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Of Ancient Demesne.
It may be proper to premise that the Court of Ancient Demesne is a Court Baron, and not a Court of Record (a); a writ of error, therefore, does not lie in it, but the relief is by writ of false judgment (b).
The tenure of Ancient Demesne is confined to such lands as were held in socage of manors belonging to the crown in the reign of Edward the Confessor (c), and in the reign of William the Conqueror (d), and sometimes therefore designated "socage in ancient tenure:" and whenever a question arises as to the particular lands being ancient demesne, it is to be decided by the production of Domesday Book (e); wherein the lands which were in the possession of King Edward are called terræ Regis Edwardi, and those which were in the possession of William the Conqueror are called terræ Regis.
Domesday-Book (ƒ), which about fifty years ago was reprinted
(a) Kitch. 187, cites 9 Ed. 4, 43, 3 Hen. 4, 26; ib. 190; 4 Inst. 269; Comy. 94, and 1 Salk. 340, in Hunt v. Bourne (or Burn). And the suitors are the judges of the court; Kitch. 190, (cites 34 Hen. 6, 38; 12 Hen. 4, 17; 3 Hen. 4, 16; Hen. 4,2;) 4 Inst. 269; Jentleman's case, 6 Co. 11 b; F. N. B. 11 G. n. (b).
(b) F. N. B. 12; Kitch. 187, 190; Jentleman's case, sup.
(c) F. N. B. 14 D.; Kitch. 192. (d) 2 Inst. 542; 4 Inst. 269; Lex Man. 26, 27; Hunt v. Burn, 1 Salk. 57; S. C. Holt, 60; F. N. B. 14 D.
(e) 9 Co. 31 a; Kitch. 192, cites 49 Ed. 3, 22; and also a trial, 7 Hen. 6, 34, in which it was certified by DomesdayBook, that London was not ancient demesne. (N. B. The Appendix to the Second General Report from the Commissioners on Public Records, reprinted in 1819, p. 467, cites for this 37 Hen. 6, 27; vide 2 Leo. 191.) Saunders v. Welch, cited 1 Salk. 57; Gilb. Ev. 69; Lex Man. 28; Doe d. Rust v. Roe, 2 Burr. 1018. But whether parcel or not of a
manor which is ancient demesne, is to be tried per pais; Kitch. 192, 193, cites 12 Ass. 18; 22 Ass. 45; Hunt v. Burn, sup.; Hopkins v. Pace, 1 Sho. 271, ca. 168; S. C. Comb. 183; 9 Co. 31 a; Br. Trials, pl. 120.
(f) The better opinion seems to be, that this book was compiled upon the introduction, or rather on the complete establishment, of feudal tenure in England by William the Conqueror, for the purposes of military defence; and, as Sir Martin Wright supposes, (Ten. 56,) “in order to discover the quantity of every man's fee, and to fix his homage." Sir Wm. Blackstone observes, "We learn from the Saxon Chronicle (A. D. 1085), that in the 19th year of King William's reign, an invasion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in its stead, the kingdom was wholly defenceless; which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly
by government under an address of the House of Lords (g), records the survey made by command of William the Conqueror of all the manors throughout England, except those in the northern counties, viz. Northumberland, Cumberland, Westmoreland and Durham (h), and part of Lancashire.
oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might cooperate with the king's remonstrances, and the better incline the nobility to listen to his proposals for putting them in a posture of defence. For as soon as the danger was over, the king held a great council to inquire into the state of the nation; the immediate consequence of which was the compiling of the great survey, called Domesday-Book, which was finished in the next year; and in the latter end of that very year the king was attended by all his nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king's vassals, and did homage and fealty to his person;" 2 Com. 48; and adds (ib. p. 51), "In consequence of this change, it became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures,
that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal services.'"
The reader, however, is reminded, that most of our ancient text writers are agreed that military services and feuds may be traced to the Saxon polity, but that the feudal law was completely established about the middle of the reign of William the Conqueror. Vide Harg. & Butl. notes to Co. Lit. 64 a and b, 65 a, 191 a; 2 Hallam's Europe, 409, 410, 416, &c.
(g) And it is said to be executed with the most scrupulous fidelity and correctness see first Report of the House of Commons on Public Records, Appendix A, 1a; 1 Phill. on Ev. 321.
(h) A valuable supplement to Domes
day-Book was a few years ago reprinted, entitled the Boldon-Book, or Survey of the Palatinate of Durham. In the Appendix to the Second General Report from the Commissioners on Public Records, (p. 475), it is stated that Hugh Pudsey, called also De Puteaco, De Pusar, and De Pusaz, nephew to Stephen, king of England, caused this survey to be made in 1183; and that it probably had its name from Boldon, a village and parish near Sunderland, in the same diocese, where either it was compiled, or according to the census of whose inhabitants the other manors, &c. in that bishopric were regulated. This useful work adds, "Of the motives or reasons which led to this compilation, we have no record; but Bishop Pudsey affected the state of a sovereign in his own palatinate; in which there were many royal rights, which had been enjoyed by its prelates long before the conquest, and were continued long after; several of which remain even to the present day. And perhaps it was in consequence of these exclusive rights, that when the general census, known by the name of Domesday-Book, was made, the bishoprick of Durham was passed by, as it was found to contain no rights which could be claimed by the monarch, without trenching on those which had been possessed by its bishops through a long series, of years."
