« PreviousContinue »
have his relief presently, and therefore he may forthwith distrain after the death of his tenant for relief.
In the same manner it is, where the tenant holdeth of his lord by fealty and a pound of pepper or cummin, and the tenant dieth, the lord shall have for relief a pound of cummin or a pound of pepper, besides the common rent. In the same manner it is, where the tenant holdeth to pay yearly a number of capons or hens, or a pair of gloves, or certain bushels of corn, or such like.
But in some case the lord ought to stay to distrain for his relief until a certain time. As if the tenant holds of his lord by a rose, or by a bushel of roses, to pay at the feast of St. John the Baptist, if such tenant dieth in winter, then the lord cannot distrain for his relief until the time that roses by the course of the year may have their growth, &c. And so of the like.
Co. Lit. 77 a. He that holdeth of the king by socage in chief, and dieth, his heir of full age, the king shall have livery and primer seisin only of the lands so holden, and not of the lands holden of others. But if the heir of such a tenant in socage in chief be within the age of fourteen at the death of his ancestor, he shall neither sue livery, nor pay primer seisin, either then or any time after; and the reason thereof is, for that the custody of his body and lands in that case belong to the prochein amy, as guardian in socage. Neither shall the king have primer seisin of lands holden in burgage (as some have said), for that it is no tenure in capite.
LIT. S$ 130-132, 159-165, 265. Also, if any will ask why a man may hold of his lord by fealty only for all manner of services, insomuch as when the tenant shall do his fealty, he shall swear to his lord that he will do to his lord all manner of services due, and when he hath done fealty, in this case no other service is due. To this it may be said, that where a tenant holds his land of his lord, it behooveth that he ought to do some service to his lord. For if the tenant nor his heirs ought to do no manner of service to his lord nor his heirs, then by long continuance of time it would grow out of memory, whether the land were holden of the lord or of his heirs, or not, and then will men more often and more readily say, that the land is not holden of the lord, nor of his heirs, than otherwise ; and hereupon the lord shall lose his escheat of the land, or perchance some other forfeiture or profit which he might have of the land. So it is reason, that the lord and his heirs have some service done unto them, to prove and testify that the land is holden of them.
And for that fealty is incident to all manner of tenures, but to the tenure in frankalmoign (as shall be said in the tenure of frankalmoign), and for that the lord would not at the beginning of the tenure have any other service but fealty, it is reason, that a man may hold of his lord by fealty only; and when he hath done his fealty, he hath done all his services.
Also, if a man letteth to another lands or tenements for term of life, without naming any rent to be reserved to the lessor, yet he shall do fealty to the lessor, because he holdeth of him. Also if a lease be made to a man for term of years, it is said that the lessee shall do fealty to the lessor, because he holdeth of him. And this is well proved by the words of the writ of waste, when the lessor hath cause to bring a writ of waste against him ; which writ shall say, that the lessee holds his tenements of the lessor for term of years. So the writ proves a tenure between them. But he which is tenant at will according to the course of the common law, shall not do fealty, because he hath not any sure estate. But otherwise it is of tenant at will according to the custom of the manor ; for that he is bound to do fealty to his lord for two causes. The one is hy reason of the custom ; and the other is, for that he taketh his estate in such form to do his lord fealty.
Tenure by petit serjeanty is, where a man holds his land of our sovereign lord the king to yield to him yearly a bow, or a sword, or a dagger, or a knife, or a lance, or a pair of gloves of mail, or a pair of gilt spurs, or an arrow, or divers arrows, or to yield such other small things belonging to war.
And such service is but socage in effect; because that such tenant by his tenure ought not to go, nor do anything, in his proper person, touching the war, but to render and pay yearly certain things to the king, as a man ought to pay a rent.
And note, that a man cannot hold by grand serjeanty, nor by petit serjeanty, but of the king, &c.
