year's rent or render, payable by the tenant to the lord, be 6. PRIMER feifin was incident to the king's focage tenants 7. WARDSHIP is alfo incident to tenure in focage; but of a nature very different from that incident to knight-fervice. For if the inheritance defcend to an infant under fourteen, the wardship of him does not, nor ever'did, belong to the lord of the fee; because, in this tenure, no military or other personal service being required, there was no occafion for the lord to take the profits, in order to provide a proper fubftitute for his infant tenant: but his nearest relation (to whom the inheritance cannot descend) shall be his guardian in focage, and have the custody of his land and body till he arrives at the age of fourteen. The guardian must be such a one, to whom the inheritance by no poffibility can defcend; as was fully explained, together with the reafons for it, in the former book of these commentaries. At fourteen this wardship in focage ceases; and the heir may ouft the guardian, Litt. § 126. * 1. 2. c. 37. § 8. H 3 z 3 Lev. 145. a Co. Litt. 77. and [88] and call him to account for the rents and profits: for at this age the law fuppofes him capable of chufing a guardian for himself. It was in this particular, of wardship, as alfo in that of marriage, and in the certainty of the render or service, that the focage tenures had fo much the advantage of the military ones. But as the wardship ceased at fourteen, therę was this difadvantage attending it: that young heirs, being left at fo tender an age to chufe their own guardians till twenty-one, might make an improvident choice. Therefore, when almoft all the lands in the kingdom were turned into focage tenures, the fame ftatute 12 Car. II. c. 24. enacted, that it fhould be in the power of any father by will to appoint a guardian, till his child fhould attain the age of, twenty-one (2). And, if no fuch appointment be made, the court of chancery will frequently interpofe, and name a guardian, to prevent an infant heir from improvidently expofing himself to ruin. 8. MARRIAGE, or the valor maritagii, was not in focage tenure any perquifite or advantage to the guardian, but rather the reverse. For, if the guardian married his ward under the age of fourteen, he was bound to account to the ward for the value of the marriage, even though he took nothing for it, unless he married him to advantage. For, the law, in favour of infants, is always jealous of guardians, and therefore in this cafe it made them account, not only for what they did, but also for what they might, receive on the infant's behalf; [89] left by fome collufion the guardian should have received the value, and not brought it to account. but, the ftatute having deftroyed all values of marriages, this doctrine of courfe hath ceafed with them. At fourteen years of age the ward might have difpofed of himself in marriage, without any confent of his guardian, till the late act for preventing clandeftine marriages. The doctrines of wardship and marriage in focage d Litt. § 123. c Litt. 123. Co. Litt. 89. (2) See Vol. 462. tenure tenure were so diametrically oppofite to those in knight-fervice, and fo entirely agree with those parts of king Edward's laws, that were reftored by Henry the firft's charter, as might alone convince us that focage was of a higher original than the Norman conqueft. 9. FINES for alienation were, I apprehend, due for lands holden of the king in capite by focage tenure, as well as in cafe of tenure by knight-fervice: for the ftatutes that relate to this point, and fir Edward Coke's comment on them, fpeak generally of all tenants in capite, without making any diftinction: but now all fines for alienation are demolished by the statute of Charles the fecond. 10. ESCHEATS are equally incident to tenure in focage, as they were to tenure by knight-service; except only in gaveikind lands, which are (as is before mentioned) fubject to no efcheats for felony, though they are to efcheats for want of heirs. THUS much for the two grand fpecies of tenure, under which almost all the free lands of the kingdom were holden till the restoration in 1660, when the former was abolifhed and funk into the latter: fo that lands of both forts are now holden by the one univerfal tenure of free and common socage. THE other grand divifion of tenure, mentioned by Bracton as cited in the preceding chapter, is that of village, as contradiftinguished from liberum tenementum, or frank tenure. And this (we may remember) he fabdivides into two claffes, pure and privileged villenage: from whence have arifen two other fpecies of our modern tenures. III. FROM the tenure of pure villenage have fprung our prefent copyhold terures, or tenure by copy of court roi at the will of the lord: in order to obtain a clear idea of which, it will be previously neceflary to take a fhort view of the original and nature of manors. [ 9 ] 1 Inft. 43. 2 Inft, 65, 66, 67. f Wright. 210. MANORS H 4 MANORS are in fubftance as antient as the Saxon conftitution, though perhaps differing a little, in fome immaterial circumstances, from those that exift at this day: just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conqueft. A manor, manerium, a manendo, because the usual refidence of the owner, feems to have been a diftrict of ground, held by lords or great perfonages; who kept in their own hands fo much land as was. neceffary for the use of their families, which were called terrae dominicales or demefne lands; being occupied by the lord, or dominus manerii, and his fervants. The other, or tenemental, lands they diftributed among their tenants: which from the different modes of tenure were distinguished by two different names. Firft, book-land, or charter-land, which was held by deed under certain rents and free-fervices, and in effect differed nothing from free focage lands: and from hence have arisen most of the freehold tenants who hold of particular manors, and owe suit and service to the fame. The other fpecies was called folk-land, which was held by no affurance in writing, but distributed among the common folk or people at the pleasure of the lord, and refumed at his difcretion; being indeed land held in villenage, which we shall presently describe more at large. The refidue of the manor being uncultivated, was termed the lord's waste, and ferved for public roads, and for common of pasture to the lord and his tenants. Manors were formerly called baronies, as they ftill are lordships: and each lord or baron was empowered to hold a domestic court, called the court-baron, for redreffing mifdemefnors and nufances within the manor, and for fettling difputes of property among the tenants. This court is an infeparable ingredient of every manor; and if the number [91] of fuitors should so fail as not to leave fufficient to make a jury or homage, that is, two tenants at the leaft, the manor itself is loft. In the early times of our legal conftitution, the king's greater barons, who had a large extent of territory held unh Co. Cop. § 3, ® Co. Cop. §2. & 10, der V der the crown, granted out frequently smaller manors to in- 1 See the Oxford editions of the charters. 10 acceffion |