LECTURE XXV.

The methods invented to destroy villenage—The bent of the law of England towards liberty—Copyhold tenants—Tenants in ancient demesne.

Relative to villenage, the following are the words of the antient judge Fortescue, who wrote a treatise on the grounds of the English law, for the instruction of his pupil, the unfortunate son of the unfortunate king Henry the Sixth. Ab homine, & pro vitio introducta est servitus; sed libertas a Deo hominis est indita naturæ. Quare ipsa ab homine sublata semper redire gliscit, ut facit omne quod libertate naturali privatur [299] . We are now to see how, and in how many ways, our law favours this natural propensity to liberty. And the first and plainest is a direct enfranchisement, or, as the Romans called it, manumission. This, in the ancient times, before writing was common, used to be done, as all their important acts, (for the better preserving them in memory) in great form. Qui servum suum liberum facit, in ecclesia, vel mercato, vel comitatu, vel hundredo, (that is, the county court or hundred court) coram testibus, & palam faciat, et liberas ei vias, & portas conscribit apertas, & lanceam, & gladium, vel quæ liberorum arma in manibus ei ponat [300] . But after the use of writing became common, the method was by the lord’s deed (mentioning him to be his villein, and expressly infranchising him) sealed by the lord’s seal, and attested by proper witnesses, as other deeds between freemen should be[301].

Before I go farther, I should observe the favour of the English laws to liberty in that, by it all manumission, of what kind soever, was absolute and irrevocable. Once a freeman, and ever so; whereas by the civil law, a freedman was bound to many duties towards his patron. A relation between them still subsisted, and if he was guilty of ingratitude, that is, of any of the many offences their law marked as such, he was again to be reduced to slavery.

But besides this species of express enfranchisement, there were many implied ones. First, by the a act of the lord alone, and others by construction of law, upon the act either of lord or villein. By the act of the lord alone, namely, if he had entered into any solemn certain contract with his villein, giving him thereby either a permanent right of property, or a power to bring an action against his lord. In such cases he was instantly manumized, without express words; for, otherwise, he could not have the benefit of the gift intended, and the lord’s act, in such cases, should be construed most wrongly against himself. As if the lord gives land to his villein and his heirs, or to him and the heirs of his body, or to him for life; immediately on the giving livery and seizin, which was, as I have often observed, what compleated an estate of freehold, and made it irrevocable, the villein became free. Otherwise he could not enjoy the benefit of the grant, or protect it against his lord.

The same was the case if the lord gave him any certain property, as a bond for payment of a sum of money, or a yearly annuity, or a lease of lands for years. The villein could not securely enjoy the benefit of the gift, without being able to bring an action against his lord, and consequently being free against him. Yea, though the annuity or lease of land was but for years, the manumission was absolute for ever, and not suspended for the years only; which was different from the cases I put in my last lecture, of villenage being suspended by the act, not of the lord, but another person; but here where the lord himself, by his own act, set him free, though but for a time, he was free for ever. But if the lord gave his villein lands to hold at will; this being of the same nature with the proper holdings of villeins, and the lord having reserved in his own breast a power of ousting whenever he pleased, the villein gaining thereby no certain property, he continued in his former situation.

Secondly, a man may be enfranchised without express words, by construction of law, operating on the act either of the lord or villein. If a lord had a mind to dispossess his villein of lands, or of goods, he had a right to enter on the lands, or seize the goods, without ceremony; but if, waving this right, he brought an action against him for them, or if he brought not any action personal against him, but the one of Nativo Habendo, the villein was enfranchised, whether the lord recovered or not, or whether he prosecuted the action or not. For when he omitted the easy remedy the law appointed, and brought his villein into court to defend his right, he admitted him to be a person that could stand in judgment against him, and litigate with him; that is, to be a freeman. But it must be observed this enfranchisement did not commence immediately from the taking out the writ, which was the commencement of the action, but from the appearance of both plaintiff and defendant, and this for the benefit of the lord; for otherwise, as Coke observes, a stranger, by collusion with a villein, might take out an action against him in his lord’s name. To which I may add, that the lord might have intended his action against a freeman of the same name with the villein, and the sheriff might have summoned the villein by mistake. In this case it was hard that the lord should suffer. He therefore might, when he saw the villein ready to appear, nonsuit himself, that is, decline appearing; and then the villein could not appear, and therefore was not enfranchised. But if he went on, and suffered his villein to appear, and consequently enabled him to plead against him, he must have abided by the consequences of his own folly, and his nonsuiting himself afterwards could in no sort avail him[302].

