The History of English Law before the Time of Edward I. Frederic William Maitland
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But now-a-days such tenancies are sharply contrasted with feoda; the tenant has no fee and no free tenement. And so again we may see a great man taking lands for a term of years at a money rent; he has done nothing in derogation of his freedom; the rent may be trifling; still he is no freeholder.
Technical meaning of “freehold.”A full explanation of this phenomenon, that a man should hold land, and hold it not unfreely, and yet not hold it freely, cannot be given in this context since it would involve a discussion of the English theory of possession or seisin. But we must not fail to notice that the term “free tenement” has ever since Henry II.’s day implied possessory protection by the king’s court. This is of great moment. From our statement of the relation between the freehold tenant and his lord we have as yet omitted the element of jurisdiction. The existence of this element our law fully admitted and at one time it threatened to become of vital importance. It was law that the lord might hold a court of and for his tenants; it was law that if A was holding land of M and X desired to prove that he and not A ought to be M’ s tenant, M’ s court (if he held one) was the tribunal proper to decide upon the justice of this claim; only if M made default in justice, could X (perhaps after recourse to all M’ s superior lords) [p.339] bring his case before the king’s court. This principle of feudal justice is admitted, though its operation has been hampered and controlled; in particular, the king has given in his court a possessory remedy to every ejected freeholder. Every one who can say that he has been “disseised unjustly and without a judgment of his free tenement” shall be restored to his seisin by the king’s justices. Thus the term “free tenement” becomes the pivot of a whole system of remedies. Clearly they are denied to one who has been holding “unfreely,” who has been holding in villeinage; but a doctrine of possession now becomes necessary and has many problems before it. What if the ejected person was holding at the will of another? Perhaps it is natural to say that, albeit he occupied or “detained” the tenement, still he was not possessed of it. At any rate this was said. The tenant at will tenet nomine alieno; possidet cuius nomine possidetur; eject the tenant at will, you disseise (dispossess) not him, but his lord, and his lord has the remedy. And what of the tenant for years? The same was said. He holds on behalf of another; eject him, you disseise that other. Such was the doctrine of the twelfth century; but already before the middle of the thirteenth the lawyers had discovered that they had made a mistake, that the “termor” or tenant for years deserved possessory protection, and they invented a new action for him. The action however was new, and did not interfere with the older actions which protected the seisin of free tenement; it was too late to say that the termor had a free tenement or was a freeholder. This episode in our legal history had important consequences; it rules the terminology of our law even at the present day and hereafter we shall speak of it more at large: it is an episode in the history of private law. In the thirteenth century the main contrast suggested by the phrase “free tenement” was still the villein tenement, and tenure in villeinage is intimately connected with some of the main principles of public law; indeed from one point of view it may be regarded as a creature of the law of jurisdiction, of the law which establishes courts of justice and assigns to each of them its proper sphere.
Villeinage as tenure and as status.The name “villeinage” at once tells us that we are approaching a region in which the law of tenure is as a matter of fact intertwined with the law of personal status: “villeinage” is a tenure, it is also a status. On the one hand, the tenant in villeinage is normally a villein; the unfree tenements are held by unfreemen; on the other [p.340] hand, the villein usually has a villein tenement; the unfreeman is an unfree tenant. Then a gain, the villanus gets his name from the villa, and this may well lead us to expect that his condition cannot be adequately described if we isolate him from his fellows; he is a member of a community, a villein community. The law of tenure, the law of status, the law which regulates the communal life of vills or townships are knotted together. Still the knot may be unravelled. It is very possible, as Bracton often assures us, for a freeman to hold in villeinage, and thus we may speak of villein tenure as something distinct from villein status. Again, as we shall hereafter see, the communal element which undoubtedly exists in villeinage, is much neglected by the king’s courts, and is rather of social and economic than of legal importance.
Villein tenure.We may suppose therefore that the tenant in villeinage is a freeman. What then are the characteristics of his tenure?491 Now in the first place we may notice that it is not protected in the king’s courts. For a moment perhaps there was some little doubt about this,Unprotected by the king’s courts. some chance that Pateshull and Raleigh would forestall by two long centuries the exploits ascribed to Brian and Danby, and would protect the predecessor of the copyholder even against his lord.492 This would have been a bold stroke. The ready remedy for the ejected freeholder laid stress on the fact that he had been disseised of his “free” tenement, and, however free the tenant in villeinage might be, his tenement was unfree. A quite new remedy would have been necessary for his protection; the opportunity for its invention was lost, and did not recur until the middle ages [p.341] were expiring.493 It was law then, that if the tenant in villeinage was ejected, either by his lord or by a third person, the king’s court would not restore him to the land, nor would it give him damages against his lord in respect of the ejectment. He held the land nomine alieno, on his lord’s behalf; if a third person ejected him, the lord was disseised. Before the end of the thirteenth century, the king’s courts were beginning to state their doctrine in a more positive shape:—the tenant in villeinage is in our eyes a tenant at will of the lord.494
Want of remedy and want of right.The shade of meaning which such words bear at any given moment is hard to catch, for this depends on the relation between the king’s courts and other courts. At a time when the feudal courts have become insignificant, denial of remedy in the king’s court will be equivalent to a denial of right, and to say that the tenant in villeinage is deemed by the king’s court to hold at his lord’s will is in effect to say that the lord will do nothing illegal in ejecting him. At an earlier time the royal tribunal was but one among many organs of the law, and the cause for our wonder should be that it has undertaken to protect in his possession every one who holds freely, not that it has stopped at this point and denied protection to those who, albeit freemen, are doing what are deemed villein services. We have but to look abroad to see this. By its care for every freeholder, though he were but a socage tenant with many lords above him, our king’s court would gradually propagate the notion that those whom it left uncared for were rightless. But this would be an affair of time. Even in the thirteenth century, the freeholder could not always bring a proprietary action before the royal tribunal without the help of some legal fiction, and in Bracton’s day men had not yet forgotten that the royal remedies which were in daily use were new indulgences conceded by the prince to his people.495
Protection of villein tenure by manorial courts.As a matter of fact, tenure in villeinage is protected, and if we [p.342] choose to say that it is protected by “positive morality” rather than by “law properly so called,” we are bound to add that it is protected by a morality which keeps a court, which uses legal forms, which is conceived as law, or as something akin to law.496 The lord has a court; in that court the tenant in villeinage, even though he be personally unfree, appears as no mere tenant at will, but as holding permanently, often heritably, on fairly definite terms. He is a customary tenant, custumarius, consuetudinarius; he holds according to the custom of the manor. Were we Germans, we might say that he holds under Hofrecht, the law of the manor, though his rights are not recognized by Landrecht, the general law of the realm. This we cannot say; the manorial custom very rarely, if ever, dignifies itself with the name of law; but still it is a custom which has been and