Part 3 (2/2)

One of the most curious incidents of the tenure is the right of the lord, on the death of a tenant, to seize the tenant's best beast, horse, or other chattel under the name of a heriot. Now it would appear that heriots were introduced into England by the Danes. The heriot of a military tenant was his arms and habiliments of war, which belonged to the lord for the purpose of equipping his successor. And it would seem that in a.n.a.logy to this purely feudal custom, the lords of manors usually expected that the best beast or other chattel of each tenant, whether he were a freeman or a villein, should on his death be left to them. In old wills of copyholders we constantly find this legacy to the lord of the manor the first bequest mentioned: in fact the tenant really making a bounty of what was actually an obligation. In cases where the tenant died intestate the heriot of the lord was taken in the first place out of his effects, unless indeed the lord seized the whole of the goods, which not unfrequently happened in days before custom had so completely controlled the rights of the lord, and at the same time protected the interests of the tenant. Heriots survive to this day in many manors, a true badge of the ancient servility of the tenure. Now, however, the right of the lord is confined to such a chattel as the custom of the manor, grown into a law, will permit him to take; and in most cases the heriot consists not of a chattel at all, but merely of a money payment.

The mode in which copyhold land is transferred from one person to another still retains much of the primitive simplicity of bygone ages. The copyholder personally surrenders the lands into the hands of the lord, generally through his steward, and this surrender is evidenced by the delivery of some article varying according to the custom of the particular manor: in some manors the surrender is effected by the delivery of a rod, in others of a straw, and again in others by a glove. The surrender having been duly effected, the purchaser is admitted, and the various doc.u.ments used are all entered upon the court rolls of the manor. The steward is the person who makes the entries on the court rolls, and they are kept in his custody, but subject however to the right of the tenants to inspect them.

The steward also usually presides at the copyhold courts of the manor.

A special custom is required to ent.i.tle the wife of a copyholder to any interest in her husband's lands on his death intestate. Where such a custom does exist the wife's interest is termed her _freebench_, and it consists generally of a life interest in one-third part of the lands of which the husband died possessed. Freebench in most manors differs from the ancient right of dower in this most important particular, that whilst the widow could claim her dower out of all the freehold lands which her husband actually possessed at any time during the marriage, the right to freebench does not in general attach until the actual death of the husband, and of course may be defeated by a devise of lands by the husband's will. From this it will be seen that freebench is no impediment to free alienation by the husband of his copyholds without any consent on the part of his wife. To this general rule, however, the manor of Cheltenham forms an important exception; for by the custom of this manor the widow's freebench attaches in the same way as the ancient right of dower did on all the land of copyhold tenure, of which the husband at any time during the marriage had been possessed.

Centuries have robbed the manor of much of its importance; most of the honour and prestige has decayed which once surrounded the lord, his power has become controlled by long continued custom, so that the copyhold tenants are practically independent of him, and have as good a t.i.tle to their lands as freeholders. Little remains beyond the most prominent of the old formalities, which at one time gave dignity and importance to the lord of the manor and his court. Most of the dealings with copyhold land are now effected out of court, and although the courts are still held at the customary periods, they are for the most part an empty formality, their glamour gone, yet still possessing an especial interest of their own as evidence of the surviving of ancient customs, which have practically remained unchanged through the roll of centuries.

Ancient Tenures.

BY ENGLAND HOWLETT.

Practically all the landed property in England is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of some superior lord, in consideration of certain services to be rendered to such lord by the possessor of this property, and the terms or manner of their possession is therefore called a _tenure_. Thus all the land in the kingdom is supposed to be held, mediately or immediately, of the sovereign who is consequently styled the lord or lady _paramount_.

All tenures being thus derived, or supposed to be derived, from the sovereign, those who held directly under such sovereign, and in right of the crown and dignity, were called tenants _in capite_, or _in chief_, which was the most honourable species of tenure, although at the same time it subjected the tenants to far greater and more burthensome services than the inferior tenures did, and this distinction ran through all the different sorts of tenure. William I., and other feudal sovereigns, although they made large and numerous grants of land, always reserved a rent or certain annual payments, which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the _dominium dir.e.c.t.u.m_ in themselves.

With our ancestors the most honourable and highly esteemed species of tenure was that by knight service, and this was purely and entirely a military tenure, being, in fact, the result of the feudal establishment in England. Now to make a tenure by knight service, a determinate quant.i.ty of land was necessary, which was called a knight's fee, _feodum militare_; the measure of which in 3 Edward I., was estimated at twelve ploughlands, and its value (although it varied with the times) in the reigns of Edward I. and Edward II. was stated at 20 per annum. The knight who held this proportion of land was bound to attend his lord to the wars for forty days in every year, if called upon so to do, which attendance was his rent or service for the land he claimed to hold. If, however, he held only half a knight's fee, he was only bound to attend his lord twenty days, and so on in proportion. This tenure of knight service drew with it several consequences as inseparably incident to the tenure in chivalry, and one of the most profitable, and, at the same time, arbitrary of these was marriage. This incident called marriage was the right which the lord possessed of disposing of his infant wards in matrimony, at their peril of forfeiting to him, in case of their refusing a suitable match, a sum of money equal to the value of the marriage; that is, what the suitor was willing to pay down to the lord as the price of marrying his ward; and double the market value was to be forfeited, if the ward presumed to marry without the consent of the lord.

The personal attendance rendered necessary by knight service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; first, by sending others in their stead, and then in process of time making a pecuniary satisfaction to the lord in lieu of it.

