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All lay tenures, therefore, now are either free tenures in com

mon socage, or

base tenures by copy of courtroll.

V. Of tenure in frankalmoign

lands are held
by a religious
corporation, to
them and their
successors for
ever; and the

service for which
was, to pray
for the souls of
the donor and
his heirs.

common copyholds (52): *yet with this distinction (x), that
in the surrender of these lands in ancient demesne, it is not
used to say "to hold at the will of the lord" in their copies,
but only,
"to hold according to the custom of the manor."
Thus have we taken a compendious view of the principal
and fundamental points of the doctrine of tenures, both an-
cient and modern, in which we cannot but remark the mu-
tual connexion and dependence that all of them have upon
each other. And upon the whole it appears, that whatever
changes and alterations these tenures have in process of
time undergone, from the Saxon æra to the 12 Car. II. all
lay tenures are now in effect reduced to two species: free
tenure in common socage, and base tenure by copy of court-

I mentioned lay tenures only; because there is still be-hind one other species of tenure, reserved by the statute of Charles II., which is of a spiritual nature, and called the tenure in frankalmoign.

V. Tenure in frankalmoign, in libera eleemosýna, or free which is where alms, is that whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them and their succes-sors for ever (y). The service which they were bound to render for these lands was not certainly defined; but only in general to pray for the souls of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other services but this) (2), because this divine service was of a higher and more exalted nature (a). This is the tenure, by which almost all the ancient monasteries and religious houses held their lands; and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this day (b); the nature. of the service being upon the reformation altered, and [102] made conformable to the purer doctrines of the church of

(x) Kitchen on Courts, 194.
(y) Litt. s. 133.

(z) Ibid. 131. [Ante, p. 45, n.

though they are entitled to have it
entered upon the court rolls. Quære,
Are not such customary freeholders
entitled to vote at county elections,
if the yearly value of their lands

p. 53, n.]

: (a) Ibid. 135.

(b) Bracton, 1. 4, tr. 1, c. 28, s. 1.

amounts to forty shillings? See ante, the note to p. 90.

(52) See post, pp. 365 et seq., and the notes thereto.


from all other

repairing high

castles, and re


England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shown to religion and religious men in ancient times. Which is also the reason that tenants in frankal-Frankamoign moign were discharged of all other services, except the were discharged trinoda necessitas, of repairing the highways, building services, except castles, and repelling invasions (c): just as the Druids, ways, building among the ancient Britons, had omnium rerum immunita- pelling invatem (d). And, even at present, this is a tenure of a nature very distinct from all others; being not in the least feodal, but merely spiritual. For, if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden: but merely a complaint to the ordinary or visitor to correct it (e). Wherein it materially differs from what was called tenure by divine service: in which the tenants were obliged to do some special divine services in certain; as, to sing so many masses, to distribute such a sum in alms, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrein, without any complaint to the visitor (ƒ). All such donations are indeed now out of use: for, since the Since the statute statute of quia emptores, 18 Edw. I., none but the king can but the king can give lands to be give lands to be holden by this tenure (g). So that I only holden by this mention them, because frankalmoign is excepted by name in the statute of Charles II., and therefore subsists in many instances at this day. Which is all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures.

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18 Edw. I., none





Of the nature and properties of estates.

First, as to the quantity of in


THE next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant hath therein: so that, if a man grants all his estate in Dale to A. and his heirs, every thing that he can possibly grant shall pass thereby (a). It is called in Latin status; it signifying the condition or circumstance in which the owner stands with regard to his property. And, to ascertain this with proper precision and accuracy, estates may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed; and thirdly, with regard to the number and connexions of the tenants.

First, with regard to the quantity (1) of interest which terest the tenant the tenant has in the tenement, this is measured by its duration and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man; to determine at his own decease, or to remain to his descendants after him; or it is circum(a) Co. Litt. 345.

(1) The quantity of an estate must not be confounded with its quality, as if the two terms were convertible. The quantity of an estate, in technical language, is understood to mean its right of duration; as, for years, for life, in tail, or in fee. When the quality of an estate is mentioned, the conditions of

tenure, and the collateral qualifications of the interest (whether the quantity of such interest be of longer or shorter extent) are understood to be spoken of; as, whether the estate be held conditionally, in common, in joint tenancy, in co-parcenary, or under any other such modifications.

scribed within a certain number of years, months, or days: or, lastly, it is infinite and unlimited, being vested in him and his representatives for ever. And this occasions the primary division of *estates into such as are freehold, and [104] such as are less than freehold.

berum tenemen

tate of freehold.

