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Chap. 5.] ANCIEINT ENGLISH TENURES

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Chap. 5.] ANCIEINT ENGLISH TENURES. CHAPTER V. OF THE ANCIENT ENGLISH TENURES. Ix this chapter we shall take a short view of the ancient tenures of our English estates, or the manner in which lands, tenements, and hereditaments, might have been holden, as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feudal principles and no other; being fruits of, and deduced from, the feudal policy. Almost all the real property of this kingdom is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of, some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled 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 also lords with respect to those inferior persons, as they were still tenants with respect to the king: (1) 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 [*60] his lands immediately of A, but mediately of the king. The king there- fore 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) In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for, according to Sir Edward Coke,(b) in the law of England we have not properly allodium; which, we have seen,(c) is the name by which the feudists abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feudal 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 same time subjected the tenants to greater and more burthensome services, than inferior tenures did.(d) This distinction ran through all the different sorts of tenure, of which I now proceed to give an account. I. There seems 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 [*61] (a) 2 Inst. 296. (b) 1 Inst. 1. (c) Page 47. (d) In the Germanic constitution, the electors the bishops, the secular princes, the imperial cities, &c., which hold directly from the emperor, are called the immediate states of the empire; all other landholders being denominated mediate ones. Mod. Un. Hist. xliii. 61. (1) [William the First, and other feudal sovereigns, though they made large and numerous grants of lands, always reserved a rent, or certain annual payments (commonly very trifling), which were collected by the sheriffs of the counties in which the lands lay, to show that theK still retained the dominium diremtum in themselves. Madox Hist. Exch. c. 10; Craig, de Fe 1. 1, c. 9.] ANCIENT ENGLISH TE:NURES. [Book II. such as were fit only for peasants or persons of a servile rank; as to plough the lord's land, to make his hedg~s, to carry out his dung, or other mean employ- ments. The certain services, 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 such a field for three days. The uncertain depended upon unknown contingencies; as, to do military service in person, or pay an assess- ment 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 a base or villein service. From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England till the middle of the last century; and three of which subsist to this day. Of these Bracton (who wrote under Henry the Third) seems to give the clearest and most compendious account, of any author ancient or modern; (e) of which the following is the outline or abstract. (f) "Tenements are of two kinds, franc-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." And again, (g) "of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-socage; and these villein-solmen dovillein services, but such as are certain and determined." Of which the sense seems to be as follows: first, where the service wasfree but uncertain, as military service with homage, that tenure was called the tenure [*g] i *chivalry, per servitium militare, or by knight-service. Secondly, re the service was not only free, but also certain, as by fealty only, by rent and fealty, &c., that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villenous or servile, as thirdly, where the service was base in its nature and uncertain as to time and quantity, the tenure was purm villenagium, absolute or pure ville- nage. Lastly, where the service was base in its nature, but reduced to a cer- tainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagiumr privilegiaturn;or it might still be called socage (from the certainty of its services), but degraded by their baseness into the iiiferior title of villanurn socagiurn, villein-socage. I. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitium militare; and in law French, chivalry, or service de chivaler, answering to the fief d'haubert of the Normans, (h) which name is expressly given it by the Mirrour. (i) This 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, a determinate quantity of land was necessary, which was called a knight's fee, feodum militare; the meas- ure of which in 3 Edw. I, was estimated at twelve ploughlands, (k) and its value (though it varied with the times) (1) in the reigns of Edward I and Edward II, (m)was stated at 201. per annum.(2) And he who held this proportion of land (e) L. 4, tr. 1, e.28. (f) Tenementorum aliud liberum, aliud villenagitum. Item, liberorum aliud tenetur liberepro homagio et servitio militi, aliud in liberosocaffio cum fidelitate tantum. j 1. (y) Vilenagiorum aliudparum, aliud privilegiatum. Qui tenet in puro villenagiofacietquicquid ei prmceeptum fue7it, et semper tenebitur ad incerta. Aliud genus villenagii dtitur villanum socagium: et hujusmodi villani eocmanni-villanafacuntservitia, sed certa, et determinata. § 5. (h) Spelm. Gloss. 219. (i)C. 2, 27. (k) Pasch. 8 Edw. I. Co. Litt.69. (1) 2 Inst. 596. (n) Stat. Westm. 1,c. 36. Stat. de milit.1 Edw. II. Co. Litt. 69. (2) Mr. Justice Coleridge is of the opinion that the fluctuation in the value of knight's fees was so uncertain and extraordinary that it could not be accounted for by any change in the times. With regard to the extent, he has no hesitation in assenting to the doctrine that it varied with the goodness of the land; at the same time the measure might be the same, as twelve plough lands of rich soil would contain a less space than the same number in a lighter and less productive soil. There might therefore be always the same number of plough lands though the number of acres might vary; nor is it at all inconsistent with this that there might be appendant to the plough lands wood, meadow and pasture, for the arable land was the 368 Chap. 5.] ANCrENT ENGLISH TENURES. 62 (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon; (n) which attendance was his reditus or return, his rent or service for the land he claimed to hold.
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