« ПретходнаНастави »
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 (6).
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 terre Regis.
Domesday-Book (f), which about fifty years ago was reprinted
(a) Kitch. 187, cites 9 Ed. 4, 43, 3 manor which is ancient demesne, is to be Hen. 4, 26; ib. 190; 4 Inst. 269; Comy. tried per pais ; Kitch. 192, 193, cites 12 94, and 1 Salk. 340, in Hunt v. Bourne Ass. 18; 22 Ass. 45; Hunt v. Burn, sup.; (or Burn). And the suitors are the judges Hopkins v. Pace, 1 Sho. 271, ca. 168; of the court; Kitch. 190, (cites 34 Hen. 6, S. C. Comb. 183; 9 Co. 31 a; Br. Trials, 38; 12 Hen. 4, 17; 3 Hen. 4,16; 6 Hen.
pl. 120. 4, 2;) 4 Iust. 269; Jentleman's case, 6 (5) The better opinion seems to be, Co. 11 b; F. N. B. 11 G. n. (b).
that this book was compiled upon the (6) F. N. B. 12; Kitch. 187, 190; introduction, or rather on the complete Jentleman's case, sup.
establishment, of feudal tenure in England (c) F. N. B. 14 D.; Kitch. 192. by William the Conqueror, for the pur
(d) 2 Inst. 542; 4 Inst. 269; Lex poses of military defence; and, as Sir Man. 26, 27; Hunt o. Burn, 1 Salk. 57; Martin Wright supposes, (Ten. 56,) “in S. C. Holt, 60; F. N. B. 14 D.
order to discover the quantity of every (e) 9 Co. 31 a ; Kitch. 192, cites 49 man's fee, and to fix his homage." Sir Ed. 3, 22; and also a trial, 7 Hen. 6, 34, Wm. Blackstone observes, “We learn in which it was certified by Domesday- from the Saxon Chronicle (A. D. 1085), Book, that London was not ancient de- that in the 19th year of King William's mesne. (N. B. The Appendix to the Se- reign, an invasion was apprehended from cond General Report from the Commis- Denmark; and the military constitution sioners on Public Records, reprinted in of the Saxons being then laid aside, and 1819, p. 467, cites for this 37 Hen. 6, 27; no other introduced in its stead, the kingvide 2 Leo. 191.) Saunders v. Welch, dom was wholly defenceless; which occacited 1 Salk. 57; Gilb. Ev. 69; Lex sioned the king to bring over a large army Man. 28; Doe d. Rust v. Roe, 2 Burr. of Normans and Bretons, who were quar1018. But whether parcel or not of a tered upon every landholder, and greatly
by government under an address of the House of Lords (9), 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 day-Book was a few years ago reprinted, weakness, together with the grievances entitled the Boldon-Book, or Survey of occasioned by a foreign force, might co- the Palatinate of Durham. In the Apoperate with the king's remonstrances, and pendix to the Second General Report from the better incline the nobility to listen to the Commissioners on Public Records, his proposals for putting them in a posture (p. 475), it is stated that Hugh Pudsey, of defence. or as soon as the danger called also De Puteaco, De Pusar, and was over, the king held a great council to De Pusaz, nephew to Stephen, king of inquire into the state of the nation ; the England, caused this survey to be made immediate consequence of which was the in 1183; and that it probably had its compiling of the great survey, called name from Boldon, a village and parish Domesday-Book, which was finished in near Sunderland, in the same diocese, the next year; and in the latter end of where either it was compiled, or accordthat very year the king was attended by ing to the census of whose inhabitants all his nobility at Sarum; where all the the other manors, &c. in that bishopric principal landholders submitted their lands were regulated. This useful work adds, to the yoke of military tenure, became 46 Of the motives or reasons which led to the king's vassals, and did homage and this compilation, we have no record; but fealty to his person ;" 2 Com. 48; and Bishop Pudsey affected the state of a soveadds (ib. p. 51), “ In consequence of this reign in his own palatinate; in which change, it became a fundamental maxim there were many royal rights, which had and necessary principle (though in reality been enjoyed by its prelates long before a mere fiction) of our English tenures, the conquest, and were continued long
that the king is the universal lord and after; several of which remain even to the original proprietor of all the lands in his present day. And perhaps it was in conkingdom; and that no man doth or sequence of these exclusive rights, that possess any part of it, but what has when the general census, known by the mediately or immediately been derived as name of Domesday-Book, was made, the a gift from him, to be held upon feodal bishoprick of Durham was passed by, as services.'”
