By England Howlett.

PRACTICALLY all the landed property in England is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of some superior lord, in consideration of certain services to be rendered to such lord by the possessor of this property, and the terms or manner of their possession is therefore called a tenure. Thus all the land in the kingdom is supposed to be held, mediately or immediately, of the sovereign who is consequently styled the lord or lady paramount.

All tenures being thus derived, or supposed to be derived, from the sovereign, those who held directly under such sovereign, and in right of the crown and dignity, were called tenants in capite, or in chief, which was the most honourable species of tenure, although at the same time it subjected the tenants to far greater and more burthensome services than the inferior tenures did, and this distinction ran through all the different sorts of tenure. William I., and other feudal sovereigns, although they made large and numerous grants of land, always reserved a rent or certain annual payments, which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the dominium directum in themselves.

With our ancestors the most honourable and highly esteemed species of tenure was that by knight service, and this was purely and entirely a military tenure, being, in fact, the result of the feudal establishment in England. Now to make a tenure by knight service, a determinate quantity of land was necessary, which was called a knight’s fee, feodum militare; the measure of which in 3 Edward I., was estimated at twelve ploughlands, and its value (although it varied with the times) in the reigns of Edward I. and Edward II. was stated at £20 per annum. The knight who held this proportion of land was bound to attend his lord to the wars for forty days in every year, if called upon so to do, which attendance was his rent or service for the land he claimed to hold. If, however, he held only half a knight’s fee, he was only bound to attend his lord twenty days, and so on in proportion. This tenure of knight service drew with it several consequences as inseparably incident to the tenure in chivalry, and one of the most profitable, and, at the same time, arbitrary of these was marriage. This incident called marriage was the right which the lord possessed of disposing of his infant wards in matrimony, at their peril of forfeiting to him, in case of their refusing a suitable match, a sum of money equal to the value of the marriage; that is, what the suitor was willing to pay down to the lord as the price of marrying his ward; and double the market value was to be forfeited, if the ward presumed to marry without the consent of the lord.

The personal attendance rendered necessary by knight service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; first, by sending others in their stead, and then in process of time making a pecuniary satisfaction to the lord in lieu of it. This pecuniary satisfaction at last came to be levied by assessments at so much for every knight’s fee; the first time this appears to have been done was in 5 Henry II., on account of his expedition to Toulouse; but it soon became so universal that personal attendance fell quite into disuse. From this period we find, from our ancient histories, that when the kings went to war, they levied scutages on their tenants, that is, on all the landowners of the Kingdom, to defray their expenses, and to pay for the hire of troops.

These assessments, in the time of Henry II., seem to have been made in a most arbitrary manner, and entirely at the king’s will and pleasure. The prerogative became, indeed, abused to such an extent, that at last it became a matter of national clamour, and King John was obliged to consent by his Magna Carta, that no scutage should be imposed without the consent of Parliament. But this clause was omitted in the Charter of Henry III., where we only find that scutages, or escuage, should be taken as they were used to be taken in the time of Henry II.; that is, in a reasonable and moderate manner. Yet afterwards, by statute 25 Edward I., and many subsequent statutes, it was again provided, that the king should take no aids or tasks but by the common assent of the realm; hence it was held that scutage, or escuage, could not be levied except with the consent of Parliament; such scutages being indeed the groundwork of all succeeding subsidies, and the land tax of later times.

It will easily be seen that with the degenerating of knight service, or personal military duty into a pecuniary assessment, all the advantages were destroyed, and nothing in fact remained but the hardships. Instead of having a national militia, composed of barons, knights, and gentlemen, bound by their interests and their honour to defend the king and country, the whole system of military tenures tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. At length the military tenures, with all their heavy appendages were destroyed at one blow by statute, 12 Charles II., C. 24, which enacts “that the courts of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienation, tenures by homage, knight service, and escuage, and also aids for marrying the daughter, or knighting the son, and all tenures of the king in capite, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frank almoign, copyholds, and the honorary services of grand serjeanty.”

Another ancient tenure was that by Grand Serjeanty, whereby the tenant was bound, instead of serving the king generally in the wars, to do some special honorary service for the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer at his coronation. Tenure by cornage was a species of grand serjeanty, being a grant of land upon condition that the tenant was to wind a horn when the Scots or other enemies entered the land, in order to warn the king’s subjects.

The tenure of petit serjeanty bears a great resemblance to the tenure of grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king’s person. Petit serjeanty as defined by Littleton, consists in holding lands of the king, by service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, of course, is but socage in effect, for it is no personal service, but a certain rent. The tenure by which the grants to the Duke of Marlborough and the Duke of Wellington, for their great military services to the country, are held, are of this kind, each rendering a small flag or ensign annually, which is deposited in Windsor Castle. Bury House (New Forest), the property of Sir Charles Mill, Bart., is held by the tenure of presenting the king whenever he enters the New Forest with a brace of milk-white greyhounds. A breed of these dogs is preserved by the family in readiness. King George III. received dogs in recognition of this tenure in 1789, and the incident is the subject of one of Lawrence’s pictures.

In Beckwith’s edition of Blount’s “Fragmenta Antiquitatis,” the following tenure is inserted from the “Black Book of Hereford.”—“The tenants at Hampton Bishop, in the county of Hereford, were to get yearly six horse loads of rods or wattels, in the Hay Wood, near Hereford, and bring them to Hereford to make booths (or hurdles to pen sheep in) at the fair when they should be required; and for every load of the said rods they were to be allowed a halfpenny at the fairs.”

