^{page 169 note 1} This essay was in print before I had seen the recent masterly work on Villainage in England, by Professor Vinogradoff. I am, of course, only concerned with villenage so far as what we know of it throws light upon copyhold tenure and on the security enjoyed by copyhold tenants. It will be seen that I do not altogether concur with Professor Vinogradoff in his view of the legal position of villeins. I have added a few references to his work in the notes.

^{page 170 note 1} Rogers, , Hist. Ag. iv. 328Google Scholar.

^{page 171 note 1} The assumption that these judges were Yorkists is very doubtful. Danby, one of the two to whom Professor Ashley refers, was more probably a Lancastrian, for he was appointed judge in 1452. It is true he was promoted to the Chief Justiceship of the Common Pleas in 1461, but he was continued in his office during the restoration of Henry VI. in 147071. The other, Thomas Brian, was made judge in May 1471, just after the battle of Tewkesbury, which led to Edward IV.'s restoration. But he was continued in office as Lord Chief Justice of the Common Pleas by Henry VII. Foss, Tabulae Cutiales.

^{page 172 note 1} In the curious indictment of the administration of Wolsey framed by Lord Darcy in 1529, under the designation of a remembrance, it is alleged against him, We have begun to execute the statute of enclosings (Br. Cal. iv. 5750). In Larimer's last sermon before Edward VI., Now on the other side, the gentlemen had a desire to keep that they had, and so they rebelled against the king's commandment, &c. Cp.Gaird, . L. & P. vii. 1445Google Scholar. The resistance was more marked at a later date. See Strype's account of Hales's commission.

^{page 172 note 2} In 1537 in Lancashire, Gaird, . L. & P. xii. 302Google Scholar. In 153637 in the Lincolnshire rising, and in the Pilgrimage of Grace, ibid. xi. 892, 1155, ii. 2, 1246, xii. 70, xiii. 392. Kett's, Rebellion in Norfolk, Russell, F. W., London, 1859, p. 48Google Scholar; Hales to Somerset, July 22, 1548, MS. R. O. Lem. Cal, ii. 33.

^{page 172 note 3} Never did any government strain the legislation more resolutely in their (the labouring classes') favour.Froude, ii. 449.

^{page 173 note 1} MS. R. O., Br. Cal. i. 5727, 2. The Act concerninge the Isle of Wight. passed in 1488, was also an Act against consolidation of holdings (4 Hen. VII. c. 16).

^{page 173 note 2} 6 Hen. VIII. c. 5.

^{page 174 note 1} 7 Hen. VIII. c. I.

^{page 174 note 2} I.e. February 5, 1515.

^{page 174 note 3} R. O. Pat. 9 Hen. VIII. M. 2 p. 6d., Br. Cal. ii. 3297.

^{page 174 note 4} This is the area assigned to one body of commissioners. Similar commissions were issued to the others. See I.c.

^{page 175 note 1} MS. R. O., Misc. Rolls &c, Chanc, Bundle 13 No. 14.

^{page 175 note 2} MSS. Lansd. I. 153 ff.

^{page 175 note 3} With the watermark of a tankard or pot, whence the term pot paper. R. Herring on paper and paper-making chronology, London, 1875, P. 19.

^{page 175 note 4} I subjoin an extract from each document for compat ison: Et dicunt super sacramentum suum quod Thomas Elston gent. quisecundo die Octobris anno regni domini Regis nunc tercio tenuit & adhuc tenet ad firmam de priore de Ponghley vnum messuagium & viginti quatvor acras terre arrabilis cum pertinenciis in Easthendrede in comitatu predicto & que terre seminari & arrari & cum messuagio illo locari a toto dicto tempore solebant predicto die & anno messuagium illud destrui & devastari fecit & sic hucusque tenet & tenementa ilia valent per annum duodecim solidos & dictus prior in iure monasterii sui predicti seisitus existit de tenementis illis in dominico suo vt de feodo & ille tenet de domino Rege & ea occasione tres persone a suis mansionibus depriuantur, &c. MS. R.O.

This entry apparently answers to the following in the Lansdowne MS.: Prior de Poughley fuit seisitus in iure parochiatus sui de vno messuagio et xxiiii. acris terre arrabilis in Esthendred annui valoris xii. s. Et sic seisitus secundo die Octobris anno tercio regis Henrici VIIIⁱⁿ messuagium predictum prosierni & terrain in pasturam conuerti permisit.

The phrase conuerti permisit, which is peculiar to the Berkshire transcripts, indicates that the incloser was the prior's tenant. The superior value of the original record is that it gives the names of mesne lords, and shows the status of the inclosers. It is noticeable that it recites the ultimate lordship of the king, a legal doctrine destined to play an important part at the dissolution of the monasteries. The doctrine is also implied in the form used of the prior's right of ownership, as being in dominico suo vt de feodo. On this see Coke's, Complete Copyholder, London, 1673, s. xiiGoogle Scholar. The phrases tenet ad firmam and locari point to a lessee.

^{page 177 note 1} P. 30.

^{page 177 note 2} p. 31.

^{page 177 note 3} Cp.Dighy's, Hist. of Law of Real Property, 3rd ed. Oxford 1884, p. 49Google Scholar.

^{page 177 note 4} P. 11.

^{page 178 note 1} P. 10.

^{page 178 note 2} Blomef. vi. 419.

^{page 178 note 3} Ricardus harryson apud Fenton in dicto Estriding tenet ii husebound-holdings & ea de causa sunt iiii^or persone minores in eadem villa quam solebant esse, p. 32. Ricardus fflent tenet in eadem villa vnum messuagium & vnam bouatam terre & ponit in dicto messuagio vnus sic pauper bomo, & ea de causa sunt minores persone ibi inhabitantes quam solebant esse per tres, p. 33.

^{page 178 note 4} P. 23, an in closure by the lord of the manor.

^{page 178 note 5} P. 25.

^{page 178 note 6} Shyngey, , Cambs., p. 59Google Scholar.

^{page 178 note 7} Pp. 6369.

^{page 178 note 8} P. 61.

^{page 179 note 1} P. 37.

^{page 179 note 2} Magna, Haughboys, Norfolk, p. 9Google Scholar. I believe Professor Ashley's hypothesis to be based on an erroneous reading of the MS. He reads: Stephanus Bolt habet vnum tenementum cum xl acris terrde quibus quidam xl acras inclusit, et posuit ad pasturam xij acras, &c. But this is scarcely sense; the ordinary form would be, as appears from the MS., quas xl acras inclusit, &c, or et predictas xl acras inclusit. I read de quibus quiilem xl acris inclusit & posuit ad pasturam xij acras. The two following entries run quodquidem manerium.

^{page 179 note 3} See the argument as to the proceedings to be taken by them in H. T. 9 H. 8. Keilwey's, Report, p. 197Google Scholar.

^{page 179 note 4} P. 10.

^{page 179 note 5} P. 58.

^{page 179 note 6} Ibid.

^{page 179 note 7} ibid.

^{page 180 note 1} P. 65.

^{page 180 note 2} P. 69.

^{page 180 note 3} By the statutes of Merton and Westminster freeholders were allowed to complain against an inclosing lord of a manor quod sufficientem pasturam non habeant, 20 H. 3. c. 4; 13 E. I. c. 46.

^{page 180 note 4} P. 41.

^{page 180 note 5} P. 38.

^{page 180 note 6} Est Hatley, p. 59. So ibid. vnde ducente acre terre vse fuerunt villagio.

^{page 180 note 7} Patteshall, p. 45. Cp. xl acr. bosci communis at Norbury, Salop, p. 62, and xl acr. terre communis at Kynerton Marshe, in the same county. Ibid.

^{page 181 note 1} P. 26.

^{page 181 note 2} Ibid. at Southholme, N.R.

^{page 181 note 3} Old Tenures, ed. 1525, p. 4.

^{page 181 note 4} Tenancies from year to year were known in the thirteenth century. Item dimitti poterit terra pro voluntate dimissoris tenenda de termino in terminum & anno in annum, &c. Fleta, III. xii. 7. See infra, p. 186.

^{page 181 note 5} On the ancient use of the terms tenant, ' tenement, &c, see a note in the Law Quarterly Review, July 1889, pp. 326, 327.

^{page 182 note 1} N. Elynham, p. 5; Tytelyshale, p. 6; Holkeham, p. 8; Blykelyng, p. 10; Aylesham, do., but qure.

^{page 182 note 2} Bayffeld, p. 2; Egefeld, p. 2; Loddon, p. 3; Snethysham, p. 4; Gatelee, p. 6; Bylawe, p. 9; Arpyngham, p. 10; Fflytcham, p. 11; Herpeley, p. 11; Anmer, p. 12; Brabyngle, p. 12; Northwalsham, two cases, p. 14; Plompsted Magna, p. 19; Bastwyke, p. 20.

^{page 182 note 3} In the Gloucestershire Inquisition the interests in land are shown as follows: The name of the incloser and the area inclosed are given. Then is added that the land is de hereditate of so-and-so, e.g.: Thomas Rowys armiger anno xiij^mo Regis henrici vij^mi apud Clopton in comitatu predicto cum sepibus & ffossis inclusit centum & viginti acras terre arrabilis de hereditate Johannis leighton armigeri & eas in pasturam conuertit. Et quod valent per annum centum solidos. We know from other sources that the manor of Clopton belonged to the Abbey of Evesham, of which Leighton was therefore a freeholder. Fosbrooke, ii. 321, Dugdale, ii. 47. In Norfolk we have at Bawsey and North Wotton express mention of the fact that the lands inclosed were diuersorum hominum. But it is most significant that in neither case is the incloser the lord of the manor, so that the original tenants were not copyholders dispossessed by their lords.

^{page 183 note 1} Such are Donmer (i.e. Anmer), Norfolk, p. 12. Mr. Thomas Ie Strange dunisit manerium suum in Donmer ad firmam Edwardo Hartyng cum omnibus terris in eadem villa et idem Edwardus posuit ad pasturam ouium c acras de terra manerii illius que fuerunt in cultura citra tempus commissionis & manerium predictum decidit.

So at Thorp Parua: Quod Henricus Wyatt miles deposuit mansionem manerii de Thorp hall & xxx acras terre arrabilis dicto manerio pertinentes inclusit & ad pasturam posuit ad decasum ecclesie ibidem, p. 16. This suggests that the chaplain farmed the glebe, or the land granted by way of glebe, and that on its conversion to pasture the grant was resumed by the lord. The complaint of churches being allowed to go to ruin is repeated in the preambles of the statutes against inclosures. But this is the only distinct statement of such a case, though others may be inferred, in the Lansd. MS.

^{page 183 note 2} Besides the lands of the manor held by freehold tenants, the lord retai. ed in his own hands the domain terr dominualesportions of which were sometimes let to farmers, and portions cultivated by persons bound to render agricultural services for Ihe benefit of the lord. The Domesday of St. Paul's leaves little doubt that there were frequently, especially upon ecclesiastical lands, farmers holding land under conventions or covenants, and rendering for it rent in kind or money. Digby, , Hist, of Law of Real Property, 3rd edit. p. 49Google Scholar. See Hale's, Introduction to the Domesday of St. Paul's, p. lixGoogle Scholar.

^{page 183 note 3} At Grymston in Holderness, p. 30, the lady of the manor is represented as evicting eight persons from two messuages, nothing, however, being said about demesne lands. At Skarlagh Benyngholme, the Prioress of Swyne, being lady of the manor, evicted six persons and threw down the messuage, p. 32. There are many other instances of evictions by the lords of manors.

^{page 184 note 1} At Bastwyke (Norfolk) the return runs: Item Johannes blank in MS. miles tenet ad firmam de magistro curson manerium suum in Bastwyke quod posuit ad pasturam ouium & quod fuit in cultura citra tempus commissionis predicte per quod vnum aratrum deletur (p. 20). Similarly under Plompsted Magna (Norfolk) (p. 19) and elsewhere. At Hydecote Bertram in Gloucestershire (p. 54) an inclosure of 340 acres is returned, though no evictions are recorded. We know from other sources that this incloser was a lessee. Fosbrooke's, Gloucestershire, ii. 320Google Scholar.

^{page 185 note 1} Dugdale, vi. 214.

^{page 185 note 2} 6 Ed. I. c. 5. In the Manor of Castle Combe the evidence of the surrenders and renewals or admissions in the rolls shows the copyhold tenures to have been for one or more lives, usually that of the tenant himself and his children. (History of the Manor of Castle Combe, by Scrope, G. Poulett, 1852, p. 151, nGoogle Scholar.) This was the case elsewhere. See Elton, on Custom and Tenant Right, pp. 3031Google Scholar.

^{page 185 note 3} Coke upon Littleton, i. 8, 71, n. (ed. C. Butler, 1823). In the Dean and Chapter of Worcester's case Co. Rep. pt. vi. 37 b, it was laid down per Curiam that the statute of Gloucester, cap. 5, gives an action of waste against him who holds in any manner for term of life or years.

^{page 185 note 4} According to Coke upon Littleton, i. 10, 83: If there be no custome to the contrary, wast either permissive or voluntary of a copiholder is forfeiture of his copihold. For an example see Scrope's, History of the Manor of Castle Combe, p. 164 nGoogle Scholar.

^{page 186 note 1} Et divers diversites y sont perenter tenaunt a volunte, qui est eins per lees son lessour par le cours del comen ley, et tenaunt solonques le custome del manor en la fourme avaundit. Littleton's, Tenures, ed. Tomlins, , 1841Google Scholar, 82. See supra, p. 181 n. and infra, p. 220.

^{page 186 note 2} A case of tenancy from year to year is recorded in 1202. Placita Civilia, Seld. Soc, iii. 232.

^{page 186 note 3} Right v. Darby, I T. Rep., 160, 163 (1786), and Y. B. 13 H. 8. 15 b. (1521). Cp. M. T. 3 H. 8. Keilwey's, Reports, pp. 1634Google Scholar.

^{page 186 note 4} Tenancies at will were the usual alternatives to tenancies for lives or for terms of years. Neither Coke upon Littleton nor Coke's reports concern themselves with tenancies from year to year. Tenancy from year to year was, no doubt, tenancy at will with its customary incidents definitely set forth. The decision of the judges as to the necessity of six months' notice to quit probably did no more than give a legal sanction to usage. How the two kinds of tenancy were in practice related may be seen in the Y. B. 21 H. 7, p. 38: Un Abbe Iesse certeins terres a un auter a tener a volonte par un an, & sic de anno in annum.1 It will be observed that in Dugdale's Motiasticon the tenentes ad voluntatem are given after the copyholders. So the statute of Gloucester, 6 Ed. I. c. 5, gives a writ of waste against tenants for life or for terms of years, but says nothing about tenants from year to year.

