General history: Feudal tenures

Feudal tenures

ALL property in the soil of this realm is derived from the kings thereof; for at the beginning, all lands were vested in them: but they, willing to gratify and reward their nobles and great men, for their services, granted them large quantities of land, for them and their heirs to dwell upon; which by the Saxons were stiled hida, familia, mansura, mansum, casuta, &c. At the same time the king empowered them to exercise some jurisdiction, more or less, within their several precincts, on their performing to him such services, and paying such yearly rents as their several grants required; and where the privileges of sac, soc, tol, and theam, &c. were conferred with land to any person, the Saxons called it prædium, or villa, and the lords thereof exercised a jurisdiction within his precincts, in his own court, appertenant to it, and this is now called a court baron.

But after William the Conqueror had gained the battle at Hastings, and had established the crown upon himself, a great change was made in the property of this kingdom by that conquest; for he seized all the lands in it into his own hands, most of which he presently gave to his great Normans, in consideration of their services in that expedition; at the same time he exercised the greatest cruelties on the native English, many of whom, being thus driven out of their possessions, were forced to betake themselves to woods and desarts, where they were constrained to live as savages; and all degrees of them were reduced to such misery and servitude, that it was held a disgrace to be accounted an Englishman.

There was also diligent enquiry made, who had fought against the king, and had saved themselves by flight; from these, and the heirs of those who had been slain in that battle, all hopes were taken away of obtaining their lands or possessions again, nay, it was thought a great favor that they were permitted to live. However, those who had not taken up arms, nor had been in the battle, obtained afterwards some favour from their new lords, though for some time without hope, that their children should succeed therein; yet, at length, their sons were suffered to retain their posses- sions, at the will of the lord; but this was by agreement for merit and services, and not by descent, in which they were not allowed to challenge any thing. Besides the above, the Conqueror made use of other oppressive means to secure his dominion. He built castles in different parts of the realm, and under the pretence of preventing tumults in the night-season, he not only disarmed the English, but caused a bell to be rung in every parish at eight o'clock in the evening (which from thence was called the coverfeu:) at the found of which, every one was to cover his fire and go to rest: nay, he so humbled the poor English, that they were glad to imitate the Normans, even in the cutting their hair and shaving their beards, and were even forced to conform themselves to the pattern of their new masters in their very cups and dishes.

The Saxons obtained the original of their jurisdictions from the grants of their princes; but the Normans had their manors from the feudal law: for whoever could dispose of fees might give laws to their vassals, erect courts for passing estates, and take the other privileges belonging to a noble fee.

The Conqueror, by introducing the feudal system into this kingdom, became possessed of a very considerable army for the defence of the realm, consisting of upwards of 60,000 (for there were so many knights fees) of his principal subjects; a national militia, consisting of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend him and their country; under whom the rest of his lay-subjects were employed in tilling the ground, and other domestic business; for there were at that time but two sorts of laymen in this country, military men and husbandmen: (fn. 1) so that whilst the former was called abroad to perform his military services, the latter staid at home, and performed his duty and services in the managing and cultivation of his lands.

Those great Norman lords, to whom the king made these grants, which were, many of them, of such great extent, that they comprehended perhaps the greatest part of a county, nay, some the whole of it, were all bound to hold the same by the performance of some particular service; which, being so held immediately of the king, as of his crown, and not of any other mediate honour, castle, or manor, were called tenures in capite; the most free and honourable of all others.

These lands, so holden, were called by the Saxons thain land, and the holders of them thani majores, and thani regis, and by the Normans barons, and baronies. The service which these immediate tenants of the king were bound to yield was, either to attend the king in his wars, according to the number of knights fees which they possessed, or by doing some special honorable service to the king in person; as, to carry his sword, banner, or the like, or to be his butler, champion, &c. which was called sergeantry, and was a species of knights service, as well as the former.

There were also lands held of the king in socage, as of his crown, or in capite, as well as by knights service.

The extensiveness of these grants obliged these tenants in capite, after reserving a considerable lordship round their castle, or mansion, to create other manors out of them, which were held by mesne tenants of the above principal castle, or manor, by the service of so many knights fees, according to the contents of the lands granted, or otherwise, as stipulated by the first lord; and these inferior manors, by the like example, were again parcelled out into others to hold of the above mesne lord, by certain services in the same manner. All which manors were occupied by the lowest tenants, of them called tenants paravail, as being he who is supposed to avail himself of the profits of the land; these again held of the last lord, for the acres they possessed, either by knights service or in free socage, or by copy of court roll. And in this manner were all the lands in England held that were in the hands of subjects. These manors or lordships were parcelled out by each of these lords as follows: first, he reserved to himself the best part of his land, for his own use and maintenance of his family, which was called terra dominicalis, or demesne land; after which, that he might render his habitation complete, and supply it with all manner of necessaries, he granted a certain portion of some of the distant parts of it to his most trusty servants or vassals, without any limited number, for their aid and assistance in war, either by the finding a horse and arms, or the like, for that purpose, or going thither with him when he went in person with the king, either himself, or a sufficient man in his place, there to be maintained at his cost so many days as were agreed upon between the lord and the first tenant, at the granting of the fee, which days were rated according to the quantity of land so holden. (fn. 2)

To this were added homage, fealty, wardship, marriage, aid, relief, and escheat, and this tenure was called knights service, and the holding a knight's fee; and if the same was not sufficient in value and quantity for hiring of one soldier, yet, according to the share and portion of it which they enjoyed, they contributed such a part towards the lord's military expences, or performed the service only part of the time, that is, half, a third, or fourth, and this was called holding such premises by the half, a third, or fourth part of one knight's fee, which, in the reign of the Conqueror, was stated at twenty pounds per annum; the quantity of the land was different, according to the quality of it, and a certain number of these fees were requisite to make up a barony. (fn. 3)

