Villenage. making any distinction: but now all fines for alienation are demolished by the statute of Charles the Second. 11. 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) subject to no escheats for felony, though they are to escheats for want of heirs." 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, or, as it is now called, freehold. The other grand division of tenure, mentioned by Brac Of two sorts. ton as cited in the preceding chapter, is that of villenage, as contradistinguished from liberum tenementum, or frank tenure. And (this we may remember) he subdivides into two classes, pure and privileged villenage: from whence have arisen two other species of our modern tenures. [ 90 ] 1. Pure Villenage or copyholds. Manors; what they are. III. 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 a short view of the original and nature of manors. Manors are in substance as ancient as the Saxon constitution, though perhaps differing a little, in some immaterial circumstances, from those that exist at this day :" just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor, manerium, a manendo, because the usual residence of the owner, seems to have been a district of ground, held by lords or great personages; who kept in their own hands so much land as was necessary for the use of their families, which were called terrae dominicales, or demesne lands; being occupied by the lord, or dominus manerii, and his Tenemental servants. The other, or tenemental, lands they distributed among their tenants to be held of them in perpetuity : which from the different modes of tenure were distinbook-land, guished by two different names. First, book-land, or charter-land, which was held by deed under certain rents n Co. Cop. s. 2 & 10. Demesne lands. lands, are and m Wright, 210. and free-services, and in effect differed nothing from free socage lands:° and from hence have arisen most of the freehold tenants who hold of particular manors, and owe suit and service to the same. The other species was called folk-land, which was held by no assurance in folk-land; writing, but distributed among the common folk or people at the pleasure of the lord, and resumed at his discretion; being indeed land held in villenage, which we shall presently describe more at large. The residue of the manor, being uncultivated, was termed the lord's waste, and served for public roads, and for common of pasture to the lord and his tenants. Manors were formerly called baronies, as they still are lordships: and each lord or baron was empowered to hold a domestic court, called the court-baron, for redressing misdemeanors and nuisances within the manor, and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor; and if the number of suitors should [ 91 ] so fail as not to leave sufficient to make a jury or homage, that is, two tenants at the least, subject to escheat, the manor itself is lost; but now indeed by statute 4 and 5 Vict. c. 35, s. 86, lords of manors, or their stewards, may hold customary courts, although no copyhold tenant be present, but these are not necessarily the courts baron. In the early times of our legal constitution, the king's greater barons, who had a large extent of territory held under the crown, granted out frequently smaller manors to inferior persons to be holden of themselves; which do therefore now continue to be held under a superior lord, who is called in such cases the lord paramount over all these manors: and his seignory is frequently termed an honour, not a manor, especially if it hath belonged to an honours. ancient feudal baron, or hath been at any time in the hands of the crown. In imitation whereof, these inferior lords began to carve out and grant to others still more minute estates, to be held as of themselves, and were so proceeding downwards in infinitum; till the superior lords observed, that by this method of subinfeudation they lost all their feudal profits, of wardships, marriages, • Co. Cop. s. 3. sed contra, Long v. Heming, Cro. P Glover v. Lane, 3 T. R. 447; Eliz. 219; and Co. Litt. 58, a 4 See post, Chap. 11. and escheats, which fell into the hands of these mesne or middle lords, who were the immediate superiors of the terra-tenant, or him who occupied the land: and also that the mesne lords themselves were so impoverished thereby, that they were disabled from performing their services to their own superiors. This occasioned, first, that provision 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 Stat. of quia quia emptores, 18 Edw. I, c. 1, which directs, that, upon Edw. I. c. 1. all sales or feoffments of land, the feoffee shall hold the emptores, 18 [92] When manors must originate. Origin of copyholds. same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it. But these provisions, not extending to the king's own tenants in capite, the like law concerning them is declared by the statutes of prerogativa regis, 17 Ed. II. c. 6, and of 34 Edw. III. c. 15, by which last all subinfeudations, previous to the reign of king Edward I. were confirmed; but all subsequent to that period were left open to the king's prerogative. And from hence it is clear, that all manors existing at this day must have existed as early as king Edward the First: for it is essential to a manor, that there be tenants who hold of the lord; and, by the 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 tempores, could create any new tenants to hold of himself. Now with regard to the folk-land, or estates held in villenage, this was a species of tenure neither strictly feudal, Norman, or Saxon; but mixed and compounded of them all ; and which also, on account of the heriots that usually attend it, may seem to have somewhat Danish in its composition. Under the Saxon government there were, as Sir William Temple speaks, a sort of people in a P See the Oxford editions of the 4 Wright, 215. r Ibid. s Introd. Hist. Eng. 59. condition of downright servitude, used and employed in the most servile works, and belonging, both they, their children, and effects, to the lord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folk-land, from which they were removeable at the lord's pleasure. On the arrival of the Normans here, it seems not improbable, that they who were strangers to any other than a feudal state, might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them, as well as others, to the oath of fealty; which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition. This they called villenage, and the tenants villeins, either from the word vilis, or else, as Sir Edward Coke tells us," a villa; because they lived chiefly in villages, and were employed in rustic works of the most sordid kind: resembling the Spartan helotes, to whom alone the culture of the lands was consigned; their rugged masters, like our northern ancestors, esteeming war the only honourable employment of mankind. These villeins, belonging principally to lords of manors, [93] were either villeins regardant, that is annexed to the Villeins manor or land: or else they were in gross, or at large, that is, annexed to the person of the lord, and transferable by deed from one owner to another." They could not leave their lord without his permission; but, if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels. They held indeed small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased; and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord's demesnes, and any other the meanest offices; and their services were not only base, but uncertain both as to their time and quantity. A vil lein, in short, was in much the same state with us, as In many places also a fine was payable to the lord, if the villein presumed to marry his daughter to any one without leave from the lord: and, by the common law, 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 [94] with their parents; whence they were called in Latin, 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, being free if he was free, and villein if he was villein; contrary to the maxim of the civil law, that partus sequitur ventrem. But no bastard could be born a villein, because by another maxim 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, according to Blackstone, the maim of his own person, but this right of action for maihem 2 Cap. 8. a De jure Suconum, 1 2, c. 4. b Litt. sec. 177. c Co. Litt. 140. d Litt. sec. 202. e Litt. s. 186. f Ibid. s. 187, 188. Ibid. s. 189, 194. |