This tenure would appear to relate to one particular fair only, and not to all the fairs formerly held at Hereford. The particular fair is supposed to have been the one beginning on May 19th, and commonly called the nine-days’ fair, from the circumstance of its continuing for that length of time. From time immemorial this fair was proclaimed, with certain formalities, by the Bishop of Hereford’s bailiff, or his deputy, the tolls of the fair belonging to one or both of these officers. During the continuance of the fair, the Bishop’s bailiff superseded the Mayor of Hereford as acting magistrate, the fair being held in a street opposite the Bishop’s palace.

Brienston, in Dorsetshire, was held in grand serjeanty by a curious jocular tenure, viz.:—by finding a man to go before the king’s army for forty days when he should make war in Scotland (some records say in Wales) bareheaded and bare-footed, in his shirt, and linen drawers, holding in one hand a bow, and in the other an arrow without feathers.[6]

The Dukes of Athol hold the Blair Athol estate by the tenure of presenting a white rose to the sovereign whenever he visits them there.

Land was frequently held by the tenure of protecting the church property in times of war. Scott tells us how the Bishop of Durham gave lands to the Danish Count, Witikind, to be held by this tenure. The story is not true, but the tenure is;

Broad lands he gave him on Tyne and Wear,

To be held of the Church by bridle and spear;

Part of Monkwearmouth, of Tynedale part,

To better his will and soften his heart.

Harold the Dauntless.

Canto i., IV.

The tenure of ancient demesne exists in those manors, and in those only, which belonged to the crown in the reigns of Edward the Confessor and William the Conqueror, and in Domesday Book are called Terrœ Regis Edwardi. The tenants are freeholders and possessed certain privileges, the chief of which was a right to sue and be sued only in their lord’s court.

Another kind of ancient tenure, still subsisting, is the tenure of frankalmoign, or free alms, and this is the tenure by which the lands of the church are for the most part held. This tenure is expressly excepted from the statute, 12 Charles II., by which the other ancient tenures were destroyed. It has no peculiar incidents, the tenants not being bound even to do fealty to the lords, because, as Littleton says, the prayers and other divine services of the tenants are better for the lords than any doing of fealty. As the church is a body having perpetual existence, there is, moreover, no chance of any escheat. By this tenure almost all the monasteries and religious houses held their lands. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in ancient times. This too, no doubt, is the reason that tenants in frankalmoign were discharged from all other services except the repairing of highways, building castles, and repelling invasions; just in fact as the Druids, among the Ancient Britons, had similar privileges. The tenure being purely spiritual, the lord had no remedy for neglect by distress or otherwise, but merely a complaint to the ordinary to correct it.

One of the most interesting tenures is that of Borough English. There are a great number of manors throughout the country in which this tenure prevails; they are not however confined to one county or one district. Borough English is the right of succession of the youngest son, instead of the eldest, to real estate in case of intestacy, but the custom is not always the same; it differs in different manors. In some it is confined to the sons only, and if there should be no son the estate is shared equally amongst all the daughters. In other manors, principally Sussex, the youngest daughter inherits. Again, there are cases to be found where if there be no children, the youngest brother inherits, and in others it goes according to the rules of the common law. There are, moreover, places in which the copyhold land only is Borough English, while the freehold is held by the ordinary tenure, and in others the freehold and copyhold alike follow the Borough English custom.

The area over which this Borough English tenure prevails is an exceedingly wide one. It is found in nearly every part of Europe, except perhaps Italy and Spain—in Germany, Hungary, the Ural mountains, and in Asia as far as the borders of China. Many attempts have been made to explain the custom. Littleton suggests that the youngest son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. It is possible the origin may have come to us from the Tartars, amongst whom this custom of descent to the youngest son also prevails. That nation is composed almost entirely of shepherds and herdsmen, and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. And thus we find that, among many other northern nations, it was the custom for all the sons, but one, to migrate from the father, which one became his heir.

The tenure of Gavelkind prevails principally in the County of Kent. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. It seems fair therefore, to conclude that this custom was a part of those liberties, agreeably to the general opinion, that Gavelkind, before the Norman Conquest, was the general custom of the realm. The distinguishing properties of this tenure are various; some of the principal are these: 1. The tenant is of age sufficient to alienate his estate by feoffment at the age of fifteen. 2. There never was any escheat in case of an attainder and execution for felony; their maxim being “the father to the bough, the son to the plough.” 3. In most places, the tenant had the power of devising his lands by will, before the statute for that purpose was made. 4. The lands descend not to the eldest, youngest, or any one son only, but to all the sons together. This last incident is, of course, the most important affecting the tenure, and not only this, but also the most interesting, in that, like Borough English, it prevails to the present day. True it is that certain lands in Kent, once Gavelkind, have been made descendable according to the rules of the common law, by special statutes; however, these statutes only affect a very small portion of the county.

Gavelkind and Borough English, being customs already acknowledged by the law, need not be specially pleaded; it is sufficient to show that the lands are affected and regulated by the same; but all other private customs must be pleaded.

The ancient Barons of Buccleuch, both from feudal splendour and from their frontier situation, retained in their household at Branksome a number of gentlemen of their own name, who held lands from their chief for the military service of watching and guarding his castle.

Nine and twenty knights of fame

Hung their shields in Branksome Hall

Nine and twenty squires of name

Brought them their steeds from bower to stall.

Nine and twenty yeomen tall

Waited duteous on them all.

They were all knights of metal true,

Kinsmen to the bold Buccleuch.

“Lay of the Last Minstrel.”—Scott.

Canto i., III.

By England Howlett.