A villein might likewise be manumitted by his lord’s bringing a criminal action against him, though this was no admission of permanent property in him, or of his capacity of standing in law against him as a freeman; as if the lord brought an appeal of felony, as of murder, or robbery, against him. If he was acquitted he might be enfranchised, because he might be entitled to recover damages for the malicious prosecution, and the danger his life had been in; and damages he could not recover without being a freeman. I say might be enfranchised, because he might recover damages. For in this case a distinction is to be taken, whether the villein was, before the appeal brought, indicted at the suit of the king for the same offence, or was not. If he was not, the acquittal shewed the prosecution to be malicious, and the villein was entitled to recover damages, and so to be free. But if he had been indicted, there were no grounds to suppose the appeal brought maliciously. The finding the indictment by the grand jury was a presumption of his guilt. The lord had a rational ground for bringing his appeal, and he had a right to bring it for the punishment of his villein, if guilty. Otherwise he could not have him hanged, for the indictment at the king’s suit might not be prosecuted, or the king might pardon. In such case, therefore, there being no malice presumed, the law gave no damages, and consequently no enfranchisement. But the lord’s bringing the writ called Nativo habendo against his villein, namely, claiming a man to be his, as such, was no enfranchisement, for that would defeat the ends of the suit; and the law allowed the lord a power to seize his villein without further ceremony, it did not precisely compel him to that method only, for his villein might be at too remote a distance, or under the protection of persons too powerful. But if, after appearance, the lord suffered himself to be nonsuited, in this action, it was an enfranchisement.

The law, likewise, enfranchised in some cases on the act of the villein himself, as if the lord had been found guilty in an appeal of murder, brought by his villein, or of rape by his nief; but these I mentioned in the last lecture, and the reason is apparent.

By all these various ways the number of villeins insensibly diminished, and the number of freemen continued to encrease in every reign; but what gave the finishing stroke to servitude were the confusions occasioned by the two contending houses of York and Lancaster; when the whole kingdom was divided, and every lord obliged, even for his own security, to take part with one side or the other; and when once engaged, necessitated to support his party with his whole force. Villeins were, therefore, emancipated in prodigious numbers, in order to their becoming soldiers. Many of such, also, who had not been formerly emancipated, in those times of distraction, fled for self-preservation to London, and other cities, where, being absent from their lords, they were looked upon as free; and where they generally continued, even after these troubles had ceased, unknown to the heirs of the antient lords; and in consequence, for want of proof of their servitude within fifty years last past, (which was the time of limitation for this action) most of them and their posterity became free. When things afterwards became composed, under Henry the Seventh, many of these persons were by the heirs of their former lords reclaimed, and recovered as villeins, though, undoubtedly, the far greater part escaped undiscovered. But even in those actions that were brought, both judges and juries were very favourable to the persons claimed; the juries out of favour to liberty, and the judges, I presume, following the policy of that reign, one of the great objects of which was the depression of the great lords; to which nothing could more contribute than the lessening the number of the persons who were held in such strict dependance by them, and the profits of whose industry they had right to seize, to encrease their wealth and their power[303].

Another thing which had, long before that period, lessened their numbers, was the rise of copyhold tenants. These are persons who are said to hold lands at will, but according to the custom of a manor, and those arose from the villenage tenants, as I conceive, by the following means. When a succession of mild and humane lords had neglected, for a long time, to seize their villeins goods, or to exact villein service, so that no memory remained of their having made use of such a practice, they came to be considered in another light, and became exempted from that seizure by prescription. For the lord claiming a villein in a nativo habendo, must plead, and prove, that he, or his ancestors, had exacted such services, from the person claimed, or his ancestors, otherwise he failed. Therefore, in the case I have mentioned, though a future lord had an inclination to depart from the practice of his predecessors, and revive his rights, he could not recover them for want of proof; and these persons so long indulged, became freemen. However their lands, (they being only tenants at will) might still be resumed, until, at last, they got, likewise, by the same kind of prescription, a permanent right in them also, in the way I now shall relate.

If a lord had given his villein any certain estate, it was, as I before observed, an absolute manumission for ever. But some lords, either in reward for services done, or out of bounty, gave many of those underling tenants, if not an absolute right to their holdings, at least, a fair claim and title to a permanent estate, which, in honour, the lord or his heirs could not defeat, and yet kept them in a particular kind of dependance, between freedom and absolute villenage. But the question was how this was to be done; for if the lord had given him a deed, to assure him the lands, and so entered into a contract with him, he was entirely emancipated. The way was then for the lord to enter into the roll of his court, wherein he kept the list of his tenants, that he had given such an one an estate at will, to hold to him and his heirs, or to him and the heirs of his body, or to him for life or years; and these directions being constantly complied with, grew by length of time into established rights, and they came to be called tenants at will, according to the custom of the manor.

They were still called tenants at will, because, they had been originally such, for they were never considered as, nor called, freeholders, until very lately, in one instance, they were admitted to vote for members of parliament, and their votes allowed by the house of commons. This decision was greatly exclaimed against by the tories, who were foiled by this reception, as proceeding from a spirit of party, and as being contrary to the rules of the antient law, as it certainly was. But, on the other hand, it was agreeable to common reason and justice, and to the spirit and principles also, though not to the practice of the antient constitution. For when Edward the First lays down this maxim, quæ ad omnes pertinent ab omnibus debent tractari, what reason can be assigned why a copyholder for life, who has a valuable, and as certain estate, in fact, as a freeholder, though called by a different name, and who contributes equally to the taxes and expences of the government, should not have equal privileges, and be equally intitled to be represented. They are called copyholders, from the evidence they had of their titles. The evidence that freemen had of their estates in land was either a deed, if the grant was by deed, or if it was without deed, the livery and seizen, attested by the witnesses present; but the copyholder had no deed, neither was livery and seizen given to him, as he was originally but a tenant at will. His evidence, therefore, was a copy of the rule entered in the lord’s court roll, which was his title, and from hence was he named copyholder[304].

