teries, or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that "the holy fathers, monks, and friars, had in their confes sions, and especially in their extreme and deadly sickness, convinced the laity how dangerous a practice it was, for one Christian man to hold another in bondage: so that temporal men, by little and little, by reason of that terror in their consciences, were glad to manumit all their villeins. But the said holy fathers, with the abbots and priors, did not in like sort by theirs; for they also had a scruple in conscience to impoverish and despoil the church so much, as to manumit such as were bond to their churches, or to the manors which the church had gotten; and so kept their villeins still."" By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders; their persons being enfranchised by manumission or long acquiescence; but their estates, in strictness, remaining subject to the same servile conditions and forfeitures as before; though, in general, the villein services are usually commuted for a small pecuniary quit-rent.(h)

*As a further consequence of what has been premised, we may collect *97] these two main principles, which are held(i) to be the supporters of the copyhold tenure, and without which it cannot exist: 1. That the lands be parcel of, and situate within, that manor under which it is held. 2. That they have been demised, or demisable, by copy of court-roll immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day.18

In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are styled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only: for the custom of the manor has in both cases so far superseded the will of the lord, that, provided the services be performed or stipulated for by fealty, he cannot, in the first instance, refuse to admit the heir of his tenant upon his death; nor, in the second, can he remove his present tenant so long as he lives, though he holds nominally by the precarious tenure of his lord's will.19

(*) In some manors the copyholders were bound to perform the most servile offices, as to hedge and ditch the lord's grounds, to lop his trees, and reap his corn, and the like; the lord usually finding them meat and drink, and sometimes (as is still the use in the highlands of Scotland) a minstrel or piper for their diversion. Rot. Maner. de Edgware

Comm. Mid. As in the kingdom of Whidah, on the slavecoast of Africa, the people are bound to cut and carry in the king's corn from off his demesne lands, and are attended by music during all the time of their labour. Mod. Un. Hist. xvi. 429.

(1) Co. Litt. 58.

17 The last claim of villenage which we find recorded in our courts was in the 15 Jac. I. Noy, 27. 11 Harg. St. Tr. 342.-CHRISTIAN.

18 See this point considered (1 Watkins on Copyhold) in the very able edition of that work by Vidal, tit. Grants, pages 33, 51, &c. According to 3 Bos. & Pul. 346, 2 M. & S. 504, 2 Bar. & Ald. 189, and 2 Camp. 264, 265, without a special custom the lord cannot make a new grant of waste to hold as copyhold, though slight evidence of a custom will suffice; but a custom for the lord to grant leases of the wastes of a manor without restriction is bad. 3 B. & A. 153.-CHITTY.

19 As soon as the death of a copyhold tenant is known to the homage, it should be presented at the next general court, and three several proclamations should be made at three successive general courts for the heir or other person claiming title to the land whereof such copyholder died seized to come in and be admitted. Proclamation is said to be unnecessary where the heir appears in court, either personally or by attorney; but until such presentment and proclamations, the heir, though of full age, is not bound to come into court to be admitted. If, after the third proclamation, no such person claims to be admitted, a precept may be issued by the lord or steward to the bailiff of the manor to seize the lands into the lord's hands for want of a tenant, (Watkins on Copyhold, 239. H. Chitty's Descents, 165. 1 Keb. 287. Kitch. 246. 1 Leon. 100. 3 id. 221. 4 id. 30. 1 Scriv. 341, 342;) but the seizure must be quousque, &c., and not as an absolute forfeiture, unless there be a custom to warrant it. 3 T. R. 162.

The admittance is merely as between the lord and the tenant, (Cowp. 741,) and the title of the heir to a copyhold is as against all but the lord complete without admittance. The ceremony of admittance is said to be for the lord's sake only; and therefore in one case the court refused a mandamus to the lord to admit a person who claimed by descent. But a mandamus ought to be granted if a proper case be laid before the court. 1 Wils. 283. Recently the court, as a matter of right, granted a mandamus to admit a person

The fruits and appendages of a copyhold tenure, that it hath in common with free tenures, are fealty, services, (as well in rents as otherwise,) reliefs, and escheats. The two latter belong only to copyholds of inheritance; the former to those for life also. But besides these, copyholds have also heriots, wardship, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we shall say more hereafter,(j) are a render of the best beast or other good (as the custom may be) to the lord on the death of the tenant This is plainly a relic of villein tenure; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seized them even in the villein's lifetime. These are incident to both species of copyhold; but wardship and fines to those of inheritance only. Wardship, in copyhold estates, par takes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian;20 who usually assigns some relation of the infant tenant to act in his stead; and he, like the guardian in socage, is accountable to his ward for the profits." Of fines, some are in the

(5) See ch. 28.