This record it seems is frequently appealed to, and has been admitted as evidence in trials at law, on questions affecting the seignorial rights of the see of Durham.
One copy of the Boldon-Book is in the bishop's auditors' office, Durhamı; another in the library of the Dean and Chapter in the same city; and a third among the manuscripts of Archbishop Laud at Oxford.
This survey is supposed by some ancient writers to have been undertaken about the year 1081, and to have been finished in 1086 (i); but the exact time of its commencement is differently stated by historians, some affirming that it was begun in 1085, and finished in about a year (k).
Domesday-book has been sometimes called Liber de Wintonia, or Rotulus Wintonia, which is considered to be evidence of the first place of its deposit. It appears to have been removed to Westminster soon after its completion, and kept under seal in the Exchequer, till, in 1696, it was deposited in the chapter house.
Ancient writers are not agreed as to the derivation of the word "Domesday." It has been affirmed (1), and with apparent probability, to be a corruption of Dome-boc, which was the appellation given to Alfred's register or code of Saxon laws; but the word "domesday" was frequently used, even so long back as the eleventh century, to denote a survey (m).
As there can be no appeal from Domesday-Book, and no averment made against it (n), so it has not inappositely been called liber judiciarius (o); and we have a further clue to the signification of the word "Domesday" in Sir Edward Coke's 4th Inst. (p), who, in adverting to its uncontrollable truth and verity, says, "And therefore in that respect like the doome and judgement at Doomesday."
Domesday-book was frequently appealed to in ancient times, as will be seen by consulting several of the authorities already referred to (q).
In the case of Griffin v. Palmer (r) the issue was, whether the manor of Bowden in Northamptonshire were ancient demesne or not; and the Court of Common Pleas awarded that the plaintiff" habeat recordum libri de Domesday hic in Oct. Mich. &c.," and on production of the book at the trial, it appeared that the manor of Bowden in Leicestershire was ancient demesne, but that Bowden in Northamptonshire was not.
The like issue was taken in ejectment for lands in Longhope in Gloucestershire, and at the trial Domesday-Book was brought into
(i) See Lex Man. 27; 4 Inst. 269. (k) Baron Maseres, in the notes to his "Excerpta ex Orderico Vitali," p. 259, represents the survey to have begun as early as 1071. See App. to Second Gen. Rep. from Comm. on Pub. Rec. p. 382
(4) See Bishop Kennett's Parochial Antiq.
(m) See App. to Second Gen. Rep. from Comm. on Pub. Rec. 381, 383, 384.
(n) 4 Inst. 269.
(0) Spelm. Gloss. v. Domesday; and see 4 Inst. 269.
(p) P. 269. So Redborne, Angl. Sacr. tom. i. p. 257, "Vocatus Domysday; et vocatur sic, quià nulli parcit sicut nec magnus dies judicii."
(9) Ante, p. 579, n. (e).
(r) 1 Brownl. 43; S. C. Hob. 188, Ca. 230; Lex Man. 30.
court by an officer of the Exchequer, by which it appeared that Hope was ancient demesne, but that there was no mention of Longhope, upon which the counsel for the defendant offered to prove that Hope and Longhope were one and the same place; but the court would not admit such proof, and held that the defendant should have pleaded that it was known as well by the one name as the other (s).
And unless the manor or land is mentioned under the title terra Regis or terræ Regis Edwardi (t) in Domesday-book, it will not be deemed ancient demesne, although the book itself should furnish evidence of a grant thereof from the crown (u).
There are three sorts of tenants in Ancient Demesne; one who hold their lands freely by the grant of the king; a second who hold of a manor which is ancient demesne, but not at the will of the lord, and whose estates pass by surrender, or deed of grant or bargain and sale, and admittance, and who are denominated customary freeholders (x); and a third who hold of a manor, which is ancient demesne, by copy of court roll, at the will of the lord, and who are denominated copyholders of base tenure, which latter could not have maintained a writ of right close (y) and cannot maintain a monstraverunt (z), but are to sue by plaint in the lord's court (a).
Of the Privileges incident to this Tenure.
It should seem that by the terms of the original grants of land of the tenure of ancient demesne, the grantees bound themselves to cultivate the king's demesnes for the sustenance of his household (b), and to supply provisions for the king's garrisons, and for the soldiers in other places, in time of war or rebellion (c); for which services certain privileges were secured to them regarding both their persons and estates, for they appear to be excused (but in respect only of their lands held in ancient demesne) from serving on juries or inquests
(s) Holdy v. Hodges, 1 Sid. 147; S. C. Holdage v. Hodges, 1 Lev. 106. And see similar issues as to the manor of Sudbury in Suffolk, Dy. 250 b; 9 Co. 31 a; and the manor of Otterbury, Saunders v. Welch, cited 1 Salk. 57. Vide also 1 Nels. Abr. 210 (A.); 1 New Abr. 110(A. marg.). (t) Ante, p. 579.