EVERYTHING relating to the manor reminds us forcibly of the baron of olden days, with his little territory, in which he was practically a king. Estates in copyhold are essentially distinct both in their origin and in their nature from those of freehold estates. Copyhold lands are holden by copy of court roll, that is to say, the muniments of the title to such lands are copies of the roll or book in which an account is kept of the proceedings in the court of the manor to which the lands belong. For it must be remembered that all copyhold lands belong to and are parcel of some manor. An estate in copyhold is not a freehold; but, according to construction of law, merely an estate at the will of the lord of the manor, at whose will copyhold estates are expressed to be holden. Copyholds are also said to be holden according to the custom of the manor to which they belong, for custom is of course the life and being of copyholds.

We must remember that in former days, a baron, or great lord, becoming possessed of a large tract of land, granted part of it to freemen for estates in fee simple. Part of the land he reserved to himself, and this formed the demesnes of the manor, properly so called: other parts of the land he granted out to his villeins, or slaves, permitting them, as an act of pure grace and favour, to enjoy such lands at his pleasure; but sometimes enjoining, in return for such favour, the performance of certain agricultural services, such, for instance, as ploughing the demesne, carting the manure, and other such servile work. The lands remaining after this parcelling out, generally the poorest, formed the waste lands of the manor, over which rights of commons were enjoyed by the tenants. In this way arose a manor, of which it will be seen the tenants formed two classes, the freeholders and the villeins. Now for each of these classes a separate court was held—for the freeholders a Court Baron; for the villeins another called a Customary Court. In the former court the suitors were the judges; in the latter the lord only, or his steward.

In some manors the villeins were allowed to have life interests, but these grants were not extended so as to admit any of their children. Hence arose copyholds for life. Again, in other manors a much greater degree of liberality was shown by the lords; and on the death of a tenant, the lord permitted his eldest son, or indeed sometimes all his sons, or sometimes the youngest only, and afterwards other relations to succeed him by way of heirship; for which privilege, however, the payment of a fine was usually required on the admittance of the heir to the tenancy. Frequently it happened that the course of descent of estates of freehold was chosen as the model for such inheritances; but in many cases dispositions of the most capricious kind were adopted by the lord of the manor, and in course of time actually became the custom of the manor. And thus it was that copyholds of inheritance arose. Again, if a villein tenant wished to part with his own parcel of land to some other of his fellows, the lord would allow him to surrender or yield up again the land, and then, on the payment of a fine, would indulgently admit as his tenant, on the same terms, the other, to whose use and in whose favour the surrender had been made. Thus arose the method now prevalent at the present day, of conveying copyholds by surrender into the hands of the lord of the manor to the use of the purchaser, and the subsequent admittance of the latter. By long custom and continued indulgence that which at first was a pure favour gradually grew up into a right, and thus it came to pass that the will of the lord, which had of course originated the custom, came at last to be controlled by it.

The rise of the copyholder from a state of uncertainty to certainty of tenure appears to have been very gradual. Britton, who wrote in the reign of Edward I., thus describes this tenure under the name of Villeinage. “Villeinage is to hold part of the demesnes of any lord entrusted to hold at his will by villein services to improve for the advantage of the lord.” And he further adds that “In manors of ancient demesne there were pure villeins of blood and of tenure, who might be ousted of their tenements at the will of their lord.”

In the reign of Edward III. a case occured in which the entry of a lord on his copyholder was adjudged lawful, because he did not do his services, by which he broke the custom of the manor, which seems to show that even at that time the lord could not have ejected his tenant without a cause. And later, in the reign of Edward IV., the judges gave to copyholders a certainty of tenure by allowing them an action of trespass on ejectment by their lords without just cause. “Now,” says Sir Edward Coke, “copyholders stand upon a sure ground; now they weigh not their lord’s displeasure; they shake not at every sudden blast of wind; they eat, drink, and sleep securely; only having a special care of the main chance, namely, to perform carefully what duties and services soever their tenure doth exact and custom doth require; then let lord frown, the copyholder cares not, knowing himself safe.”

In the present day a copyholder has as good a title as a freeholder; in some respects a better; for all the transactions relating to the conveyance of copyholds are entered on the court rolls of the manor, and thus a record is preserved of the title of all the tenants.

Since the passing of the statute of Quia Emptores, 18 Edward I., it has not been lawful to create a tenure of an estate in fee simple; so that every manor bears date at least as far back as that reign; to this rule the few seignories, which may have been subsequently created by the king’s tenants in capite, form the only exception.

The name “manor” is of Norman origin, but the estate to which it was given existed, in its essential character, long before the Conquest; it received a new name as the shire also did, but neither the one nor the other was created by this change. The local jurisdiction of the thegns who had grants of sac and soc, or who exercised judicial functions amongst their free neighbours, were identical with the manorial jurisdictions of the new owners.

Although long continued custom has now rendered copyholders quite independent of the will of the lords, yet all copyholds, properly so called, are still expressly stated, in the court rolls of manors, to be holden at the will of the lord; and, more than this, estates in copyholds are still liable to some of the incidents of mere estates at will.

In ancient times the law laid great stress on the feudal possession or seisin of lands, and this possession could only be had by the holder of an estate of freehold, that is, an estate sufficiently important to belong to a free man. Now, as we have seen, copyholders in ancient times belonged to the class of villeins or bondsmen, and held, at the will of the lord, lands of which the lord himself was alone feudally possessed. The lands held by the copyholders still remained part and parcel of the lord’s manor; and the freehold of these lands still continued vested in the lord; and this is the case at the present day with regard to all copyholds. The lord of the manor is actually seised of all the lands in the possession of his copyhold tenants.

