the estate (26). No fine therefore is allowed to be taken upon descents and alienations (unless in particular circumstances) of more than two years' improved value of the estate (k). From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath always shewn to this species of tenants; by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands; by declaring, that the will of the lord was to be interpreted by the custom of the manor: and, where no custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes with an equitable moderation, and will not suffer the lord to extend his power so far as to disinherit the tenant.

Thus much for the ancient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally descended from it.

IV. There is yet a fourth species of tenure, described by Bracton under the name sometimes of privileged villenage, and sometimes of villein-socage. This, he tells us (1), is such as has been held of the kings of England from the conquest *downwards; that the tenants herein, [ *99] “villana faciunt servitia, sed certa et determinata;” that they cannot aliene or transfer their tenements by grant or feoffment, any more than pure villeins can but must surrender them to the lord or his steward, to be again granted out and held in villenage. And from these circumstances we may collect, that what he here describes is no other than an exalted species of copyhold, subsisting at this day, viz. the tenure in ancient demesne; to which, as partaking of the baseness of villenage in the nature of its services, and the freedom of socage in their certainty, he has therefore given a name compounded out of both, and calls it villanum socagium.

Ancient demesne (27) consists of those lands or manors, which, though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the Confessor, or William the Conqueror; and so appear to have been by the great survey in the exchequer called domesday-book (m). The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies (n), continued for a long time pure and absolute villeins, dependent on the will of the lord: and those who have succeeded them in their tenures now differ from common copyholders in only a few points (o). Others

(k) 2 Ch. Rep. 134. (1) 1. 4, tr. 1, c. 28. (m) F. N. B. 14. 56.

(26) As, in the case where the lord is not bound to renew, or being so bound by the custom, the copyholder is allowed to put in more than one life at a time; and consequently several admissions are made at the same time, for which an increased fine may be fairly demanded. The rule generally is to take for the second life half what the immediate tenant for life pays, and for the third half what the second pays. But this must be understood by persons taking successively; for if they take as joint tenants, or as tenants in common, the single fine only would be due, to be apportioned in the latter case each paying severally. Watk. on Copyh. 1 vol. 312. Scriven on Copyh. 374. It seems that co-parceners are

(n) c. 66.

(0) F. N. B. 228.

entitled to be admitted to copyhold tenements as one heir, and upon payment of one set of fees. 3 Bar. & C. 173.

(27) Besides the ancient demesne lands held freely by the grant of the king, and those called customary freeholds held of a manor which is ancient demesne, but not at the will of the lord, there is a third class similar to the last, except that the tenants hold by copy of court-roll at the will of the lord, and are called copyholders of base tenure. The neglect to keep in mind these distinctions, sometimes produces perplexity and confusion in the tenure in ancient demesne. See Scriven on Copyholds, 656.

were in a great measure enfranchised by the royal favour: being only bound in respect of their lands to perform some of the better sort of villein services, but those determinate and certain: as, to plough the king's land for so many days, to supply his court with such a quantity of provisions, or other stated services; all of which are now changed into pecuniary rents and in consideration hereof they had many immunities and privileges granted to them (p); as to try the right of their property in a peculiar court of their own, called a court of ancient demesne, by a peculiar process, denominated a writ of right close (q) (28); not to pay toll or taxes; not to contribute to the expenses of knights of the shire; not to be put on juries; and the like (r).

[*100] *These tenants therefore, though their tenure be absolutely copyhold, yet have an interest equivalent to a freehold: for notwithstanding their services were of a base and villenous original (s), yet the tenants were esteemed in all other respects to be highly privileged villeins; and especially for that their services were fixed and determinate, and that they could not be compelled (like pure villeins) to relinquish these tenements at the lord's will, or to hold them against their own: "et ideo," says Bracton, " dicuntur liberi." Britton also, from such their freedom, calls them abso lutely sokemans, and their tenure sokemanries; which he describes (t) to be "lands and tenements, which are not held by knight-service, nor by grand serjeanty, nor by petit, but by simple services, being, as it were, lands enfranchised by the king or his predecessors from their ancient demesne." And the same name is also given them in Fleta (u). Hence Fitzherbert observes (w), that no lands are ancient demesne, but lands holden in socage; that is, not in free and common socage, but in this amphibious subordinate class of villein-socage. And it is possible, that as this species of socage tenure is plainly founded upon predial services, or services of the plough, it may have given cause to imagine that all socage tenures arose from the same original; for want of distinguishing, with Bracton, between free socage or socage of frank tenure, and villein-socage or socage of ancient demesne.

