ities, and what they say is unintelligible jargon and learned nonsense! They have been in use some hundreds of years, have gained ground by time, and we must now take them as they really are, common assurances. (Willes, C. J., in 1 Wils. 73.) The remark might be of broader application; whenever men attempt to give reasons based on final causes and set purpose, for institutions that have grown up in time and been shaped by historical causes-instead of asking history to explain them by the facts and conviction of their own time- they confound themselves and their readers," and spoil both the history and the philosophy of law by setting one to do the other's work.

66

At the same time it may be doubted whether the ecclesiastics have not had too much credit for the invention of recoveries, as for that of uses, etc. In both instances history shows that they only made use of processes that they found ready to their hands. The cases of the thirteenth century, just made accessible to us, show that both fines and recoveries were in common. use for legitimate purposes at that time; in fact, that the one answered very nearly the end of an ejectment, the other that of a modern suit for specific performance. It was only when they had dropped out of service, except as mere conveyances, that they were supposed to have originated in a fraudulent design. So recoveries were said also to have been invented to destroy terms for years; at a time when terms for years were in fact much better protected by law than they have ever been since. (See note 36, page 257.)

CHAPTER THE TWENTY-SECOND.

OF ALIENATION BY SPECIAL CUSTO

We are next to consider assurances by special custom, obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and such customary estates, as are holden in antient demesne, or in manors1 of a similar nature: which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his signiory, it is therefore a forfeiture of a copyhold. Nor are they transferrable by matter of record, even in the king's courts, but only in the court baron of the lord. The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds: but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court baron of the manor, I shall confine myself to conveyances by surrender, and their consequences.

Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A and his heirs; to the use of his own will: and the like. The process, in most manors, is, that [366] the tenant comes to the steward, either in court (or, if the custom permits, out of court), or else to two customary tenants of the same manor, provided there be also a custom to warrant it; and

a Litt. 74.

b Moor. 637.
1 Third edition only "manners," misprint.
8 Previously, "that also have."

there by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, all his interest and title to the estate; in trust to be again granted out by the lord, to such persons and for such uses as are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then, at the next or some subsequent court, the jury or homage must present and find it upon their oaths; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender in court, or upon presentment of a surrender made out of court, the lord by his steward grants the same land again to cestuy que use (who is sometimes, though rather improperly, called the surrenderee), to hold by the antient 1rents1 and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord according to the custom of the manor, and takes the oath of fealty.

In this brief abstract of the manner of transferring copyhold estates we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowlege and consent of the lord. For this purpose it is resigned up, or surrendered into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise, And I am apt to suspect that this right is of much the same antiquity with the introduction of uses with respect to freehold lands: for

1 Misprinted in third edition only "rights."

the alienee of a copyhold had merely jus fiduciarium, for which [367] there was no remedy at law, but only by subpoena in chancery. When therefore the lord had accepted a surrender of his tenant's interest, upon confidence to re-grant the estate to another person, cither then expressly named or to be afterwards named in the tenant's will, the chancery inforced this trust as a matter of conscience; which jurisdiction, though seemingly new in the time of Edward IV.d was generally acquiesced in, as it opened the way for the alienation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet, even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine by way of acknowlegement for the licence of alienation. Add to this the plain feodal investiture, by delivering the symbol of seisin in presence of the other tenants in open court; "quando hasta vel aliud corporeum quidlibet porrigitur a domino se investituram facere dicente; quæ saltem coram duobus vasallis solemniter fieri debet:" and, to crown the whole, the oath of fealty annexed, the very bond of feodal subjection. From all which we may fairly conclude, that, had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestably prove the very universal reception, which this northern system of property for a long time obtained in this island; and which communicated itself, or at least it's similitude, even to our very villeins and bondmen.

This method of conveyance is so essential to the nature of a copyhold estate, that it cannot possibly be trans

c Cro. Jac. 568.

d Bro. Abr. tit. Tenant. per copie. 10.

e Feud. 1. 2. t. 2.

9 Ninth edition reads "properly."

9

9

fered by any other assurance. No feoffment, fine, or recovery (in the king's court) has any operation thereupon. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of exchange at the common law; but we must surrender to each other's use, and the lord will admit us accordingly. If I would devise a copy hold, I must surrender (368) it to the use of my last will and testament; and in my will I must declare my intentions, and name a devisee, who will then be entitled to admission.19

In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of it's several parts; the surrender, the presentment, and the admittance.

1. A surrender, by an admittance subsequent whereto the conveyance is to receive it's perfection and confirmation, is rather a manifestation of the alienor's intention, than a transfer of any interest in possession. For, till admittance of cestuy que use, the lord taketh notice of the surrenderor as his tenant; and he shall receive the profits of the land to his own use, and shall discharge all services due to the lord. Yet the interest remains in him not absolutely, but sub modo; for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the surrender. But no manner of legal interest is vested in the nominee before admittance. If he enters, he is a trespasser and punishable in an action of trespass: and if he surrenders to the f Co. Copyh. 36.

9 Ninth edition reads, "or grant."

9 Ninth edition adds, "A fine or recovery had of copyhold lands in the king's court may indeed, if not duly reversed, alter the tenure of the lands, and convert them into frank-fee,h which is defined in the old book of tenures i to be land pleadable at the common law; but upon an action on the case, in the nature of a writ of deceit, brought by the lord in the king's court, such fine or recovery will be reversed, the lord will recover his jurisdiction, and the lands will be restored to their former state of copyhold.j" [h Old Nat. Brev. t. briefe de recto clauso. F. N. B. 13. 1 t. tenir en franke-fee. j See vol. III. p. *166.]