Another part of his manor he distributed to such as were to perform for it all rustic and servile works to his mansion and demesne lands, such as ploughing and sowing his lands, reaping his corn, carrying it into the barn, threshing it, digging, hedging, and taking care of his flocks, repairing his house, paling his park, and the like, perhaps in the proportion of thirty, forty, or sixty acres to each. Another part he allotted to those who were to furnish him with provision, such as capons, hens, corn, pepper, and comin, with flowers, as roses, gilliflowers, &c. or with apparel, as spurs, gloves, or the like, or to pay him a certain rent, and to be sworn to be his faithful tenant. All which tenures, not being military, but certain services (which have been long since turned into money or quit rents) were called tenures in socage. Spelman says, that lord Coke is mistaken, when he lays down, that land held in socage was called by the Saxons reveland, in opposition to thainland, and farther, that reveland was such land as had, by the death of the thane, reverted to the king, and was in the hands of his reve or bailiff, and thence called reveland; (fn. 4) of which kind, called tenures in socage, were the lands held in antient demesne, petit sergeantry, and burgage. Tenants in socage paid a relief certain, to which is sometimes added a heriot, according to the custom or service of the manor, on death or alienation, not as in the case of knights service, but one or more years rent, and no wardship, or other profit, accrued to the lord.

A remaining part of the lands of the manor was manured by his peasants or bondsmen, the lord ap- pointing the manner of their holding it at the courts of his manor, making an entry of it in the rolls there, though he had still the power of taking it away from them at his pleasure, and therefore they were called tenants at will by copy of court-roll. These were thus, in reality, bondsmen at the beginning, but having obtained their freedom by degrees, and gained a custom, by use, of occupying their lands, in so much, that the lord could not put them out, they were called copyholders. Some of these held for one, two, or three lives successively, and others from heir to heir, for custom rules all these estates wholly. There was still a residue of the manor, which was termed the lord's waste, which served for public roads and common pasture for the lord and his tenants.

For the good order and government of so large a tract of land, and so many different tenants, it was but reasonable that the lord should hold a court, which, from the Norman usage, was called a court baron, and assemble his tenants at certain times by him to be appointed. In this court he was to be informed by their oaths of all such dues, rents, reliefs, escheats, &c. that had happened to him, which information is called a presentment, and then his bailiff was to seize and distrain for the same, if they were denied or withholden; and here also debts and trespasses, under the value of forty shillings, might be sued for, and the freeholders of the manor were to judge the cause, and therefore they, as incident to their tenures, did hold by suit of court, that is, by their attendance at this court, there to judge between party and party in these actions, as well as to make the presentment on the behalf of the lord, as above-mentioned.

The tenant in capite was, under the king, lord paramount over all the manors and district of country held by his mesne tenants, as each of these were in turn over those who, in like manner, held under them; which seignory of the first lord is frequently termed an honour, especially if it has belonged to some antient feodal baron, or has been at any time in the hands of the crown.

The inferior lords having, as above-mentioned, began to carve out and grant to others these still more minute estates, to be held as of themselves, were still proceeding downwards, ad infinitum, till the superior lords observed, that by this method of subinfeudation they lost all their feodal profits, which fell into the hands of these mesne or middle lords, who were the immediate superiors of the tenant, or him who occupied the land. This occasioned the statute of Westminster, passed in the 18th year of king Edward I. and named, from the two first words in it, Quia emptores, to be made; by which it is enacted, that for the future no subject should create any new tenants to hold of himself. From whence it is held, that all manors existing at this day, must have existed by immemorial prescription, at least before the making of that statute; for no new manor can have been created since, because it is essential to it, that there be tenants to hold of the lord. These inferior manors were increased to that degree in this county, that every little farm, containing ninety or an hundred acres of land, became a manor, and held its court, but the expences attending the holding of them greatly exceeding the profits accruing from them, these courts have long been disused, and the small rents and services lost, so that they are now stiled manors by repute, having no other privilege but the preservation of game to their respective lords. At length, by the degenerating of knights service, or personal military duty, into escuage, or pecuniary assessments, all the advantages of the feodal system were destroyed, and only the hardships remained. Palliatives were applied from time to time by successive acts of parliament to relieve the nation from so complicated a grievance, and king James I. formed a plan for exchanging the military tenures, and annexing a fee farm to the crown as a compensation in lieu of them, and king Charles I. was obliged to part with the power of compelling his tenants, who held by knights service, to receive knighthood. At length, at the restoration of king Charles II. these military tenures, with all their appendages, were destroyed by the statute of the twelfth year of that reign, by which the court of wards and liveries, and all wardships, liveries, (fn. 5) primer seisins, and ousterlemains, values and forfeitures of marriages, by reason of any tenure of the king or others were totally taken away, as were all fines for alienations, tenures by homage, knights service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite; and all sorts of tenures held of the king or others were turned into free and common socage, save only tenures in frank almoign, copyholds, and the honorary services of grand sergeantry. During the continuance of military tenants among us, upon the death of every one of the king's tenants, an inquest of office was held, called, an inquisitio post mortem, to enquire of what lands he died seised, who was his heir, of what age, and by what service he held, in order to entitle the king to his wardship, marriage, relief, &c. as the case might turn out. This inquisition was made by jury, by the king's escheator, assisted by the feodary of the county, and to superintend and regulate these enquiries, the court of wards and liveries was instituted by statute in the 32d year of king Henry VIII. and abolished as above. (fn. 6)