privileges, and the tenure itself had several properties distinct from others, which it retains to this day. But the lands which were in the possession of Edward the Confessor, and were given away by him, are not at this day ancient demesne, nor are any others, except those written down in the book of Domesday; and therefore, whether such lands are ancient demesne or not, is to be tried only by that book (1). But if the question be, Whether lands be parcel of a manor, which is ancient demesne, this shall be tried by a jury. But the tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies, continued for a long time pure and absolute villains, dependent on the will of the lord: and those who have succeeded them in their tenures, only differ from them in a few points. Others were in a great measure enfranchised by the royal favour: being only bound in respect of their lands to perform some of the better sort of villain services, but those determinate and certain; as, to plough the king's land for so many days, to supply his court with such a quantity of provisions, or other stated services; с 2 Blac. Com. 98; 4 Inst. 269; 2 Inst. 542; F.N. B. 14; 1 Salk. 57. d 1 Salk. 57; 4 Inst. 269; Hob. 188; 1 Brownl. 43; 1 Lev. 106; 1 Sid. 147; Dy. e Salk. 56, 774. f C. 66. 8 F. N. B. 228; and see Blac. L. Tr. 213. (1) See 1 Lev. 106; 1 Sid. 147; F. N. B. 16, c. from which last book it appears, that the writ does not require the production of the book itself, but only a certificate of the fact itself from the treasurer and chamberlain of the exchequer. This book, however, will not show whether the lands themselves are ancient demesne, but only whether or not the manor be so. 2 Bur. 1048. For an acre of land may be ancient demesne, though the manor of which it is parcel is not so; vide 1 Rol. Abr. 321. ANCIENT DEMESNE. ANCIENT DEMESNE. Privileges of this tenure. all of which are now changed into pecuniary rents, and in consequence thereof, they had many immunities and privileges granted to them". Lord Coke enumerates six privileges which tenants in ancient demesnes are to enjoy. 1. That they shall not be impleaded for any of their lands, &c. out of the said manor, but are to have justice administered to them at their own doors, i. e. in a peculiar court of their own, called a court of ancient demesne, by a peculiar process denominated a Petit Writ of Droit Close, directed to the bailiffs of the king's manors, or to the lord of the manor, if it be in the hands of a subjecti (1). 2. They cannot be impanneled on jury at Westminster, or elsewhere in any other court, upon any inquest or trial of any cause. 3. They are exempt from all manner of tolls in fairs and markets, in respect h b 4 Inst. 269. 11. k 4 Inst. 269; Fitz. N. B. (1) But it must appear, 1. That the land is ancient demesne; for if a fine levied of those lands in C. B. be still in force, the lands are frank fee till it be reversed; and therefore may be impleaded at common law. 2. The land must be holden of the manor, being ancient demesne. 3. It must be holden by knight's service, because husbandry is the cause of the privilege. There must be suitors, (and more than one) otherwise there would be a failure of justice; for the suitors are judges, and if the tenant accept a release of his lord of his seigniory, or the seigniory be otherwise extinguished, by reason of the seisin of the king, or otherwise; or if the lord disseise his tenant, and make a feoffment in fee; or if the lord grant the services of his tenant, and the tenant attorn, in either of these cases it is said, that the tenant may remove the cause out of the lord's court. 4. Inst. 269. Also, if the manor and demesnes of the manor be in dispute, it must be impleaded at common law, and not in the lord's court, for otherwise the lord would be judge in his own cause. 1 Salk. 56, pl. 1. m DEMESNE. of all things concerning husbandry and sustenance' (1). ANCIENT 4. They are said to be free of taxes and tallages by parliaments, unless specially named (2). 5. That they were not obliged to contribute to the expenses of knights of parliament". 