Nature of tenancy in ancient demesne.
Now all that has been said hitherto applied to 'the tenants in ancient demesne' indiscriminately, without regard to any diversity of classes among them. Hitherto I have not noticed any such diversity, and in so doing I am warranted by the authorities. Those authorities commonly speak of 'men' or 'tenants in ancient demesne' without any further qualification214. Sometimes the expression 'condition of ancient demesne' also is used. But closer examination shows a variety of classes on the privileged soil, and leads to a number of difficult and interesting problems.
To begin with, the nature of the tenancy in general has been much contested. As to the law of later times Mr. Elton puts the case in this way: 'There is great confusion in the law books respecting this tenure. The copyholders of these manors are sometimes called tenants in ancient demesne, and land held in this tenure is said to pass by surrender and admittance. This appears to be inaccurate. It is only the freeholders who are tenants in ancient demesne, and their land passes by common law conveyances without the instrumentality of the lord. Even Sir W. Blackstone seems to have been misled upon this point. There are however, as a rule, in manors of ancient demesne, customary freeholders and sometimes copyholders at the will of the lord, as well as the true tenants in ancient demesne215.' Now such a description seems strangely out of keeping with the history of the tenure. Blackstone speaks of privileged copyhold as descended from privileged villainage216; and as to the condition in the thirteenth century of those 'men' or 'tenants in ancient demesne' of whom we have been speaking, there can be no doubt. Bracton and his followers lay down quite distinctly that their tenure is villainage though privileged villainage. The men of ancient demesne are men of free blood holding in villainage217. And to take up the special point mentioned by Mr. Elton—conveyance by surrender and admittance is a quite necessary feature of the tenure218: conveyance by charter makes the land freehold and destroys its ancient demesne condition219. But although this is so clear in the authorities of the thirteenth century, there is undoubtedly a great deal of confusion in later law books, and reasons are not wanting which may account for this fact and for the doctrine propounded by Mr. Elton in conformity with certain modern treatises and decisions.
Classes of tenantry.
We may start with the observation, that privileged villains or villain socmen are not the only people to be found on the soil of the ancient demesne. There are free tenants there and pure villains too220. Free socage is often mentioned in these manors, and it is frequently pleaded in order to get a trial transferred to the Common Law Courts. When the question is raised whether a tenement is free or villain socage, the fact that it has been conveyed by feoffment and charter is treated, as has just been pointed out, as establishing its freehold character and subjecting it to the ordinary common law procedure221. On the other hand, registers and extents of ancient demesne manors sometimes treat separately of 'nativi' or 'villani' as distinguished from the regular customary tenants, and describe their services as being particularly base222. In trials it is quite a common thing for a lord, when accused of having altered the services, to plead that the plaintiffs were his villains to be treated at will. Attempts were made in such cases to take advantage of the general term 'men of ancient demesne,' and to argue that all the population on the crown manors must be of the same condition, the difference of rank applying only to the amount and the kind of services, but not to their certainty, which ought to be taken for granted223. But strictly and legally the lord's plea was undoubtedly good: the courts admitted it, and when it was put forward proceeded to examine the question of fact whether the lord had been actually seised of certain or of uncertain services224. It is of considerable importance to note that the difference between villains pure and villains privileged was sometimes connected with the distinction between the lord's demesne and the tenant's land in the manor225. The demesne proper was frank fee in the hands of the lord, and could be used by him at his pleasure. If he chose to grant it away to villains in pure villainage, the holdings thus formed could have no claim to rank as privileged land. It was assumed that some such holdings had been formed at the very beginning, as it were, that is at a time beyond memory of man, but tenements at will could be created at a later time on approved waste or on soil that had escheated to the lord and in this way passed through his demesne226. One of the reasons of later confusion must be looked for in the fact that the pure villain holdings gradually got to be recognised at law as copyhold or base customary tenures. They were thus brought dangerously near to ancient demesne socage, which was originally nothing but base customary tenure. The very fact of copyhold thus gaining on villain socage may have pushed this last on towards freehold. Already the Old Natura Brevium does not know exactly how to make distinctions. It speaks of three species of socage—free, ancient demesne, and base. The line is soon drawn between the first two, but the third kind is said to be held by uncertain services, and sued by writ of 'Monstraverunt' instead of having the writs of right and 'Monstraverunt' of ancient demesne socage227. Probably what is meant is a species of copyhold which is not socage, and the writ of 'Monstraverunt' attributed to it may perhaps be the plaint or petition which is the initial move in a suit for the protection of copyhold in the manorial court.
Villain socage.
In the time of Henry III and of the Edwards the nature of ancient demesne tenure was better understood. At the close of the thirteenth century the lawyers distinguish three kinds of men—free, villains, and socmen228. In order to be quite accurate people spoke of villain socmen or little socage229 in opposition to free. But even at that time there were several confusing features about the case. The certainty of condition made the tenure of the villain socmen so like a freehold that it was often treated as such in the manorial documents. In the Stoneleigh Register the peculiar nature of socage in ancient demesne is described fully and clearly. It is distinguished in so many words from tenancy at will, and a detailed description of conveyance by surrender in contrast with conveyance by charter seems to give the necessary material for the distinction between it and freehold230. But still the fundamental notion of free men holding in villainage gets lost sight of. Only some of the cottiers are said to hold in villainage. The more important tenants, the socmen holding virgates and half-virgates, are not only currently described as freeholders in the Register, but they are entered as such on the Warwickshire Hundred Roll231. The term 'parva sokemanria' is applied in the Stoneleigh Register only to a few subordinate holdings which are undoubtedly above the level of pure villainage, but cannot be definitely distinguished