CHAPTER THE FIFTH.

OF THE ANTIENT ENGLISH TENURES.

I

N this chapter we fhall take a fhort view of the antient tenures of our English eftates, or the manner in which lands, tenements, and hereditaments might have been holden; as the fame ftood in force, till the middle of the last century. In which we fhall eafily perceive, that all the particularities, all the feeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.

ALMOST all the real property of this kingdom is by the policy of our laws fuppofed to be granted by, dependent upon, and holden of fome fuperior lord, by and in confideration of certain fervices to be rendered to the lord by the tenant or poffeffor of this property. The thing holden is therefore ftiled a tenement, the poffeffors thereof tenants, and the manner of their poffeflion a tenure. Thus all the land in the kingdom is fuppofed to be holden, mediately or immediately, of the king, who is ftiled 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 alfo lords with refpect to those inferior perfons, as they were ftill tenants with refpect to the king; and, thus partaking of a middle nature, were called mefe, 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 faid to hold of

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 ftiled lord paramount; A was both tenant and lord, or was a mefne lord; and B was called tenant paravail, or the lowest, tenant; being he who was fuppofed to make avail, or profit, of the land. In this manner are all the lands of the kingdom holden, which are in the hands of fubjects: for according to fir Edward Coke, in the law of England we have not properly allodium; which, we have feen, is the name by which the feudifts abroad distinguish fuch eftates of the fubject, as are not holden of any superior. So that at the first glance we may obferve, that our lands are either plainly feuds, or partake very ftrongly of the feodal

nature.

ALL tenures being thus derived, or supposed to be derived, from 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 honourable species of tenure, but at the fame time subjected the tenants to greater and more burthenfome fervices, than inferior tenures did. This distinction ran through all the different forts of tenure; of which I now proceed to give an account.

I. THERE feem to have fubfifted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the natures of the feveral fervices or renders, that were due to the lords from their tenants. The fervices, in respect of their quality, were either free or bafe fervices; in refpect of their quantity and the time of exacting them, were either certain or uncertain. Free fervices were fuch as were not unbecoming the character of a foldier, or a freeman to perform; as to ferve

a 2 Inft. 296.

bi Inft. 1.

< pag. 47.

с

In the Germanic constitution, the electors, the bishops, the fecular prin

F3

ces, the imperial cities, &c. which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate Mod. Un. Hift. xlii. 61.

under

ones.

under his lord in the wars, to pay a fum of money, and the like. Bafe fervices were fuch as were fit only for peasants, or perfons of a fervile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain fervices, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough fuch a field for three days. The uncertain depended upon unknown contingencies: as, to do military fervice in perfon, or pay an affeffment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free fervices: or to do whatever the lord fhould command; which is a bafe or villein fervice.

FROM the various combinations of these fervices have arisen the four kinds of lay tenure which fubfifted in England, till the middle of the last century; and three of which fubfift to this day. Of these Bracton (who wrote under Henry the third) feems to give the clearest and most compendious account, of any author antient or modern; of which the following is the outline or abstract. "Tene"ments are of two kinds, frank-tenement, and villenage, "And, of frank-tenements, fome are held freely in con"fideration of homage and knight-fervice; others in free"focage with the fervice of fealty only." And again, "of "villenages fome are pure, and others privileged. He that "holds in pure villenage fhall do whatsoever is commanded "him, and always be bound to an uncertain fervice. The "other kind of villenage is called villein focage; and these "villein-focmen do villein fervices, but fuch as are certain ❝and determined." Of which the fense seems to be as follows: first, where the fervice was free but uncertain, as military fervice with homage, that tenure was called the tenure in

el. 4. tr. 1. c. 28.

Tenementcrum aliud liberum, aliud villenagium. Item, liberorum aliud teneur libere pro bomagio et fervitio militari; aliud in libero focagio cum fidelitate tantum. § 1.