^{page 186 note 5} Joshua Williams lays it down that a lease from year to year is much more advantageous to both landlord and tenant than a lease at will. Law of Real Property, 16th ed. 1887.

^{page 186 note 6} Item si un mese soit Iesse a tener a volunte, le Iess nest pas tenus a susteiner ou repaireller ses maisons, sicome lenaunt a terme dez ans est tenus.Littleton, 71; cp. 83.

^{page 187 note 1} See note B to Foiston v. Crachroode, Mich. 29 and 30 Eliz. (1587). Coke's Rep., pt. iv. 31 b. pl. 25.

^{page 188 note 1} Cp. infra, p. 246.

^{page 189 note 1} Br. Cal. II. i. 1959. Th. Alen to the Earl of Shrewsbury. Buckingham went home yesterday; hath all his desires, with great thanks from the king. (May 31, 1516.)

^{page 189 note 2} Ibid. I. 1157, II. 3022.

^{page 189 note 3} At a later date, as will presently be seen, he ventured upon further and iccontestably illegal expropriations.

^{page 189 note 4} Not a single case of the eviction of a person, or even of a house decayed, is given in this return.

^{page 190 note 1} I.e. rabbit warren, from conynge, a rabbit. See Halliwell, s.v. conig; also Promptorium Parvulorum, s.v. connyngere.

^{page 190 note 2} Dugdale's Monasticon, passim.

^{page 190 note 3} Br. Cal. III. i. 1286. Cp. infra, p. 232.

^{page 190 note 4} 6 H. 8, c. 5, and 7 H. 8, c. I, against pullyng downe of Townes. Supra, pp. 173, 174.

^{page 190 note 5} The duke was lord of the manors of Tunbridge and of dcleff, Penshurst, Kent, . Br. Cal. III. i. 1286, pp. 507, 509Google Scholar.

^{page 190 note 6} Polydore Vergil's words are: Is the Duke praecedit Henricum, & ad predia quae in Cantio habebat profectus aliquot dies ibidem moratus, vbi non fuit quisquam omnium fructuariorum qui non sit questus de Caroli Cheneuetti eius procuratoris rapinis ac iniuriis. Quibus rebus dux commotus, de damnis suorum colonorum cognoscit, & cum eos iure conqueri comperisset, Carolum ea curatione illico priuat, nesciens id sui confodiendi telum futurum esse, vti apposit alibi demonstrabitur, p. 660, ed. Basileae, 1570. Polydore Vergil writes rather with hostility to Wolsey than with friendliness to Buckingham. It is abundantly clear, from his inclosures at Thornebury, that the duke was unscrupulous in his proceedings. Cp. Shakespeare, Henry VIII. act i. sc. 2:

You were the duke's surveyor, and lost your office

On the complaint o'the tenants.

^{page 191 note 1} Hinc Volsaeus materiem perpendi ducis aucupatus Carolum tarn verbis quam promissis concitat, stimulat, inflammat, &c. (Pol. Verg. p. 665.) Cp. Shakespeare, Henry VIII. act i. sc. I:

My surveyor is false; the o'er-great cardinal

Hath show'd him geld.

^{page 191 note 2} The Cardinal, according to Herbert, disaffected him for some speeches he had cast forth. (Life and Reign of Henry VIII.)

^{page 191 note 3} 4 H. 7, c. 16.

^{page 191 note 4} And if eny persone do herafter to the contrarie of this Act, that then the lessee in that behalf forfeite to the kyng for every suche taking x li. Provided alweyes that they whiche have paid any fynes, or made bildinges or done grete reparacion upon any suche fermes, and be putte fro the same ferine by reason of this Acte, shalbe recompenced for suche bilding or reparacion as right and gode conscience requiren. After this statutory declaration of a farmer's right to compensation for improvements right and good conscience slept for four hundred years.

^{page 191 note 5} 4 H. 7, c. 19.

^{page 192 note 1} I can find no reference to the Act in Coke's Reports, or in his treatise on Littleton.

^{page 192 note 2} 5 El. c. 2.

^{page 192 note 3} 6 H. 8, c. 5.

^{page 192 note 4} 7 H. 8, c. 1.

^{page 192 note 5} But now copy-holders stand upon a sure ground, now they weigh not their lords displeasure, they shake not at every sudden blast of wind, they eat drink and sleep securely; onely having a special care of the main chance, viz. to perform carefully what duties and services soever their tenure doth exact, and custom doth require; then let lord frown, the copy-holder cares not, knowing himself safe, and not within any danger. (Ed. 1673, ix.)

^{page 192 note 6} Supra, p. 170 foll.

^{page 192 note 7} The Character of Villein Tenure, pp. 4, 5, 13. From the reference on p. 5 to the Midland and Southern counties, I infer the mass of copyholders to exclude the customary tenants of the border.

^{page 193 note 1} Reeves', Hist. Eng. Law, I. 69, ed. Finlason, , London, 1869Google Scholar.

^{page 193 note 2} Littleton ( 181) says: Et villein en gros est lou vn home seisie dun manoir a que vn villein est regardant, & il graunta mesme le villein par son fait a vn auter, donque il est villeine en gros & nemy regardant. But if this were true the villeins regardant could not be said to be ascriptitii, as was laid down of the villani, for they might have all been reduced to serfdom. Cp. infra, p. 199, n. 3. Qu. Does Littleton hint at the illegal practices said by Fitzherbert to have been sometimes pursued ? See Surueyenge, ch. 13, p. 31, ed. 1539, and see infra, p. 210, n. 5.

^{page 193 note 3} Ibid. Howe be it in some places the bondemen contynue as yet, the whiche me semeth is the greatest inconuenience that now is suffred by the lawe. That is, to haue any christen man bounden to an other, and to have the rule of his body, landes and goodes, (hat his wyfe, chyldien, and seruantes have laboured for, all their life tyme, to be so taken, lyke as and it were extorcion or bribery. Cp. supra, p. 190.

^{page 194 note 1} The Commonwealth of England, London, 1609, p. 123Google ScholarPubMed.

^{page 194 note 2} The ceorl is the villain regardant of the lawyers; the theow is the villain in gross. Freeman, , Norm. Conq. v. 477Google Scholar. This dictum is in harmony with the popular view as to the meaning of this legal distinction, a view which the researches of DrVinogradoff, (Villainage in England, pp. 4858)Google Scholar have at least proved to be unfounded.

^{page 194 note 3} There were no more than 25,000 of them, as compared with 110,000 villani. Stubbs, , Const. Hist. Engl. I. xiGoogle Scholar. About 9 per cent, of the total population,' reckons MrSeebohm, , Eng, Vill. Comm. p. 86Google Scholar, map.

^{page 194 note 4} Britton, ed. F. N. Ni hols, I. p, 197 n. x. I am disposed to believe that the term came into use to distinguish those serfs who were allowed to reside outside the limits of a manor on payment of chevagium, or head-money, and whose manorial designation, so to speak, was capitagii. I do nit understand this to be the view of Dr. Vinogradoff, who appears to regard the distinction as a mere form of pleading, without any bearing upon fact. But forms of pleading are adapted to facts, and the case given by him in his Appendix II. points to this as the differtnce. See Littleton, 181, and Bracton, f. 6 b.

^{page 194 note 5} Britton confounds these with villeins. An annotator, apparently of early date, takes note of Britton's confusion, and endeavours to remedy it by distinguishing between nayfs, villeins, and serfs, from the point of view, not of their rights, but of their origin. Nichols, I. p. 195, n. q. Littleton, 186, mentions nyefe as the feminine of villein.

^{page 194 note 6} Stubbs, , Const. Hist. I. xiGoogle Scholar.

^{page 195 note 1} Generally said to be Andrew Home, whose book, Le Myrrour des Justices, was pronounced by Coke to have been written in the reign of Edward I., or at least not later than 17 Edward II. See preface to the edition of 1642. The same conflict between actual use and legal theory is to be seen in the use of the word villanus in the Hundred Rolls and in the decisions of the Curia Regis. In the Rolls the words nativi or servi are added to distinguish the kind of villein. In the Courts villanus was used by itself, generally with the connotation of serfdom. Nasse, p. 38, n. 2. Infra, p. 212, n. 3.

^{page 195 note 2} Horne's commentaries on serfage are in a chapter headed De Naifter. So the Leges Henrici Primi, c. lxx., speak of nativitate servi. Bracton, I. vi. 4, says, Servi nascuntur ex nativo et nativa.

^{page 195 note 3} Nota que villeins ne sont my serfs Ceux ne poiont rien purchaser; forsque al oeps lour seigneur. Ceux ne scauent le vespre de quoy ils servient al matin, ne mil certainty des services. Ceux poient les Seigneurs firger, cipper, enprisoner, battre & chastiser avolunt, salve a eux les vies, ou les membres entires. Ceux ne deviont fuer ne adire de lour sars, tant come ils trovent doiont vivre ne nul ne list ee les receiver sans le gre lour Seigneurs. Le Myrrour, p. 169. Cp. the laws of William the Conqueror, xxx., De nativis. Britton, ed. Nichols, I. 197. Old Tenures, p. 7. Horne does not mention that they could be sold. An example of a deed of sale is given in Du Cange (ed. Favre) s.v. from Blount, as late as 13 Edward III. See also Placit. Abbrev., 9 John, p. 57Google Scholar. Willelmus vendiditquandam pro iiii solidis. There are six examples of sales subsequent to the Conquest in Madox, , Formulare Anglicanum, pp. 417419Google Scholar. An inspection of these instances verifies the statements of Home as to the practice of English law, the Romanising theories of Bracton and his school notwithstanding, Of these six cases two expressly state that the person sold was a nativus; two convey the same inference by releasing them from servitus (quietos ab omni strvitutecum toto claimo servitutis et villenacionis;) two use the less definite expression hominem meum.

^{page 196 note 1} Tenir en pure villenage est a faire tout ceo qe le seignour luy voet commaunder. Old Tenures (temp. Edward III, .), ed. 1525, p. 6Google Scholar. So Bracton, IV. xxviii. f. 208, b: Si autem villanus fuerit, omnia faciat & incerta tarn ratione villenagii quam personae Est etiam villenagium non ita pururn, sive concedatur libero hotnini vel villano ex conventione tenendum pro certis servitiis & consuetudinibus nominatis & expressis, quamvis servicia & consuetudines sunt villanae.

^{page 196 note 2} In Placita Civilia, Selden Soc. III. 235, in a case heard in 1202, the plaintiff in an assize of mort d'ancestor came and admitted quod ipse tenet terram illam in villenagio de Osberto filio Nigelli ita quod ipse Osbertus potest amovere eum quum voluerit. The addition of the condition on the terms that would not have been necessary, especially in a brief legal entry, had tenure in villenagio legally implied it.

^{page 196 note 3} In the Extents of Manors in Caernarvon and Anglesey, taken 26 Edward III., only two classes of men and lands are recognised, the fieeholders (liberi homines) and villeins, who held by the strictest villenage under their lords, i.e. nativi. Consequently, the two great distinctions of land are terra dominica and terra nativa. These two divisions were demesne let on lease and demesne kept in hand by the lord, i.e. bordland. The reason of the absence of the intermediate class of villeins is that terra Walliae est terra conquestus ita quod nullus tune aliquas libertates absque speciali pacto ipsius domini Regis seu heredum suorum clamare potest, set omnes libertates si que antea fuerunt, per conquestum ilium adnullate fuerunt. Record of Caernarvon, London, 1838, pp. vii and 204Google Scholar.

^{page 196 note 4} To support this theory a piece of lawyer's trstory was invented that the first kings of this realme had all the lands of England in demeane. Coke upon Littleton, 73, cp. ibid. I. This is improved upon by Bacon, in his Use of the Law, Works, VII. 481Google Scholar (Ellis & Spedding's ed.) The Conqueror got, by right of conquest, all the land of the realm into his own hands, in demesne except religious and church lands, and the lands of Kent. Hence the doctrine all lands within this realm are held either mediately or immediately of the king. Per Curiani in Grondon v. Bishop of Lincoln, 18 & 19 Eliz. C. B. Plowd. ed. 1816, p. 498 a.

^{page 197 note 1} Called inland in Domesday, as opposed to land in servitio, i.e. held by services. See Coke upon Littleton, 10. Also as opposed to upland, infra, p. 200, n. 6.

^{page 197 note 2} Dominicum dicitur quod quis habet ad mensam suam & idcirco Anglice vocatur Bordland: dicitur etiam Dominicum Villenagium quod traditur villanis, quod quis tempestive et intempestive resumere possit pro voluntate sua et revocare. Bract, lib. iv. tract. 3, cap. 9, num. 5, quoted by Coke, , Compl. Copyh., 12Google Scholar. Professor Ashley dismisses Bracton's evidence with the remark that so long as we are without a critical edition, and unable to distinguish Bracton's text from later accretions, it is possible to support by his authority almost any opinioL as to villein-tenure. But I would observe that the question with which Professor Ashley, like myself, is concerned, touches the rights of copyholders as they were in the reign of Henry VII., and more particularly in that of Henry VIII. By that date the text of Bracton may be supposed to have been settled, and questions as to its original purity are of small concern to us. On Bordland in Welsh manors see A History of Ancient Tenures of Land in the Marches of North Wales, by Palmer, A. N., pp. 61, 62, 66Google Scholar.

^{page 197 note 3} Liberi tenentes or Libere tenentes included tenants holding by military service and rent-paying freeholders, tenants of moors and wastes or of demesne proper. See MrElton, in Appendix to Kentalia et Custumalia of Glastonlmry p. 240Google Scholar. There is no occasion for me in this connexion to enter into the question whether they were created subsequently to the Domesday Survey or not. On this see DrVinogradoff, , Villainage in England, pp. 313353Google Scholar.

^{page 198 note 1} It must be borne in mind that a freehold tenure was not the less one though the soile be charged with free services or others. Cowel, , s.v. Hist, of the Manor of Castle Combe, p. 147Google Scholar.

^{page 198 note 2} Ibid. The Domesday of St. Panl's, xxvi, xxvii. Fleta v. 5. In Wales, as late as 1353, when service had been largely commuted for money payments, the townships were divided into three parts: (1) Gwyr Male, or men who rendered money; (2) Gwyr Gweith, or men who gave work; (3) Gwir Tir borth, or men who rendered provision.Palmer, p. 66.

^{page 198 note 3} Year Book 21 Hen. VI. p. 37.

^{page 198 note 4} Compl. Copyh. 12. Hist, of Castle Combe, p. 160, sub anno 1354: Homagium presentat quod Johannes Spondel est nativus domini. Ideo preceptum est Adas Spondel fratri suo quod ipsum habeat ad proximam, sub pena qua incumbit, ad recipiendum terrain nativam de don.ino, etc.