(u) Kitch. 192, 193; Saunders v. Welch, sup.
(x) And these, it is said, even when holding by copy of court roll, may have a monstraverunt, and might have used a writ of right close; Kitch. pp. 158, 159, 194; Co. Cop. s. 32, Tr. 58.
(y) See as to this writ post, p. 585 et
(z) Br. Abr. Ancient Demesne, pl. 41; Kitch. 159; F. N. B. 14 D., 16 E.; Co. Cop. s. 51, Tr. 118, 119; Pymmock v. Hilder, Cro. Jac. 559. See as to this writ post, p. 584, 585.
(a) Ante, pt. 1, p. 473 et seq.
(b) See 1 Leo. 232, in Ward & Knight's case; 2 Inst. 221, 542; 4 Inst. 269; Lex Man. 29, 81; 2 Sho. 16, in the King v. Bettworth; Hob. 48, in Cox v. Barnsly.
(c) See the Town of Leicester's case, 2 Leo. 191; Lex Man. 29, n.; ib. 32, 33.
out of their manor or seigniory (d); and from taxes and tallages granted by parliament, if not specially charged (e); and from payment of pontage and toll of passage (ƒ): and this latter privilege extends as well to tenants who hold of a subject as of the king, and to tenants for life or years, or even at will (g). But the exemption from toll is only in respect of such things as arise or grow on the land, or as are bought for manuring it, or for the necessary use of the tenant and his family, and does not extend to general merchandize (h), though this was formerly doubted (i).
Whether merchandize or not is to be shown on the other side, so that the tenant may allege an exemption generally (k). He need not prescribe for the privilege, as it is incident to his estate, and it is sufficient to say that he is tenant and inhabitant within the manor of A., which is ancient demesne (1): and though safer to allege notice that he was tenant in ancient demesne, it does not seem to be necessary (m).
Tenants in ancient demesne were formerly to be impleaded in the lord's court only by a writ of right close (n) directed to the lord of the manor, commanding him to do the tenant who prosecuted the at elections; vide Heyw. C. 75, &c.; Male, 2nd ed., 133, 285; ante, p. 568. But see reference to 2 W. 4, c. 45, ante, pt. 1, p. 557, n. (z).
(d) F. N. B. 14 F.; 4 Inst. 269; Br. Auncien Demesne, pl. 42. "Tenants of ancient demesne shall be exempt from the leet, view of frankpledge, and from sheriff's tourns." Br. Aunc. Dem. pl. 49, cites the Reg. fo. 181. And see F. N. B. 14 E., marg. But ancient demesne is no exemption from serving the office of high constable; King v. Bettsworth, 2 Sho. 75; S. C. Anon. 1 Vent. 344.
(e) But the author apprehends that all general acts of parliament extend to ancient demesne lands, when the tenure is not prejudiced by the purview of such acts. See 1 And. 71, &c.; 4 Inst. 270; Hob. 48; Com. Dig. Ancient Demesne (K.); ante, pt. 1, p. 81.
(f) Br. Aunc. Dem. pl. 43, 49; ib. Privilege, pl. 56; F. N. B. 14, 228; 2 Inst. 542; 4 Inst. 269; Kitch. 194; Hob. 48, in Cox v. Barnsly. Ancient demesne tenants were also exempt from contribution to the expenses of knights in parliament. See all the authorities referred to in this note; vide also ante, p. 566; Heyw. C. 82, 2nd ed.
Tenants in ancient demesne, holding by copy of court roll, were excluded by 31 Geo. 2, c. 14, from the privilege of voting
(g) F. N. B. 228, D.; Savery v. Smith, 2 Lutw. 1146; 2 Leo. 191; 2 Vin. Abr. 481, (C.); 1 Roll. Abr. 322 (C.); and to the lord himself, F. N. B. 228, B.; Savery v. Smith, sup.; Br. Auncien Demesne, pl. 43. (If he be tenant also, 1 Roll. Abr. 322, D., cites 9 H. 6, 25 b.) See the form of the writ of exemption from toll, F. N. B. 228, A.
(h) Ward v. Knight, Cro. Eliz. 227'; S. C. 1 Leo. 232, 233; 2 Inst. 221; 1 Roll. Abr. 321 (B.); 2 Leo. 191.
(i) F. N. B. 228, A. & E.; 1 Roll. Abr. 321 (B.) pl. 2, 3.
(k) Lutw. 1146, 1147, in Savery v. Smith.
(1) Ib. In the case of the Town of Leicester, 2 Leo. 191, Shute, Just., was of opinion, "that an inhabitant within ancient demesne, although he be not tenant, shall have the privileges."
(m) Savery v. Smith, sup.
(n) But see reference to the act of 3 & 4 Will. 4, c. 27, post, p. 585, n. (d).