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Manorial rights - historical and modern
Incidents of Free Tenures
Beyond the standard duties owed to his lord, a free tenant was subject to additional burdens, known as incidents of tenure. While these varied due to local custom, royal whim and type of tenure, it is generally agreed that the most burdensome was that of knight service and serjeanty - together known as tenures in chivalry or military tenures.
- Homage and Fealty: All free tenants swore fealty & loyalty in some format where they acknowledged they were bound to their lord - that is, paid homage to him. This was a mutual arrangement, however, and bound the lord to protect his tenant when needed.
- Suit of Court: One of the primary obligations of free tenants was to attend court where disputes were resolved and decisions made. In fact, without at least two free tenants present, the court could not sit - or arguably even exist.
- Relief: Upon inheriting land, all free tenants were required to make a cash payment to the lord, known as a relief. The amounts were not fixed and tenants frequently negotiated with their lord. This was a major burden and was addressed in Magna Carta 1215. By the end of the thirteenth century these amounts were fixed by law - except for the king who continued to take substantial relief from tenants.
- Primer Seisin: The right of first seisin was a right only exercisable by the king. This allowed the monarch to take possession of the land of his tenants in chivalry when they died until such time as the new tenant paid the relief and done homage.
- Aids: Tenants could be called upon to assist their lord in times of emergency through cash payments. Obviously, this was a major burden and was strictly limited by Magna Carta 1215. As per that charter, a lord could only require payments from a tenant to support knighting the lords son, the marriage of his eldest daughter or if the lord himself were captured and ransom need be paid. The value chargeable for knighting & marriage was defined by The Statute of Westminster 1275.
- Wardship & Marriage: When a tenant in chivalry died and left a child heir, his lord was entitled to take possession of the lands and hold them for his own profit until the heir came of age - 21 for a man, 14-16 for girls. This right, known as wardship, was understandably of great value - and could be sold by the lord. Further still, if the heir were female, the lord could nominate a husband, a right known as marriage - which was also quite valuable and able to be sold. It should be noted, this only applied to tenants in chivalry. Tenants in soccage were not bound by this heavy burden.
- Escheat & Forfeiture: If a tenant committed a serious criminal offense or felony (propter delictum tenentis), or died without clear heirs (propter defectum sanguinis), his lord would seize his lands through escheat. This applied across all tenures except in those cases when the tenant committed high treason, in which case his lands and goods were forfeit directly to the king. This was known as forfeiture and overrode any mesne lords right to escheat.
Franchises
Simply said - franchises are ancient, honourable privileges derived from a feudal relationship with the Crown. While not automatically part of a manor, in many cases they were acquired by manorial lords over time.
The ancient right to hold markets and fairs, or that of treasure trove, are vested within the royal prerogative and are, at their root, territorial in nature - as they confer rights over a defined geographic area. These rights may be granted (or sold, as it were) to persons other than the monarch. In these situations, they are known as franchises.
As an incorporeal hereditament, franchises are said to have the 'savour of land.' Therefore, a franchise must be transferred in the same way as land. If appurtenant to a manor, a franchise will be transferred with the manor unless otherwise stated. If in gross (unattached to land) a franchise may be transferred to another person on its own.
With few exceptions, franchises cannot be voided by the Crown once granted - though they may be (and have) by act of legislation.
Franchises Which May Exist Today:
- Markets & Fairs: The right to host a gathering of traveling merchants and local buyers - and, if granted, to charge tolls accordingly. While these are often discussed together, the two are separate franchises and not mutually inclusive. Markets were frequently held, perhaps weekly, whereas fairs were usually larger, seasonal/annual meetings. Dates and locations of the market or fair was always clearly defined in the royal charter upon grant and recourse was available to lords whose rights were impinged. While manorial rights to markets and fairs may still exist today, complications may arise from disuse over centuries and newer markets established through the Markets and Fairs Clauses Act 1847 or s.50 of the Food Act 1984. Markets and fairs can be extinguished by parliamentary legislation, Home Office (s.3, The Fairs Act 1871) or the Crown due to disuse/misuse. Note: Your humble author urges caution when attempting to exercise this right after years (centuries?) of abeyance. Work WITH residents - never against.
- Courts Leet: Acquired by grant, or prescription, these manor courts had criminal jurisdiction over minor offenses committed within their bounds. This included the power to regulate maintenance of dirt works, canals, bridges and the sort - often enforcing the obligation upon local tenants of the manor on pain of fine. Scriven on Copyholds calls them "...one of the highest and most ancient tribunals of common law." So considerable was their authority, in fact, that grants made after Magna Carta were restricted to twice per annum. This power eroded over time as jurisdiction over such things was transferred to king's justices and local custom moved on. While not abolished by the Law of Property Act 1922, the act relieved all tenants (free and copyhold) of the obligation of suit of court. As these courts relied upon a jury of 12 suitors to make judgements or appoint manorial officers, the act sounded a death knell for most courts leet. Those that remain are subject to the Administration of Justice Act 1977 and may only transact business customary to the manor prior to the Act.
- Royal Minerals: All natural deposits of gold and silver are, by right, property of the Crown - regardless of ownership of the land upon which it is found. This right may be granted as a franchise though such was infrequent for obvious reasons.
- Waifs and Estrays: Waifs are good stolen and then discarded ("waived") by a fleeing thief and whose ownership is not known/claimed. Curiously, this right does not apply to any goods which are hidden. Estrays are domestic animals found wandering (or grazing!) unlawfully and without clear ownership. One of the most common franchises granted. While it provided lords the right to maintain necessary order within their manors, it was not without limits. Seized animals could not be made to work and owners were provided time to claim their property - as long as compensation was made for its incurred upkeep.
- Wreck: In granted by the Crown, this franchise grants right to ships and goods which wash upon manorial foreshore. Goods found outside of a ship fell into three categories - flotsam, jetsam and ligan/ligam - and may or may not be included within the franchise or viewed apart in unique grants. Where right of wreck has been granted the manorial ownership of shore/foreshore is implied (Iveagh v. Martin 1961). Claiming right to a wreck today falls under s. 248 of the Merchant Shipping Act of 1995 which speaks to the process and timelines required.
- Swans & Royal Fish: The right to whales and sturgeon within coastal waters belong to the Crown unless otherwise granted by franchise. This right was most typically exercised if such animals washed upon the manorial shore. Alternatively, as royal birds wild white swans were (and are) owned by the Sovereign. Receiving franchise over them was a sign of favor and was highly coveted. Owners of such franchises had right to wild swans within a given stretch of river/stream. They etched unique patterns within the bills of these animals (swan mark) so their ownership could be known wherever they flew.
- Advowson: The right of a manorial lord to name the parish priest, rector or vicar - as well as the obligation to house him in a benefice or parsonage - is known as an advowson. In Anglo-Saxon England, lords built and maintained churches and, as such, had the right to appoint its clergy. Understandably, this was a powerful right as the pulpit was not only a source of revenue but also the main source of news and, indeed, opinions. Divisions within The English Civil War were often influenced by who held the advowson. Advowsons continued to change hands for large amounts through the nineteenth century and, while regulated by several other Acts, were ignored by the Law of Property Act 1925 (which ended many manorial rights). The Patronage Measure of 1986 severed advowsons from land but they may still be held in gross. As such, they may no longer registered with The Land Registry but instead appear on local diocesan registries.