^{page 198 note 5} Britton, III. ii. 12. Villenage est tenement de demeynes de chescun seignur, baili a tenir a sa volunt par vileins services de enprouwer al oes le seignur Et en mesmes les maners de nos auncienes demeynes sount pur vileyns de saunc et de tenementz, les queus porrount estre oustez de lour tenementz et de lours chateus a la volunt de lour seignurs. So in the case of the gebur before the Conquest, who, as liable to certain services, was in the position of a villein in blood, holding customary land, the law was:Si mortem obeat, rehabeat dominus suus omnia. Rectitudines singularum personarum, Thorpe, , p. 186Google Scholar.

^{page 199 note 1} So Fleta, I. 8, 5. Item in eisdem maneriis sunt liberi tenentes et puri nativi, sicut alibi in regno. If Britton's statement be correct, then either pure villeins in Ancient Demesne were less protected by law than servi outside it, which is contrary to all probabilities derived from what we know of ancient demesne, or else we must question the statement of Bracton (f. 6) that servi have a right to salvum waynagium. I incline to the latter alternative. In an article in the Law Quart. Rev. i. 197, Dr. Vinogradoff points out that Bracton copies the greater part of the passage to which his statement as to waynage is appended from Azo, , Inst. I. p. 1077Google Scholar, which is a discourse on slavery. Bracton in his zeal for Roman doctrine, and in order to adhere as closely as possible to the language of his master, nicknames, as Or. Vinogradoff aptly puts it, villeins servi. As Dr. Vinogradoff shows, the clause which follows, stating that servi in ancient demesne enjoyed the right of waynage, is a gloss. The provision (20) of the Grtat Charter, Villanus amercietur salvo wainnagio suo, confirms this view. The power of lords, then, over pure villeins upon demesne was unlimited, saving life and limb, as Fitzherbfrt represents, and as, indeed, is implied in the right to sell them. Supra, p. 195, n. 3.

^{page 199 note 2} Y. B., M. T. 13 Ed. III. (54). Fitzherbert, , Nalura Brevium, sub Monstrauerunt, f. 16 bGoogle Scholar.

^{page 199 note 3} Bracton's language is significant. He says of them (IV. xxviii. f. 209):Proprie dicuntur glebae ascriptitii, which suggests, as is the case, that the word was applied to villein tenure of customary lands improperly; for les Ascriptices, c'est assaveir ceux qui sont tenus labourer les terres de lours signors (Statutd Car. I. Reg. Sicil. c. 149, in Du Cange, s.v.). I suspect that the payment of merchet, which Dr. Vinogradoff (p. 91) frequently finds made by villein sokemen of ancient demesne, is traceable to the same origin, the fact that the land continued to be conceived of as demesne. Cp. Coke, , Coinpl. Copyh. ed. 1673, xiiGoogle Scholar. The king in theory never permanently alienated it, but continued to exercise certain rights over it and even regarded alienations by the feudal owners as encroachments upon his property. See ibid. pp. 106108, and notes. With the maintenance of the idea of contingent revocation may be compared the inquiries made as to the demesne land in the Glastonbury Inquisition, Roxb. Ser. 21: Si dominicum sit occupatura vel foras positum in Hbertate vel vilenagio, et si ita fuerit domino utilius sicut est vel revocatum.

^{page 200 note 1} Sometimes out of ancient demesne we shall meet with the like sort of copy-holds, as in Northamptonshire there are tenants which hold by copy of court roll and have no other evidence, and yet hold not at the will of the lord. These kind of copyholders have the frank tenure in them, and it is not in their lords as in case of copyholds in base tenure.'Coke, , Compl. Copyh. xxxiiGoogle Scholar.

^{page 200 note 2} Bracton (IV. xxviii. 5, f. 209) mentions other privileges; that their villein services were certa et determinata, which was precisely the privilege denied to villeins on demesne lands, and that, being considered free, they were at liberty to leave their holding. Cp. Bracton's, Note Book, ed. Maitland, F. W., London, 1887, vol. iiGoogle Scholar. cases 70 and 281. Et certas fecit consuetudines et seruicia, quod uillanus facere non potest qui tenet villenagium, i.e. a pure villein.

^{page 200 note 3} Y. B., E. T. 13 Ed. III. (27), p. 231. Qar entre lui the lord et ses tenantz a volunte ne poet usage ne custome estre afferme; qar cest sa terre demesne, et il les.poet ous'er a sa volunte demene; where the translator, not understanding the legal point, translates for it is his own land, instead of for it is his demesne land. Per Trewith, arg. on demurrer.

^{page 200 note 4} Dicitur etiam Dominicum Villenagium, quod traditur villanis, quod quis tempestive et intempestive resumere pos it pro voluntate sua et revocare Et sciendum quod dominicum dicitur ad diflerentiam ejus quod tenelur in servitio, et unde dicitur tota die, quod videndum erit quid quis teneat in dominico et quid in servitio. Bract, f. 263.

^{page 200 note 5} Not the pure villein.; See Britton, , III. ii. 12 and Old Tenures, supr. cit. p. 196Google Scholar n. I.

^{page 200 note 6} Villeins sont cultivers de fief demorants en villages uplande & de villeins est mencion fait en le chartre des Franchises, ou est dit que villein ne soit my cy grefement amercie que sa gaigneur ne soit a luy sarve; car de serfs ne fait el my mencion pur ceo que ils ount rien propre que perdrtnt. Le Myrrour, pp. 169, 170. The learned Somner, (Gavelkind, p. 118)Google Scholar identifies upland with molland. Now, as Dr. Vinogradoff (p. 183) poinls out, molmen were customary enants who had compounded services for rent. That composition was possible implies that the services were fixed.

^{page 201 note 1} Fief villain or feudum villanum was a technical term; see Cange, Du, Digby, s.v., Hist, of Law of Real Property, p. 70Google Scholar, Cowel's Interpreter, s.v. Fee.

^{page 201 note 1} Ancient Laws aivl Institutes of England, Thorpe, B., London, 1840, p. 201Google Scholar. Possibly he refers to the spurious Carta Regis Willelmi Conquistoris de quibusdam statutis, 5. Schmid, R., Die Gesetze der Angelsachsen, 2 Aufl. Leipzig, 1858, pp. lx and 335Google Scholar.

^{page 201 note 3} Cil qui custiuent la terre ne deit lum travailer se de lour droite cense; noun le leist a seignurage de partir Ies cultiuurs de lur terre, pur tant cum il pussent le dreit servise faire, 29 (Thorpe, , p. 207)Google Scholar.

^{page 201 note 4} The villani of Domesday are no doubt the ceorls of the preceding period. Stubbs, , Const. Hist. Engl. I. xiGoogle Scholar. The genets, also, as paying rent and doing certain services, are identified by Hale with the villani.Domesday of St. Paul s, pref. p. xxxi. In Rect. Sing. Pers., Thorpe, , p. 185Google Scholar, the word genet is translated villanus. Qu.: Whether ceorl indicateda class, and genet a tenure, in which case both identifications would be valid. Cp. s.v., Schmid genet, p. 596Google Scholar.

^{page 201 note 5} Cense so translated by Kelham, , Laws of Will, the Conq., London, 1779, p. 52Google Scholar, though Du Cange interprets census generally as rent.

^{page 202 note 1} Les naifs ki departet de sa terre ne deiuent cartre faut nauirie quere, que il ne facent Iur dreit servise que apend a lour terre, xxx.

^{page 202 note 2} The pure villein, i.e. the serf holding demesne lands at will on uncertain services, could not leave his holding. Bract, f. 209 s. c. In a case heard in Sussex in 1219 it was laid down as the differentia of a freeman from a villein, quia potest relinquere tenementum. Bract, . Note Book iiGoogle Scholar. case 70.

^{page 202 note 3} Et nota que tenure en vilenage ne ferra nul franke home villeyn, sil ne soit continue puis le temps de non memorie. Ne villeyn terre ne ferra franke home villeyn. Ne frank terre ne ferra a villeyn frank. Old Tenures, p. 6. I take it that the author intended to insist on the difference between tenure in villenage and tenure of terra nativa. Cp. Bract, f. 4 b. Ei qui liber est, villenagium vel servitium nihil detrahit libertatis, and id., f. 192 b. Peisonelibere villenagium nihil aufert libertatis, nee liberum tenementum villano aliquid confert libertatis. So Fleta, III. xiii. p. 193 (ed. 1647).

^{page 202 note 4} As expressed in the judicial decisions, though these were largely due to the teachings of the Church. See below, pp. 204206. Cp. also Fitzherbert, , supra, p. 93Google Scholar, n. 3.

^{page 202 note 5} Od. xvii. 322:

' '

ὖ' ἃ ἦ ἕ

^{page 203 note 1} Littleton, 174, speaking of the possibility of freemen taking land on such services (e.g. meichet) as were exacted of villeins by blood, says: II est le folie de tiel franke home de prender en titl forme terres ou tenementes, a tener de le seignior per tiel bondage. But before the pestilence of 1349 such tenancies are found.

^{page 203 note 2} Dom. of St. Paul's, ciii.

^{page 203 note 3} See Coke upon Littleton, , ed. Butler, , 234, n. Nisi, of Cas.'le Combe, pp. 159, 160Google Scholar.

^{page 203 note 4} Preston (Sussex). Curia tenta &c. Willelmus Motard seisitus est una roda terre que fuit de dominico domini et dat domino de ingressu xij d. et de annuo redditu vj d. &c. Selden Poc. II. 33. 5 P. 160.

^{page 203 note 5} P. 160.

^{page 203 note 6} In the Rect. Sing. Pers. (Thorpe 185) the duty of a Cotsetle upon some lands was to work for his lord every Monday. Nasse erroneously believed Monendayesmen peculiar to Huntingdonshire (Agricultural Cotnmunity of the Middle Ages, p. 42); but the same tenure existed on the manor of St. Paul's at Erdeley in Essex. Isti cotarii debent singulis diebus lune unam operacionem. Dom. of St. Pants, p. 27.

^{page 203 note 7} In the Record of Caernarvon, p. 110, we have a notice of a tenant at will who performed the same sei vices as those who held in villenage.

^{page 203 note 8} Fuller on the Tenures of Land in Cirencester, Bristol and Gloucester Archological Society, ii. 285 (1877). Also ibid. p. 290, the tenure of one parcel of land is described as having been changed from the lower order of labour service lo the higher one of maintaining a plough.

^{page 204 note 1} Calendar of Proceedings in Chancery, I. cxxxvii. London, 1827Google Scholar. It may be observed that the law, which allowed guardians in chivalry, after honourable provision for their wards, to recompense themselves for their trouble by making what they could out of the estate, lent itself to questionable transactions. A guardian would find it more advantageous to let demesne either by a ltase at common law or upon a customary tenure, exacting a fine from the incoming tenant, than to cultivate it through a bailiff, guardianship in chivalry being deemed more an interest for the profit of the guardian than a trust for the benefit of the ward. See Hargrave and Butler's notes on 123 of their edition of Coke upon Littleton.

^{page 204 note 2} For the significance of this pleading see Coke upon Littleton, 73.

^{page 204 note 3} A curious letter is published in the Select Pleas in Manorial Courts, Selden Soc, ii. p. 166, in which a steward complains to the abbot of Bat le: Et sciatis quod si haberem ad manus rotulos curie tempore Willelmi de Lewes ego vobis certificarem multa mirabilia non oportune facta. This refers to a case where a villein tenement had been suffered to lapse into a fieehold. This was in A.D. 1293. It is not to be wondered at that by the seventeenth century, in Guilford's, Lord Keeper opinion, most manors are more than half lost. Lives of the Norths, i. 26, p. 31, ed. 1890Google Scholar.

^{page 204 note 4} Hist, of Castle Combe, p. 81, n.

^{page 205 note 1} Blackstone, , Considerations on Copyholders, 3rd ed., Oxford, 1771, p. 227Google Scholar.

^{page 205 note 2} Fleta, III. xiii. p. 193 (ed. 1647). De donationibus servis factis. Sufficit ad libertatem tantum haec clausulaHabendum & tenendum sibi & heredibus suis, eo quod donator per hujusmodi verba innuit manifeste quod in donatione voluit ipsum esse liberum, quamvis hoc verbum libere non exprimatur, non obstante incerto servitio ac vilissimo, vel mercheto sanguinis, vel aliis talliagiis voluntariis contributis, dutn tamen hujusmodi praestationes fiant ratione tenement! & non ratione personae in donatioue comprehensae & reservatae.

^{page 205 note 3} Littleton, , 174, supra cit., p. 203Google Scholar, n. I.

^{page 205 note 4} Hence the heriot, or fine paid by an heir on his succession to copyhold Williams, Heal Property, pt. iii. ch. i.. Qu.: Whether copyholds of frank tenure (supra, p. 200, n. I) were not an exception.

^{page 205 note 5} In a case reported in Bract, . Note Book, iiiGoogle Scholar. case 1814, tried in 1227, the doctrine of constructive manumission, and with it of a constructive grant of fee simple, was carried to an extravagant length. In this case the father of the defendant had granted the plaintiff, son of a villein by blood of the grantor, the villein holding of the grantee's father for the life of the grantor, tenendum libere, upon certain rents and services. No manumission accompanied. On the death of the grantor the grantee obtained a renewal from the heir of the grantor upon payment of a fine. Held, upon an assise of novel disseisin by the grantee as plaintiff, that the grant to the villein's heir of the land held by the villein tenendum libere was a grant to a man and his heirs, even though no manumission were expressed.

^{page 205 note 6} Item, si in charta contineatur, & sine manumissione expressa, habendum & tenendum libce, quiete et pacifice, sibi & heredibus suis, licet homagium non intervenerit, innuitur per hujusmodi verba & vehementer praesumitur, quod donator voluit eum esse liberum.Bract. I. viii. f. 24 b. So Britton, I. xxxii. 6.

^{page 206 note 1} I take this, though with some doubt, to be the meaning of Case 1918 in Bracton's, Note Book, iiiGoogle Scholar. It was an action by A, the son of W, for unjust disseisin. The jury found that W had been manumitted by the lord of the manor ita quod redderet ei pro tenemento suo iiij solidos et iiij gallinas et manducaret secum quando tulerit gallinas pro omni servitio. Upon his death his son A refused facere antiquas consuetudines, for which he was evicted. He then brought an assise of novel disseisin and obtained judgment. The most destructii e influence exercised by the King's Courts over the manorial jurisdictions consisted probably in the inclination of the higher tribunal to narrow the area of land held on tenures traceable to the ancient villenage, Maine on Early Lam Custom, London, 1883, p. 315Google Scholar.