Tenure in burgage is where an ancient borough is, of which the king is lord, and they that have tenements within the borough hold of the king their tenements; that every tenant for his tenement ought to pay to the king a certain rent by year, &c. And such tenure is but tenure in socage.
And the same manner is, where another lord, spiritual or temporal, is lord of such a borough, and the tenants of the tenements in such a borough hold of their lord to pay each of them yearly an annual rent.
And it is called tenure in burgage, for that the tenements within the borough be holden of the lord of the borough by certain rent, &c. And it is to wit that the ancient towns called boroughs be the most ancient towns that be within England ; for the towns that now be cities or counties, in old time were boroughs, and called boroughs; for of such old towns called boroughs come the burgesses of the parliament to the parliament, when the king hath summoned his parliament.
Also, for the greater part such boroughs have divers customs and usages which be not had in other towns. For some boroughs have such a custom that if a man have issue many sons and dieth, the youngest son shall inherit all the tenements which were his father's within the same borough, as heir unto his father by force of the custom ; the which is called borough English.
Parceners by the custom are, where a man seised in fee simple or in fee tail of lands or tenements which are of the tenure called gavelkind within the county of Kent, and hath issue divers sons and die, such lands or tenements shall descend to all the sons by the custom, and they shall equally inherit and make partition by the custom, as females shall do, and a writ of partition lieth in this case as between females. But it behooveth in the declaration to make mention of the custom. Also such custom is in other places of England, and also such custom is in North Wales, &c.
2 Bl. Com. 84. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. And as it is principally here that we meet with the custom of gavelkind (though it was and is to be found in some other parts of the kingdom), we may fairly conclude that this was a part of those liberties; agreeably to Mr. Selden's opinion, that gavelkind before the Norman Conquest was the general custom of the realm. The distinguishing properties of this tenure are various ; some of the principal are these : 1. The tenant is of age sufficient to alien his estate by feoffment at the age of fifteen. 2. The estate does not escheat in case of an attainder and execution for felony ; their maxim being, “ The father to the bough, the son to the plough.” 3. In most places he had a power of devising lands by will, before the statute for that purpose was made. 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together ; which was indeed anciently the most usual course of descent all over England, though in particular places particular customs prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is said to be only a species of a socage tenure, modified by the custom of the country'; the lands being holden by suit of court and fealty, which is a service in its nature certain."
1 ANCIENT DEMESSE. “There is great confusion in the law books respecting this tenure. All agree that it exists in those manors, and in those only, which belonged to the Crown in the reign of Edward the Confessor and William the Conqueror, and in Doomsday Book are denominated Terræ Regis. But the copyholders of these manors are sometimes considered tenants in Ancient Demesne, and land held in ancient demesne is said to pass by surrender and admittance. This appears to be inaccurate. It is only the freeholders of the manor who are truly tenants in ancient demesne, and land held in ancient demesne passes by common law conveyances without the instrumen. tality of the lord. The copyholders in an ancient demesne manor, like other copy. holders, are merely to be considered as occupying a part of the lord's demesne, and do not hold of the manor. They form the Customary Court. The Court of Ancient De. mesne, which is analogous to the Court Baron, is constituted by those who hold in socage of the lord of the manor. ... The tenants in ancient demesne, properly so called, were made subject to certain restraints and entitled to certain immunities, which produce serious inconveniences at the present day. They were forbidden to bring or to defend any real action touching their tenements, except in the lord's court; and they were exempted from serving on juries elsewhere, and from paying toll in any part of England." – Third Report of Commissioners on the Law of Real Property, 12, 13.
FRANK AL MOIGN.
Lit. $$ 133, 135, 137, 139, 140, 141. Tenant in frankalmoign is, where an abbot, or prior, or another man of religion, or of holy church, holdeth of his lord in frankalmoign; that is to say, in Latin, in liberam eleemosinam, that is, in free alms. And such tenure began first in old time. When a man in old time was seised of certain lands or tenements in his demesne as of tee, and of the same land infeoffed an abbot and his covent, or prior and his covent, to have and to hold to them and their successors in pure and perpetual alms, or in frankalmoign; (or by such words to hold of the grantor, or of the lessor, and his heirs in free alms :) in such case the tenements were holden in frankalmoign.