The peculiarities attending this kind of tenure, that distinguished it from other tenures, arose from their being considered as tenants at will. Hence arose that antient opinion, that if a lord ousted his copyholder, he could have no remedy by action in the king’s court against him: But had this been the law that since prevailed, all copyholders had been long since destroyed. Therefore, in Edward the Fourth’s reign, it came to be settled, that if the lord turned out his copyholder, he might well maintain an action of ejectment against him, as a tenant for years could, or else they might sue the lord in equity to be restored.

From the same principle of its having been an estate at will, arose the right of the lord to a fine, upon the change either of lord or tenant; upon the change of the lord by the act of God only, that is by his death; upon the change of the tenant, either by the act of God, by his death; or by his own act, by his alienation. But the tenant paid no fine on the lord’s alienation; for if he was so to do, he might be ruined by being frequently charged. These fines were an acknowledgment of the lord’s ancient right of removing them, and were, in some places, by custom, fixed at a certain rate; in others, they were uncertain, and settled by the lord: However, he was not allowed to exact an unreasonable one, for if so, the tenancy would have been absolutely in his power, and of the reasonableness of the fine the judges of the king’s courts were to determine.

I mentioned the alienation of copyholders, but to alien directly they could not, being esteemed but tenants at will, yet what they cannot directly do, they may indirectly, by observing certain forms; that is, by surrendering to the lord, to the use of such a person, and then the lord is, in equity, compellable to admit into the copyhold the person for whose use it is surrendered. These surrenders are either made in the manor court, or out of it. If made in court, it is immediately entered in the court roll; if out of court, it should be presented at the next court day, and then entered. The surrender out of court must be made to the lord himself, or to the steward of the manor, or it is not good; except in some particular manors by custom, where it may be surrendered to the lord’s bailiff, or to two or more of the copyholders, who are to present it at court. When a surrender was made, the lord was only an instrument to hand it over, and therefore must admit that grantee into such estate, and no other, whom the grantor had appointed in his surrender. In many cases a court of equity will supply the want of a surrender.

Copyholders could not devise their lands by will for two reasons. First, that, in general, lands were not devisable till the reign of Henry the Eighth; and for another reason peculiar to themselves, that, being called tenants at will, they were not looked upon to have a sure and permanent estate. But when, after the invention of uses, a way was found out to evade the general law, and to make lands go by will, by the owner granting his estate to another for the use of himself, the grantor, for life, and after, for the use of such persons as he, the grantor, should name in his will; and when courts of equity were found disposed to oblige the grantee to perform the trust he had undertaken, in imitation hereof, copyhold estates began to be surrendered to the lord to the use of the copyholder’s last will; and then the lord, after his death, was obliged to admit such person as he appointed in such his will, and in the mean time, the copyholder enjoyed during his life, for the surrender only did not transfer the estate, except it was to the lord’s own use. If to any other use, the lord was but an instrument, and the land remained in the surrenderer until the admittance of the new tenant, which, in the case I have put, could not be till the old one was dead.

Another peculiarity arising from the same source, there being tenancies at will, was, that neither the husband could be tenant by the courtesy, nor the wife tenant in dower. The reason was, that every estate at will determined by the death of the tenant, neither could an estate tail be created of a copyhold; for the statutes De Donis extended not to them, and, therefore, if a gift was made in such words as would, at this day, create such an estate, it would be in the nature of a fee simple conditional at common law. However, by special custom in particular manors, copyhold might be entailed; might go to the tenant by the courtesy, and the wife might be endowed thereout[305].

Thus much I have thought requisite to shew the general nature of this tenure, and of its origin. More would be needless to say here, as there are no such in this kingdom, though the law relating to them makes a considerable part of the law of England. For the same reason I shall be very short as to the tenants in antient demesne.

Lands in antient demesne are the estates that the king had, as king, to support his family, and other expences, and were antiently unalienable. They were the lands of Edward the Confessor, and the Conqueror. But as the king could not make profit of them himself, they were given to tenants of two kinds, freeholders and copyholders. The law with respect to them stands as it does with other freeholders and copyholders, except that they have some peculiar privileges. The general reason of these privileges was, that the freeholders were originally socage, and the copyholders the villenage tenants of the king, and had these privileges granted to them because they were supposed constantly employed on the king’s land, to furnish him with corn, cattle, and other necessaries; and their privileges have continued, though the services have been changed into money, and the estates almost all alienated from the crown. These are principally as follow: They are exempted from all burthens and taxes laid on by parliament, unless they are specially named. They are not to be taxed for the wages of the knights of the shire. They are not to pay toll, or passage money for goods bought and sold in markets, for all things concerning husbandry and sustenance. They are not to be impleaded in any court, only in their manor court, nor to be summoned as jurymen, with some other privileges of the like nature, not necessary to be here insisted on[306].