^{page 206 note 2} Y.B. II Henry VII. p. 13. Villenagium. Per quel acte villein sera enfranchi ou manumission in ley. Et e contra Si le Seignior a luy the villein fait leas pur terme dans, ceo est enfranchisement, pur ceo que il prist interest en le terre vers le seignior. This was laid down by Hussey, Chief Justice of the K.B. (William Huse, in Foss's, Tabulae Curiales, London, 1865, p. 44)Google Scholar.

^{page 206 note 3} Houard, , Anc. Loix, i. 96Google Scholar. Hist, of Castle Combe, p. 240, sub anno 1436, April. Praeceptum est per senescallum quod nullus tenens hie implacitet alium tenentem hujus manerii in curia Christianitatis sive in alia curia quacumque, pro aliqua causa quae hie terminari poterit, nisi pro causa rationabili elc. sub poena vj s viii d. In 1447 the injunction was rei ewed (ibid. p. 244), and in 1455 the penalty was increased to forty shillings (ibid. p. 246.) Bracton says plainly that the reason why placita de nativis were triable only in the King's Courts was propter favorem libertatis (III. vii. f. 105 b).

^{page 207 note 1} Nee liber homo, si sic in villenagio tenuerit, contra voluntatem domini villenagium retinere poterit Bract. IV. xxviii. f. 208 b. A fortiori, a feoffor could eject servum sub potestate existentem i.e. on the demesne de tenemento quod ei dedit libere tenendum. If he did so, it was incumbent upon him to do some act indicating resumption of dominium, otherwise the serf could bring an action against the feoffor upon his own grant. Bract. IV. xxi. f. 192 b.

^{page 207 note 2} The Use of the Law, Works, VII. 485. So another lawyer of the same age, Charles Calthrope, speaking of the gradual growth of tenants' rights, says: Even so may be said of coppyholis, as long as the tenants themselves be free, though their tenure were at the beginning never so bound and base (On the relation between the lord of a manor and the copyholder his tenant, London, 1635, p. 7)Google Scholar. So Coke upon Littleton, 73: And Britton saith that some that be free in blood doe hold land in villenage; and Littleton himself in the next chapter calls them tenants by base tenure.

^{page 207 note 3} Fitzherbert, , Surueyenge, ed. 1539, f. 18Google Scholar. Littleton's, Tenures, 78Google Scholar. So the anonymous Elizabethan commentator on Littleton invents the foolish reason for it that more certain notice might be given of the transmission of possessions, p. 189, ed. by Cary, Google Scholar. Littleton's words are: Auxi y sont autres tenauntes que sont appelles tenauntes per le verge, et tielx tenauntes sont en autiel nature come tenauntes per copy de court-rolle. Littleton then describes the proceedings. Coke's comment is: This tenant by the verge is a meere copiholder, and taketh his name of the ceremony of the verge. It is to be observed that, as shown by the form of surrender in Fitzherbert (p. 18), the tenant held at the lordes wyl, after the custome of this manor.

^{page 208 note 1} See supra, p. 194, n. 5.

^{page 208 note 2} Vilenage est tenement de demeynes de chescun Seignur, baili a tenir a sa volunt par vileins services de enprouwer al oes le Seignur, et liver par verge et nient par title de escrit ne par successioun de heritage. Britton, III. ii. 12. From this it appears that the verge was not introduced for the first time upon the admission of Ireemen to these tenancies. It probably indicates a period when writing was a rare accomplishment. In its origin it may possibly have been symbolical of the lord's right chastiser a sa volunt. Old Tenures, p. 7. We may compare the phrase dum fuerint sub virga et potestate patrum suorum. Fuller, , Tenures of Land in Cirencester, Brist. & Glouc. Arch. Soc, ii. 307Google Scholar. Houard, (Anciennes Loix des Franois, Rouen, 1779, i. 109, no, 6)Google Scholar suggests that it represented a spear, the emblem of power, actually delivered to the Merovingian kings as a token of investiture with the royal dignity, and replaced at a later date by a sceptre. When the king conferred a fief without the power of alienation, he made the grant by ihe sceptre (ibid. p. 101); so lords enfeoffed vassals by the verge: vide Du Cange s.v. festuca. The rod may, however, have been used to represent a symbolical traditio, descended from the Roman law (Just. Inst. II. i. 40), called in English law livery in deed. Coke upon Littleton, 59.

^{page 208 note 3} Supra, pp. 199200.

^{page 208 note 4} The other dwellers in ancient demesne (i.e. other than the socmen) held in pure villenage, and their successors in old books are sometimes styled tenants by the verge in ancient demesne. SirTomlins, T. E. in his edition of Littleton's Tenures, p. 113Google Scholar.

^{page 209 note 1} Record of Caernaivon, sup. cit. p. 196, n. 3.

^{page 209 note 2} E.g., in a case of trespass heard in 1505, in which plaintiffs were lords of the manor and defendants customary tenants, the defendants plead inter alia que les dits xx acres de terre ou &c sont & hors de temps de memori ont este customarie terres, et nient en demeasne, &c. Tropnell and another v. Kyllyk, M.T., 21 Hen. VII. (Keilwey's, Rep. p. 77)Google Scholar. Cp. supra, p. 204.

^{page 209 note 3} Infra, pp. 219, 220.

^{page 209 note 4} Ch. 13, p. 30, ed. 1539. And in myne opinion it began sone after the conquest.

^{page 209 note 5} Ib. p. 12, sub Droit Clos. Et cest terme que est ore a cest jour appel copitenants ou copiholders, ou tenaunts per copy, est forsque vn nouel terme troue, car dauncient temps, ils fueront appels tenaunts en villenage, ou de base tenure, & ceo apparoit per les auncient tenures, que cenx tenaunts que teigne per virge ou en base tenure ou per copyde court roll fueront donque appels & nosmes tenaunts queux teignent en villenage: car tenaunts per copy de court roll ne sont specifies, ne nosmes la per tiel nosme, mes uncore a tiels temps fueront tiels tenaunts, mes donque ils fueront appels tenants in villenage ou de base tenure.

^{page 210 note 1} The common pasture is called in one passage of the Welsh laws the common waste of the township (Palmer, , p. 42, n. 3)Google Scholar. See Williams, on Real property, Bk. I. ch. v. Digby, pp. 18, 19, 27, 55Google Scholar.

^{page 210 note 2} Foiston v. Crachroode, M.T. 29 & 30 Eliz. Coke, Rep. Pt. IV. 31 b. pi. 25, n. A.

^{page 210 note 3} Ibid. n. B. There were no rights of common over wastes in demesne, a fact which, taken together with the special custom above mentioned, suggests that the later claims of the lord over the waste may have frequently been pure usurpation (Bracton, , Note Book II. case 330)Google Scholar.

^{page 210 note 4} Prologue to the book of Surueyenge.

^{page 210 note 1} There be many freemen taken as bondemen, and their landes and gooses taken fro them, so that they shall nat be able to sue for remedy, to proue ihem selfe fre of blode. And that is moste commonly where the free men haue the same name as the bondmen haue, or that his auncesters, of whome he is comen, was manumysed before his byrthe. In suche case there can nat be to great a punyshment. (Ch. 13, p. 31, ed. 1539).

^{page 211 note 1} Ibid. ch. 41. The meaning of this is that whereas copyholds were generally granted for the life of the tenant, renewable on fine, the special grant for lives in remainder would be a compensation to him for the work imposed upon him by the inclosure. See infra, pp. 248, 249.

^{page 211 note 2} Latimer must surely have had Fitzherbert's book in mind when, in his first sermon before Edward VI., he said: Surueyers there be, that gredely gorge up their couetous goodes; handmakers I meane, honest men I touche not, but all such as suruey, they make vp theyr mouthes, but the commons be vtterly vndone by them. And Crowley, , in his epigram Of Rente Raysers (E.E.T.S. p. 46)Google Scholar

A manne that had Iandes

of tenne pounde by yere,

Surueyed the same

and lette it out deare;

So that of tenne pounde

he made well a score, &c.

^{page 211 note 3} London, 1635, p. 4, foll.

^{page 212 note 1} This loose use of the term in villenage is not infrequent, arising from the false identification, already mentioned, of villeins and nativi. An example of it occurs in the Placit. Abbr., T.T. 15 Ed. I. p. 213. Berks. Henricus Dymmock dedit per cartam suam Willelmo de Bereford unum messuagium & unam virgatam terrae cum pertinentiis in Westwitenham, videlicet, illud messuagium quod Johannes Gowyn tenuit in villenagio. Item dat dictum Gowyn, Johannem nativum suum. Cp.supra, p. 195Google Scholar, n. I.

^{page 212 note 2} Coke upon Littleton, 73, n. (a). Coke adds: And so doth Fleta call them, & belore him Ockam, who wrote In the reign of Henry II., spake of them, & how & upon what occasion they had their beginning. The re'erence to Fleta is II. 71, 15, but this does not carry us further back than the date of the Extenta Manerii. In the manors of St. Paul s at about the same period, they bore the same name (Domesday of St. Paul's, p. 154) The reference to Ockam I have not been able to verify. Hargraves has a note that Ockam's work is unknown. Perhaps Coke intended a reference to the Dialogus de Scaccario, by some ascribed to Ockam, but shown by Madox to have been the work of Richard Filznigel, bishop of London in the reign of Henry II. Cp. Liebermann, , Einleitung in den Dialogus de Scaccario, Goetlingen, 1875Google Scholar. I have not, however, been able to fix the passage intended by Coke.

^{page 212 note 3} Bracton's, Note Book iiiGoogle Scholar. Case 995. In 1221 a defendant is described as villanus et consuetudinarius. Selden Soc. I. case 138. Nasse (p. 39) remarks that in the Placit. Abbrev., p. 161, villanus and consuetudintrius are identical. Cp. supra, p. 195, n. I.

^{page 213 note 1} Item de custumariis qui possunt talliari ratione sanguinis nativi, & qui non. Fleta II. 71, 15.

^{page 213 note 2} Littleton, , Tenures, 172Google Scholar.

^{page 213 note 3} Otherwise, as was argued in the case of a bondwoman holding upon demesne, par ley de tere tut ceo qe le vileyn ad si est a soun seignour. Y. B. E. T. 13 Ed. III. (27), p. 235. Cp. ibid. M. T. 13 Ed. III. (54), p. 102. Britton, II. vii. I.

^{page 213 note 4} Si agat de conventione & dominus excipiat de servitute, replicare poterit de facto domini sui, sicut supra dicitur de feoffamento: nee debent jura juvare dominum contra voluntatem suam, quia semel voluit conventionem, & quamvis damnum sentiat, non tamen fit ei injuria, & ex quo prudenter & scienter contraxit servo suo, tacite renunciavit exceptionem villenagii. Bract, , f. 24, b. Cp. infra, p. 220Google Scholar, n. I, & 227, n. I.

^{page 213 note 5} Ch. 18, p. 38, ed. 1539.

^{page 213 note 6} Edited by H. Cary, London, 1829, p. 194.

^{page 214 note 1} That it was binding on both sides appears from the most authentick explications of this engagement. Wright, on Tenures, 1730, p. 13Google Scholar, n. Wright, quotes from Rav. in Cons. Feud. Lib. II. Tit. 6, p. 115Google Scholar. Dominus non tenetur jurare Vassallo fidelitatem, sed in effectu tenetur sibi in tantum absque Sacramento in quantum tenetur vasallus Domino cum Sacramentoet vice mutua est obligatus Dominus vasallo suo virtute dictae fidelitatis (scilicet) a vasallo juratae.

^{page 214 note 2} Littleton, , Tenures, 553Google Scholar, and Bract. II. 81, cited by Coke upon Littleton, , 551. Infra, p. 258Google Scholar, n. 2.

^{page 214 note 3} Ashley, on the Character of Villein Tenure, p. 5Google Scholar.

^{page 214 note 4} Const. Hist. Engl. ii. 453.

^{page 214 note 5} Y. B. 32 & 33 Ed. I. p. 514.

^{page 215 note 1} The plaintiff obtained judgment on the ground, apparently, that it was a liberum tenementum. The defendant, assuming it to have been a holding in villenage, would have been justified in evicting him for asserting it to be his free hold; this being held to be to the disinheritance of the lord. This fact has to be borne in mind in considering cases of this class. See Y. B. M. T. 13 Ed. III. 54, P. 104.

^{page 215 note 2} Another case, heard in 1224, is to the same effect. Here the defendant in an assise of novel disseisin pleaded quod idem Willelmus the plaintiff 'est uillanus et terra ilia est uillenagium et debet ei has uillanas consuetudines. The plaintiff had refused the services, alleging frank tenement. The judgment was quod Willelmus conuictus est de vilenagio et si facere uolueiit predictas consuetudines teneat illam bouatam terre per easdem consuetudines sin autem faciat Bartolomeus de terra et de ipso Willelmo uoluntatem suam ut de uillano suo et ei liberatur.Bracton's NoteBook I. case 913 and III. case 1103. Clearly the lord had no power to evict if the tenant rendered his customary services, although, as the concluding phrase seems to indicate, the tenant was a nativus. The services were often refused, generally on the plea of freedom or frank tenement, and a writ De consuetudinibus & seruitiis lay to enable the lords to exact them. (Fitz, . Nat. Brev. 81.)Google Scholar On other legal aspects of these cases, see below, p. 226.

^{page 215 note 3} In the Domesday of St. Paul's, p. 52, occurs: De terris Akermannorum. Terre Akermannorum quas dominus potest capere in manu sua cum vult sine injuriis hereditarie successions. The meaning of the last clause is not quite clear, but only two alternatives are possible. It either implies that the rule of hereditary succession was general upon the manors of St. Paul's, subject to this exception, or that the resumption by the lord of the land of the Akermanni did not involve the exclusion of their heirs. Either interpretation confirms the contention of the text. The Akermanni are not mentioned in Du Cange. Hale gives reasons for believing that in this case, at any rate, they were servi.

^{page 215 note 4} A case somewhat less strong, inasmuch as it does not appear that the tenant was a villein by blood, is given in the Y. B. 42 Ed. III. c. 25. In this case a prior brought an action of trespass after eviction. The defendant pleaded that the land was his freehold. The jury found que le dit J. tient mesme le terre del Prior per copy de court rolle a volunte le Prior, pur ce que fut niefe terre, & pur ce que J. ne voet faire ses services de le terre, le Prior le seisist. It is clear from this that a plea of non-feasance of service was necessary to justify eviction.

