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the lord might also bring an action against the husband for damages, in thus purloining his property. For the children of villeins were also in the same state of bondage with their parents, whence they were called nativi, which gave rise to the female appellation of a villein, who was called a neife. 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, contrary to the maxim of the civil law, that partus sequitur ventrem. But no bastard could be born a villein, because he is nullus filius, and as he can gain nothing by inheritance, he should lose nothing by it.
Personal Injuries. The law, however, protected the person of the villein, as one of the king's subjects, against atrocious injuries of the lord, for he might not kill or maim his villein, though he might beat him, since the villein had no action at law against his lord in such case. A neife had also an appeal of rape, if violated forcibly by the lord.
Enfranchisement, Villeins might be enfranchised by manumission, expressed or implied; express, where a deed of manumission was given ; 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 for years; for this was dealing with his villein on the footing of a freeman, such ownership in a villein being totally inconsistent with his former state of bondage. So also if a lord brought an action against his villein, this enfranchised him, as the lord might have a short remedy by seizing the goods of the villein, as by such suit he placed his villein on an equality with him in law. But if the lord indicted him for felony, it was otherwise, for the lord could not inflict a capital punishment on him.
Copyhold Tenures, How Formed. Villeins, by these and other means, in process of time, gained position, and strengthened the tenure of their estates to that degree, that they came to have an interest in thenı, in many places as good, and in others better than their lords. The benevolence of many lords of manors permitting 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 the lord's will. Though nominally holding at the will of the lord, yet it is such a will, as
is agreeable to the customs of the manor, which customs are preserved in the rolls of the several courts-baron. And as such tenants had nothing to show for their estates but these customs and admissions entered on the court rolls, or the copies of such entries witnessed by the steward, they were called tenants by copy of court-roll, and their tenure a copyhold.
Decline of Villenage. Copyholders are in truth no other but villeins, who by a long series of encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord's will. This accounts for the great variety of customs in different manors, as to the descent of the estates, and the privileges belonging to the tenants. 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. Although the persons of villeins were enfranchised by manumission and long acquiescence, their estates in strictness, remained subject to the same servile conditions and forfeitures as before, though in general, the villein services were commuted for a small rent. Principles of Copyhold Tenure. 1. That the lands be
parcel of, and situate within that manor, under which they are held. 2. That they have been demised or demisable, by copy of courtroll, immemorially. Immemorial custom is the life of all tenures by copy, hence no new copyhold can be created.
Length of the Tenure. In some manors, where the custom has been to permit the heir to succeed his ancestor in his tenure, the estates are styled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholders 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, the tenants can retain possession.
Incidents to a Copyhold. The appendages of a copyhold tenure, that it has in common with free tenures, are fealty, services in rent or otherwise, reliefs and escheats. The two latter belong to copyholds of inheritance, the former to those for life also. Besides these, copyholds have also heriots, wardships and fines.
Heriots. Heriots, which are a Danish custom, are a render of the best beast, or other valuable thing to the lord, on the death
of the tenant. This is a relic of villein tenure, and is incident to both species of copyhold, but wardship and fines to those of inheritance only.
Wardships. Wardship, in copyhold estates, partakes both of that in chivalry and that in socage. The lord is the legal guardian, who usually assigns some relative of the infant tenant to act in his stead, and he, like the guardian in socage, is accountable to his ward for the profits.
Fines. 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, favoring the liberty of copyholds, have made them reasonable in their extent, otherwise they might amount to a disherison of the estate. No fine therefore is allowed upon descents and alienations, as a rule, of more than two years value of the estate. The English law, favoring liberty, has removed, as far as possible, every badge of slavery; however some nominal ones may remain, by declaring, that the will of the lord must be interpreted by the custom of the manor, and where no custom has grown up to the prejudice of the lord, as in the case of arbitrary fines, the law interposes with equitable moderation, and will not suffer the lord to disinherit the tenant.
