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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 muft furrender them to the lord or his fteward, to be again granted out and held in villenage. And from these circumftances we may collect, that what he here defcribes is no other than an exalted fpecies 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 fervices, and the freedom of focage in their certainty, he has therefore given a name compounded out of both, and calls it villanum focagium.

ANTIENT demefne confifts of thofe lands or manors, which, though now perhaps granted out to private fubjects, were actually in the hands of the crown in the time of Edward the confeffor, or William the conqueror; and fo appear to have been by the great survey in the exchequer called domesday book ". The tenants of these lands, under the crown, were not all of the fame order or degree. Some of them, as Britton teftifies", continued for a long time pure and abfolute villeins, dependent on the will of the lord; and those who have fucceeded them in their tenures now differ from common copyholders in only a few points. Others were in great measure enfranchifed by the royal favour: being only bound in respect of their lands to perform fome of the better fort of villein fervices, but thofe determinate and certain; as, to plough the king's land for fo many days, to supply his court with fuch a quantity of provisions, and the like; all of which are now changed into pecuniary rents and in confideration hereof they had many immunities and privileges granted to them; as, to try the right of their property in a peculiar court of their own, called a court of antient demefne, by a peculiar procefs denominated a writ of right clofe: not to pay toll.or taxes; not to contribute to the expenfes of knights of the shire; not to be put on juries, and the like'.

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THESE tenants therefore, though their tenure be abfolutely 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, fays Bracton, dicuntur liberi." Britton also, from fuch their freedom, calls them abfolutely fokemans, and their tenure fokemanries; which he defcribes to be "lands and tenements, "which are not held by knight-fervice, nor by grand ferjean66 ty, nor by petit, but by fimple fervices, being as it were "lands enfranchifed by the king or his predeceffors from "their antient demefne." And the fame name is also given them in Fleta". Hence Fitzherbert obferves", that no lands are antient demefne, but lands holden in focage: that is, not in free and common focage, but in this amphibious, sübordinate class, of villein-focage. And it is poffible, that as this fpecies of focage tenure is plainly founded upon predial fervices, or fervices of the plough, it may have given cause to imagine that all focage tenures arose from the fame original for want of diftinguishing, with Bracton, between free-focage or focage of frank-tenure, and villein-focage or focage of antient demefne.

LANDS holden by this tenure are therefore a fpecies of copyhold, and as fuch preferved and exempted from the operation of the ftatute 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 feoffment, and the reft; but muft pafs by furrender to the lord or his steward, in the manner of common copyholds :

• Gilb, hift, of exch, 16, & 30. tc. 66.

ul. 1. c.8.

w N. B. 13.

yet

yet with this difference, that, in the furrenders of these lands in antient demefne, it is not used to say " to hold at the "will of the lord" in their copies, but only "to hold according to the cuftom of the manor."

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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; becaufe 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 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 fucceffors for every. The fervice, which they were bound to render for these lands was not certainly defined: but only in general to pray for the fouls of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other services but this") because this divine service was of a higher and more exalted nature. This is the tenure, by which almost all the antient monafteries and religious houses held their lands; and by which the parochial clergy, and very many ecclefiaftical and eleemofynary foundations, hold them at this day; the nature of the service being upon the reformation altered, and made conformable to the purer doctrines

x Kitchin on courts. 194.

y Litt. §. 133.

4 lbid. 131.

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

G 3

of

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 alfo the reafon that tenants in frankalmoign were difcharged of all other fervices, except the trinoda neceffitas, of repairing the highways, building castles, and repelling invafions: juft as the Druids, among the antient Britons, had omnium rerum immunitatem. And, even at prefent, 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 diftrefs or otherwife to the lord of whom the lands are holden; but merely a complaint to the ordinary or vifitor to correct it. Wherein it materially differs from what was called tenure by divine fervice: in which the tenants were obliged to do fome fpecial divine services in certain; as to fing so many masses, to distribute such a fum in alms, and the like; which, being exprefsly defined and prescribed, could with no kind of propriety be called free alms; efpecially as for this, if unperformed, the lord might diftrein, without any complaint to the vifitorf. All fuch donations are indeed now out of ufe: for, fince the ftatute 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 fubfifts in many inftances at this day. Which is all that fhall be remarked concerning it; herewith concluding our observations on the nature of tenures.

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CHAPTER THE SEVENTH..

OF FREEHOLD ESTATES,

INHERITANCE.

OF

THE

HE next objects of our difquifitions are the nature and properties of eftates. 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 poffibly grant shall pass thereby. It is called in Latin, status; it fignifying the condition, or circumftance, in which the owner ftands, with regard to his property. And, to ascertain this with proper precifion and accuracy, eftates may be confidered 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 poffeffion 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 defcendants after him; or it is circumfcribed within a certain number of years, months, or days: or, laftly, it is infinite and unlimited, being vefted in him and his reprefentatives for ever. And this occafions the primary divifion of

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