Professor Ashley quotes, p. 5, from the Staffordshire Collections, Pt. V. i. p. 81, a case in which the Abbot of Burton, in 1280, annoyed by some proceedings which his villeins of Mickleover had ventuied to bring against him in the royal courts, proceeded to evict them all and to seize their cattle. The sheriff sent a writ for the restoration of the cattle; but it was never obeyed; and when some of the tenants brought an action for theft, the Abbot boldly answered that, being villeins, nothing was their own but their bellies, and they could get no remedy. Apparently it never occurred to the sheriff to order the restoration of their tenemem s; and although they were finally reinstated on paying heavy fines and acknowledging themselves to be serfs at the will of their lord, it was of the Abbot's free grace. In inferring from this the insecurity of villein tenure, Professor Ashley appears to have overlooked certain important points. In the first place, the case opens with the statement that the customary tenants of Mickleover claimed to be free tenants. In other words, they refused to do their villein services. The Abbot, therefore, if the land was, as he proved, held in villenage, was justified in evicting them; while, if he failed to prove they were serfs on demesne, he was not justified in seizing their cattle. See Y. B. 42 Ed. III. p. 25. In the next place, the villeins asserted that they were tenants of Ancient Demesne. They failed to prove this: but the plea suggests that the Abbot's case was that they or some of them were nativi upon his demesne, which sufficiently explains his statement that they held nothing extra ventrem. It is to be observed, too, that six who made submission did so in the terms that they were nativos ad voluntatcm domini. Another of them acknowledged himself to be the Abbot's native, holding at the will of the Abbot in villenage for certain recited services, and for his promise to perform these he was readmitted, and thirty-one others upon similar terms. The case entirely supports, so far as it goes, my contention that while nativi on demesne were unprotected, even nativi on customary land enjoyed security subject to performance of services.

In an Inquisition of the Abbey of Cirencester, belonging to the thirteenth century, it is recited that In villa de Cirencestria sunt diversi terram tenentes qui tenent de predicto Abbate ut de manerio predicto et de jure ecclesie sue et fer opera nativa, redditus, servicia et consuetudines subscripta, videlicet Johannes Gyfford, webbe, qui &c. The services &c. of this weaver are then set down, and a covenant of re-entry follows for the benefit of the Abbot in the event of waste, non-payment of rent, or alienation without the lord's leave; not, it is to be observed, in default of services, that being an implication of the tenure. Clearly, it the tenant had no security against arbitrary eviction, these covenants were superfluous. Fuller, pp. 3125.

^{page 217 note 1} In ancient court-rolls villeins are distinguished as villani capitis, or villeins by blood, from the villeins ratione tenurae. T. E. Tomlins'edit, of Littleton's, Tenures, p. 241Google Scholar.

^{page 217 note 2} Non est tam liber homo qui non habet arare et cariare cum plaustro si habet vel cum biga &c. Cirencester Abbey Register in Fuller, p. 286.

^{page 217 note 3} Placit. Abbrev. T. T. 30 Ed. I., Northt. p. 246. Juratores dicunt quod Johannes de Brochull de Wedon est villanus abbatis de Becco Herlewini talliabilis de alto et basso ad voluntatem suam. Et dicunt quod pro eo quod fuit rebellis, Willelmus de Grafton senescallus ipsius abbatis ipsum cepit & in cippis posuit. It is to be observed that the record uses the generic term villanus; but we know from Home that serfs, as distinguished from villeins, might be put in the stocks by their lords. See supra, p. 195, n. 3.

^{page 217 note 4} T. T. 18 Ed. I. p. 221. The merchetum, or fine paid to the lord on the marriage of a daughter, was a special mark of villein blood. Y. B., E.T. 10 Ed. III. 41, p. 22. For its origin see Du Cange, sub Marcheta. Bracton says (II. viii. 2), Merchetum vero pro filia dare non competit libero homini, inter alia, propter liberi sanguinis privilegium, &c. Cp. Littleton, , Tenures, 174Google Scholar, 209. A learned discussion of the term appears in the introduction to Y. B. 15 Ed. III. by Mr. Pike, the editor.

^{page 217 note 5} Fleta, ii. 71, 71. The Extenta Manerii (4 Ed. I.) has the same words, with the addition ad voluntatem domini after non. In the Placit. Abbrev., 52 Hen, . III. p. 161Google Scholar, is a curious case in which the villeins upon the demesne of a manor having been evicted for refusal of services brought an action against the evictor, who in some capacity not stated represented the Crown, on the ground that they were socmen. The defendant, Petrus de Nevill, dicit pro domino rege quod ipsi sunt villani domini regis et debent facere pro terris suis omnimoaas consuetudines villanas; talliari ad voluntatem domini regis vd illius qui tevram illam tenuerit ex commissione domini regis, & maichetum facere pro tiliabus suis maritandis et non possunt vendere pullum masculum nee bovem suum qui sibi orti fuerint sine licencia &c.

^{page 218 note 1} Fleta, I.e., sine destruccione & exilio faciendo. The same phrase is used in the conclusion of the last case. For a case in which such excessive impositions had been exacted see Y. B. 14 Ed. III. n. I.

^{page 218 note 2} See supra, p. 205. Blackstone, , Considerations on Copyholders, p. 227Google Scholar. The importance of understanding the origin of this form will be seen by the fact that it is upon it that Professor Ashley bases his argument that copyholders had no security. See p. 5 of the Character of Villein-tenure.

^{page 218 note 3} Supra, p. 200.

^{page 218 note 4} See Seebohm, , Engl. Village Community, 2nd ed. p. 30Google Scholar.

^{page 218 note 5} And here it will be necessary to distinguish two senses of the word franktenement or freehold. By the word freehold, then, is sometimes meant the interest or estate itself which the tenant holds in the land; sometimes the tenure by which that estate is holden. Therefore a tenant in fee-simple, fee-tail, or for life is said to have a freehold interest, whatever his tenure may be; but none except he who holds, or did hold, by knight's service, in free socage, or in frankalmoign can be said to have a freehold tenure.Blackstone, , Cons, on Copyh. pp. 222Google Scholar 223. Cp. Coke, , Compl. Copyh. 1517Google Scholar. A freehold is taken in a double sense. In respect of the state of the land; so copyholders may be free-holders, &c. On which passage see Blackstone, I.c.

^{page 218 note 6} Dautre part devient serf frank si son seignor luy graunt doner franke estate (Le Myrrour, p. 167).

^{page 218 note 7} Compl. Copyh. 32. Such tenures are called customary freeholds. See Tomlins' note to Littleton, , Tenures, 73Google Scholar.

^{page 219 note 1} Tenures, 174. See supra, p. 203, n. I.

^{page 219 note 2} Y. B., E. T. 13 Ed. III. case 27 (1339), in which, after establishing the point that custom could not be pleaded between a lord and villeins upon his demesne, counsel goes on to say, Quil y ont xxiiij hides de terre del dreit del eglise de seint Paule, deinz queux eel manoir est, ou lusage est tiel que les franks deinz les hides poient vendre leurs terres, &c.

^{page 219 note 3} Cp. Digby, p. 25. Mr. Digby speaks as though this doctrine was of Norman origin; but it is significant that genet-land, which was held by freemen for rent and services, like customary freehold, was divided into tland and inland (the demesne), as though all belonged to the lord (Schmid, p. 596). So Coke, (Compl. Copyh. 1214Google Scholar ) quotes Bracton, IV. iii. cap. 9, num. 5, and Fleta, v. 5, to show that copyhold land was in law part of the lord's demesne, though this does not seem to have been judicially decided till the reign of Elizabeth when it was held that if the lord of a manor granteth away omnes terras suas dominicales, the copyholds, parcell of the manor, pass by these general words. Coke, I.c.; but qure in the case of the king. Gilbert, on Tenures, ed. 1824, p. 407Google Scholar. See also supra, p. 210, n. 3.

^{page 219 note 4} Per Cur. in Brown's case, Coke, , Rep. ii. 319Google Scholar.

^{page 220 note 1} Tenures, 82. Coke's translation. Qar tenant a volunte solonques le custome poet aver estate denheritaunce, come est avaundit, al volunte le seignour solonques le custome et usage del manor, and cp. supra, p. 186, n. 2. On common law tenancy at will see Littleton, , Tenures, 68Google Scholar.

In Y. B. 5 Ed. IV. p. 12, upon an objection taken to pleadings, common law tenancy at will is contrasted with customary tenancy at will. Et la barre fut challenge pur auter cause, pur ceo que n'est monstre en son pie coment il est tenant a volunte & ceo est traversable, & purceo covient estre monstre coment il tient a volunte del lessor, ou per sufferance a tener a volunte, ou per feoffement a luy & a les heires a tener ad voluntatem domini secundum consuetudinem manerii &c. On tenant at sufferance see Coke upon Littleton, 72. In Y. B. 14 Ed. IV. p. 6, Littleton himself argued a case of the lessee at will (i.c. at common law) of a manor, the lessee's occupation being determinable al volunt son lessor. Similar cases of the leasing of manors at will are in the Y. B. Hen. IV. and Hen. V. (See index, pt. 6.) Also 21 Hen. VI. p. 37. Manors were habitually so leased, especially upon ecclesiastical property. Domesday of St. Paul's, pp. xxxviii-xli. The difference between the two tenancies at will was interpreted by later lawyers to be this, that in copyhold the tenure was after the ancient will of the first lords, Wright's, Tenures, 1730, p. 221Google Scholar. Cp. supra, p. 213, n. 4. As Coke puts it, His commencement is at the will of the lord (Compl. Copyh., xxxii.).

^{page 220 note 2} Surueyenge, ch. 17, p. 35, ed. 1539. In accordance with the precepts of Fitzherbert, upon a survey of the lands of Sir J. Bulmer, attainted in 1537, the tenants are given in separate liststhe freeholders, tenants by indenture and copy of court roll, and tenants at will. Gaird, . Letters and Papers, XIII. ii. 44Google Scholar. Cp. Dugdale, , Monast. i. 262Google Scholar, for the computus of Malmesbury monastery, and alibi. It should be observed that Fitzherbert's words are tenaunts by indenture or tenauntes at the lordes wyl, showing that he had in view the demesne, on which those two classes of tenants were lo be found.

^{page 220 note 3} According to Coke, between the fourteenth and twenty-first years of Ed. IV. (Preface, p. xxxiii.)

^{page 221 note 1} Socage en ancien tenure est a tenir en ancien demesne ou nul brief courte forsque le petit brief de Droit Clos: que est appelle secundum consuetudinetn manerii (Old Tenures, p. 5, ed. 1525). A case heard in 1202 suggests that customary courts first arose among the holders in villenage upon ancient demesne (Placit. Civil., Selden Soc, iii. 123).

^{page 221 note 2} Supra, p. 199.

^{page 221 note 3} Supra, p. 208. As to the early commutation allowed them, infra, pp. 222, 223.

^{page 221 note 4} Supra, p. 199.

^{page 221 note 5} Bracton, IV. xxviii. f. 209. Quod dicitur socagium villanum, et quod est villenagium, sed tamen privilegiatum. Villana autem faciunt servitia, sed certa et determinata. The language of the Act 1 Ric. II. c. 6 indicates that the object of the false claims of ancient demesne was to escape predial service. Ils saferment destre quites & outrement deschargez de tout maner de servage, due sibien de lour corps come de lour tenures avauntditz.

^{page 221 note 6} II. 843, 844.

^{page 221 note 7} I take this to be the meaning of tenet j cotagium libere, as he is not among the libere tenentes, a list of whom follows. He held by socage in frank tenure, which is described as a tenir frankement pur certeyn rent pur toutz maners des services (Old Tenures, p. 5, ed. 1525), while they added liberum servitium to their money compositions. See Cow el, Interp. s.v.

^{page 222 note 1} M. T. 13 Ed. HI. (54), p. 103.

^{page 222 note 2} I Ric. II. c. 6. Les villeyns & terre tenantz en villenage, qi deyvent services & custumes a lour seigneurs, ount ore novelment retret & retreient de jour en autre lour custumes & services duez a lour ditz seigneurs, per confort & procurement dauters lours conseillours meyntenours & abettours en paiis qont pris louer & profit des dites villeyns & terre tenantz, per colour de certeins exemplifications faitz hors de livre de Domesday.

^{page 222 note 3} The object of this proceeding apparently was to assure the villein in demesne security of tenure and fixed services, while, as appears from the Act, the tenant in ancient demesne could not be proceeded against by other lords for subtraction of services, except in the court of the manor of ancient demesne. This enabled him to set at defiance the courts of other manors in which he held lands, and for which he was liable to service. See Hale's Introd. to the Domesday of St. Paul's, p. lviii.

^{page 222 note 4} 4 Ed. I. stat. I.

^{page 222 note 5} Item, inquirendum est quot campi sunt in dominico, et quot acrae terrae sunt in campo et quantum valet quaelibet acra per se per annum; item, inquirendum est quot acrae prati sunt in dominico, et quantum valet quaelibet acra ad locaudum per se per annum. So Fleta, ii. 71, 3 and 4.

^{page 223 note 1} Fuller, p. 301.

^{page 223 note 2} Id. p. 304.

^{page 223 note 3} Fuller, p. 310. In 1206 we read of a remission of villenage for a fixed rent (Selden Soc. III. c. 78).

^{page 223 note 4} Hist, of Castle Combe, p. 81, always reserving the right to evy tallages ratione sanguinis nativi. See ibid. pp. 22325.

^{page 223 note 5} Domesday of St. Paul's, pp. lvilix.

^{page 223 note 6} Rogers, , Hist. Agric. iv. 3Google Scholar.

^{page 223 note 7} I Ric. II. c. 6.

^{page 223 note 8} Quia magna pars populi & maxime operariorum & servientium jam in ista pestilentia est defuncta, nonnulli videntes necessitatem dominorum & paucitatem servientium servire nolunt nisi &c. 23 Ed. III. c. I. Cp. 25 Ed. III. stat. 2, cc. i, 2 (1351); 31 Ed. III. c. 7 (1357); 34 Ed. III. cc. 9, 10, 11 (1361); 42 Ed. III. c. 6 (1368).

^{page 223 note 9} In the appendix to MrPalmer's, Hist, of the Ancient Tenures of Land in the Marches of N. Wales, p. 130Google Scholar. The date of the return is apparently the reign of James I.

^{page 224 note 1} So in the Hist, of Castle Combe, a tenant is admitted on payment of a fine: Et dictum tenementum concessum est ei ad tarn parvam finem, eo quod dictum tenementum est ruinosum ct decassum, et existebat in manu domini a tempore Pestilenti, pro defectu emptorum (sub anno 1357, p. 161).

^{page 224 note 2} In Bracon's, Note Book, iGoogle Scholar. case 916, an assise of novel disseisin is brought by William Fitzhenry against Bartholomew Fitzeustace. Et Bartholomeus uenit et defendit iniuriam et dicit quod idem Willelmus est uillanus et terra ilia est uillenagium et debet ei has uillanas consuetudines, scilicetthen follows a long list of customary services alleged due. E. Willelmus defendit omnes illas consuetudines et dicit quod non debet inde nisi tres solidos et iiij denarios per annum pro omni seruicio, et inde posuit se super iuratam. (A.D. 1224.)