[*98

claiming by descent. 3 Bar. & Cres. 172. If the heir is refused admittance, he shall be terre-tenant, even though the lord loses his fine, (Comyn. 245;) for the lord is only trustee for the heir, and merely the instrument of the custom for the purpose of admittance. 1 Watk. Copyh. 281. Cro. Car. 16. Co. Copyh. s. 41. So also is the steward; and therefore an admittance by him will be good though he acts by a counterfeit or voidable authority, it being sufficient if in appearance he be steward. Co. Copyh. 124.— CHITTY.

20 The statute of 9 Geo. I. c. 29 in relation to the copyholders who are under age, and who are entitled by descent or surrender to the use of a last will, provides that, if they do not come in to be admitted in person, or by their guardians, or (having no guardians) by their attorneys, (which the act enables them to appoint,) at one of the three then next courts, the lord or steward, on due proclamation made, may appoint such guardians for the purpose of admission, and thereupon impose the just fines, (as to which see note 25.) And if such fines are not paid as directed by that act, the lord is empowered to enter and take the profits (but without liberty to fell timber) till such fines and the consequent expenses are satisfied, rendering an account to the persons entitled. If the guardians pay such fines, then they may reimburse themselves in the like manner.

In the construction of this act it was held, both by lord Eldon and lord Erskine, that the court of chancery is not at liberty to speculate upon what the legislature might mean, beyond what it has expressed. The court, it was said, must abide by the words of the act, which confine its operation to cases of descent or surrender to the use of a will, and do not apply to a title under a deed. Therefore, to a bill by a lord praying a discovery, in aid of an action under the statute, for recovery of fines alleged to be due, a demurrer was allowed. Lord Kensington vs. Mansell, 13 Ves. 240.

However, as the statute of 55 Geo. III. c. 192 has since enacted that all dispositions of copyhold estates by will shall be as effectual to all intents and purposes, although no surrender shall have been made to the use of the will, as the same would have been if a surrender to the use of the will had been made, the statute of Geo. I. is, in this respect, enlarged. And it is evident the last-named statute materially qualifies the statement in the text, that "the lord is the legal guardian."

This authority of the lord must be by virtue of a special custom in a manor; for by the 12 Car. II. c. 24, s. 8 and 9, a father may appoint a guardian by his will as to the copyholds of his child; and though this custom is not abolished in terms, nor can be said to be taken away by implication in this statute, yet, where the custom does not exist in a manor, the better opinion is that the statute will operate; and even where the custom prevails, Mr. Watkins thinks, the father may, by this statute, appoint a guardian of the person of his child, if not of his copyhold property. See 2 Watk, on Copyh. 104, 105.— CHITTY.

21 There is some obscurity as to this point; but I imagine the account given of it in the text cannot be the correct one. As the tenure clearly savoured more of socage than chivalry, the lord, without a special custom warranting it, cannot well be supposed to be the guardian, but the nearest relation to whom the inheritance cannot descend. And, accordingly, in 2 Rolle's Abr. tit. Garde, P. pl. 1, it is laid down by the court that "if a copyhold descend to an infant within the age of fourteen, his prochein amy, to whom the land cannot descend, shall have the custody of it, as he would of a freehold, unless there be a custom appointing it to another. If there be such a custom, that will still operate and is not affected by the statute of Car. II. See ante, p. 88. But the present question is, Who shall now be guardian where there is no custom? Whether, though the statute

22

nature of primer seisins, due on the death of each tenant, others are mere fines for the alienation of the lands; in some manors only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom; but, even when arbitrary, the courts of law, in favour of the liberty of copyholds, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate. No fine therefore is allowed to be taken upon descents and alienations (unless in particular circumstances) of more than two years' improved value of the estate.(k) From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath always shown to this species of tenants; by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands; by declaring, that the will of the lord was to be interpreted by the custom of the manor; and, where no custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes with an equitable moderation, and will not suffer the lord to extend his power so far as to disinherit the tenant.

Thus much for the ancient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally descended from it.

IV. There is yet a fourth species of tenure, described by Bracton under the name sometimes of privileged villenage, and sometimes of villein-socage. This, *99] he tells us,() is such as has been held of the kings of England from the conquest *downwards; that the tenants herein "villana faciunt servitia, sed certa et determinata;" that they cannot 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 antient 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.