it was found to contain no rights which The reader, however, is reminded, that could be claimed by the monarch, without most of our ancient text writers are agreed trenching on those which had been posthat military services and feuds may be sessed by its bishops through a long series, traced to the Saxon polity, but that the
of years." feudal law was completely established This record it seems is frequently apabout the middle of the reign of William pealed to, and has been admitted as evithe Conqueror. Vide Harg. & Butl. notes dence in trials at law, on questions affectto Co. Lit. 64 a and b, 65 a, 191 a; ing the seignorial rights of the see of Dur2 Hallam's Europe, 409, 410, 416, &c. ham.
(g) And it is said to be executed with One copy of the Boldon-Book is in the the most scrupulous fidelity and correct. bishop's auditors' office, Durham; anoness : see first Report of the House of ther in the library of the Dean and ChapCommons on Public Records, Appendix A, ter in the same city; and a third among 1a; 1 Phill. on Ev. 321.
the manuscripts of Archbishop Laud at (h) A valuable supplement to Domes- 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 Wintonie, 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 (l), 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 (0); 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 (9)
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.
(n) 4 Inst. 269.
(o) 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.
(1) See Bishop Kennett's Parochial Antiq.
(m) See App. to Second Gen. Rep. from Comm. on Pub. Rec. 381, 383, 384.
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 (6), 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
(8) 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.).
(D) Ante, p. 579.
(u) Kitch. 192, 193; Saunders v. Welch, sup:
(r) And these, it is said, even when holding by copy of court roll, may have a monstruxerunt, 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 seq.
(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 (f): 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 (9). 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 neces
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
(d) F. N. B. 14 F.; 4 Inst. 269; Br. at elections; vide Heyw.C. 75, &c.; Male, Auncien Demesne, pl. 42. " Tenants of 2nd ed., 133, 285; ante, p. 568. But see ancient demesne shall be exempt from the reference to 2 W. 4, c. 45, ante, pt. 1, leet, view of frankpledge, and from she- p. 557, n. (2). riff's tourns.” Br. Aunc. Dem. pl. 49, (g) F. N. B. 228, D.; Savery v. Smith, cites the Reg. fo. 181. And see F. N. B. 2 Lutw. 1146 ; 2 Leo. 191; 2 Vin. Abr. 14 E., marg. But ancient demesne is no
481, (C.); 1 Roll. Abr. 322 (C.); and to exemption from serving the office of high the lord himself, F. N. B. 228, B.; Savery constable ; King v. Bettsworth, 2 Sho. 75; v. Smith, sup.; Br. Auncien Demesne, S. C. Anon. I Vent. 344.
(If he be tenant also, 1 Roll. Abr. (e) But the author apprehends that all 322, D., cites 9 H. 6, 25 b.) See the form general acts of parliament extend to an- of the writ of exemption from toll, F. N.B. cient demesne lands, when the tenure is
228, A. not prejudiced by the purview of such acts. (h) Ward v. Knight, Cro. Eliz. 227; See 1 And. 71, &c.; 4 Inst. 270; Hob. S. C. 1 Leo. 232, 233; 2 Inst. 221; 1 48 ; Com. Dig. Ancient Demesne (K.); Roll. Abr. 321 (B.); 2 Leo. 191. ante, pt. 1, p. 81.
(i) F. N. B. 228, A. & E.; 1 Roll. (1) Br. Aunc. Dem. pl. 43, 49; ib. Abr. 321 (B.) pl. 2, 3. Privilege, pl. 56; F. N. B. 14, 228; 2 (k) Lutw. 1146, 1147, in Savery v. Inst. 542; 4 Inst. 269; Kitch. 194; Hob. Smith. 48, in Cox v. Barnsly. Ancient demesne (1) Ib. In the case of the Town of tenants were also exempt from contribu- Leicester, 2 Leo. 191, Shute, Just., was tion to the expenses of knights in parlia- of opinion, “ that an inhabitant within anment. See all the authorities referred to cient demesne, although he be not tenant, in this note; vide also ante, p.566; Heyw. shall have the privileges." C. 82, 2nd ed.
(m) Savery v. Smith, sup. Tenants in ancient demesne, holding by (n) But see reference to the act of 3 & copy of court roll, were excluded by 31 4 Will. 4, c. 27, post, p. 585, n. (d). Geo. 2, c. 14, from the privilege of voting