^{page 224 note 3} The Liber Niger of Peterborough dates from 1125; the Boldon Book of Durham from 1183; the Domesday of St. Paul's from 1222; the Register of the Trioiy of St. Mary, Worcester, from 1240; the Cartulary of Newminster from 1250; that of Gloucester from 1266; the Rotulus Redituum of the Abbey of Kelso from 1290. All these were extents of manors belonging to ecclesiastical foundations. Court rolls are said to exist as early as the reign of John, though the most ancient known are those of Bee (1246) and Letcombe Regis, both ecclesiastical manors (Selden Soc. II. xii.). The earliest court roll of Castle Combe, n lay manor, belongs to 1340.

^{page 224 note 4} In the manor of Cirencester all tenants were on the court roll as early as 1402 (Fuller, p. 317).

^{page 225 note 1} In the roll of the court of the manor of Castle Combe occurs an entry sub anno 1355, Nov. 20. Thomas le Walkar dat domino iii. d., pro rotulo curiae scrutando pro tenura sua unius tenement, &c. Fitzherbert, writing in the early part of the sixteenth century, says: In many lordeshyppes there is a customary roole betwene the lorde and his tenauntes, and it ought to be indented, one part to remayne in the lordes kepynge, the oiher parte with the tenantes, and dyuers trewe copyes to be made of the same, that the rentes and customes ronne nat out of remembraunce (Suruejenge, ch. xiii. p. 31). This certainly suggests that in Fitzherbert's day court rolls were rather the exception than the rule, and accounts for the numerous disputes, down to a much later date, as to uncertain fines, &c.1

^{page 225 note 2} Per Cur. in Brown's case (Coke, , Rep. ii. 319)Google Scholar.

^{page 225 note 3} Supra, p. 196.

^{page 225 note 4} Supra, p. 220, n. I.

^{page 226 note 1} Tenures, 77.

^{page 226 note 2} Preface to Selden Soc. II. xl. xli.

^{page 226 note 3} Supra, p. 218, n. 5.

^{page 226 note 4} Bracton's, Note Book, ii. 916Google Scholar, iii. 1103.

^{page 226 note 5} And therefore could not be brought against his lord by a villein. But a villein could bring it against another person. Cf. Hengham, Summa VIII. Villanus non quoad dominum sed quoad extraneos pro libero habetur.

^{page 227 note 1} This point is so important that I subjoin Bracton's account of the action. Est etiam villenagium non ita purum sive concedatur libero homini vel villano ex conventione tenendum pro certis servitiis et consuetudinibus nominatis et expressis, quamvis servitia et consuetudines sunt villanae. Et unde si liber ejectus fuerit, vel villanus manumissus vel alienatus, recuperare non poterunt ut liberum tenementum cum sit villenagium, et cadit assisa, vertitur tamen in juratam ad inquirendum de conventione, propter voluntatem dimittentis et consensum, quia si querentes in tali casu recuperaverint villenagium, non erit propter hoc domino injuriatum propter ipsius voluntatem et consensum, et contra voluntatem suam jura ei non subveniunt &c. (Bract. IV. xxviit. f. 208).

^{page 227 note 2} Bracton's, Note Book, III. 1715Google Scholar. Heard in Hil. T. 1226.

^{page 227 note 3} Infra, pp. 240243.

^{page 227 note 4} Le Myrrour, pp. 171, 305.

^{page 228 note 1} Tenant a volunte par copy de Court roll auer sub pena vers son seignior s'il luy oust, par Kyrbb qu. Kyrkeby & Pole en sub pena en la Chauncerie. (Y. B. 32 Hen. VI. 3.)

^{page 228 note 2} Supra, p. 224, n. 3.

^{page 228 note 3} Mr. F. W. Maitland, Selden Soc. II. lxvi.

^{page 228 note 4} Placit. Civil. Surrey, M.T. 1202. Et dicit Prior quod totum manerium illud fuit dominium domini Regis Henrici et omnes qui terras tenent in eo fuerunt villani domini Regis et sunt modo villani prioris sicut prius fuerunt villani domini Regis et dicit quod nunquam solebat fieri assisa vel jurata de terris ejusdem manerii, sicut nee dominicis domini Regis sed secundum consuetudinem maneriorum domini Regis solebat fieri inter villanos jurata in manerio ipso et non coram justiciariis, &c. (Selden Soc. III. 123.) I cannot assign any other meaning to this than that of the text.

^{page 228 note 5} Selden Soc. II. I.c.

^{page 228 note 6} Paris, Matthew, Chron Maj. V. 545Google Scholar. says of William of York, formerly one of the royal judges, that he quandam pro lege consuetudinem pessimam in regno suscitavit; ut scilicet pro quantulocumque tenemento faciat tenens et subjectus suo superiori, a quo videlicet tenet, in magnum subditorum dampnum et detrimentura et superiorum parvum vel nullum emolumentum, sequelam curie etiam invitus. This probably referred to freeholders, but if the lords courts became seised of all freeholders disputes, a fortiori they would decide those of villeins.

^{page 229 note 1} Infra, pp. 233, 234.

^{page 229 note 2} P. 230.

^{page 229 note 3} Pp. 236238. As to the circumstances which led to this, see infra, p. 236.

^{page 229 note 4} I find that Periam, Chief Baron, in the argument of Chudleigh's case, compareth them (cestuis que use) to copyholders, &c. (Bacon, , Reading on the Statute of Uses, Works, VII. 408Google Scholar.)

^{page 229 note 5} On Littleton, 73. Cp. Compl. Copyh. 44. Coke probably takes this from M.T. 21 Hen. VII., Keilwey's, Rep. p. 71Google Scholar.

^{page 230 note 1} Selden Soc. II. p. 24.

^{page 230 note 2} Ibid. p. 35.

^{page 230 note 3} Ibid. p. III.

^{page 230 note 4} Ibid. p. 83. So pro tenuitate curie ponitur in respectum usque ad proximam curiam, p. 67.

^{page 230 note 5} MrMaitland's, pteface to supra cit. p. IxvGoogle Scholar. This preface is a masterly sketch of the constitution of customary courts drawn from the ancient documents edited by the learned writer.

^{page 230 note 6} Munimenta Gildhallae, I. 66. Maitland, Pelden Soc. II. lxix. No-where do we find any clear assertion that the lord's steward is judge. Nelson, who is puzzled by the idea that suitors can be judges, mentions that there is a writ in the Register, directed by the King sectatoribus Curise Baronis &c. Vobis mandamus &c, ad judicium rtddendum. Lex Maneriorum, Nelson, W., 1733, p. 70Google Scholar.

^{page 230 note 7} Selden Soc. II. 26.

^{page 231 note 1} Ibid. 24. Dicit plena curia quod si qua mulier fuerit de dominico plene egressa et fuerit maritata lib ro homini poterit tune bene revertere et recuperare dicta mulier jus et clamium si quod habet in aliqua terra; si autem copulata fuerit servo, tune servo vivente non poterit, set post mortem bene potest.

^{page 231 note 2} Ibid. Pref. Ixxii. In the manor rolls of Castle Combe, dating from about the middle of the fourteenth century, the jurors have already sunk to this position.

^{page 231 note 3} Coke, 4 Rep. 26 b. 6 Rep. 64 a. Cp. the Elizabethan commentator on Littleton, edited by Cary, London, 1829, p. 165. If all the freeholds of the manor but one do escheat, or if the lord do purchase them, now it has become no manor; for there cannot be a court-baron without suitors & not before one suitor only.

^{page 231 note 4} Supra, p. 198, n. 4; infra, p. 251.

^{page 232 note 1} He must have written after 1588, for the resolutions of the judges in Melnich v. Luter, heard in that year (Coke, , Rep. II. 341)Google Scholar, are incorporated in his text.

^{page 232 note 2} A parallel may be found in the case of colleges. These corporations consist of the head, the fellows and scholars; the last two anciently comprised under the title scholares, distinguished into Socii-scholares and scholares proper. The commoners, who generally form the numerical majority, are in law no component part of a college, but mere tenants ad voluntatem.

^{page 232 note 3} Supra, p. 190.

^{page 232 note 4} Selden Soc. II. Pref. lxix.

^{page 232 note 5} In the case of the manor of Belchamp, Essex, there were no freeholders in 1086. A hundred years later there were eighteen libere tenentes in the next fifty years the libere tenentes had increased from eighteen to thirty-four, or nearly double. (Domesday of St. Paul's, xxii.) Upon eighteen manors belonging to the Priory of Worcester, there was in Domesday but one freeman; upon thirteen of these manors in 1240 there were fifty-five freemen. (Reg. of Wore. Priory, pp. xiii., xvii.

^{page 233 note 1} See last note. Also at Fepsinton, in Worcestershire, in 1240, there were no freeholders. (Reg. of Wore. Priory, p. xvii.)

^{page 233 note 2} I incline to the view suggested by Mr. Maitland (Selden Soc. II. xix), that the court named in later days court-baron was the libera curia. The statement chescun manoir de common droit ad un court baron incident al manoir (T. T. 34 H. 6, f. 49, pi. 15) must have some meaning, and the terms sockemanemot, curia villanorum point to a distinction. But this distinction may very well have been more a matter of law than of practice. The chief business of a manor was the determination and enforcement of the services, for which, of course, the customary tenants were competent, but which also involved the free-holders. It may very well be that these, forming the primitive court, called in the villeins to find facts as to services done or due. I notice that this appears to be the view taken by MrClaik, G. T. in his paper on the Manor and Soke of Rothley.Archtrol. xlvii. p. 92Google Scholar.

^{page 233 note 3} 6 Ed. I. c. 8.

^{page 233 note 4} Seldtn Soc. II. liv, lvii. Mr. Maitland attributes to the judges the authorship of the Statute of Gloucester, on the authoiity of V. B. 33 Ed. I. p. 83. This is apparently an error, for the saying of Hengham, nous les feimes, rerers to the Statutes of Westminster the second (13 Ed. I. c. 2) and of Mailbridge (52 Hen. III. c. 9).

^{page 233 note 5} Before 1295 the Abbot of Fcamp used to hold one court at Steyning for both freeholders and villeins. After that time he divided it into two. Rot. Hund. II. 203. The fact that the abbot formerly held one court for both classes was perhaps due to his having no freeholders. None are mentioned in Domesday, 17 a 2, Ellis' ed. I. 17. The opposition to serving at villeins' courts sometimes came from the freeholders. (Selden Soc. II. 94.) The tota curia villanorum is mentioned in the manor of Worthing, Sussex, temp. Ed. I. (Selden Soc. II. lxx.)

^{page 234 note 1} The Abbot of Ramsey seems to have been at great and often fruitless pains to get suitors to at! end, but when the court met it had next to no business to do. (Selden Soc. II. I.)

^{page 234 note 2} Ibid.

^{page 234 note 3} 52 Hen. III. c. 9.

^{page 234 note 4} Autobiography, p. 108. Selden Soc. II. lxiv, n. 2.

^{page 234 note 5} Knighten-Court is a Court-Baron or Honor-Court (Cowel).

^{page 234 note 6} Pp. 161, 163, 165.

^{page 234 note 7} Le Courte Leete, &c. f. 78, ed. 1585.

^{page 235 note 1} Tenures, 74.

^{page 235 note 2} Parallele, London, 1601, p. 18Google Scholar.

^{page 235 note 3} Kitchyn, sub Manerium, f. 4. Mr. Maitland, who in his introduction to the manor of Brightwaltham abandons his disposition to regard these courts as in practice separate, gives an example of the par-on, a freeholder, waging his law in a court full of villeins. (Selden Soc. II. 164.)

^{page 235 note 4} Who ought to be, says Fleta, one qui in legibus consue'udinibusque provinciae & officio senescalciae se cognoscat (II. 72, 1).

^{page 236 note 1} He the lord is a chancellour in his court, & may redress matters in conscience upon a Bill exhibited, where the Common Law will afford no remedy in the same kind. Compl. Copyh. p. 120.

^{page 236 note 2} Nelson, , Lex Maner. p. 71Google Scholar.

^{page 236 note 3} An inhibition is defined by Blount as most commonly a writ issuing out of a higher court Christian to an inferior, upon an appeal. The proceeding in this case was rather in the nature of a prohibition or injunction, which was originally distinguished by the word prohibeo. Fitzh., Nat. Brev. f. 39, treats prohibitions and inhibitions together. The Inhibitio in this case ran: ne in predictis villanis dum fuerint in custodia sua faciat vastum exilium aut destruccionem. The earliest writ of prohibition known to Spence, temp. Hen. I., was witnessed by the Chancellor only. Ct. of Chanc. I. 108 (a).

^{page 236 note 4} The free tenants were protected by the Common Law Writ, founded on Magna Charta, of Ne injuste vexes. See Fitzh, . Nat. Brev. f. 10, but Le Myrrour, pp. 171Google Scholar, 305, speaks of this writ as a right of the villeins then already (temp. Ed. I.) ceasing to be effective per les negligence des Royes. Supra, p. 227.

^{page 237 note 1} Rot. Parl. iii. 44. The language, as will be seen, is vague; but it is difficult to see to what it refers, except to excessive exactions by manorial lords upon their tenants.

^{page 237 note 2} Coke, , Rep. Pt. IV. 21Google Scholar, b.

^{page 237 note 3} See 17 R. II. c. 6 and 15 Hen. VI. c. 4. The Elizabethan commentator upon Littleton, edited by Cary, p. 185, cites these statutes under tenant by copy, which is evidence of repute as to their relevance.

^{page 237 note 4} Rot. Part. iii. 323. None of these petitions refers to questions between tenants in villenage and manorial lords eo nomine. Spence speaks of them as evoked by the interference of Chancery in cases of violent dispossession of land. Seeing thai we know the writ of subpoena to have been at a later date the weapon employed by the Court for the protection of these tenants, while freeholders and tenants in ancient demesne had the protection of the Common Law Courts, we may infer without rashness that these were cases of eviction by lords of customary tenants. The suggestion that these cases were tiiable by Common Law raises the suspicion that Chancery had invaded the Common Law Courts' jurisdiction, or it had extended a protection which the Common Law Courts had ceased to afford. See supra, p. 227.

^{page 237 note 5} Iny.B., H. T. 14 Hen. IV. 342, cited in Fitzh. Abr. sub Faux Iugement: Et dit que la terre fuit tenuz par verge & le franctenement en le seigneur, en quel cas il doit auer sue par bill & nemie par brefe. I incline to interpret this as meaning by Bill in Chancery, and not by the Common Law Writ of Faux Jugement, resort to which also implies previous action in the lord's court. The Elizabethan commentator has, however, his the copyholder's only remedy is to sue by bill, (hat is to say, by plaint in the lord's court, 7 Ed. IV. 19, or by subpoena in the Chancery. The proper word for plaint in the lord's court was petition. See infra, pp. 240, 242. But the Elizabethan lawyers apply the word Bill. Supra, 236, n. I, infra, 243, n. I.