Antient demesne consists of those lands or manors which, 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 domesday-book.(m) The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies, (n) 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.(0) Others were in a 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

will not operate to defeat a custom, it shall take place in the absence of any custom ? Mr. Watkins is of opinion that it will; and even where there is a custom he thinks that the father, by will under the statute, may appoint a guardian of the body of his child. It is desirable that the law should be as he states it, but I am not aware that any decision to that effect has taken place. See 2 Watk. on Copyholds, 104.-COLERIDGE.

22 As, in the case where the lord is not bound to renew, or, being so bound by the cus tom, the copyholder is allowed to put in more than one life at a time, and consequently several admissions are made at the same time, for which an increased fine may be fairly demanded. The rule generally is to take for the second life half what the immediate tenant for life pays, and for the third half what the second pays. But this must be understood by persons taking successively; for if they take as joint tenants, or as tenants in common, the single fine only would be due: to be apportioned in the latter case, each paying severally. Watk. on Copyh., 1 vol. 312. Scriven on Copyh. 374. It seems that coparceners are entitled to be admitted to copyhold tenements as one heir, and upon payment of one set of fees. 3 Bar. & C. 173.-CHITTY.

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 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; not to be put on juries; and the like.(r)

*These tenants therefore, though their tenure be absolutely copyhold, [*100 yet have an interest equivalent to a freehold: 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; 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 sokemans, and their tenure sokemanries; which he describes(t) to be "lands and tenements, which are not held by knightservice, nor by grand serjeanty, nor by petit, but by simple services, being, as it were, lands enfranchised by the king or his predecessors from their antient 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 sorage; 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 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 franktenure, and villein-socage or socage of antient 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 special 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; *yet with this distinction,(x) that in [*101 the 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.'

1724

(P) 4 Inst. 269.

(9) F. N. B. 11.

() Ibid. 14.

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

(*) C. 66.
(u) L. 1. c. 8.
() N. B. 13.

(*) Kitchen on Courts, 194.

23 In an action of ejectment, it may, by leave of the court, be pleaded in abatement that the lands are part of a manor which is held in ancient demesne; but such a plea must be sworn to, and is not favoured. 2 Burr. 1046.-CHITTY.

24 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 text, but erroneously, called tenants in ancient demesne, who hold of a manor which is ancient demesne, but hold by copy of court-roll at the will of the lord, and are called copyholders of base tenure. The neglect to keep in mind these distinctions sometimes produces perplexity and confusion in questions respecting the tenure in ancient demesne. See Scriven on Copyholds, 656. CHITTY.

It is only the freeholders of the manor who are 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 Property Report, p. 13. 3 B. & P. 382.

There are some estates held according to the custom of a manor, but not by copy of court-roll nor at the will of the lord. "These customary estates, known by the denomination of tenant-right, are peculiar to the northern parts of England, in which borderservices against Scotland were anciently performed before the union of England and Scotland under the same sovereign. And although these appear to have many qualities

VOL. I.-30

465

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 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 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.

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 alms, 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 soul of the donor and his heirs dead or alive; and therefore they did no fealty, (which is incident to all other services but this,)(z) 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 eleemosynary foundations, hold them at this day;(b) the nature of the service being, upon the *102] reformation, altered, and 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 shown 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:(c) just as the Druids, among the antient 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 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.(ƒ) 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.,

(v) Litt. 133.

(*) Ibid. 131.
(a) Ibid. 135.

(b) Bracton, l. 4, tr. 1, c. 28, § 1.

(c) Seld. Jan. 1, 42.

(d) Cæsar de Bell. Gall. l. 6, c. 13.
(e) Litt. 136.
(f) Ibid. 137.

(") Ibid. 140.

and incidents which do not properly belong to villenage tenure, either pure or privileged, (and out of one or other of these species of villenage all copyhold is derived,) and also have some which savour more of military service by escuage uncertain,-which, according to Litt. s. 99, is knights' service; and although they seem to want some of the characteristic qualities and circumstances which are considered as distinguishing this species of tenure, viz., the being holden at the will of the lord, and also the usual evidence of title by copy of court-roll; and are alienable, also, contrary to the usual mode by which copyholds are aliened, viz., by deed and admittance thereon, (if, indeed, they could be immemorially aliened at all by the particular species of deed stated in the case, viz., a bargain and sale, and which at common law would only have transferred the user;) I say, notwithstanding all these anomalous circumstances, it seems to be now so far settled in courts of law that these customary tenant-right estates are not freehold, but that they in effect fall within the same consideration as copyholds, that the quality of their tenure in this respect cannot properly any longer be drawn into question." Per lord Eller.borough, C. J., 4 East, 288. See 2 Bos. & P. 378. 4 Per. & D. 579; infra, p.

48.-SWEET.