And they, which hold in frankalmoign, are bound of right before God to make orisons, prayers, masses, and other divine services, for the souls of their grantor or feoffor, and for the souls of their heirs which are dead, and for the prosperity and good life and good health of their heirs which are alive. And therefore they shall do no fealty to their lord ; because that this divine service is better for them before God, than any doing of fealty; and also because that these words (frankalmoign) exclude the lord to have any earthly or temporal service, but to have only divine and spiritual service to be done for him, &c.
But if an abbot, or prior, holds of his lord by a certain divine service, in certain to be done, as to sing a mass every Friday in the week, for the souls, ut supra, or every year at such a day to sing a placebo et dirige, &c., or to find a chaplain to sing a mass, &c., or to distribute in alms to an hundred poor men an hundred pence at such a day; in this case, if such divine service he not done, the lord may distrain, &c., because the divine service is put in certain by their tenure, which the abbot or prior onght to do. And in this case the lord shall have fealty, &c., as it seemeth. And such tenure shall not be said to be tenure in frankalmoign, but is called tenure by divine service. For in tenure in frankalmoign no mention is made of any manner of service ; for none can hold in frankalmoign, if there be expressed any manner of certain service that he ought to do, &c.
And if an abbot holdeth of his lord in frankalmoign, and the abbot and covent under their common seal alien the same tenements to a secular man in fee simple, in this case the secular man shall do fealty to the lord ; because he cannot hold of his lord in frankalmoign. For if the lord should not have fealty of him, he should have no manner of service, which should be inconvenient, where he is lord, and the Also, if a man grant at this day to an abbot or to a prior lands or
it is ordained by the statute which is called Quia emptores terrarum (which was made anno 18 E. I.) that none may alien nor grant lands or tenements in fee simple to hold of himself. So that if a man seised of certain tenements, which he holdeth of his lord by knight's service, and at this day be, &c., granteth by license the same tenements to an abbot, &c., in frankalmoign, the abbot shall hold immediately the tenements by knight's service of the same lord of whom his grantor held, and shall not hold of his grantor in frankalmoign, by reason of the same statute. So that none can hold in frankalmoign, unless it be by title of prescription, or by force of a grant made to any of his predecessors before the same statute was made. But the king may give lands or tenements in fee simple to hold in frankalmoign, or by other services; for he is out of the case of that statute.
And note, that none may hold lands or tenements in frankalmoign
there be lord, mesne and tenant, and the tenant is an abbot, which holdeth of his mesne in frankalmoign, it the mesne die without beir the mesnaltie shall come by escheat to the said lord paramount, and the abbot shall then hold immediately of him by fealty only, and shall do to him tealty ; because he cannot hold of him in frankalmoign, &c.
ABOLITION OF MILITARY TENURES.
St. 12 CAR. II. (1660) c. 24. An Act taking away the Court of Wurds and Liveries and Tenures
in Capite, and by Knight-Service, and Purveyance, and for settling a Revenue upon his Majesty in lieu thereof. Whereas it hatb been found by former experience that the Court of Wards and Liveries and tenures by knight-service either of the king or others, or by knight-service in capite, or socage in capite of the king, and the consequents upon the same, have been much more burthensome, grievous and prejudicial to the kingdom than they have been beneficial to the king; and whereas since the intermission of the said court, which hath been from the four and twentieth day of February, which was in the year of our Lord one thousand six hundred forty and five, many persons have by will and otherwise made disposal of their lands held by knight-service, whereupon divers questions might possibly arise unless some seasonable remedy be taken to prevent the same ; be it therefore enacted by the King our Sovereign Lord, with the assent of the Lords and Commons in Parliament assembled, and by the authority of the same, and it is hereby enacted, That the Court of Wards