr., Manor, F. 121. (e) Glover v. Lane, 3 T. R. 447; Bradshaw v. Lambert, 4 T. R. 446; Soane v. Ireland, 10 East, 259. (f) Coke, Tr. 53. original conception of a manor, have become, in England at least, the most. common, and, at the same time, most important incidents of one (g). Among our Anglo-Saxon ancestors lands were divided into two species, called bocland and foleland, which, though not directly represented by the freehold. and copyhold lands of feudal and modern times, were distinguished from each other by peculiarities similar to those which mark the difference between the latter tenures. Bocland was held by book or charter, and conveyed by deed or written grant. It was alienable and devisable at the will of the proprietor. Folcland, on the contrary, was held by a much less certain title. Originally, land belonging to the community at large seems to have been parcelled out among the common people by some recognized authority, such as the folcgemot or court of the district; *when so distributed, the allottees held it for [*183] such period as was fixed by the court, but never in perpetuity. They were subject to many burthens and exactions, from which owners of bocland were exempt, particularly the obligation to render hospitality and afford means of travelling and maintenance to the king and great lords and their followers (h). This admitted duty owing to the state, and a forced submission to the will of some particular powerful lord, would be, not improbably, much the same in their effects. A class of people in a state of servitude would be equally incapable of resisting the demands of one as the other, and the possession of lands for a period depending upon the will of a community would be very similar in substance to a tenancy at the will of the nearest lord. When the Normans, therefore, introduced their system of tenure, they found a class of inhabitants not possessed as of right of any property, nor even enjoying freedom of person, but occupying part of the land at the arbitrary will of others, and on condition. of rendering menial and arbitrary services. Importing into this state of slavery the feudal notion of faithful allegiance, and the corresponding duty of the lord to grant personal protection from the aggressions of all but himself, we have a near approach to the condition of the villein (i) of the 12th century. In accordance with the nature and characteristics of a manor and the necessities of the case, the demesnes of the lord were cultivated by his villeins, to whom a portion of them was assigned for their own subsistence. Villeins thus employed were called regardant (k), that is, annexed to the manor or land. A villein regardant might, however, be granted by deed separately from the land: * he then became a villein in gross, that is, annexed to the person of his [* 184 ] lord (7), and consequently a man might be seised of a villein in gross without relation to any land. Villeins in gross being considered as of the nature of land, but not capable of livery of seisin, could only be granted by deed (m). A villein could not leave his lord without permission; and if he ran away, or was taken away, he might be claimed and recovered by action, like beasts or other chattels. They held their little plots of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them when (g) Litt. s. 73. Vin. Abr., Manor, 218. It has been said in the case above cited (Delacherois v. Delacherois, 11 H L. 62) that these base tenures are not found in any part of Ireland, though manors have been by no means uncommon there. (h) Allen's Rise and Growth of the Royal Prerogative; see Hall. Mid. Ages, c. 8, n. ix. (i) Derived by sir E. Coke from villa, be cause they lived in villages, and were occupied principally in rustic works. Co. Litt. 116. (k) This word was restricted to denote the annexation of villeins to a manor. Litt. s. 184. The synonymous word for other things being "appendant." (7) Litt. s. 181. |