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INTRODUCTION TO THE LAW OF REAL PROPERTY.
TENURE IN GENERAL.
Co. Lit. 65 a. For the better understanding of that which shall be said hereafter, it is to be knowne, that first, there is no land in England in the hands of any subject (as it hath been said) but it is holden of some lord by some kind of service, as partly hath been touched before."
2 BL. Com. 59, 60. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled 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 those inferior persons, as they were still tenants with respect to the king; and, thus partaking of a middle nature, 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; or, in other words, B. held his lands immediately of A., but mediately of the king. The king therefore was styled lord paramount; A. was both tenant and lord, or was a mesne lord : and B. was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit of the land. 1 Inst. 296.
1 " According to this position, of which the truth is undeniable, all the lands in Eng. land, except those in the king's hands, are feudal. This universality of tenures, if not quite peculiar to England, certainly doth not prevail in several countries on the continent of Europe, where the feudal system has been established ; and it seems there are some few portions of allodial land in the northern part of our own island." - Hargrave's note ad loc.
See Digby, Law Real Prop. c. 1, sect. 2, § 1.
All tenures being thus derived, or supposed to be derived, froin 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 honorable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did.?
St. 18 Edw. I. c. 1; ST. OF WESTM. III. ; St. Quia EMPTORES (1290). Forasmuch as purchasers of lands and tenements of the fees of great
to the prejudice of the lords, to whom the freeholders of such great men have sold their lands and tenements to be holden in fee of their feoffors and not of the chief lords of the fees, whereby the same chief lords have many times lost their escheats, marriages, and wardships of lands and tenements belonging to their fees, which thing seems very hard and extreme unto those lords and other great men, and moreover in this case manifest disheritance, our lord the king in his parliament at Westminster after Easter the eighteenth year of his reign, that is to wit in the quinzine of Saint John Baptist, at the instance of the great men of the realm granted, provided, and ordained, that from henceforth it should 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 lands or tenements of the chief lord of the same fee, by such service and customs as his feoffor held before.
c. 2. And if he sell any part of such lands or tenements to any, the feoffee shall immediately hold it of the chief lord, and shall be forth with charged with the services for so much as pertaineth or ought to pertain to the said chief lord, for the same parcel, according to the quantity of the land or tenement so sold ; and so in this case the same part of the service shall remain to the lord, to be taken by the hands of the feoffee, for the which he ought to be attendant and answerable to the same chief lord according to the quantity of the land or tenement sold for the parcel of the service so due.
6. 3. And it is to be understood that by the said sales or purchases of lands or tenements, or any parcel of them, such lands or tenements shall in no wise come into mortmain, either in part or in whole, neither by policy ne craft, contrary to the form of the statute made thereupon of late. And it is to wit that this statute extendeth but only to lands holden in fee simple, and that it extendeth to the time coming. And it shall begin to take effect at the Feast of Saint Andrew the Apostle next coming.
Co. Cop. $ 31.— The efficient cause of a manor is expressed in these
the nurse, of nanors ; time is the soul that giveth life unto every manor, without which a manor decayeth and dieth : for 't is not the two material causes of a manor, but the efficient cause (knitting and uniting together those two material causes) that maketh a manor. Hence it is that the king himself cannot create a perfect manor at this day ; for such things as receive their perfection by the continuance of time come not within the compass of a king's prerogative: and therefore the king cannot grant freehold to hold by copy, neither can the king create any new custom, nor do any thing that amounteth to the creation of a new custom.
LEAKE, DIGEST OF LAND Law, 19-22. — A grant of land from the Crown under the feudal system usually conferred rights of jurisdiction and other sovereign rights or franchises within the territory, by virtue of which it was constituted a manor. The larger manors, comprising inferior manors and lordships held of them by sub-infeudation, were, in early times, often called, with some slight distinctions of meaning, honours and baronies.
