[theory, owed everything they had to the bounty of their sovereign lord. Our ancestors, therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from the crown as the basis of a military discipline, with reason looked upon these deductions as grievous impositions and arbitrary conclusions from principles that, as to them, had no foundation in truth (o). However, the Conqueror, and his son William Rufus, kept up with a high hand all the rigours of the feudal doctrines; but their successor, Henry the first, found it expedient, when he set up his pretensions to the crown, to promise a restitution of the laws of King Edward the Confessor, or antient Saxon system; and accordingly, in the first year of his reign, granted a charter (p), whereby he gave up the greater grievances, but still reserved the fiction of feudal tenure, for the same military purposes which engaged his father to introduce it. But this charter was gradually broken through, and the former grievances were revived and aggravated by himself and succeeding princes; till, in the reign of King John, they became so intolerable, that they occasioned his barons or principal feudatories to rise up in arms against him, which at length produced the famous great charter at Running-mead, which, with some alterations, was confirmed by his son Henry the third (q). And, though its immunities, especially as altered on its last edition by his son (r), are very greatly short of those granted by Henry the first, it was justly esteemed at the time a vast acquisition of English liberty. Indeed, by the further alteration of tenures that has since happened,], and that principally (0) Wright's Tenures, 81. (p) Wilkins's Leges Anglo-Sax. LL. Hen. 1, c. 1. (q) "It received confirmation, with some not inconsiderable variations, in the first, second, and ninth years of Henry's reign. The last of these is in our present statute book, took place, as we shall presently see, in the reign of Charles the second, [many of these immunities may now appear, to a common observer, of much less consequence than they really were when granted; but this, properly considered, will show, not that the acquisitions under John were small, but that those under Charles were greater. And from hence also arises another inference; that the liberties of Englishmen are not mere infringements of the king's prerogative, extorted from our princes by taking advantage of their weakness, but a restoration of that antient constitution of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Norman arms.] This general introduction of strict feudal principles gave rise to that fundamental maxim which still prevails, that all land belonging to any subject in this realm is holden of some superior, and either mediately or immediately of the sovereign (s); for in the law of England, according to Sir E. Coke (t), we have not allodium, which, as we have seen (u), is the name by which the feudists abroad distinguished such estates of the subject as were not holden of any superior. And as all lands in England were holden, they were consequently called tenements, the possessors thereof tenants, and the manner of their possession a tenure (x). Where the tenure was of the sovereign immediately, it was said to be in capite, or in chief. This, however, was of two kinds, either ut de honore (where the land was held of the king as proprietor of some honour, castle, or manor), or ut de coronâ (where it was held of him in right of the crown itself); and it is to the latter kind that the term of tenure in capite was more especially applied (y). But the holding might also be mediate, that (s) Co. Litt. 93 a, 1 a, 1 b, 65 a. (u) Vide sup. p. 178. (y) It seems that when tenure in capite was mentioned generally, it was understood to apply to a tenure ut de corona, and not ut de honore; Co. Litt. 108 a; 2 Inst. 64; Mag. is, in the way of subinfeudation (≈). [For 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 (a).] This distinction of mediate or immediate tenancy ran through all the different sorts of tenure, which we shall here proceed severally to consider. [There seem to have subsisted 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 several services or renders that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier, or a freeman, to perform; as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, or persons of a servile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, Char. c. 31; 1 Edw. 3, c. 13, st. 2; 1 Edw. 6, c. 4; F. N. B. 175; Bro. Alien. 11; Wright's Ten. 163. See however the remarks which are made on this subject in Co. Litt. by Harg. (z) Vide sup. p. 179. [to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies; as to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm; which are free services: or to do whatever the lord should command; which is base, or villein service.] The various combinations of these services gave rise to the various kinds of lay tenure. [Of these Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account of any author antient or modern;] of which the following is the outline or abstract. "Tenements are of two kinds, frank-tenement and "villenage. And of frank tenements some are held freely, "in consideration of homage and knight-service; others in free-socage with the service of fealty only, or with fealty "and homage, according to some authorities" (c). 66 And again (d), “ Of villenages some are pure, others privileged. "Pure villenage is where a man holds upon terms of doing "whatsoever is commanded of him, nor knows in the 66 evening what is to be done in the morning, and is "always bound to an uncertain service. There is also "another kind of villenage holden of the king, from the "time of the Conquest, which is called villein-socage, and "which is villenage, but of a privileged sort. Such "tenants of the king's demesnes have the privilege that (c) "Tenementorum aliud liberum, aliud villenagium. Item liberorum aliud tenetur libere pro homagio et servitio militari; aliud in libero socagio cum fidelitate tantum, vel cum fidelitate et homagio, secundum quosdam.” -Bract. 1. 4, c. 28, § 1. (d) "Villenagiorum aliud purum, aliud privilegiatum. Qui tenet in puro villenagio, faciet quicquid ei præceptum fuerit; nec scire debeat sero quod facere debeat in crastino, et semper tenebitur ad incerta, Est etiam aliud genus villenagii quod tenetur de domino Rege, a conquestu Angliæ, quod dicitur socagium villanum, et quod est villenagium, sed tamen privilegiatum. Habent itaque tenentes de dominicis domini regis tale privilegium, quod a gleba amoveri non debent quamdiu velint et possint facere debitum servitium. Et hujusmodi villani sokmanni propriè dicuntur glebæ ascriptitii. Villana autem faciunt servitia, sed certa et determinata."-Ibid. § 5. they cannot be removed from the land while they do the "service due; and these villein-socmen are properly called glebæ ascriptitii. They perform villein services, but "such as are certain and determined." This account, illustrated as it is by other authorities, proves that there antiently existed (as before remarked) four principal kinds of lay tenure. And that they were as follows-servitium militare, that is knight-service, or, in law-French, chivalry or service de chivaler, answering to the fief d'haubert of the Normans (e), where the service was free, but uncertain: liberum socagium (free socage), where it was not only free, but certain: purum villenagium (pure villenage), where it was base in its nature, and uncertain: and lastly, villenagium privilegiatum (or villein socage), where it was base but certain; which seems principally to have prevailed among those who are above described as "tenants of the king's demesnes." The four kinds of tenure above enumerated, however, in process of time were described as only three, viz. knightservice, free socage, and copyhold; which last comprises both the species of villenage to which Bracton refers. These three subsisted in England till the middle of the seventeenth century, and the two last subsist to this day. 1. [The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service,] which [differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general effect of the feudal establishment in England.] To make a tenure by knight-service, it was necessary that the tenement in point of quantity should amount to twelve ploughlands (ƒ); which was called a knight's fee, feodum militare (g); and the value (e) Spelm. Gloss. 219. Tenure by "knight service," is expressly called "fief d'haubert" in the Mirrour (c. 2, § 27.) (f) 2 Inst. 596. A ploughland, VOL. I. carucata terra, was as much as one plough could plough in a year; Co. Litt. 69 a. (g) 2 Inst. 596. |