The lord, having the legal fee simple in the copyhold lands comprised in his manor, possesses all the rights incident to such an estate, controlled only by the custom of the manor, which is now the tenant’s safeguard. Thus he possesses a right to all the mines and minerals under the land, and also to all timber growing on the surface, and this even though the timber may have been planted by the tenant. However, it must be borne in mind that these rights are somewhat interfered with by the rights which long continued custom has given to the tenants, for the lord cannot come upon the lands to open his mines, or to cut his timber, without the copyholder’s leave.

A copyholder cannot commit any waste, either voluntary, by opening mines, cutting down timber or pulling down buildings; or permissive, by neglecting to repair. For the land, with all that is under it or upon it, belongs to the lord of the manor; the tenant has nothing but a customary right to enjoy the occupation; and if he should in any way exceed this right, a cause of forfeiture to his lord would at once accrue.

By the customs of manors, on every change of tenancy, whether by death, sale, or otherwise, fines of more or less amount become payable to the lord. By the customs of some manors the fine payable was anciently arbitrary; but now in modern times, fines, even when arbitrary by custom, are restrained to two years’ improved value of the land after deducting quit rents.

In some manors a fine is due on the change of the lord; but in this case the change must always be by act of God, and not by any act of the party.

The tenure of an estate in copyholds involves an oath of fealty from the tenant, and together also with suit to the customary court of the manor. Another incident of the tenure, and this sometimes a very profitable one, is the escheat to the lord on failure of heirs.

Before the abolition of forfeiture for treason and felony, the lord of a copyholder had a great advantage over the lord of a freeholder in this respect, that, whilst freehold lands in fee simple were forfeited to the crown by the treason of the tenant, the copyholds of a traitor escheated to the lord of the manor of which they were held.

One of the most curious incidents of the tenure is the right of the lord, on the death of a tenant, to seize the tenant’s best beast, horse, or other chattel under the name of a heriot. Now it would appear that heriots were introduced into England by the Danes. The heriot of a military tenant was his arms and habiliments of war, which belonged to the lord for the purpose of equipping his successor. And it would seem that in analogy to this purely feudal custom, the lords of manors usually expected that the best beast or other chattel of each tenant, whether he were a freeman or a villein, should on his death be left to them. In old wills of copyholders we constantly find this legacy to the lord of the manor the first bequest mentioned: in fact the tenant really making a bounty of what was actually an obligation. In cases where the tenant died intestate the heriot of the lord was taken in the first place out of his effects, unless indeed the lord seized the whole of the goods, which not unfrequently happened in days before custom had so completely controlled the rights of the lord, and at the same time protected the interests of the tenant. Heriots survive to this day in many manors, a true badge of the ancient servility of the tenure. Now, however, the right of the lord is confined to such a chattel as the custom of the manor, grown into a law, will permit him to take; and in most cases the heriot consists not of a chattel at all, but merely of a money payment.

The mode in which copyhold land is transferred from one person to another still retains much of the primitive simplicity of bygone ages. The copyholder personally surrenders the lands into the hands of the lord, generally through his steward, and this surrender is evidenced by the delivery of some article varying according to the custom of the particular manor: in some manors the surrender is effected by the delivery of a rod, in others of a straw, and again in others by a glove. The surrender having been duly effected, the purchaser is admitted, and the various documents used are all entered upon the court rolls of the manor. The steward is the person who makes the entries on the court rolls, and they are kept in his custody, but subject however to the right of the tenants to inspect them. The steward also usually presides at the copyhold courts of the manor.

A special custom is required to entitle the wife of a copyholder to any interest in her husband’s lands on his death intestate. Where such a custom does exist the wife’s interest is termed her freebench, and it consists generally of a life interest in one-third part of the lands of which the husband died possessed. Freebench in most manors differs from the ancient right of dower in this most important particular, that whilst the widow could claim her dower out of all the freehold lands which her husband actually possessed at any time during the marriage, the right to freebench does not in general attach until the actual death of the husband, and of course may be defeated by a devise of lands by the husband’s will. From this it will be seen that freebench is no impediment to free alienation by the husband of his copyholds without any consent on the part of his wife. To this general rule, however, the manor of Cheltenham forms an important exception; for by the custom of this manor the widow’s freebench attaches in the same way as the ancient right of dower did on all the land of copyhold tenure, of which the husband at any time during the marriage had been possessed.

Centuries have robbed the manor of much of its importance; most of the honour and prestige has decayed which once surrounded the lord, his power has become controlled by long continued custom, so that the copyhold tenants are practically independent of him, and have as good a title to their lands as freeholders. Little remains beyond the most prominent of the old formalities, which at one time gave dignity and importance to the lord of the manor and his court. Most of the dealings with copyhold land are now effected out of court, and although the courts are still held at the customary periods, they are for the most part an empty formality, their glamour gone, yet still possessing an especial interest of their own as evidence of the surviving of ancient customs, which have practically remained unchanged through the roll of centuries.

By George Neilson.

THE wayward fancies of mankind are well illustrated in the diversity of symbolic observances, some never losing their meaning, some absolutely unintelligible in their historic form, and some as much characterised by a befitting dignity, as others are by the want of it. All once were self-explanatory and possessed a measure of propriety proportioned to the state of the people amidst whom they originated. But tradition is long, centuries elapse, each modifying a ceremony, and when the procedure emerges within the knowledge of record, it has often so lost touch with its surroundings, that it is hopeless to speculate how it arose.

Symbols are drawn from and applied to every field of human activity. Of course in a general sense man expresses himself only so, and a regular alphabet is but a comparatively trifling advance on the language of signs. What we call civilization, is at bottom little more than a clear recognition of certain symbols of government. The Queen’s crown, the Judge’s ermine, the Mayor’s mace, what are they else? The sceptre is only a glorified stick, of which the policeman’s baton is a humbler shape. Each embodies the great thought that behind it stands a nation’s determination to be ruled by law.