In regard to territory, a manor comprised the portions of the fee retained in possession by the lord himself, called the demesne lands,
1 “Demesne, termed in latine demanium, domanium, or dominicum, is taken in a double sense, propriè and impropriè. Propriè, for that land which is in the king's own hands; and Chopimus saith, that domanium est illud quod consecratum, unitum, et incorporatum est regime coronæ, — domain is that which is consecrated, united, and incorporated with the royal crown.' Take domaninm in this sense, and then you exclude all common persons from being seised in dominico; for admit the king pass over the demesne lands, as soon as they come into a common person's hands desinunt esse terræ dominicales, — 'they cease to be domain lands ;' for though the king's patentee hath the land granted to him and to his heirs, yet coming from the king, it must necessarily be holden of the king, but it is contrary to the nature of demesne lands to be holden of any. Therefore though those lands, which commonly are termed ancient demesne, viz., such lands as were formerly in the hands of Edward the Confessor, may properly be termed generally ancient demesne, because they were in ancient time in the king's own possession ; yet to term them at this day the lord's
“Then, by this it appeareth that those lands are termed improperly demesne which are in the hands of an inferior lord or tenant, nor can such a one in propriety of speech be said to stand seised of any land whatsoever in dominico suo, - ' in his demesne ;' but if you observe narrowly the manner of pleadings, the words are used in a proper sense, for you shall never find that an inferior lord or tenant will plead that he is simply seised in dominico, but still with this addition, in dominico suo ut de feodo, – as a fee ;'
terrre dominicales, and the portions granted in fee to tenants by subinfeudation to hold of the manor by services, terræ tenementales, of which the lord retained the seignory and services. There might also be waste land, not as yet in occupation, used in common by the tenants of the manor for pasturage and like purposes ; but the title remained in the lord, who might from time to time approve or appropriate the waste, subject to the rights exercised over it by his tenants.
In regard to jurisdiction, the manor comprised a court called the Court Baron or Lord's Court, having two distinct branches or courts. The superior or freehold branch of the court was constituted of the tenants holding fees of the manor, who were bound by their tenure to give suit or service at the court as judges; and their jurisdiction extended to pleas concerning the lands thus held of the manor.
The aggregate of these rights and incidents constituted a manor in the legal acceptation of the term ; and accordingly a manor is described in law as consisting of demesne lands, and seignories and services anciently united thereto, together with the jurisdiction of a court baron ; all of which elements are necessary to constitute a perfect manor.?
After the statute Quia emptores no new manor could be created. The grant of a fee no longer created a seignory and tenure, for the grantee held of the superior lord and not of the grantor. The lord, therefore, could not create freehold tenants to hold a court baron, which is an essential element in the constitution of a manor. Moreover, manors are sanctioned only by prescription or ancient custom ; hence
and that very aptly, for this word fee implieth thus much, that his estate is not ahsolute, but depending upon some superior lord. Therefore I conclude, with the Feudists, that a common person may aptly be said to stand seised in feodo, – 'in fee,' -- or in dominico suo ut de feodo ; but improperly in dominico simply. The king, è converso, may properly be said to stand seised in dominico simply ; but in feodo improperly, or in dominico suo ut de feodo, – 'as in his demesne of fee.'” Co. Cop. S$ 11, 12.
See A. G. v. Parsons, 2 C. & J. 279. – Ed.
| Perkins, s. 670 ; Co. Lit. 58 a, b; Co. Cop. s. 31; Spelman Gloss. “Manerium." As to the distinction of the demesne lands and the lands in tenure, see Co. Lit. 17 ; A. G. v. Parsons, 2 C. & J. 279, and the authorities cited in the judgment. As to the right of the tenants over the waste and of the lord to approve the waste, with and without the consent of the tenants, see Boulcot v. Winmill, 2 Camp. 261 ; Betts v. Thompson, L. R. 6 Ch. 732; Warrick v. Queen's Coll, Ox. Ib. 716.