An estate of freehold (2), liberum tenementum, or frank- Definition of litenement, is defined by Britton (b) to be “ the possession of tum, or an es"the soil by a freeman." And St. Germyn (c) tells us, that "the possession of the land is called in the law of England "the franktenement or freehold." Such estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold (3): which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold: that it is such an estate in lands as is conveyed by livery of seisin; or, in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton (d), that, where a freehold shall pass, it behoveth to have livery of seisin. As, therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates are conveyed with the same solemnity, therefore no others are properly freehold estates (4).

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(2) "Tenant in fee, tenant in tail, and tenant for life, are said to have a franktenement, so called, because it doth distinguish it from terms of years, chattels upon uncertain interests, lands in villenage, or customary or copyhold lands. And note, tenant by statutemerchant, statute-staple, or elegit, are said to hold land ut liberum tenementum, until their debt be paid; and yet in truth they have no freehold, but a chattel, which shall go to the executors. But ut is similitudinary, because they shall by the statutes have an assise, as tenants of the freehold shall have, and in that respect their estate hath a similitude of a freehold : but nullum simile est idem." (Co. Litt. 43 b.)

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And see post, p. 387, of this volume.
The writ of assise was abolished by the
statute of 3 & 4 Gul. IV. c. 27.

(3) Mr. Preston's short criterion for
determining whether an estate be free-
hold or not, is as follows: "Such in-
terests only as may continue for the
period of a life, are estates of freehold ;
all interests for a shorter period, or,
more properly speaking, for a definite
space of time, are chattel interests."
(Treat. on Est. 203.)

By livery of seisin without writing,
a freehold passed at common law; but,
since the statute of frauds, a freehold
cannot be created without writing.

(4) Mr. Christian, in his note upon
this passage, observes, that "
a free-

Of the different species of freehold estates.

F. Fee-simplethe holding by

one to him and

his heirs for ever.

Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute or fee-simple (5); and inheritances limited, one species of which we usually call fee-tail.

I. Tenant in fee-simple (or, as he is frequently styled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever (e): generally absolutely, and simply (6); without mentioning what heirs, (e) Litt. s. 1.

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hold estate seems to be any estate of
inheritance, or for life, in either a cor-
poreal or incorporeal hereditament,
existing in, or arising from real pro-
perty or free tenure; that is, now, of
all which is not copyhold. And the
learned judge has elsewhere informed
us, that' tithes and spiritual dues are
'freehold estates, whether the lands
'out of which they issue are bond or
free, being a separate and distinct
inheritance from the lands them-
'selves. And in this view they must
be distinguished and excepted from
other incorporeal hereditaments is-
suing out of land, as rents, &c., which
in general will follow the nature of
'their principal, and cannot be free-
hold, unless the stock from which
they spring be freehold also.'-1
Bl. Tracts, 116."

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(6) It would save embarrassment to the student, if he never found in books of authority any estate called a feesimple, of which the qualities did not coincide with our author's definition in the text. But, Lord Coke tells us, (1 Instit. 1 b,) "of fee-simple, it is commonly holden, that there be three kinds, viz. fee-simple absolute, feesimple conditional, and fee-simple qualified, or base fee." It is true, that Lord Coke immediately adds, "but the more apt and genuine division were to divide fee (that is, inheritance) into three parts, viz. simple or absolute; conditional; and qualified, or base. For, this word simple, properly excludeth both conditions and limitations that defeat or abridge the fee." But, the same authority very soon informs us, (in 1 Instit. 19 a,) that "here" (that is, in the 13th sect. of Litt.)" feesimple is taken in its large sense, including as well estates conditional or qualified, as absolute; to distinguish them from estates in tail." And he again, more than once, alludes to a qualified fee-simple, (in 1 Instit. 27, and in 2 Instit. 333,) as he does to a determinable fee-simple in Edward Seymour's case. (10 Rep. 97 b.) That an estate, though determinable upon a contingency, may be a fee-simple, was also held in the case of Pells v. Brown, (Cro. Jac. 590,) which case was cited with approbation in Gardner v. Sheldon, (Vaugh. 273,) where it is distinctly laid down that " a fee-simple determinable upon a contingent, is a

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