6. That if several tenants be separately distrained for services which they are not obliged by the custom of the manor to perform, they may, for saving expense, all join in a writ of monstraverunt o (3). But lands in ancient demesne are extendible upon a statute merchant, staple, or elegit, because upon an elegit, the title of the land is not directly put in plea in the king's (1) But this privilege does not extend to him who is a merchant, and gets his living by buying and selling, but is annexed to the person in respect of the land, and to those things which do grow and are the produce of the lands. F. N. B. 228; 2 Leon. 191; Cro. Eliz. 227; 1 Leon. 231, 233; 2 Inst. 221, S. P.; but the privilege extends, it is said, to tenant in ancient demesne, whether he hold in fee, for life, years, or at will. 1 Rol. Abr. 322; 2 Leon. 191. But quare as to tenant for years, or at will. And see 2 Bur. 1047. (2) That regularly all general acts of parliament extend to ancient demesne lands; vide 2 Inst. 270; 1 And. 71. (3) Where the tenants in ancient demesne are distrained to do the lord other services and customs than they or their ancestors have formerly done, they may have a writ of monstraverunt directed to the lord, commanding him not to distrain for other services; and if he will still distrain, &c. then by a writ directed to the sheriff, he may command him not to demand or distrain for other services; and if he still persist, then he may raise the posse comitatus, or command the neighbours to rescue and restore the distress; but the usual course is, that if, after the writ to the sheriff, the lord will distrain, to sue out an attachment against him, returnable in one of the courts of record at Westminster, to answer the contempt. Plow. 129. ANCIENT DEMESNE. г These tenants, therefore, though their tenure be absolutely copyhold, have an interest equivalent to a freehold, for, notwithstanding their services were of a base and villainous original, yet the tenants were esteemed in all other respects to be highly privileged villains; and especially for that their services were fixed and determinate, and that they could not be compelled (like other villains) to relinquish these tenements at the lord's will, or to hold them against their own: " et ideo, says Bracton, dicuntur liberi." Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes to be "lands and tenements, which are not held by knight-service, nor by grand serjeanty, nor by petit, but by simple services, being as it were lands enfranchised by the king, or his predecessors, from their ancient demesnes." And the same name is also given them in Fleta. Hence Fitzherbert observes, that no lands are ancient demesne, but lands holden in soccage; that is, not in free and common soccage, but in this amphibious subordinate class of villain-soccage. And it is possible, that as this species of soccage tenure is plainly founded upon predial services, or services of the plough, it may have given cause to imagine that all soccage tenures arose from the same original, for want of distinguishing, with Bracton, between free-soccage or soccage of franktenure, and villain-soccage or soccage of ancient de mesne. Lands holden by this tenure are therefore a species of copyhold, and as such preserved and exempted from the operation of the statute of Charles II. Yet they differ from common copyholds, principally in the privileges beforementioned: as also these tenants differ from freeholders by one especial mark and tincture of villainage, noted by Bracton, and remaining to this day; viz. that they cannot a Gilb. Hist. of Exch. 16, 30. ' C. 66. L. 1, c. 8. N. B. 13. be conveyed from man to man by the general common law conveyances of feoffment, and the rest, but must pass An estate in ancient demesne is holden by copy of court roll, in like manner as that now usually styled copyhold; but the form of their admittance differs in this, that the tenant by ancient demesne, or customary freehold, is admitted to hold simply according to the custom of the manor, whilst the copyhold tenant is, as we have seen, admitted to hold at the will of the lord, according to the custom of the manor (1). Another difference in these two estates is, that although both pass through the medium of a surrender, yet the customary freeholder is not in by the demise of the lord, as a copyholder is, but by the surrenderor. In making out a title to customary freeholds, therefore, the estate of the surrenderor is all that need be shown, the lord being a mere instrument, whereas in copyholds, a grant from the lord must be shown2. ANCIENT DEMESNE. demesne may It has been observed in a preceding note, that if a fine be How ancient levied, or recovery suffered of lands in ancient demesne, become frankthis makes them frank-free". But if the lord be not a (1) Hence the student is to be attentive, in the perusal of abstracts of title to copyholds, to observe that these words are in the admittance, as he must otherwise presume it to be a customary freehold, and not a mere copyhold tenure. And see Co. Lit. 88, a, n. 11. free. |