IV. PRIVILEGED VILLENAGE OR VILLE!N SOCAGE.
Nature of this Tenure. This is such as has been held of the kings of England from the date of the conquest. The tenants herein cannot aliene or transfer their tenements by grant or feoffment, any more than pure villeins can, but must surrender them to the lord, to again be granted in villenage. This tenure in ancient demesne is an exalted species of copyhold, partaking of the baseness of villenage in the nature of its services, and the freedom of socage in their certainty.
Ancient Demesne. This consists of those lands or manors, which though now perhaps granted to private subjects, were actually in the hands of the crown at the conquest, and so appear by the great survey in the exchequer, called domesday book. The tenants of these lands, under the crown, were not all of the same order or degree. Some 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 copyholders in only a few points. Others were enfranchised by royal favor, being bound in respect of their lands to perform some of the better sort of villein services, but those determinate and certain. All which are now changed into pecuniary rents, in consideration of which, many immunities and privileges were granted them, 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, termed a writ of right close; not to pay toll or taxes, not to contribute to the knights of the shire, not to be placed on juries, and the like.
Tenants in Ancient Demesne. These tenants, though their tenure be copyhold, yet have an interest equivalent to a freehold, for though their services were of a base and villeinous original, yet the tenants were highly privileged villeins, with services fixed and determinate. They could neither be ousted at the lord's will, nor hold land against their own. No lands are ancient demesne, but lands held in socage, not in free and common socage, but in the subordinate class of villein socage. Possibly, as this socage tenure was founded upon predial services, or those of the plough, some have imagined that all socage tenures arose from the same original, and have not distinguished between free socage or socage of frank-tenure and villein socage, or socage of ancient demesne.
Differ from Common Copyholds. As a species of copyhold, these tenures are exempted from the operation of the statute of Charles II, but they differ from common copyholds in the above privileges, and they differ from freeholds, in that they cannot be conveyed by the common law conveyance of feoffment, but must pass by surrender to the lord, like copyholds, the words: “to hold according to the custom of the manor,” being, however substituted in lieu of "to hold at the will of the lord.”
Lay Tenures. Two Species. We notice, in this examination, the mutual connection and dependence that tenures, ancient and modern, have upon each other. Whatever alterations these tenures have undergone from the Saxon era to the reign of Charles 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. But there is one other species of tenure reserved by the statute of Charles II, which is of a spiritual nature, called the tenure in frankalmoign. V. TENURE IN FRANKALMOIGN.
Defined. This term, derived from libera eleemosyna means “free alms," whereby religious corporations, aggregate or sole, hold lands of the donor, to them and their successors forever. The service they were to render for these lands was not certainly defined, but only in general to pray for the soul of the donor, and therefore they did no fealty, which is incident to all other services. This is the tenure, by which all the ancient monasteries and religious houses held their lands, and by which the parochial clergy, and many ecclesiastical and religious foundations hold them to this day, the nature of the service being, upon the reformation, altered to the doctrines of the church of England. It was an old Saxon tenure, and retained by the Normans, out of respect to religion.
Exemption from Certain Services. Tenants in frankalmoign were discharged of all other services, except the duty of repairing the highways, building castles, and repelling invasions, just as were the Druids, under the ancient Britons. Even at present, this spiritual tenure is distinct from all others. If the service be neglected, the lord has no remedy by distress, but merely by complaint to the ordinary. In this, it materially differs from the tenure by divine service, in which the tenants were obliged to do some special divine service, as to sing so many masses, or distribute a certain sum in alms. All such donations are now out of use.
CHAPTER VII.-FREEHOLD ESTATES OF INHERITANCE.
Estate Defined. An estate in lands, tenements and hereditaments signifies such interest, as the tenant has therein. It is called status in Latin, signifying the condition or circumstance, in which the owner stands with regard to his property.
What is to be Regarded. To ascertain this, estates may be considered: