ever he pleased; and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord's demesnes, or any other the meanest offices (n): and their services were not only base, but uncertain both as to their time and quantity (0). A villein could acquire no absolute property either in lands or goods: for if he purchased either, the lord might enter upon them, oust the villein, and seize them to his own use, unless he contrived to dispose of them again before the lord had seized them; for the lord had then lost his opportunity (p). In many places also a fine was payable to the lord, if the villein presumed to [*185] marry his daughter to any one without leave from the lord (q): and, by the common law, the lord might also bring an action against the husband for damages in thus purloining his property (r). For the children of villeins were also in the same state of bondage with their parents; whence they were called, in Latin, nativi, which gave rise to the female appellation of a villein, who was called a neife (s). In case of a marriage between a freeman and a neife, or a villein and a free-woman, the issue followed the condition of the father, being free if he was free, and villein if he was villein (t); contrary to the maxim of the civil law, that partus sequitur ventrem. But no bastard could be born a villein, because, by another maxim of our law, he is nullius filius and as he can gain nothing by inheritance, it were hard that he should lose his natural freedom by it (u). The law however protected the persons of villeins, as the king's subjects, against atrocious injuries of the lord: for an indictment on the king's behalf lay against the lord if he should kill or maim his villein (x). Neifes had also an appeal of rape, in case the lord violated them by force (y). Enfranchise Villeins might be enfranchised by manumission, which is either expressed or implied express, as where a man granted to the villein a deed of manumission (z) implied, as where a man bound himself in a bond to his ment of villeins. villein for a sum of money, granted him an annuity by deed, or gave him an estate in fee, for life or years (a); for this was dealing with his villein on the footing of a freeman, it was in some of the instances giving him an action against *his lord, and in others vesting in him an ownership [*186] entirely inconsistent with his former state of bondage. So also if the lord brought an action against his villein, this enfranchised him (b); for, as the lord might have a short remedy against his villein, by seizing his goods (which was more than equivalent to any damages he could recover), the law, which is (n) Ib. s. 172. (o) Ille qui tenet in villenagio faciet quicquid ei præceptum fuerit, nec scire debet sero quid facere debet in crastino, et semper tenebitur ad incerta. (Bracton, 1. 4, tr. 1, c. 28, s. 5.) (p) Litt. s. 177. Villeins were not protected by Magna Carta: nullus liber homo capiatur vel imprisonetur, &c., was cautiously expressed, to exclude the poor villein; for, as lord Coke tells us, the lord might beat his villein, and, if it be without cause, he cannot have any remedy. In another part of Magna Carta, there is an evident allusion to villeins, as part of the fixtures or chattels annexed to the freehold : Custos terræ hujusmodi hæredis non capiat de terrâ hæredis nisi rationabiles exitus, et hoc sine destructione et casto hominum et rerum." A somewhat greater degree of slavery seemed to have existed in England than on the continent. Hall. Mid. (q) Co. Litt. 140; Du Cange, voc. Forismari (t) Leges, Hen. 1, cc. 75, 77. (u) Litt. ss. 187, 188. Bracton, 1. 1, c. 6, states a contrary doctrine; but the law presumed that the father was free, and the deviation in England from the rule on which he relies, quia partus sequitur conditionem matris, was well established. (x) Litt. ss. 189, 194. (z) lb. s. 204. (a) I. ss. 204, 205, 206. always ready to catch at any thing in favour of liberty, presumed that by bringing this action he meant to set his villein on the same footing with himself, and therefore held it an implied manumission. But in case the lord indicted him for felony, it was otherwise; for the lord could not inflict a capital punishment on his villein without calling in the assistance of the law. By the indulgence of custom, in some places villeins were permitted to acquire property and so purchase their freedom (c). Moreover, it must be noticed that, in England at least, during the period after the Norman conquest with which we are now dealing, the villein was only in a state of servitude as against his lord. As regarded all other men, he possessed the usual rights of citizens. He might acquire and enjoy property without fear of disturbance: he might sue and be sued (d). If, therefore, he either by contract, gift, or otherwise, escaped from the power of his lord, he became in all respects a free man. Villeins, by these and many other means, in process of time gained considerable ground on their lords; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an interest Gradually raised their condition in many places full as good, in others better than their lords. to copyholders. For the goodnature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the * common law, of which custom is the life, now gave them title to [* 187 ] prescribe against their lords; and, on performance of the same services, to hold their lands in spite of any determination of the lord's will. For, though in general they are still said to hold their estates at the will of the lord (e), yet it is such a will as is agreeable to the custom of the manor; which customs are preserved and evidenced by the rolls of (c) Hall. Mid. Ages, i. 201. (d) Litt. 189. Though if a suit were brought against him for the recovery of land, he might plead his villenage. (e) In some manors there are found tene. ments held according to the custom of the manor, but not expressed to be at the will of the lord. They are held by copy of courtroll, and are assigned by surrender and admittance in the customary court. But the tenure of them is of a rather higher nature than of ordinary copyholds, inasmuch as the inheritable quality which attaches to them does not depend upon custom, since the lord may not oust them. They are, however, for all purposes at the present day copyholds. The freehold is in the lord, and the right of the tenant to the minerals, &c., can only exist by custom. 2 Scriv. Cop. 665; Bishop of Winchester v. Knight, 1 P. W. 405; Roe v. Brenton, 3 M. & R. 143, 230; Duke of Portland v. Hill, L. R. 2 Eq. 765; where the rights of copyholders of this kind were much discussed. They are sometimes called customary freeholds. Again, there are some estates held according to the custom of a manor, but not by copy of court-roll, nor at the will of the lord. These customary estates, known by the denomination of tenright. ant right, are peculiar to the northern parts of England, in which border-services against Scotland were antiently performed before the union of England and Tenant [* 188] Scotland under the same sovereign. And al the several manorial courts in which they are entered, or kept on foot by the constant immemorial usage of the manors in which the lands lie. And, as such tenants had nothing to show for their estates but these customs, and admissions in pursuance of them, entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court-roll, and their tenure itself a copyhold (ƒ). Pure villenage ceased before Charles II. Thus copyhold tenures, as sir Edward Coke observes (g), although very meanly descended, yet come of an ancient house; for, from what has been premised, it appears that copyholders are in truth no other but villeins, who, by a long series of immemorial encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord's will (h). Which affords a very substantial reason for the great variety of customs that prevail in different manors, with regard both to the descent of the estates, and the privileges belonging to the tenants (i). And [* 189] these encroachments grew to be so universal, that when tenure in villenage was virtually abolished (though copyholds were reserved) by the statute of Charles II., there was not a pure villein left in the nation (4). For sir Thomas Smith (7) testifies, that in all his time (and he was secretary to Edward VI.) he never knew any villein in gross throughout the realm; and the few villeins regardant that were then remaining were such only as had belonged to bishops, monasteries, or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that "the holy fathers, monks, and friars had in their confessions, and specially in their extreme and deadly sickness, convinced the laity how dangerous a practice it was, for one Christian man to hold another in bondage: so that temporal men, by little and little, by reason of that terror in their consciences, were glad to manumit all their villeins. But the said holy fathers, with the abbots and priors, did not in like sort by theirs, for they also had a scruple in conscience to impoverish and despoil the church so much, as to manumit such as were bond to their churches, or to the manors which the church had gotten; and so kept their villeins still." By these several means the generality of villeins in the kingdom have long ago developed into copyholders: their persons being (ƒ) F. N. B. 12. See Hall. Mid. Ages, vol. sprang out of villeins. In England, villenii. p. 304, et seq. (g) Cop. s. 32. (h) Lord Loughborough is inclined to question the origin of copyholds: "I cannot help doubting (observes that learned lord) whether this deduction is not founded in mistake. The circumstance which first led me to entertain the doubt is, that, in those parts of Germany from whence the Saxons migrated into England, there exists, at this day, a species of tenure exactly the same with our copyhold estates; and there exists likewise, at this day, a complete state of villenage; so that both stand together, and are not one tenure growing out of another, and by degrees assuming its place, &c. What I have stated I found in a very accurate treatise of German law by Selchow, one of the professors of the university of Gottingen, entitled Elementa Juris privati Germanici. This seems sufficient to negative the idea that copyholders age has ceased, and copyholds remain; but here, as in other countries, they both prevailed at the same time." (Doug. 698.) (i) The customs regulating the rights and privileges of copyholders must be immemorial, that is, they are supposed to have existed before the period of legal memory (as to which see vol. i. p. 69). In the absence of evidence of their commencement since the beginning of the reign of Richard I., they may be presumed by their existence for any period, inasmuch as the prescription act does not apply to them. Hanmer v. Chance, 34 L. J. Ch. 413. We may here refer to what has been said in vol. i. pp. 66-74. (k) The last claim of villenage, which we find recorded in our courts, was in the 15 Jac. (Pigg v. Caley, Noy, 27; 11 Harg. St. Tr. 342). See Barrington on the Statutes, 307. (1) Commonwealth, b. 3. 10. enfranchised by manumission or long acquiescence: but their estates, in *strictness, remaining subject to the same servile conditions and [*190] forfeitures as before. We may now exhibit the principal rules regulating copyhold tenure as they exist at the present day, and the grounds upon which those rules rest. First, the freehold or feudal seisin of the land is in the lord of the manor, the tenant has merely a possessory right by grant of the lord, evidenced by his admission. Therefore the soil, and everything deemed to constitute part of the soil, such as timber or minerals, belong to the lord (m). Nevertheless it must be remarked that this dominion of the lord may be qualified by special custom, for by the customs of some manors the tenants have the right to dig mines and cut timber (n). But the onus of proving such a custom lies upon the tenant claiming it. And, on the other hand, the lord, even where entitled to the minerals or timber by virtue of his ownership, may not come upon the land to open mines or cut the wood without the copyholder's leave. He may not even work the minerals by outstroke, that is by mining them through adjacent mines (o). Therefore, in consequence of this divided power, the existence of copyhold tenure is no slight hindrance to the full enjoyment of all those products of land which are not strictly agricultural (p). Copyholders, with a very few exceptions (q), have by law (as distinguished from custom, which, however, be it remembered, is, when proved, recognised and acted upon * by courts of law) only an interest in the land, [* 191] determinable at the will of the lord. But their actual beneficial interest differs very materially in different manors according to the custom. In most manors this interest is of as perdurable a character as can be enjoyed in freehold lands, if the duties of the tenant be always duly observed. When this is so, the estates are called copyholds of inheritance (r). In other manors (s) the custom is for the lord to demise the lands only for the duration of one or more lives, at the expiration of which period they revert to him to be again demised, or, unless there be a custom for renewal, which is very common, to be retained by the lord, if he pleases, in his own possession. Frequently small rents are reserved, both on copyholds of inheritance and for lives; these rents are fixed by the custom from which the lord cannot deviate (†). (m) 1 Watk. Cop. 332; 1 Scriv. Cop. 499. For a curious case illustrating this right of the lord, see Dearden v. Evans, 5 M. & W. 11. (n) Hanmer v. Chance, 34 L. J. Ch. 413; Marquis of Salisbury v. Gladstone, 9 H L. C. 692; Bluett v. Jenkins, 12 C. B. N. S. 16. (0) Lewis v. Branthwaite, 2 B. & Ad. 437. (p) Of course it is not to the interest of the tenant that there should be any trees, and their absence is an observable trait of those parts of the country where copyhold lands are frequent. See 3rd Report, Real Property Commissioners, p. 15. (q) Noticed ante, p. 187, n. (r) It is to be noticed that the heir of copyhold lands is to be ascertained by the custom of the manor, and often according to rules very different from those which regulate the descent of freehold lands, as to which we shall see more hereafter. There often exists considerable difficulty in ascertaining the cusomary heir. See Locke v. Colman, I M. & Cr. 423; 2 ib. 42 and 635; Trash v. Wood, 4 M. & Cr. 324; Doe d. Dand v. Thompson, 18 L. J. Q. B. 326; Muggleton v. Barnett, 2 H. & N. 653; Bickley v. Bickley, L. R. 4 Éq. 216. A similar difference between the customary and common law exists as to the rights of a widow in her deceased husband's lands. We shall have occasion, in a subsequent chapter ( c. 8) to notice the rights of a widow over her husband's copyhold lands. See Smith v. Adams, 5 D. G. M. & G. 712. Ex (s) The manor of Chardstock, in Dorsetshire, belonging to the Bishop of Salisbury, is an instance where this has been the case. parte Lord Henley, 29 Beav. 311. See Walker v. Lord Abingdon, 10 L. J. Ch. 289. Where the lord of the manor is a lay prebendary, or a rector, vicar, or incumbent, he is now not allowed to make grants by copy of court; 24 & 25 Vict. c. 105, amended by 25 & 26 Vict. c. 52. (t) Doe d. Rayer v. Strickland, 2 Q. B. 792. The lands must have been demised or demisable by copy of court-roll immemorially, for immemorial custom is the life of all copyhold tenure, and no part of the *demesne or of the waste, unless there is a special custom for [* 192] the purpose, can be so granted at the present day (u). And if the lord in a case where the land comes into his possession deals with it in any manner different from the customary mode, the power of demising it by copy is gone for ever; that is, when the lord is owner in fee of the manor, for if the lord has only a temporary interest in the manor, as for life, or for years, the demisable quality is only suspended (x). If a partial interest in the *copyhold is assigned to the lord there is a suspension, pro tanto (y). [* 193] In those manors where the heir is entitled by custom to succeed to the lands of his ancestor, it is necessary in order that his title should be complete as against the lord, that he should claim the land, and be admitted by the lord to be his tenant. Though as against all others than the lord the title of the heir is complete without any such ceremony (z). When the death of a copyholder has been "presented " or made known to the customary court, the lord may thereupon require the heir or other person claiming title to the land of which the copyholder died seised, to come in and be admitted. Proclamations to this effect are made by the lord at three successive courts (a). If after the third proclamation no such person claims to be admitted, a precept may be issued by the lord or steward to seize the lands into the lord's hands pro defectu tenentis (b). This seizure is not absolute but is quousque, as it is called, that is, until some person claims admittance, unless indeed there is a custom to warrant an absolute Seizure quousque (u) 1 Watk. Cop. 33; 2 T. R. 415; 3 B. & P. 346; Doe d. Lowes v. Davidson, 2 M. & S. 175; 2 B. & Al. 189; Boulcott v. Winmill, 2 Campb. 261; Paine v. Ryder, 24 Beav. 154; as to where there is a special custom, see the provision made by 4 & 5 Vict. c. 35, s. 91. (x) Lee v. Boothby, Cro. Car. 521, where the doctrine is stated as extending beyond that in the text, as if a lord holding the manor, pro tempore, or for half a year, could by granting an ordinary lease for years, destroy the copyhold quality of the land. But this seems incorrect. See 2 Roll. Abr. 271; Prior of Bath's Case, 4 Leon. 199; Rastal v. Turner, Cro. Eliz. 598; 5 M. & S. 154; Ex parte Lord Henry, 29 Beav. 311; see Doe d. Rayer v. Strickland, 2 Q. B. 792; Bingham v. Wood, 1 R. & M. 750. These doctrines are stated by lord Coke as follows: If a copyhold is forfeited to the lord, or escheats, or otherwise comes to the lord's hands, if the lord make a lease for years or for life, or other estate by deed or without deed, this land can never after be regranted by copy, for the custom is discharged, because during such estates the land was not demised nor demisable by copy. So, if the lord makes a feoffment in fee thereof upon condition, and afterwards enters for the condition broken, yet it can never be regranted by copy. But if the lord keeps the land in his hands for a long time, or lets it at will, he, his heirs or assigns, may well regrant it at his pleasure. So, if the interruption is wrongful, or if the lord is disseised, and the disseisor dies seised, or if the land is recovered against the lord by false verdict or erroneous judgment; in these cases, till the land is recovered or the judgment reversed by the lord of the manor, the land was not demised or demisable, and yet after the land is recontinued, it is grantable again by copy; but if the land so forfeited or escheated, before any new grant made, is extended upon a statute or recognizance acknowledged by the lord, or if the wife of the lord in a writ of dower has this land assigned to her, although these impediments are by acts in law, yet, inasmuch as the interruptions are lawful, the lands can never after be granted by copy. If a copyholder accepts a lease for years of the lord of his copyhold, the copyhold is destroyed for ever, and can never be granted again. If the copyholder takes a lease for years of the manor, by that his copyhold has not continuance; but such lessee may regrant the copyhold to whom he will, for this land was always demised or demisable." (4 Rep. 31; see Badger v. Ford, 3 B. & Al. 153.) (y) Co. Cop. s. 34. (z) Comyn, 245; 1 Watk. Cop. 281; Co. Cop. s. 41; Cro. Car. 16; Doe d. Besley v. Maisey, 7 L. J. K. B. 85. (a) There has been some difference of opinion whether the proclamations should be at three consecutive courts, the better opinion seems to be that they should. See Doe d. Bover v. Trueman, 1 B. & Ad. 736. (b) 1 Watk. Cop. 234; 1 Scriv. Cop. 355. |