In the history of law, symbol and the traces of symbol meet us at every turn. The middle ages teemed with them. Roman law had bequeathed not a few. Perhaps the most wondrous of them all is one that has long ceased to have any legal connection, although its mark is all-powerful over civilisation. How daring was the imagination which prompted the choice, for the heraldic badge of Christianity, of the dread emblem of capital punishment by crucifixion! In the pure domain of the law of the early and middle ages, a perfect wilderness of symbols presents itself to eyes which strive to explore the origins of institutions.

Law is ever beset by a tendency towards formalism, and in early times a severe insistence upon ceremony, no doubt, gave prominence and prescriptive sanction to symbolic acts. Law and custom after all only mean that the way things were done yesterday is the safest way of doing them to-day. The acceptance of a common form implies a very large public consent, which is equally necessary to its abrogation, once it is accepted. No small part of its value lies in its certainty, “certainty which,” Coke well says, “is the mother of quiet and repose.”

Hence the fixity and longevity of many emblematic methods of performing acts affecting status or property rights. The constitution or discharge of slavery, or the transfer of a slave from one master to another, had a variety of set forms. A freeman might deliver himself to serfage by putting a leathern thong upon his neck. When a church was the donee, the ceremony might take place at the altar, and the man present himself there with cords round his throat. “Thus he offered himself,” says an old record, “to the Almighty Lord.” A coin or two on the head was also a customary part of the process. In the manumission or liberation of the slave, these coins struck off the head served the purpose of declaring him free, as did the companion symbol of open doors, or the placing him at four cross roads, and bidding him go whither he would. Another common symbol of enfranchisement was the delivery of an arrow, thought to denote the right confined to freemen of bearing arms.

Even a short account of legal symbols would make a very large treatise. Single instances such as the ring, the staff, the glove, and the horn would each furnish material for an elaborate monograph. The theme would call for a discussion of the great war of investitures, and would touch very many points of ecclesiastical, civil, and criminal law and history. The scope of the present unambitious article is only directed to a few illustrations in relation to the transfer of land, the act of divesting the old proprietor and clothing the new with his rights. Although such symbols usually had a connexion with the subject conveyed, there are many types in which that connexion is not readily traceable. Why for example amongst the Saxons should a resignation of all interest in an estate have been made by a gesture with curved fingers? One can understand why a sod should be so often a token, but why does the glove play so large a part in Merovingian and Carolingian conveyancing? Was it, indeed, as German scholars speculate, because the donor metaphorically took it off and the donee put it on, making his the covered hand, the vestita manus, that would defend the land conveyed? How came an eleventh century magnate to attest his renunciation of justiciary rights to a monastery “by cutting off the top of the silk band by which his fur robes were fastened to his breast, and with that segment re-investing three monks therein?” In this case a portion of that silken band was carefully sewn up, as an adminicle of evidence, in the writ recording the transaction. How again came it that a claim of feudal service might be departed from by the delivery and placing of a wand (virgula) upon the altar? All these are much more personal symbols than real. They are mainly guarantees of the grantor’s good faith. They do not seem to be primarily emblems of possession. The contrast between these two classes will be best appreciated by considering types of the latter.

When a purchaser proceeded to set up fresh boundary marks, or to take a spade and dig, or when he received delivery of a sod with grass or shrubbery upon it, or lifted from the ground the charter granted by the seller with amongst other things a sod laid thereon, the act of seisin, the formal occupation is visibly completed. Of this class of symbol, the sod (cespes) is probably the best and most typical for a few words of illustration. We read of litigants laying judicial claim to land in the mall or public court by putting their spears into a sod, representative of the subject in dispute. We hear of the sods being cut in the shape of bricks, and of their being preserved as memorials, with the twigs growing in and incorporated with them. We hear of sods offered on the altar when the grant of land was being made to a church. We hear of transfer from one vassal to another being accomplished by the grantor delivering the sod to the over-lord, and the latter passing it on to the grantee.

Of all the symbols employed in connection with feoffments, however, the rod (festuca) had the widest vogue on the continent. Not that it was restricted to transactions in land; it was a more or less lineal descendant of the Roman stipulation, a contract visibly expressed by the parties breaking a straw between them. Under Charlemagne a renunciation by certain priests was made by them “holding straws in their hands and casting them from them before God and his angels.” Later this appears as a recognised method of renunciation, but with a rod substituted for the straw. In some cases the fact of renunciation is emphasised by the rod being not only thrown to the ground by the resigner, but trodden under foot when there. The rôle of the festuca was peculiarly important amongst the Frankish peoples.[3] Galbert of Bruges, a Flemish twelfth century historian, states that the counts of Flanders gave investitures to their vassals, after receiving their fealty and homage, by a wand (virgula) held in hand, and he has a dramatic passage describing how the people of Bruges, in token of their renunciation of their feudal bond to Hacket the castellan, “picking up bits of stick exfestucated their homage and fealty,” i.e. cast the rods from them, and so doing severed all connexion with their former chief.

In England and in Scotland, this rod symbol (fustis et baculus) also played a large part. Bracton referred it specially to land without houses. Tenure by the verge, a species of copyhold, had its name, we learn from Littleton, from un petite verge, delivered by the old tenant to the steward or bailiff of the manor, who re-delivered it to the new holder. Jordan Fantosme tells us that when Brien, messenger of Ranulf Glanvil, in 1174, announced in Westminster the capture of the Scottish King at Alnwick, Henry II. rewarded him for his good news by handing him a stick (bastuncel), which vested him in ten librates of land. In Scotland the feudal resignation by a vassal to his overlord for the re-investure of a fresh owner was effected by “staff and baton” (fustis et baculus), and references to those symbols occurred in every day conveyancing until far into the present century. Indeed this picturesque ritual was, strictly speaking, not abrogated, although made unnecessary, by the Act 8 and 9 Victoria ch. 35.