^{page 238 note 1} In 1415. Rot. Parl. iv. 84.

^{page 238 note 2} The Act 17 R. II. c. 6 only empowered the Chancellor to award damages.

^{page 238 note 3} 15 Hen. VI. c. 4.

^{page 238 note 4} In Fitzh. Abr., tit. Sub pena, occurs the following passage. Tenant a volunte per copy de court roll aver sub pena vers son segnior s'il luy oust per Kyrk. & Pole en sub pena en la Chauncerie, an. 32 Hen. VI. This must have been Thomas Kyrkeby, M.R. Pole was a justice of the K.B. They appear to have fat together in Chancery on this occasion. See below, note 8.

^{page 238 note 5} And it seemed, that Conscience whereby his Lordship is to judge, is not to be understood simpliciter, and to be simplex conscienlia, but regulata conscientia, and therein to follow order and course accustomed, viz. to take order in such cases as by the course of the Court hath been ordered before-time. The Antiquity and Original of the Court of Chancery, by Snagg, Serjeant, London, 1654, p. 65Google Scholar.

^{page 238 note 6} In the seventh of Edward IV., when Robert Kirkham, Master of the Rolls, had the Great Seal delivered to him by the King, the following memorandum was entered on the Close Roll of that year: And over this, the King willed and commanded there and thanne that all manere of maters, to be examyned and discussed in the Court of Chancery, should be directed and determyned accordyng to Equite and Conscience and to the old cours and laudable custume of the same court, so that if in any such maters, any difficultie or question of lawe happen to rise, that he herein take th' advis and counsel of the Kynges justices, so that right and justice may be duely ministred to every man. (Introd. to Close Rolls, p. xxxi.) This last clause may account for the presence of Pole, J. in Chancery. See supra, n. 4. Cases in Chancery were sometimes referred upon points of law to the K. B., which returned a certificate. See Coke upon Littleton, 74.

^{page 239 note 1} Pynson's edition of 1516, which is the earliest in the Bodleian Library, here reads voet. The text is taken from the edition of 1586. Coke evidently read poit or poet; but the contemporary anonymous commentator edited by Cary remarks, but in some print the words are ne poet enfreinder, and according to this letter the opinion of Danby, Chief Justice, was in the case before mentioned; for he said, &c. (p. 187). As I understand the legal position of the lord, voet and poet amount to the same thing.

^{page 239 note 2} Tenures, 77.

^{page 239 note 3} It must not be inferred from the fact that Littleton probably stopped short here that he was unacquainted with or dissented from the opinions laid down by Danby, C.J.; for in 82 he expressly says of the heir of a tenant by the custom qe le custome de le maner en ascun case luy puit ayder de barrer son seigneur en accion de trespas, &c.; upon which Coke remarks, Hereby it appeareth that by the opinion of Littleton the lord against the custome of the manor cannot oust the copiholder. This opinion of Littleton's must have been founded, if upon either of the two judgments of Danby & Biian, C.JJ., upon that of Danby, C.J., delivered in M. T. 7 Ed. IV. 19. See infra, p. 240,. 2.

^{page 239 note 4} Y. B., E. T. 13 Ed. III. case (27).Supra, p. 200, n. 3.

^{page 240 note 1} Fitzh. Abr. tit. Faux Iugement, 7. H. 13, R. ii. As to the remedy by petition, see infra, p. 242.

^{page 240 note 2} It could not have been written by Littleton, who died Aug. 21, 21 Ed. IV., i.e. in 1481, whereas the judgment was pronounced in Hilary Term, 21 Ed. IV., i.e. in January or February, 1482; Edward IV.'s years dating from March 4, and Hilary Term then extending only from January 23 to February 12 (Cowel).

^{page 240 note 3} M. T. 7 Ed. IV. 19.

^{page 240 note 4} Cp. infra, p. 246.

^{page 240 note 5} Infra, p. 242, n. I.

^{page 241 note 1} A tenant in fee-simple, fee-tail, or for life is said to have a freehold interest whatever his tenure may be; but none except he who holds, or did hold by knight's service, in free socage or in frank almoign, can be said to have a freehold tenure. Blackstone, , Considerations on Copyholders, pp. 222Google Scholar, 3. Supra, p. 218, n. 5. See also Tomlins' translation of the above report in his edition of Lyttleton's, Tenures, 77Google Scholar.

^{page 241 note 2} This does not quite explain Danby's phrase Le jugement fuit a ma entent, which seems to correct Littleton as to the judgment given by the Common Law judges, but which must, I think, refer to the judgment of the Court of Chancery.

^{page 241 note 3} Procedure at Common Law before Judges of Assize was far less expensive than procedure in Chancery at London. The expense involved in obedience to Chancery wits was one of the special grievances attending their issue. In the session of 1393-4 the complaint of the Commons laid emphasis upon this. Item prie la Commune que par la ou plousours liges du Roialme, par nient vraies suggestions faitz si bien a Conseill nostre seigneur le Roi come en la Chancellarie nostre seigneur le Roi, sont envoiez de comparer devant le dit Conseill, ou en la Chancellarie, sur certeine peyne, a certein jour, per ont les loialx liges du Roialme sont torcenousement travaillez & vexez, a grant damage de voz ditz liges, & pluis an!enlissement de lour estat sans recovenr ent avoir de lour damages & cousages &c. Rot. Parl. iii. 323.

^{page 242 note 1} Tenants of ancient demesne with a freehold estate could have a writ of Faux Jugement or of Droit Clos (de recto clauso). See , Fitzh.Nat. Brev. sub vvGoogle Scholar. Also Fuller, p. 304.

^{page 242 note 2} 13 Ed. I., Stat. of Westminster 2, c. 30.

^{page 242 note 3} The form of the declaration, after recital of the facts, was ad damnumipsius D. quingentarum marcarum, et contra pacem &c. Reeves, i. 160.

^{page 242 note 4} This I take, though with some doubt, to be the meaning of Hankford, J., in H. 14 Hen. IV. 34, quoted by , Fitzh.Nat. Brev. Faux iugement, 5Google Scholar. He says, Cest mater fuit determine pir parlement que toutz les terres que sont tenuz par verge ne serra pledables par brefe einz par byll. I cannot identify the reference to Parliament. See supra, p. 208, n. 2.

^{page 243 note 1} The legal remedies of the copyholder are enumerated by the anonymous Elizabethan commentator upon Littleton in his commentary on 77, as follows: Tenants by copy shall not implead or be impleaded for such their tenements by the king's writs (as in the precedent section doth appear); but they must sue by bill in the lord's court of the manor; and if there be false judgment given against the copyholder, he may not have a writ of false judgment upon it at the common law; for then he should be restored to the freehold, whereas he has no freehold (Kitch, 80 b.) and his only remedy is to sue by bill, that is to say, by plaint in the lord's court (7 Ed. IV. 19) or by subpoena in the Chancery. In connexion with this application of the word bill, the saying of Coke, who also had it in his mind, that the lord is a chancellour in his court, acquires increased significance. Supra, p. 236,n. I.

^{page 243 note 2} Reading on the Statute of Uses, Works, vii. 408. So the anonymous commentator on Littleton: So we see the common law did respect such copyhold estates to be merely as tenants at will of the lord; but after long custom and continuance of time had fixed such estates, then the common law did take notice of them and of the said custom, reputing them to be more than tenants at will only, scil. to be tenants at will according to the custom (p. 187).

^{page 243 note 3} I.e. outside the customary court, of the early constitution and effectiveness of which Bacon, like Coke, appears to have been ignorant.

^{page 243 note 4} See supra, p. 241.

^{page 243 note 5} 21 Ed. IV., case 56, f. 70. (1482.)

^{page 244 note 1} Supra, p. 241.

^{page 244 note 2} See supra, p. 241, n.. I.

^{page 244 note 3} Brian, C.J. II ad dit per force del custome & ce poit il aver assetz bon. Quod curia concessit.

^{page 244 note 4} This, it is to be observed, was the defence according to the precedents ot the thirteenth century, when a possessory action in the form of an assize of novel disseisin was brought by tenants in villenage. Supra, p. 226, Cp.Y.B. 32 & 33 Ed I. p. 514. This was also the plea advanced in an action for trespass by a lord against his copyholder reported in 42 Ed. III. p. 25, which is very instructive as to the legal relations of the two. A prior brought an action of trespass against one J. for breaking and entering and carrying away his goods, to wit, corn. Et le defendant plede que ceo fuit son franktenement, & fueront a issue, & trove fuit per verdict que le dit J. tient mesme le terre del Prior per copy de courte rolle a volunte le Prior, pur ce que fuit niefe terre, & pur ce que J. nevoetfaire ses services de le terre, le Prior le seifist. Cp. supra, p. 203. Upon the point of trespass the verdict was given for the prior. For the defence set up by a copyholder see next page.

^{page 245 note 1} Supra, p. 244.

^{page 245 note 2} Throughout the period extending from Bracton to Edward IV. we hear this class of tenants spoken of as if they had a recognised and legally protected interest in the lands. Digby, , p. 245Google Scholar.

^{page 245 note 3} Supra, pp. 214, 215, 226, &c.

^{page 245 note 4} Keilwey's, Rep. pp. 767Google Scholar.

^{page 246 note 1} Bracton, iv.. 224.

^{page 246 note 2} Supra, p. 240.

^{page 247 note 1} Brewer, , Calendar, iv. 2650Google Scholar. Wolsey was himself accused in 1529 of putting out many farmers of his lands & grantees of the Archbishopric of York (ibid. 6075, 3). It is hardly likely that these should have been copyholders, or he could not have ventured upon the energetic interposition of his Court of Chancery for their protection.

^{page 247 note 2} Thorpe, p. 205. Le meillur aueir quil auerad, u cheval, u bof, u uache durrad a sun seinur. Cil qui tenent lur terre a cense, soit lur dreit relief a tant cum la cense est de un an. This last clause is inclosed in brackets in Thorpe's edition, and is not given at all in Kelham's, Laws of William the Conqueror, London, 1779Google Scholar. But whether original or not, it is of great antiquity, for it appears in the Latin version, which belongs to the early part of the fourteenth century.

^{page 247 note 3} Bracton, f. 84.

^{page 247 note 4} See supra, p. 215,n. 3. This is also implied in the doctrine laid down by Coke, which we cannot suppose to have been absolutely novel, that as in admittances upon surrenders, so in admittances upon descents, the lord is used as a meer instrument, and no manner of interest passes out of him These admittances are judicial acts, which every lord is enjoyned to execute. Compl. Copyh. xli.

^{page 247 note 5} Bracton, II. f. 76.

^{page 248 note 1} The Book of Domesday and generally all monkish writers have confounded Heriots and Reliofs (Cowel, sub Hariot). Spelman, quotes Lib. Rames. Monast. 63 and 151Google Scholar: adquietet earn de servitio quod Heregeat Anglice, Latine relevatio hereditatis dicitur(Gloss, s.v.). But Britton (III. v. 5) says of a heriot, ne nule comparisoun ne ad a relief; car il vient plus de grace qe de dreit, et plus de vileins qe des frauncs.

^{page 248 note 2} Et tut ne voille dreiture qe autre tenement soit relevi, qe fee de chevalerie ou de graunt serjauntie, des tenementz neqedent qe ne sount mie de ceux feez, dount le service est mis en certeyn, voloms qe chescun tenaunt doigne a soen seigcur en reconisaunce de seignurie taunt cum sa rente de un an amounte, issi qe le seignur eit en eel an ausi cum la rente de soen tenaunt doubl. Britton, III. v. 4. Bracton, ff. 85 b, 86; Fleta, III. xvii. 1113.

^{page 248 note 3} So in N. Germany, nach dem Tod eines Hufners wurde der Regel nach mit einem seiner Sohne von neuem kontrahirt was faktisch einem Erbrecht sich nherte (Hanssen, , Agrarhistorische Abhandlangen, i. 430. Leipzig, 1880Google Scholar ).

^{page 248 note 4} Gray's case, Moore, ed. 1675, p. 788; Ashley, p. 6, n.. 6. But Wright, (Tenures, p. 220Google Scholar ) cites Calthrope, Reading, &c, 3, 4, 7, as authority, that in some manors the admission of the heirs of tenants for life was obligatory upon the lord as early as the reign of Henry III. I do not find this statement verified on reference to Calthrope, and the general history of the tenure does not support a conjecture that a custom in favour of the copyholder in the reign of Henry III. would be disallowed in that of Elizabeth. On the other hand, something like such a custom appears in the manor of Brightwaltham, A.D. 1296. Selden Soc. ii. 17374, and cp.infra, p. 254. In the reign of James I. the Star Chamber decided the estates of the northern copyholders to be estates of inheritance. Elton, p. 39. See further, infra, p. 260.

^{page 248 note 5} See supra, p. 237; Spence, i. 648, n. f.

^{page 249 note 1} 15 Hen. VIII. Tenant per copy. Brook 24, in Coke, , Rep. Pt. IV. 22Google Scholar c.

^{page 249 note 2} Confined by a decision temp. Elizabeth to cases where the change of the lord was due to the act of God (Coke upon Littleton, 74). For an example of such a fine see Gairdner, L. & P. XII. ii. 548. It was an irxident of northern, not of southern, copyhold (Elton, p. 39).

^{page 249 note 3} The heriot was not a fine on the occupying tenant. It was paid by the estate of the deceased tenant. On the origin of heriots see Williams, , Real Prop. pt. iii. ch. iGoogle Scholar.

^{page 249 note 4} Glanville, ix. 4.

^{page 249 note 5} Tenures, 80.

^{page 249 note 6} Ashley, p. 10.

^{page 250 note 1} Selden Soc. II. xiv.

^{page 250 note 2} Gilbert, p. 285.

^{page 250 note 3} So I interpret, though with some hesitation, M.T., 20 Hen. VII, 5: Nota que l'opinion de Frowike chiefe justice & Kingmill que touts fines en vn leete poient estre assesse per les ferours (i.e. afferrours or assessors). , Keilw. Rep. p. 65. London, 1602Google ScholarPubMed.

^{page 250 note 4} Coke, , Rep. Pt. IV. 27b. n. c.Google Scholar;Rolle, , Rep. 48Google Scholar; 1 Freem. 494.

^{page 250 note 5} Dalton v. Hamond, M.T., 42 Eliz. Croke, , Rep. p. 779Google Scholar. Mr. Elton notes the comparatively dependent condition of copyholders on the estates of the Church (p. 31). A corporation, as Sydney Smith has remarked, is not yielding to pressure.