Numerous conjectures have been made as to the derivation of the word manor. A plausible one is from the French word mesner, to govern, which Coke notices as most agreeing with the nature of a manor, — " for a manor in these days signifieth the juris. diction and royalty incorporate, rather than the land or site." Co. Cop. s. 31 ; approved by Watkins, Cop. p. 7. In this view of a manor it is included in the list of Fran. chises, - the definition of a franchise being “a royal privilege or branch of the king's prerogative, subsisting in the hands of a subject.” 2 Blackst. Com. 37. Manor has also been derived a manendo, as being the seat of the feudal lord. Co. Lit. 58 n : Spelman ; 2 Blackst. Com. 90. Manors, together with most of the other elements of feudality, are said to have had their commencement, historically, in England in Saxon times. Co. Lit. 58 b; and see 1 Spence Eq. Jur. p. 64, and authorities there referred to. But they were consolidated into a system of general application at the Conquest. 1 Spence, 90.
the king himself, though he can create a new tenure, cannot create a perfect manor at the present day. Co. Cop. s. 31 ; see Bradshaw v. Luuson, 4 T. R. 443.
A manor may become extinguished as a perfect manor, by the severance of the demesne lands from the seignory and services of the lands in tenure; as, if the lord transfer to some stranger the services of all bis tenants and reserve unto himself the demesnes; or, if he grant away the demesnes and reserve the services. A manor may also be extinguished by the extinction of the services; as if the lord purchase all the land of the freeholders, or release unto his freeholders all their services. Co. Cop. s. 31; Sir Moyle Finch's Case, 6 Co. Rep. 63 a.
A manor might also be extinguished by failure of the court baron. Two freeholders of the manor, at least, were necessary to hold the court baron ; consequently, if this number of tenants failed, the court could no longer be constituted, and the manor, without a court baron, ccased legally to exist."
But in all the above cases of extinction, though the manor no longer exists in its legal integrity, it may continue as a manor by repute, nomine tantum; and it may still be attended with such of the rights and incidents of the original manor as may remain unaffected by the legal extinction.”
It may here be mentioned that besides the freehold tenants holding fees of the manor, there is, in many manors, a class of tenants occupying parts of the demesne lands without acquiring fees or freehold estates. They hold under a distinct tenure known as customary or copyhold tenure. Corresponding to which is the customary branch of the Court Baron having jurisdiction over these customary tenancies of the demesne lands. In this branch of the court the lord or his steward is the judge; and it may still be held though the freehold branch of the Court Baron may have become extinct. Co. Lit. 58 a; post, Part I. c. ii. “Customary Tenure."
Another distinct court frequently existed as a franchise of a manor called the Court Leet, exercising a general criminal and administrative jurisdiction within the manor. This court was not a necessary incident of a manor, but appertained to the lord only by special prescription or special grant of the franchise from the Crown ; its jurisdiction has been wholly superseded by other courts and officers. Co. Cop. s. 31 ; 4 Inst. c. 54; see Kitchen on Courts.
i Co. Lit. 58 a; Co. Cop. s. 31 ; see Chetwode v. Crew, Willes, 614 ; Bradshaw v. Lawson, 4 T. R. 443. The jurisdiction of the Court Baron in writs of right concerning lands within the manor was expressly abolished by 3 & 4 Will. IV. c. 27, 5. 36, and in all other matters the court has been either superseded or fallen into disuse. See a provision for the surrender of manorial courts in which debts or demands may be recovered, 9 & 10 Vict. c. 95 (the County Courts Act), s. 14.
? Co. Cop. &. 31 ; see 6 Co. 64 a, 66 6; Soane v. Ireland, 10 East, 259; Watkin's Cop. by Coventry, p. 27, n. (1), Ib. p. 48; as the right to manorial wastes, Ib.
See Co. Cop. § 31; Chetwode v. Crew, Willes, 614 ; Soane v. Ireland, 10 East, 259. - ED.