Lands holden by this tenure are therefore a species of copyhold, and as such preserved and exempted from the operation of the statute of Charles II. Yet they differ from common copyholds, principally in the privileges before-mentioned: as also they differ from freeholders by one especial mark and tincture of villenage, noted by Bracton, and remaining to this day, viz. that they cannot be conveyed from man to man by the general common law conveyances of feoffment, and the rest; but must pass by sur

render, to the lord or his steward, in the manner of common copy[*101] holds 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 funda

(28) In an action of ejectment it may, by leave of the court, be pleaded in abatement, that the lands are part of a manor which is held in ancient demesne; but such a plea

(t) e. 66.

(u) l. 1, c. 8

(c) N. B. 13.

(z) Kitchen on courts, 194.

must be sworn to, and is not favoured. Be cause, to oust the court of K. B. of jurisdiction in such case, it must be shewn that another court has jurisdiction. 2 Burr. 1046. (9) See Hov. n. (9) at the end of the Vol. B. II.

mental points of the doctrine of tenures, both ancient and modern, in which we cannot but remark the mutual connexion and dependance 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 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-roll.

I mentioned lay tenures only; because there is still behind 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 eleemosyna or free alms, is that whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them and their successors 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 soul of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other services but this) (z), 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 made conformable to the purer doctrines of the [*102] church of England. 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. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions (c): just as the Druids, among the ancient Britons, had omnium rerum immunitatem (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 (29): 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 statute of quia emptores, 18 Edw. I. (30) none but the king can give lands to be holden by this tenure (g). So that I only 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 (31).

CHAPTER VII.

OF FREEHOLD ESTATES OF INHERITANCE (1).

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 has 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 (2): and, thirdly, with regard to the number and connexions of the tenants.

First, with regard to the quantity of interest which 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 circumscribed 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 [*104] occasions the primary division of *estates into such as are free

hold, and such as are less than freehold.

An estate of freehold (3), liberum tenementum, or franktenement, is defined by Britton (b) to be "the possession of 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: 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

(a) Co. Litt. 345. (b) c. 32.

1830, the tenure of all lands derived from the state after the declaration of Independence was allodial: all held prior to the last mentioned time was held in free and common socage, free from all charges incident to knight service, and were so held from the 30th Aug. 1664. IR. L. (of 1813) p. 70. Since the 1st January, 1830, all lands are declared to be allodial, but subject to escheat, and al! feodal tenures of every description, with all their incidents, are abolished, without however impairing any services or rents previously creat ed. R. S. 718. None of the local customs of England were introduced here, so that we have had no gavelkind, borough English, or copyhold tenure. The study of the ancient tenures is still necessary in order to understand old titles.

(c) Dr. & Stud. b. 2, d. 22.

Dig. title, Estates; Cru. Dig. index, tit. Estates; Fearne Con. Rem. index, tit. Estates.

(2) That is, first, the time during which his estate shall continue; and secondly, the time at which it shall commence.

(3) "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). And see post, p. 387, of this book.t †The writ of assize was abolished by the statute of 3 & 4 Gul. IV. c. 27.

(1) For a more practical view of this subJect in general, see Mr. Preston's admirable treatise on Estates, and Bac. Ab. and Com.

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 any 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).

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; and inheritances limited, one species of which we usually call fee-tail.

1. Tenant in fee-simple (or, as he is frequently styled, tenant in fee) (5) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever (e): generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in its original sense it is taken in [105] contradistinction to allodium (f); which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. And therefore sir Henry Spelman (g) defines a feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services the mere allodial property of the soil always remaining in the lord. This allodial property no subject in England has (h); it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominium (i): but all subjects' lands are in the nature of feudum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feudal clogs which were laid upon the first

(4) A freehold estate seems to be any estate of inheritance, or for life, in either a corporeal or incorporeal hereditament, existing in, or arising from, real property of 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 land out of which they issue are bond or free, being a separate and distinct inheritance from the lands themselves. And in this view they must be distinguished and excepted from other incorporeal hereditaments issuing out of land, as VOL. I.

(h) Co. Litt. 1.

(i) Prædium domini regis est directum dominium, cujus nullus est author nisi Deus. Ibid.

As to

rents, &c. which, in general, will follow the nature of their principal, and cannot be freehold, unless the stock from which they spring be freehold also." 1 Bl. Tracts, 116. copyholders having a freehold interest, but not a freehold tenure, see 1 Prest. on Estate, 212. 5 East, 51.

(5) See in general, Preston on Estates, 1 vol. 419 to 511. and 2 vol. 1 to 68. Bac. Ab. tit. Estate in Fee-simple; Com. Dig. Estates, A.; Cru. Dig. 1. 17. and index, tit Estate in Fee-simple; Fearne Con. Rem. 12. 304 319. and index; Prest. on Conv. index, tit. Fee. 66