^{page 250 note 6} Jackman v. Hoddesdon, M.T., 36 and 37 Eliz. Croke, , Rep. p. 351Google Scholar. It must be remembered that, though these decisions were of later date than the period with which we are concerned, yet they profess to be nothing more than expositions of the law as it stood, or, in other words, of the custom.

^{page 251 note 1} Compl. Copyh. Ivii.

^{page 251 note 2} I , Watk.Copyh. 287Google Scholar. Cp. North's account of the manner in which the Lord Keeper Guilford was accustomed to hold manor courts, vol. i. 25. Lives of the Norths, ed. by Jessopp, , p. 30Google Scholar.

^{page 251 note 3} Two years' improved rent, without deducting land tax, is now fixed as the sum assessable for an arbitrary fine. Grant v. Astle, Douglas, 724 (1781). It is remarkable that in 1536 the insurgent tenants compelled the lords to fix at every change two years rent for gressom, inlieu of an arbitrary fine. Gaird, . L. & P. xi. 1246Google Scholar.

^{page 251 note 4} Ibid. p. 225.

^{page 251 note 5} For the acquisition of fortunes by nativi see the Domesday of St. Paul's, p. xxv.

^{page 251 note 6} Hist, of the Manor of Castle. Combe, p. 223.

^{page 252 note 1} Hist, of the Manor of Castle Combe, p. 224.

^{page 252 note 2} Free customary tenants were in the thirteenth century obliged to pay a fine for the marriage of their daughters out of a manor without licence (Domesday of St. Paul's, cxxv). The histoiian of Castle Combe represents a succession of arbitrary exactions, without any pretence of reason, to have been imposed upon the widow of the wealthy native William Heyne. The facts, however, as revealed by the extracts from the court rolls, contained in the notes to pages 222 and 225, show that, however oppressive, these tallages were not made without rule. The facts are as follows: I. A fine of 40l. for permission to keep the godes & catall movable lateward the seyd William Heynes, and for the takyng up of the place where the said Margery dtfelleth. 2. A fine of 100l. for admission to omnia messuagia et tenementa acquired by W. H. ad volimtatem domini and for leave to marry Edward Jonys. 3. A fine of 40l. for admission of E. J. as joint-tenant with Margery his wife of certain messuages and tenements, the property apparently (pro fine renovata) of the late W. H., and for admission to certain other land formerly held by Thomas Crumpe. 4. In 1443 is recorded payment of 60l., part of the above fines hitherto left unpaid. These fines show, firstly, that, though W. H. was a native, he was permitted security of tenure of his lands (cp. supra, p. 213); secondly, that the tallaging of nativi was according to custom and not arbitrary, though the form of temporary sequestration of the estate was kept up, p.223 n.

^{page 252 note 3} Fitzh. Nat. Brev. sub vv. Cp. the book of Old Tenures, p. 5, ed. 1525. Socage en ancien tenure est a tenir en ancien demesne ou nul briefe courte forsque le petit brief de Droit Clos; que est appelle secundum consuetudinem manerii. Socage de basse tenure est ceo ou gens teygnent que ne soillent autre brief auoir que le Monstrauerunt pour eux descharge, quant lour seigneur eux distreynt pur faire autre seruyces que faire ne dussent. By the time of Fitzherbert this distinction between the legal redress accorded to the two classes of tenants seems to have disappeared.

^{page 253 note 1} Gilbert, p. 404, n. clxii. Cp. supra, pp. 200201.

^{page 253 note 2} Supra, p. 244. Nor does the contention of Littleton affirm that this was not so.

^{page 253 note 3} Y. B. E. T. 21 Hen. VI. 4, f. 37. Cp. , Fitzh. Surueyenge, pp. 17, 18 (ed. 1539)Google Scholar. Littleton, , Tenures, 73Google Scholar.

^{page 254 note 1} Custom and Tenant Right, by Elton, Charles, 1882, p. 67Google Scholar.

^{page 254 note 2} Selden Soc. II. 174, 2.

^{page 254 note 3} Seebohm, p. 30.

^{page 254 note 4} Hist, of Manor of Castle Combe, p. 166.

^{page 254 note 5} Ibid. p. 320. So that in 1607 an attempt was made by petition to the Court of Chancery to prove the copyholds in this manor to be copyholds of inheritance at a certain fine, l.c. See supra, p. 248, n. 3, 4.

^{page 254 note 6} Elton, on Custom and Tenant Right, pp. 80, 81Google Scholar.

^{page 254 note 7} He hath said that the greatest trouble he had in those affairs was to satisfy some greedy lords, or rather ladies of manors, in selling ihe fines and in being in some measure an executioner of their cruelty upon poor men. North's, Life, 26, p. 31Google Scholar.

^{page 254 note 8} Supra, p. 196.

^{page 255 note 1} Ubi omnes de patria solebant communicare.' Bracton, , iv. 225 bGoogle Scholar.

^{page 255 note 2} Palmer, p. 46.

^{page 255 note 3} An example of these is given in the complaint of the free tenants of the honour of Chirk, addressed to the King in 1232: That there was no forest or warren in all the land of Chirk before the aforesaid land was given to Roger Mortimer, the uncle, nor for twelve years thereafter, & that the said Roger made a warren and forest in the waste lands and woods of the aforesaid land &c. (ibid. p. 51). See Hale's, introduction to the Register of Worcester Priory, p. xGoogle Scholar.

^{page 255 note 4} 20 Hen. III. c. 4; 13 Ed. I. c. 46. The effect of these two statutes upon the existing rights of tenants is discussed at length by MrScrutton, in his book on Commons, pp. 5967Google Scholar, with conclusions generally agreeing with those of the text.

^{page 255 note 5} Myrrour des Justices, p. 318.

^{page 255 note 6} Infra, p. 258.

^{page 255 note 7} Littleton, , Tenures, 82Google Scholar; supra, pp. 219, 220. This explains such cases as that mentioned in the letter of J. Musard, a monk of Worcester, to Cromwell, on Jan. 31, 1536. He the abbot and his predecessors have taken 200 or 300 acres of land from the tenants to enlarge his parks. This was clearly a resumption of demesne. Gaird, . L. & P. x. 216Google Scholar. Supra, p. 199,n. 3.

^{page 255 note 8} Littleton, , Tenures, 58Google Scholar: Tenant pur terme dans est lou home lessa terres ou tenements a vn auter pur terme de certein ans solonque le numbre des ans que est accorde perenter le lessor et le lessee. Cp. Digby, p. 33. For an example of the leasing of a demesne to farmers after it had long been kept in hand by the lords of the manor, see Fuller, , Tenures of Land in Cirencester, p. 318Google Scholar.

^{page 256 note 1} For instance, inclosure by the tenant was frequently made the condition of a lease. See Campbell's, Materials for Henry VII. ii. 283 (1488)Google Scholar.Fitzh, . Surueyenge, pp. 60, 61Google Scholar.

^{page 256 note 2} Assartaretur. Assartum, vel redactum in culturam. Bracton, iv. f. 225b. See Cowel sub Assart.

^{page 256 note 3} Fleta, ii. 71, 4, 5, 7. Cp. the Extenta Manerii, 4 Ed. I. st. 1.

^{page 256 note 4} P. 12. There is one curious variety of reading in the passage, though not among the words given by me in the text. Fitzherbert quotes the statute Extenta Manerii as Item inquirendum est de panagio & herbagio ville. The clause given in the Statutes of the Realm is de pannagio, herbagio, melle. In Fleta it is de pannagio, herbagio & melle. After melle in the Statutes of the Realm is given, in brackets, oneribus, with a various reading oleribus. I incline to believe that Fitzherbert's reading of ville is the correct one. After ville he continues: & omnibus aliis exilibus quantum valent per annum. The whole passage, I venture to conjecture, should be de panagio & herbagio et ville oneribus & omnibus aliis exitibus.

^{page 257 note 1} That these were the inclosures which provoked the insurrections of 153637 appears from the letter of Sir R. Tempest and others to Cromwell, July 5, 1535, in which, speaking of rioters, the writer says: Their object was to pull down recent inclosures of moors and wastes. Gaird, . L. P. viii. 992Google Scholar. So a riot was caused near Cockermouth by the inclosure of a moor, ibid. 1133.

^{page 257 note 2} Ch. viii. pp. 12, 13, ed. 1539.

^{page 258 note 1} Ch. x. p. 15.

^{page 258 note 2} Ch. xiii. p. 30. For the same distinction see Littleton, , Tenures, 553Google Scholar, where he says that while the customary tenants must attorn on the alienation of a manor, tenants of demesne do not, because they are tenants at will. Supra, p. 214.

^{page 258 note 3} It is in the same chapter that he mentions bondmen and condemns bondage; but that passage is accompanied by the side-note Of bondsmen, the previous page being headed Of customary tenants. Except so far as their historical origin is concerned, he makes no attempt to confound the two. See supra, pp. 209212.

^{page 258 note 4} See Lord Darcy's Remembrances as to the acts of Wolsey (July 1529): We have put so importable charges to the noblemen in the King's name, what in his wars & what in his triumphings, that some have been constrained to mortgage their land, some to sell it outright, some to obtain the King's letters to go a-begging in the realm (Br. Cal. iv. 5750, p. 2560).

^{page 259 note 1} Anciently gersuma. See Spelman's, Glossary and Domesday of St. Pauls. p. lxxGoogle Scholar. This word was properly applied to payments by nativi, and therefore for the most part to tenants at will at common law. See the Regist. of Wore. Priory, p. xlii. It was perhaps transferred from them to customary tenants. Payments de ingressu frequently occur in the rolls of the manors of the Abbey of Bee (see below, n. 3), but the status of those paying is not clearly determinable.

^{page 259 note 2} Bracton, IV. xxvii. f. 61 b. For a learned discussion of the God's penny see Maitland on the Fair of St. Ives. Selden Soc. II. 133.

^{page 259 note 3} Proclamation by the rebels in the Pilgrimage of Grace. Claim ye old customs and tenant right to take your farms by a God's penny, all gressumes & heyhtnynges to be laid down. Gaird, . L. & P. xi. 892Google Scholar, 3. This is inconclusive as to the question of tenure. I have not met with an instance of admittance to a copyhold for the fine of id., even in the thirteenth century. Upon the admittances recorded in the various court rolls published in Selden Soc. II. I find 33s. 4d. (p. 24); 2s. and 4s. (p. 25); 20s. (p. 28); 1s. (p. 33); 10s. (p. 34) and 4 6s. 8d. (p. 38). It cannot be doubted that in the sixteenth century the fines were higher.

^{page 259 note 4} Ther ys a gret number of the Commonse uppe abowte Salyssebury in Wylleshire, and they have pluckyd downe Sir Wyllyam Hurberde's parke that ys abowte hys newe howse and dyverse other parkysse and commonse that be inlosyd in that cuntre Thay say thaye wyll nat have ther commonse growndes to be inclosyd and soo taken from them. May 25, 1549. John Pastonto the Earl of Rutland, , Rutland MSS. p. 36Google Scholar. Cp. Gaird, . L. & P. XI. ii. 186, 53Google Scholar.

^{page 259 note 5} Surneyengt, p. 60. Supra, p. 211.

^{page 260 note 1} We should also have gressomed the tenants in Northumberland & Yorkshire, had not the earl (of Northumberland) done so shortly before his death, & given them leases for 21 years. Robt. Southwell to Cromwell, Gaird, . L. & P. XII. ii. 548Google Scholar. In 1484 the Government endeavoured to check sub-leases on the royal lands. Gaird, . L. &> P. Ric. III. and Ben. VII. i. 79+P.+Ric.+III.+and+Ben.+VII.+i.+79>Google Scholar.

^{page 260 note 2} Supra, pp. 247251 Both before the insurrection & after, examinat and others petitioned Mr. Layborne to be good to them for their ancient customs, saying there was no better reason that where his father took 4 marks for an ingressum, he should take 40, seeing they were bound there to the Marches without wages upon the warden's proclamation, beacon, or letter. Gaird, . L. & P. xii. 914 (1547)Google Scholar.

^{page 260 note 3} Elton, on Custom and Tenant Right, pp. 30, 31Google Scholar.

^{page 260 note 4} They the farmers come not to service in the old numbers, and are ill furnished, partly through raising of rents, partly decay of tillage & towns.1 Articles concerning Northumberland, Green's, Cal. Add. p. 422Google Scholar. For the military conditions of their tenure see supra, n. 2, and Gaird, . L. & P. x. 1049Google Scholar, XII. ii. 548.

^{page 260 note 5} In 1537 (Feb. 21) Norfolk reported to Cromwell, after the suppression of the northern insurrection, that this border is sore weked and specially West-moreland. He attributes the rebellion to the gressing of them so marvellously sore in times past and to the inclosures. We must take it that he is speaking of the northern copyholders, whose rights, it must be remembered, were less established than those of the more ancient copyhold tenures of the south, though eventually they became more assured, no doubt owing to the care of the Government in fostering a class invaluable for defence against Scotland. Gaird, . L. & P. xii. 392Google Scholar.Supra, p. 248, n. 4.

^{page 260 note 6} In 1537, when disturbances threatened in Lancashire, the King gave instructions to his commissioners there that if any commons have been inclosed, or any gentleman take such excessive fines that their tenants cannot live, the earls shall labour to bring such inclosers and extreme takers of fines to such moderation that they and the poor men may live in harmony (ibid. 302).

^{page 261 note 1} That the lands in Westmoreland, Cumberland, Kendall, Dent, Sadber, Fornes & the abbey lands in Mashamshire, Kyrkbyshire, Notherdale, may be by tenant right, and the lord to have, at every change, two years rent for gressom, according to the grant now made by the lords to the commons there, this to be done by Act of Parliament(ibid. xi, 1246).

^{page 262 note 1} Supra, p. 220, n. I.

^{page 262 note 2} In 1781 a remarkable judgment was delivered by Lord Loughborougb, then Chief Justice of the Common Pleas, in Grant v. Astle (Douglas, 724). He observed that in those parts of Germany from whence the Saxons emigrated into England, there exists at this day a species of tenure exactly the same with our copyhold estates, and there exists at this day a complete state of villenage.

^{page 264 note 1} He that is on a jury must be liber homo. Secondly, he must be Ifgalis.And by the law every juror that is returned for the tryall of any issue or cause ought to have three properties. First, he ought to be dwelling most neere to the place where the question is moved. Secondly, he ought to be most sufficient both for understanding and competencie of estate. Thirdly, he ought to be least suspicious: that is, to be indifferent as he stands unsworne: and then he is accounted in law liber et legalis homo (Coke upon Littleton, 234).

^{page 266 note 1} Throughout the tables brackets indicate that the figures have been inferred from data which will be adduced when the original MS. is printed.

^{page 278 note 1} The Wapentakes and Liberties of Yorkshire are not given in the MS.