Nature of these tenures, and interest of the tenants.

[*100]

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 (35), called a court of antient demesne, by a peculiar process, denominated a writ of right close (q); not to pay toll or taxes; not to contribute to the expenses of knights of the shire (36); not to be put on juries; and the like (r).

*These tenants, therefore, though their tenure be absolutely copyhold, yet have an interest equivalent to a freehold (37): 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 (38); 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 absolutely

(p) 4 Inst. 269.'
(q) F. N. B. 11.

(35) In Alden's case, (5 Rep. 105), it was held, that, to an action of ejectment brought in the superior courts, a plea that the lands in question were antient demesne, was good; and that the courts at Westminster would not take conusance of such an action. It seems, however, to be agreed, that this plea cannot be pleaded without leave of the superior court in which the action is brought; and notwithstanding what is said in the report of Alden's case, the subsequent inclination of very able judges seems to have been, that the dis

(r) Ibid. 14.

(8) Gilb. Hist. of Exch. 16 and 30.

cretion of the higher courts would be most soundly exercised in rejecting the plea, whenever, by any informality, the case is not brought strictly within the rules established by former authorities. (Doe v. Roe, 2 Burr. 1047).

(36) This appears to afford no feeble argument in support of the opinion, that the tenants of such lands are not entitled to vote for knights of the shire. See ante, note (24) to this chapter. (37) But see the last note, and the note therein referred to. (38) See ante, p. 62.

sokemans, and their tenure sokemanries (39); 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 en-
" franchised by the king or his predecessors from their an-
" tient demesne." And the same name is also given them
in Fleta (u). Hence Fitzherbert observes (w), that no
lands are antient 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 pre-
dial 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 antient demesne.

veying or pass

ing lands so

Lands holden by this tenure are therefore a species of Mode of concopyhold, and as such preserved and exempted from the operation of the statute of Charles II. Yet they differ from holden. common copyholds, principally in the privileges beforementioned: 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 surrender to the lord or his steward, in the manner of common copyholds (40): *yet with this distinction (2), that in the [* 101 ] surrender of these lands in antient 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 All lay tenures,

and fundamental points of the doctrine of tenures, both an

(t) C. 66.

(u) L. 1, c. 8.

(w) Ν. Β. 13.

(x) Kitchen on Courts, 194.

(39) But see ante, note (6), to this (40) See post, the 22d chapter of
chapter.
this volume, and the notes thereto.

therefore, now are either free

tenures in combase tenures by

mon socage, or

copy of courtroll.

V. Of tenure in

tient and modern, in which we cannot but remark the mutual 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 courtroll.

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 Frantatmoignere alms, is that whereby a religious corporation, aggregate or

which is lands are held by a religious corporation, to them and their successors for ever; and the service for which was, to pray

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 souls of the donor and his heirs,

dead or alive; and therefore they did no fealty, (which is

for the souls of incident to all other services but this) (z), because this di

the donor and his heirs.

vine service was of a higher and more exalted nature (a). This is the tenure, by which almost all the antient 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 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 antient

Tenants in frankalmoign

times. Which is also the reason that tenants in frankalwere discared moign were discharged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions (c): just as the Druids,

from all other services, except

repairing high

(y) Litt. s. 133.
(z) Ibid. 131.

(a) Ibid. 135.

(b) Bracton, 1. 4, tr. 1, c. 28, s. 1. (c) Seld. Jan. 1, 42.

castles, and re

among the antient Britons, had omnium rerum immunita- ways, building tem (d). And, even at present, this is a tenure of a nature pelling invavery distinct from all others; being not in the least feodal, but sions. 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 (f). All such donations are indeed now out of use: for, since the statute of quia emptores, 18 Edw. I., 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.

Since the statute 18 Edw. I., none but the

king can give lands to be holden by this ten

ure.

103

CHAPTER VII.

OF FREEHOLD ESTATES OF INHERITANCE.

Of the nature

THE next objects of our disquisitions are the nature and and properties properties of estates. An estate in lands, tenements, and

of estates.

First, as to the quantity of interest the tenant has.

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 the tenant has in the tenement, this is measured by its du

(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.