& Villenagiorum aliud purum, aliud

privilegiatum. Qui tenet in puro villenagio faciet quicquid ei praeceptum fuerit, et femper tenebitur ad incerta. Aliud genus villenagii dicitur villanum focagium; et kujufmodi villani fecmanni-villana faciunt fervitia, fed certa et determinata. $5.

chivalry,

chivalry, per fervitium militare, or by knight-fervice. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &c. that tenure was calle ed liberum focagium, or free focage. These were the only free holdings or tenements; the others were villenous or fervile: as, thirdly, where the fervice was bafe in it's nature, and uncertain as to time and quantity, the tenure was purum villenagium, abfolute or pure villenage. Laftly, where the fervice was bafe in it's nature, but reduced to a certainty, this was ftill villenage, but diftinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called focage (from the certainty of it's services) but degraded by their bafenefs into the inferior title of villanum focagium, villein-focage.

I. THE first, most universal, and esteemed the most hcnourable species of tenure, was that by knight-service, called in Latin fervitium militare, and in law-French chivalry, or fervice de chivaler, anfwering to the fief d'haubert of the Normans", which name is exprefsly given it by the Mirrour1. This differed in very few points, as we fhall presently fee, from a pure and proper feud, being entirely military, and the general effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was neceffary, which was called a knight's fee, feodum militare; the measure of which in 3 Edw. I, was estimated at twelve ploughlands *, and it's value (though it varied with the times') in the reigns of Edward I. and Edward II", was stated at 20 1. per annum (1). And he who held this pro

b Spelm. Gloff. 219.

i c. 2. § 27.

* Pafcb. 3 Edw. I. Co. Litt. 69.

2 Inft. 596.

m Stat. Weilm. I. c. 36. Stat. de Edw. II. Co. Litt. 69.

milit.

2

(1) Mr. Selden contends, that a knight's fee did not confist of land of a fixed extent or value, but was as much as the king was pleased to grant, upon the condition of having the fervice of one knight. Tit. of Hon. p. 2. c. 5. f. 17 & 26. This is more probable; besides, it cannot be supposed, that the fame quantity of land was every where of the fame value.

F4

portion

portion of land (or a whole fee) by knight-fervice, was bound to attend his lord to the wars for forty days in every year, if called upon": which attendance was his reditus or return, his rent or fervice, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to at[63] tend twenty days, and fo in proportion". And there is reafon to apprehend, that this fervice was the whole that our ancestors meant to fubject themselves to; the other fruits and confequences of this tenure being fraudulently fuperinduced, as the regular (though unforeseen) appendages of the feodal • fyftem.

"

THIS tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation, dedi et conceffi; was transferred by inveftiture or delivering corporal poffeffion of the land, ufually called livery of feifin; and was perfected by homage and fealty. It alfo drew after it thefe feven fruits and confequences, as infeparably incident to the tenure in chivalry; viz. aids, relief, primer seifin, wardship, marriage, fines for alienation, and efcheat: all which I fhall endeavour to explain, and fhew to be of feodal original.

1. AIDS were originally mere benevolences granted by the tenant to his lord, in times of difficulty and diftrefs; but in procefs of time they grew to be confidered as a matter of right, and not of difcretion. Thefe aids were principally three: first, to ranfom the lord's perfon, if taken prisoner; a neceffary confequence of the feodal attachment and fidelity: infomuch that the neglect of doing it, whenever it was in the vafal's power, was by the strict rigour of the feodal law an abfolute forfeiture of his eftate. Secondly, to make the lord's eldest fon a knight; a matter that was formerly attend. ed with great ceremony, pomp, and expenfe. This aid could

n See writs for this purpofe in Memorand. Scaccb. 36. prefixed to May-re, nard's yearbook. Edw. II.

• Litt. § 95.

P Co. Litt.

9.

Auxilia fiunt de gratia et non de jucum dependeant ex gratia tenentium et non ad voluntatem dominirum. Bracton. 1. 2. tr. 1. c. 16. §8. Feud. 1.2, 1.24.

not