The commonest conveyancing symbol for land in England was the formal delivery of turf or twig of the ground conveyed, made by a representative of the grantor, to a representative of the grantee. The most familiar in Scotland was the handing over of “earth and stone.” This latter was the normal form of seisin, and its history goes far back, not only in Scotland, but on the continent as well. A curious Saxon legend attests this. Widukind narrates that some Saxons, having landed from their ships in Thuringia, one of them, wearing a golden torque and bracelets, met a Thuringian, who asked if he would sell his ornaments. The sly Saxon entered into an odd transaction; the Thuringian gave him in exchange for his gold, a lapful of soil. The Thuringians rejoiced exceedingly over the smart bargain their countryman had made, but changed their tune when soon afterwards the Saxons claimed the land as theirs, purchased with their own gold, and by force of arms made good the demand.

Our chronicles have a good many stories about symbols. In the Norman Brevis Relatio, a sketch of the origin of William the Conqueror, is told of his grandfather, Duke Richard the Good, that once when staying at a monastery, after prayer in the morning he laid a spindle on the altar. Upon being asked what it meant, he named the manor which he had by so homely a symbol bestowed for the good of his soul. When the infant William came into the world, it was said,—and afterwards noted as prophetic—that when they laid him down upon some straw, the little hands each clutched a handful. Acquisitive tendencies were foreshadowed! The Roman de Rou tells that in 1066, when William landed in England, he stumbled and fell, an omen which for the moment disconcerted his followers, but rising with a shout, he swore by the splendour of God that with his two hands he had taken possession of the land. Prompt to catch the occasion, one of his men ran forward to a cottage, tore a handful of thatch from the roof, and passed it to his chief, with the cry, “Receive this seisin,”—quasi-ceremonial words which with William’s pious, “God be with me,” the curious may compare with the formalities of English livery in deed, as described (sec. 59), in Coke upon Littleton.

The normal symbol of seisin for a house in England, was (before the Act 7 and 8 Victoria ch., 76, superseded these archaic ceremonies), was the ring or hasp of the door, known in Scotland for houses in burghs as “hasp and staple.” In the latter country also, there were a good many special types of symbol characteristically appropriate to seisin in special kinds of property. Thus for mills “clap and hopper,” for fishings “net and coble,” for teinds (Anglice tithes) a sheaf of corn, for the patronage or advowson of a church a psalm-book and keys, attained the figurative purpose requisite. There were many others less familiar amongst them, one, a hat, worthy of a few words all to itself. Our own generation may not regard this as a particularly dignified symbol, but there is a cloud of witnesses to shew its very various applicability. The priest’s cap or biretta was sometimes employed to instal him in a chaplainry or benefice. And apart from the place of the hat in the regulations of the tilting ring, it was occasionally used in Scotland as a symbol in connection with what were known as heirship goods. But it had in the twelfth century been accorded the very loftiest use to which secular symbolism could be turned. In 1175, King William the Lion, taken prisoner the year before, relinquished the independence of Scotland, and did homage to the English King at York, as a condition of his liberation. The contemporary records are silent regarding symbolic details, but in 1301 Edward I. stated in his letter to the Pope that “in token of his fealty, William the King of Scotland, had, on the altar of St. Peter’s, at York, offered his cap (chappelus), lance, and saddle, which until this day remain and are preserved in said church.” Any incredulity which a fair-minded Scot can entertain, regarding this allegation that the freedom of his country was once symbolically surrendered in King William’s cap, will be materially lessened, and Scottish patriotism so far consoled, by the recollection that under very similar circumstances the realm of England was in 1193 given away with the bonnet (pilleus) of the captive Richard I., who, thus (as Hoveden tells us), gave investiture of his kingdom to his arch-enemy, the Emperor Henry VI. This was, however, only formal: the Emperor at once re-invested King Richard in his realm with a double crown of gold, though subject to an annual tribute of £15,000—a business transaction painfully illustrative of the Christian chivalry of the Crusades.

The annals of Scotland boast one instance of a royal symbol much more regal than either of these two. About the beginning of the year 1124, King Alexander I., restoring by charter to the Bishopric of St. Andrews an extensive tract of land, completed the grant according to Andrew of Wyntoun (vii., 5), in a truly stately fashion. He—

Gert than to the awtare bryng

Hys cumly sted off Araby

Sadelyd and brydelyd costlykly

Coveryd with a fayre mantlete

Off precyous and fyne welvet

Wyth his armwris off Turky

That pryncys than oysid generaly

And chesyd mast for thare delyte

Wyth scheld and spere off sylvyr qwhyt.

It was a special occasion, for Bishop Robert’s appointment, which had led to the grant, was a Scottish victory over the pretensions of the See of York. There is an appeal to the imagination so strong in the scene, that, in spite of the interval of 300 years betwixt the event and this oldest record of it, one is slow to offer any criticism on the charger; more especially as the entire verity of the silver spear is corroborated by Walter Bower’s enshrining in his Scotichronicon the fact that in the fifteenth century it was doing duty as the shaft of the cross in the Cathedral. Yet the unexampled symbol, coupled with the analogy from York in 1175, compels the suggestion, that perhaps during these 300 years an original capellus have been mis-read as caballus, or mistaken for Scottish capul, and thus by the magic of mistranslation, a king’s cap may have been transmuted into an Arab steed.

