in law, signifies the manner whereby lands or tenements are held, or the service that the tenant owes to his lord.
Of this kingdom almost all the real property 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 lands 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 the 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 paravall, or the lowest tenant, being he who was supposed 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 subjects: for, according to Sir Edward Coke, in the law of England we have not properly alodum, which is the name by which the feudists abroad distinguish such Tenure, 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 burdensome services than inferior tenures did. And this distinction ran through all the different sorts of tenure.
There seem to have subsisted among our ancestors four principal species of lay-tenures, to which all other 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 folder 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, 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 alleviation in lieu of it when called upon; or to wind a horn upon the appearance of invaders; 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 comprehensive account of any author ancient 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-locage, with the service of fealty only. And again, of villenages, some are pure, and others privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-locage; and these villein-tenants do villein services, but such as are certain and determined." Of which the sense seems to be as follows: first, where the service was free, but uncertain, as military service with homage, that tenure was called the tenure in chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &c., that tenure was called liberum locagium, or free locage. These were the only free holdings or tenements; the others were villainous or servile: as, thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called locage (from the certainty of its services), but degraded by their base-ness into the inferior title of villanum locagium, villein-locage.
1. The military tenure, or that by knight-service, was done away by stat. 12 Car. II. For an account of this species of tenure see Feudal System, and Knight-Service; and for its incidents, see Relief, Primer-seisin, Wardship, Marriage, Fines, and Escheat.
2. The second species of tenure or free-locage, not only subsists to this day, but has in a manner abhorred and swallowed up (since the statute of Charles the Second) almost every other species of tenure. See Socage.
The other grand division of tenure, mentioned by Bracton, 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.
3. 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 consult the articles Manor and Villenage.
As a farther consequence of what has been there explained, we may collect these two main principles, which are held to be the supporters of a copyhold-tenure, and without which it cannot exist: 1. That the lands be parcelled and situate within that manor under which it is held. 2. That they have been demised, or demilable, by copy of court-roll immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day.
In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are styled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only; for the custom of the manor has in both cases so far superceded the will of the lord, that provided the services be performed or stipulated for by fealty, he cannot in the first instance refuse to admit the heir of his tenant upon his death; nor, in the second, can he remove his present tenant so long as he lives, though he holds nominally by the precarious tenure of his lord's will.
The fruits and appendages of a copyhold-tenure, that it hath in common with free tenures, are fealty, services (as well in rents as otherwise), reliefs, and escheats. The two latter belong only to copyholds of inheritance; the former to those for life also. But, besides these, copyholds have also heriots, wardship, and fines. Heriots, which are agreed to be a Danish custom, are a render of the best beast or other good (as the custom may be) to the lord on the death of the tenant. This is plainly a relic of villein tenure; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seized them even in the villein's lifetime. These are incident to both species of copyhold; but wardship and fines to those of inheritance only. Wardship, in copyhold-citizens, partakes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian, who usually affixes some relation of the infant tenant to act in his stead; and he, like guardian in socage, is accountable to his ward for the profits. Of fines, some are in the nature of primer-seisins, due on the death of each tenant, others are mere fines for alienations of the lands; in some manors, only one of those sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom; but, even when arbitrary, the courts of law, in favour of the liberty of copyholders, have tied them down to be reasonable in their extent; otherwise they might amount to disfranchisement of the estate. No fine therefore is allowed to be taken upon decents and alienations (unless in particular circumstances) of more more than two years improved value of the estate. From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath always shown to this species of tenants, by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands; by declaring, that the will of the lord was to be interpreted by the custom of the manor; and, where no custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes an equitable method, and will not suffer the lord to extend his power so far as to disinherit the tenant.
4. There is yet a fourth species of tenure, described by Bracton, under the name sometimes of privileged villenage, and sometimes of villein-faggotage. See Privileged Villenage.
Having in the present article and those referred to, taken a compendious view of the principal and fundamental points of the doctrine of tenures, both ancient and modern, we cannot but remark the mutual connection and dependence that all of them have upon each other. And upon the whole it appears, that, whatever changes and alterations these tenures have in process of time undergone, from the Saxon era to the 12 Car. II., all lay-tenures are now in effect reduced to two species; free tenure in common faggotage, and bale tenure by copy of court roll. But there is still behind one other species of tenure, referred by the statute of Charles II. which is of a spiritual nature, and called the tenure in Frank-Almagn; see that article.
A particular account of the ancient tenures would to many persons be highly amusing. We can only select a few of the most singular, referring the curious reader for more information to Anderson's Origin of Commerce, Henry's History of Britain, and Blount's Fragmenta Antiquitates.
In the 19th of Henry III. Walter Gately held the manor of Welfcourt, in Bedington in Surry, yielding yearly to the king one croft-bow, balijam, value twelve pence.
Anno tertio Edw. I. Osbert de Longchamp, knight, held his lands of Ovenhelle in Kent, for personally guarding the king forty days into Wales at his own expense, with one horse of five shillings value, one sack worth five pence, and one broch for that lack. N.B. All personal services, or attendances on our kings in those times, were limited to forty days, at their own expense.
The like the same year of Laurence de Broke, who for his hamlet of Renham in Middlesex, found the king one soldier, a horse worth five shillings, a sack worth five pence, and a broch worth twopence (this broch was a kind of cup, jug, pot, or balon), for forty days, at his own expense, wherever his army shall be within the four seas. This was settled (says Mr Blount) at the Stone Crofs, which stood near the May-pole in the Strand, London, where the judges itinerant used in old times to sit.
Robert Maunsell's tenure of lands in Peverel paid the same service, and the horde, lack, and broch, of the same prices.
Anno Edw. I. Henry de Averung's tenure of the manor of Morton in Essex, was to find a man, a horse worth ten shillings, four horde-shoes, a leather lack, and an iron broch.
The year following, three persons held thirty acres of land in Carleton in Norfolk, by the service of bringing the king, whenever he shall be in England, twenty-four patties of fresh herrings, at their first coming in.
Another held his manor in Norfolk of that king, by annually supplying him at his exchequer with two veils, called mutes, of wine made of pear-mains. "Here (says our author) it is worth observing, that in King Edward the First's time pearmain cider was called wine." This therefore seems to account for the mention of vineyards in old times in Kent, Sussex, and other parts of England, which has so often puzzled many people to elucidate.
Another person, in the 21st of the said king, held thirty acres of land, valued at ten shillings yearly in the exchequer, or fourpence per acre, in Cambridgeshire, for furnishing a truss of hay for the king's necessary-house or privy, whenever he shall come into that county.
Another, in the 34th of that king, held a manor in Kent, for providing a man to lead three greyhounds when the king shall go into Cacony, so long as a pair of shoes of fourpence should last.
And that we may not again recur to these old tenures, we shall further add, from the same author, that in the first year of king Edward II. Peter Spileman made fine to the king for his lands by servitude, to find one to serve as a soldier for forty days in England, with a coat of mail; also to find straw for the king's bed, and hay for his horde.
This article of straw for the king's bed we did not so much wonder at, when we found it in an article in William the Conqueror's time; but it is somewhat more remarkable so late as the days of king Edward the Second.
Several others, we find, held their lands of the crown in those times by very different tenures. One, by paying two white capons annually; another, by carrying the king's standard whenever he happens to be in the county of Sussex; another, by carrying a rod or batton before the king on certain occasions; another, by serving the office of chamberlain of the exchequer, a very good place at present; another, by building and upholding a bridge; another, by being marechal (meretricum), i.e. as Mr Blount translates it, of the laundresses in the king's army; another, by acting as a sergeant at arms for the king's army whilst in England; one supplies a servant for the king's larder; another, for his wardrobe; others, to find servants for this or that forest; another, a hawk; one presents the king a pair of scarlet hose annually; others are bound to supply soldiers with armour for certain days, for the keeping this or that castle; one, viz. for the manor of Elton in Nottinghamshire, pays yearly rent of one pound weight of cummin seed, two pair of gloves, and a steel needle; another, is to repair the ironwork of the king's ploughs; Elia Countess of Warwick, in the 13th year of king Edward I. held the manor of Hockerton in Oxfordshire, in the barony of D'Oly, by the servitude of carving at the king's table on his birth-day, and she to have the knife the king then uses at table.