sometimes of villein socage." This, he tells us, is such as has been held of the kings of England from the Conquest downward; that the tenants herein, "villana faciunt servitia, sed [99] certa et determinata;" that they can not 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. m mesne. Ancient demesne consists of those lands, or manors, which, Ancient de 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 Doomsday Book. The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies, 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. Others were, in great measure, enfranchised by the royal favor; 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 plow 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; 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." These tenants, therefore, though their tenure be absolutely [100] copyhold, yet have an interest equivalent to a freehold; for, notwithstanding their services were of a base and villenous original, 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 1 L. 4, tr. 1, c. 28, § 5. m F. N. B., 14, 16. n C. 66. F. N. B., 228. P 4 Inst., 269. Gilb., Hist. of Exch., 16 and 30. (32) Bac. Ab., tit. Tenure, P.; Com. Dig., Villenage; Cru. Dig., vol. i., VOL. II.-H 113 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 sokemans, and their tenure sokemanries; which he describest to be "lands and tenements which are not held by knight service, nor by grand sergeantry, 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. 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 plow, 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 can not 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; yet with this [101] distinction, 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 Tenant right. manor. 9934 (33) This is erroneous; see the next the freeholders of the manor who are note. truly tenants in ancient demesne, and their lands pass by common law conveyances; they form the court of ancient demesne, which is analogous to the court baron. The copyholders form the customary court. (See Third Real Prop. erty Report, p. 13; Bos. & P., 382.) (34) 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, often, as in the There are some estates held according text, but erroneously, called tenants in to the custom of a manor, but not by ancient demesne, who hold of a manor copy of court roll, nor at the will of which is ancient demesne, but hold by the lord. "These customary estates, copy of court roll at the will of the lord, known by the denomination of tenant and are called copyholders of base ten- right, are peculiar to the northern parts ure. The neglect to keep in mind these of England, in which border services distinctions sometimes produces perplex- against Scotland were anciently perity and confusion in questions respecting formed before the union of England and the tenure in ancient demesne. (See Scotland under the same sovereign. Scriven on Copyholds, 656.) It is only And although these appear to have Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both ancient and modern, in which we can not but remark the mutual connection 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 era 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-roll. tenure. I mentioned lay tenures only; because there is still behind Spiritual one other species of tenure, reserved by the statute of Charles II., which is of a spiritual nature, and called the tenure in frankalmoigne. 36 moigne. V. Tenure in frankalmoigne, in libera eleemosyna, or free Frankalalms, is that whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them and their successors forever.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 this2), because this divine service was of a higher and more exalted nature. 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; 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 shown to religion and religious men in ancient times; which is also the reason that tenants in frankalmoigne were dis y Litt., § 133. 2 Ibid., 131. a Ibid., 135. b Bracton, 1. 4, tr. 1, c. 28, § 1. many qualities and incidents, which do the particular species of deed stated in quality of their tenure in this respect (35) Bac. Ab., Tenure (F); 1 Cruise, divine serv ice. charged of all other services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions; 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 Tenure by 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 distrain, without any complaint to the visitor. 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 ; so that I only mention them because frankalmoigne 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. Seld., Jan., 1, 42. Cæsar, De Bell. Gall., 1. 6, c. 13. • Litt., § 136. (36) Bac. Ab., Tenure (G). (37) This statute enacts" that it shall be lawful to every freeman to sell at his own pleasure his lands and tenements, 116 f Litt., § 137. or part of them, so that the feoffee shall hold the same of the chief lord of the same fee by such service and customs a. his feoffor held before." ང་འགའི་ CHAPTER VII. OF FREEHOLD ESTATES OF INHERITANCE. estate. THE next objects of our disquisitions are the nature and prop- What is an erties 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.a1 It is called, in Latin, status; it signifying the condition or circumstance in which the owner stands with regard to his property. And to Division of the subject. ascertain this with proper precision and accuracy, estates may be considered in a three-fold 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 connections of the tenants. of interest. First, with regard to the quantity of interest which the ten- I. Quantity ant 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 Estates are of years, months, or days; or, lastly, it is infinite and unlimit- freehold, ed, being vested in him and his representatives forever. And freehold. this occasions the primary division of estates into such as are [104] freehold, and such as are less than freehold. less than defined An estate of freehold, liberum tenementum, or frank tenement, Freehold is defined by Britton" to be "the possession of the soil by a freeman." And St. Germyne tells us, that "the possession of the land is called in the law of England the frank tenement, or freehold." Such an estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold: (1) In 1 Preston on Estates, 20, the term is thus defined: "The interest which any one has in lands, or any other subject of property, is called his estate, and to this term (at least in a conveyance by deed) some adjunct or expression should be added, when the time for which the estate is to continue, as for years. for life, in tail, or in fee, or the manner in which it is to be held, as on condition, in joint tenancy, &c., is to c Dr. & Stud., b. 2, d. 22. be described; thus, it is said, a man has or |
