Page images

downwards; that the tenants herein “villana faciunt fervitia, Jed certa et determinata ;”, that they cannot aliene or transfer their tenements by grant or feoffinent, 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 copy-hold, subsisting at this day, viz. the tenure in antient demesne ; to which, as partaking of the baseness of villenage in the nature of it's services, and the freedom of socage in their certainty, he has therefore given a name compounded out of both, and calls it villanum facagium.

· ANTIENT demesne consists of those lands or manors, which, though now perhaps granted out to private subjects, were actualiy 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 fame 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 o. Others were in 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, and the like; 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 antient demesne, by a peculiar process denominated a writ of right clofel: not to pay toll.or taxes ; not to contribute to the expenses of knights of the Thire; not to be put on juries, and the like'. . " m F. N. B. 14. 16.

p. 4 Inít. 269. n c. 66.

q F. N. B. 11. • F.N.B. 228.

r Ibid. 14. G 2


THESE tenants therefore, though their tenure be absolutely copyhold, yet have an intereft equivalent to a freehold: for, though 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 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 fokemans, and their tenure pokemanries; which he describes to be “ lands and tenements, « which are not held by knight-fervice, nor by grand serjean“ ty, nor by petit, but by fimple services, being as it were “ lands enfranchised by the king or his predeceffors from " their antient demesne.” And the same name is also given them in Fleta". Hence Fitzherbert observes ", that no lands are antient demesne, but lands holden in socage: that is, not in free and common focage, but in this amphibious, fübordinate clafs, of villein-focage. And it is possible, that as this species of focage tenure is plainly founded upon predial fervices, 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-focage or focage of frank-tenure, and villein-socage or focage of antient demesne.

LANDS holden by this tenure are therefore a fpecies of copyhold, and as fuch preserved and exempted from the operation of the statute of Charles II. Yet they differ from 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 fcoffment, and the reft; but must-pass by surrender to the lord or his steward, in the manner of common copyholds :

• Gilb. hift, of exch, 36. & 30. 111.c.8. t 6.66.

w N. B, 13


pet with this differences, that, in the surrenders 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 a to hold according " to the custom of the maner.

Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both . antient 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 procefs of time undergone, from the Saxon aera to the 12 Car. II. all lay tenures are now in effect reduced to two species ; free tenure in common focage, and base tenure by copy of court roll.

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 frank-almoign. .

V. TENURE in frankalmoign, in libera eleemofyna, or free alms, is that, whereby a religious corporation, aggregate or fole, holdeth lands of the donor to them and their successors for every. 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 a) because this divine 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 eleemofynary foundations, hold them at this day b; the nature of the service being upon the reformation altered, and made conformable to the purer doctrines

x Kitchin on courts, 194.
y Litt. f. 133.
7 lid, 131,

. a Ibid. 135.
b Bracton, l. 4. tr, 1. c. 28. §. 1.

of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was fhewn to religion and religious men in antient 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 : just as the Druids, among the antient Britons, had omnium rerum immunitatemd. 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 ito. 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 fing so many masses, to distribute such a sum in alıns, and the like; which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if un. performed, the lord might distrein, 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 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.

[blocks in formation]




T HE next objects of our disquisitions are the nature and

1 properties of estates. An estate in lands, tenements, and hereditaments, fignifies 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, fiatus ; it fignifying 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 of interest which the tenant has in the tenement, this is measured by it's duration and extent. Thus, either his right of possession is to fubfift 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 occasions the primary division of a Co. Litt. 345.



« PreviousContinue »