Whilst of course a crown was the standard symbol of investiture for a kingdom, inferior rights of principality were often typified by other things, such as a sword, a spear, or a banner. And as feudal forms were observed in the bestowal, so were they sometimes in the taking away. England dispensed with several of her monarchs, but apparently in no case was a deposition attended by the feudal solemnities. In Scotland when, in 1296, King John Balliol was pulled out of the throne by the same hands as had placed him in it, Edward I. spared his vassal little of the indignity of the situation. Balliol, deprived of his royal ornaments, with the ermine stripped from his tabard, resigned his realm by the symbol of a white wand.

Than this Jhon tuk a quhyt wand

And gave wp in till Edwardis hand

Off this Kynryk all the rycht.

No Scottish historian has noticed the absolute legal propriety of this, and it is worth noticing. By contemporary law (Britton, ii., 22), une blaunche verge was the recognised symbol of disseisin by consent. The thirteenth century was very particular, even in small things, about its law. Disseisin, provided for by statute of 1429, in disputed successions to real property, and known to Scotland as the breaking of seisin, was symbolically affected—frangendo discum—by the curiously expressive act of breaking a dish or dishes, with fire underneath.

By William E. A. Axon, f.r.s.l.

IN all ages men have attributed a special sanctity to certain localities, usually those devoted to the purposes of worship, and this sentiment has in many lands been utilised in the interests of mercy by exempting those within the precincts from arrest for some, or even all, crimes and offences. In the earlier stages of development, the punishment of crime was not regarded as a duty of the community, but as an obligation, or privilege of the injured or of those nearest to him in blood or social relationship. Thus the son of a murdered man had the right to murder the murderer. The general principle of the earlier forms of justice is the lex talionis, but the infliction of the penalty was mostly in the discretion of the avenger. He might be afraid to attempt to slay a strong or powerful homicide, and be willing to pardon the offence for a money consideration. A criminal who took refuge in a sacred place secured at least a breathing time in which his friends might effect a compromise with his adversary. Greece had its famous asyla, but the custom of our own country was probably influenced from Hebrew rather than classical sources. In the narrative of the death of Joab, the hesitation of Benaiah shows that it was unusual to slay one who had taken hold of the horns of the altar. The six Cities of Refuge were appointed as places of safety for involuntary homicides, where they were protected from the avenger of blood. Amongst our Anglo-Saxon ancestors, the Church exerted a moderating influence. Every consecrated church had the right to shelter the fugitive from justice for seven days, and when the building was needed, he might be placed in a house provided for that purpose by the church, which was not to have more doors than the church itself. If the criminal was dragged forth from his refuge, the violators of the sanctuary were fined in varying degrees according to the rank of the ecclesiastical edifice. In addition to the inherent right of each church, special privileges were conferred on certain places by the exercise of the royal prerogative. In 1378, it was decided that the property of fraudulent debtors who had taken sanctuary should be liable for the satisfaction of the claims of their creditors. In 1486, Pope Innocent VIII. issued a bull relating to English sanctuaries, by which it was provided that when the refugee left his asylum, he lost his right of protection, even though he subsequently returned to the sanctuary. At the same time, the king was empowered to appoint keepers to look after those who having been accused of treason, had taken sanctuary.

Great changes were made in the law during the reign of Henry VIII. Traitors were wholly exempted from the privilege; those abjuring the realm were not actually banished, but were to remain throughout life in the sanctuary, and if they left it and committed any offence, they might then be brought to trial. All inmates were to wear a badge twenty inches in length and breadth, were forbidden the use of weapons, and were not to leave their lodgings between sunrise and sunset. In 1538, the right of sanctuary was further restricted, and Wells, Manchester, Northampton, York, Derby, and Launceston were declared sanctuaries. Manchester found this privilege to be of such doubtful value that two years later it was transferred to Chester, and afterwards to Stafford. In the reign of James I., the right of sanctuary was abolished almost everywhere. The Palatine Counties had their special sanctuaries. In Cheshire, Hoole Heath, Overmarsh, and Rudheath were such places of refuge. The abbey of Vale Royal had also a grant. But generally the County Palatine of Chester was a place of resort for those who had come into conflict with the law in other parts of the kingdom, and it was not until the reign of Charles II. that the king’s writ ran in the palatinates and other privileged places. Many privileged places in London, Westminster, and Southwark were brought within the regular jurisdiction in the reign of William III. and George II.

We have an instructive picture of the working of the sanctuary system in the case of Manchester. The Act of 32 Hen. VIII., c. 8, abolished the right of refuge in all places except, and the exception is a considerable one—churches, hospitals, and churchyards. Perhaps a more important exception was that sanctuary was to be denied to those guilty of murder, rape, highway robbery, burglary, house-burning, or sacrilege. Whilst abolishing many sanctuaries, certain additional places were named as cities of refuge for minor offenders. One of these was Manchester. A year later the town petitioned to be relieved from this distinction. The inhabitants set forth that Manchester had a great trade in the bleaching of linen yarn, and in the making of linen and woollen cloths and dressing of cotton, and that the influx of dissolute persons to the sanctuary had caused serious damage to the prospects of the town, which, having no mayor, sheriff, or bailiff, and no jail, was badly circumstanced for dealing with these lawless invaders. The request was granted, and the sanctuary removed from Manchester to Chester. But the city of the Deva found it desirable to obtain relief, and a further removal was made to Stafford.

The fridstool at Hexham still remains, although nearly everything else of the Saxon foundation has perished. This “chair of peace” was the central point of the sanctuary, which extended a mile around. A Durham example of the working of the law may be cited.