This pecuniary satisfaction at last came to be levied by a.s.sessments at so much for every knight's fee; the first time this appears to have been done was in 5 Henry II., on account of his expedition to Toulouse; but it soon became so universal that personal attendance fell quite into disuse. From this period we find, from our ancient histories, that when the kings went to war, they levied scutages on their tenants, that is, on all the landowners of the Kingdom, to defray their expenses, and to pay for the hire of troops.

These a.s.sessments, in the time of Henry II., seem to have been made in a most arbitrary manner, and entirely at the king's will and pleasure. The prerogative became, indeed, abused to such an extent, that at last it became a matter of national clamour, and King John was obliged to consent by his _Magna Carta_, that no scutage should be imposed without the consent of Parliament. But this clause was omitted in the Charter of Henry III., where we only find that scutages, or escuage, should be taken as they were used to be taken in the time of Henry II.; that is, in a reasonable and moderate manner. Yet afterwards, by statute 25 Edward I., and many subsequent statutes, it was again provided, that the king should take no aids or tasks but by the common a.s.sent of the realm; hence it was held that scutage, or escuage, could not be levied except with the consent of Parliament; such scutages being indeed the groundwork of all succeeding subsidies, and the land tax of later times.

It will easily be seen that with the degenerating of knight service, or personal military duty into a pecuniary a.s.sessment, all the advantages were destroyed, and nothing in fact remained but the hards.h.i.+ps. Instead of having a national militia, composed of barons, knights, and gentlemen, bound by their interests and their honour to defend the king and country, the whole system of military tenures tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. At length the military tenures, with all their heavy appendages were destroyed at one blow by statute, 12 Charles II., C. 24, which enacts ”that the courts of wards and liveries, and all wards.h.i.+ps, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienation, tenures by homage, knight service, and escuage, and also aids for marrying the daughter, or knighting the son, and all tenures of the king _in capite_, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frank almoign, copyholds, and the honorary services of grand serjeanty.”

Another ancient tenure was that by _Grand Serjeanty_, whereby the tenant was bound, instead of serving the king generally in the wars, to do some special honorary service for the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer at his coronation. Tenure by _cornage_ was a species of grand serjeanty, being a grant of land upon condition that the tenant was to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects.

The tenure of pet.i.t serjeanty bears a great resemblance to the tenure of grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's person. Pet.i.t serjeanty as defined by Littleton, consists in holding lands of the king, by service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, of course, is but socage in effect, for it is no personal service, but a certain rent. The tenure by which the grants to the Duke of Marlborough and the Duke of Wellington, for their great military services to the country, are held, are of this kind, each rendering a small flag or ensign annually, which is deposited in Windsor Castle. Bury House (New Forest), the property of Sir Charles Mill, Bart., is held by the tenure of presenting the king whenever he enters the New Forest with a brace of milk-white greyhounds. A breed of these dogs is preserved by the family in readiness. King George III. received dogs in recognition of this tenure in 1789, and the incident is the subject of one of Lawrence's pictures.

In Beckwith's edition of Blount's ”Fragmenta Antiquitatis,” the following tenure is inserted from the ”Black Book of Hereford.”--”The tenants at Hampton Bishop, in the county of Hereford, were to get yearly six horse loads of rods or wattels, in the Hay Wood, near Hereford, and bring them to Hereford to make booths (or hurdles to pen sheep in) at the fair when they should be required; and for every load of the said rods they were to be allowed a halfpenny at the fairs.”

This tenure would appear to relate to one particular fair only, and not to all the fairs formerly held at Hereford. The particular fair is supposed to have been the one beginning on May 19th, and commonly called the nine-days' fair, from the circ.u.mstance of its continuing for that length of time. From time immemorial this fair was proclaimed, with certain formalities, by the Bishop of Hereford's bailiff, or his deputy, the tolls of the fair belonging to one or both of these officers. During the continuance of the fair, the Bishop's bailiff superseded the Mayor of Hereford as acting magistrate, the fair being held in a street opposite the Bishop's palace.

Brienston, in Dorsets.h.i.+re, was held in grand serjeanty by a curious jocular tenure, viz.:--by finding a man to go before the king's army for forty days when he should make war in Scotland (some records say in Wales) bareheaded and bare-footed, in his s.h.i.+rt, and linen drawers, holding in one hand a bow, and in the other an arrow without feathers.[6]

The Dukes of Athol hold the Blair Athol estate by the tenure of presenting a white rose to the sovereign whenever he visits them there.

Land was frequently held by the tenure of protecting the church property in times of war. Scott tells us how the Bishop of Durham gave lands to the Danish Count, Witikind, to be held by this tenure. The story is not true, but the tenure is;

Broad lands he gave him on Tyne and Wear, To be held of the Church by bridle and spear; Part of Monkwearmouth, of Tynedale part, To better his will and soften his heart.

_Harold the Dauntless._ Canto i., IV.

The tenure of ancient demesne exists in those manors, and in those only, which belonged to the crown in the reigns of Edward the Confessor and William the Conqueror, and in Domesday Book are called _Terroe Regis Edwardi_. The tenants are freeholders and possessed certain privileges, the chief of which was a right to sue and be sued only in their lord's court.

Another kind of ancient tenure, still subsisting, is the tenure of frankalmoign, or free alms, and this is the tenure by which the lands of the church are for the most part held. This tenure is expressly excepted from the statute, 12 Charles II., by which the other ancient tenures were destroyed. It has no peculiar incidents, the tenants not being bound even to do fealty to the lords, because, as Littleton says, the prayers and other divine services of the tenants are better for the lords than any doing of fealty. As the church is a body having perpetual existence, there is, moreover, no chance of any escheat. By this tenure almost all the monasteries and religious houses held their lands. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in ancient times.

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