“Memorandum: That on the 13th day of the month of May, a.d. 1464, one Colson, of Wolsyngham, Durham, who had been detected in a theft, and therefore put and detained in gaol, at length contrived to escape, and fled to the Cathedral Church of Durham, in order to avail himself of its immunities, and whilst he was there standing near the bier of St. Cuthbert, prayed, that a Coroner might be assigned to him. Upon John Raket, Coroner of the Ward of Chester in Strata (sic) coming to him, the same Colson confessed the felony, making upon the spot the corporeal oath that he abjured the realm of England, and would withdraw from it as soon as he could conveniently, and would never return thither, and which oath he took at the bier of St. Cuthbert in the presence of Master George Cornworth, Sacristan of the Cathedral Church of Durham; Ralph Bows, Knight and Sheriff of Durham; John Raket (the Coroner); Robert Thrylkett, Deputy Sheriff; Hugh Holand, and Nicholas Dixson, and of many others; by reason of which renunciation and oath all the dress of the said Colson belonged to the said Sacristan and his office; wherefore the said Colston was enjoined to take off to his shirt all his garments, and deliver them to the aforesaid Sacristan, and he did so, placing them all into his possession, the Sacristan gave up and delivered to him again, gratuitously, all his dress that he had up to this occasion been clothed in; and after that Colstone withdrew from the Church, and was handed over to the nearest constable by the aforesaid sheriff, and so on from constables to constables, holding a white cross made of wood as a fugitive, and so he was to be conducted to the nearest seaport to take vessel as one never to return. This was done on the day, month, and year aforesaid.”

The system was one that led to gross abuse. It was held that the right did not extend to others than those whose offences entailed forfeiture of life and limb, but in practice knavish debtors, fraudulent executors, etc., availed themselves of the protection. There was plenty of scope for dispute as to jurisdiction. In 1427, the Abbot of Beaulieu was required to give proof of his right to shelter William Wawe, who is described as a heretic, traitor, common highwayman and public robber. “Wille Wawe was hanged,” is the sum of the matter as recorded by Stowe. Between 1478 and 1539, at Durham, 283 persons took refuge who were, as principals or accessories, accused of homicide. There were sixteen debtors, four horse-stealers, nine cattle-stealers, and four house-breakers. One had been charged with rape, and seven with theft. One had been backward in his accounts, one had harboured a thief, and one had failed to prosecute. Sir John Holland, in revenge for the death of his esquire, killed the son and heir of Hugh, second Earl of Stafford, and then took sanctuary at Beverley. The murderer, in this case, was the half-brother of Richard II., but it was with great difficulty that the king was induced to grant a pardon.

The church of St. John of Beverley had a charter from Athelstan, and near the altar was the Fridstool, or chair of peace, “to which what criminal soever flies hath full protection.” The privilege extended for a radius of about a mile round the minster, and the limits were marked by stone crosses. Infraction of the right of sanctuary was punishable by severe penalties, and to take a refugee from the Fridstool was to incur both secular and ecclesiastical penalties, the latter extending to excommunication.

The widow of Edward IV. fled with her younger children for safety to the sanctuary of Westminster after her eldest son had fallen into the keeping of the Duke of Gloucester. Sir Thomas More reports the discussion in the Council of the Protector, and the arguments used by Cardinal Bourchier, which induced the queen to give up the Duke of York. The boy king, who was never crowned, and his brother were murdered in the Tower. It is noteworthy that this unfortunate monarch was born in the sanctuary of Westminster when his father was in exile. Skelton, the poet, died in this same sanctuary.

The privileges of the sanctuary were not always respected. When Geoffrey, Archbishop of York, took refuge in St. Martin’s Priory, Dover, he was dragged from the altar in his pontifical robes by order of the bishop of Ely, who was then Chancellor of the Kingdom. But this arbitrary proceeding was not the least of the causes of the downfall of William of Longchamp. When William Longbeard, who had been condemned to death, took sanctuary at St. Mary-le-Bow, Hubert de Burgh ordered the church tower to be set on fire to compel him to come forth. Longbeard abandoned his place of refuge, and was dragged to Tyburn, and there hanged. But although de Burgh was Archbishop of Canterbury and Justiciary of the Kingdom, and the Church was his own peculiar, his violation of sanctuary led to the loss of his great secular dignity. Later, when he had himself to seek refuge, a great debate arose as to his having been forcibly taken from a sanctuary, and he was restored to its protection, and escaped to Wales.

Whilst the same rights of sanctuary existed in Ireland and in Wales, they were apparently not made use of to any great extent. In Scotland, the churches of Wedale, near Galashiels, and of Lesmahagow, near Lanark, were the most famous of the religious sanctuaries. The latter had also a royal charter from David I. These sanctuaries ended with the Reformation. The abbey of Holyrood and its precincts, which include Arthur’s Seat and the Queen’s Park, gave protection to debtors until, by the abolition of imprisonment for debt, its privileges ceased to have any meaning. One of those who thus sought refuge at Holyrood during a part of his career was Thomas de Quincey.

Sanctuaries probably served a useful purpose in ages when the law was harsh and indiscriminate in its punishment of offenders. The limited protection afforded by the Church sanctuaries at least gave an opportunity for the first heat of revengeful feeling to subside, and the greater sanctuaries protected not merely vulgar offenders, but those whom the stormy tide of politics had placed at the mercy of their enemies. As the law became stronger, and the course of justice more certain, the need for these refuges ended, and those that continued were public nuisances, and mere centres of crime and anarchy, such as Scott has described for us in his picture of Alsatia. We may be thankful that sanctuaries are now merely objects of antiquarian interest and speculation.