BOOK II. IN admittances, even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to him, the lord is confidered as an inftrument. For though it is in his power to keep the lands in his own hands, or to dispose of them at his pleasure, by granting an absolute fee-fimple, a freehold, or a chattel intereft therein; and quite to change their nature from copyhold to focage tenure, fo that he may well be reputed their absolute owner and lord; yet if he will still continue to difpose of them as copyhold, he is bound to obferve the antient custom precisely in every point, and can neither in tenure nor eftate introduce any kind of alteration; for that were to create a new copyhold: wherefore in this refpect the law accounts him cuftom's inftrument. For if a copyhold for life falls into the lord's hands, by the tenant's death, though the lord may deftroy the tenure and enfranchise the land, yet if he grants it out again by copy, he can neither add to nor diminish the antient rent, nor make any the minutest variation in other refpects; nor is the tenant's eftate, fo granted, fubject to any charges or incumbrances by the lord (3). IF admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an inftrument: and the tenant admitted fhall likewise be subject to no charges or incumbrances of the lord; for his claim to the eftate is folely under him that made the furrender '. Co. Copyh. $41. 8 Rep. 63. 4 Rep. 27. Co. Litt. 59 (3) Where a copyhold has been granted for lives, upon the death of one or more of the lives, the heir of the grantee cannot claim by custom a renewal of the grant for fresh lives upon the payment of a reasonable fine, i. e. a fine of two years value, as in the cafe of a copyhold of inheritance. No cuftom to renew a copyhold for lives is legal, unlefs the fine has been certain and unvaried, for copyholds grantable for lives only, if the fine is not certain, are like leafes of freehold lands for lives, and renewable only upon the best terms the party can make. Wharton v. King, Anftr. 659. AND, as in admittances upon furrenders, fo in admittances upon defcents by the death of the ancestor, the lord is used as a mere inftrument; and, as no manner of interest pafles into him by the furrender or the death of his tenant, fo no intereft paffes out of him by the act of admittance. And therefore neither in the one cafe nor the other, is any refpect had to the quantity or quality of the lord's eftate in the manor. For whether he be tenant in fee or for years, whether he be in poffeffion by right or by wrong, it is not material; fince the admittances made by him fhall not be impeached on account of his title, because they are judicial, or rather minifterial acts, which every lord in poffeffion is bound to perform 3. ADMITTANCES, however, upon furrender, differ from admittances upon defcent in this; that by furrender nothing is vefted in cefiuy que ufe, before admittance, no more than in voluntary admittances; but upon defcent the heir is tenant by copy immediately upon the death of his ancestor: not indeed to all intents and purposes, for he cannot be fworn on the homage nor maintain an action in the lord's court as tenant; but to moft intents the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger. He may enter into the land before admittance; may take the profits; may punish any trefpafs done upon the ground'; nay, upon fatisfying the lord for his fine due upon the defcent, may furrender into the hands of the lord to whatever use he pleases (4). For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine, and not * 4 Rep. 23. 4 Rep. 27. 1 Rep. 140. (4) The heir having as complete a title without admittance as with it, against all the world but the lord, the court of king's bench will not grant a mandamus to compel the lord to admit him. 2 T. R. 197. fo so much neceffary for the ftrengthening and completing the heir's title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and fo the lord [372] may be defrauded of his fine. But to this we may reply in the words of fir Edward Coke, "I affure myself, if it "were in the election of the heir to be admitted or not "to be admitted, he would be beft contented without "admittance; but the custom in every manor is in this "point compulsory. For, either upon pain of forfeiture "of their copyhold, or of incurring fome great penalty, "the heirs of copyholders are inforced, in every manor, to "come into court and be admitted according to the cuf "tom, within a fhort time after notice given of their anceftor's decease (5).” (5) Copyholds are not within the statute de donis, and cannot be intailed without a special custom within the manor; and where such a custom exists, there may also be a custom to bar the estate-tail, by a recovery suffered in the lord's court; but if no fuch cuftom appears of barring by recovery, the intail may be barred by furrender, or otherwise it would amount to a perpetuity. 2 Vef. 601. Yet in fome manors the custom of barring by one mode, is coexiftent with the custom of barring by the other. 2 Bl. Rep. 944. CHAPTER THE TWENTY-THIRD. OF ALIENATION BY DEVISE. TH HE laft method of conveying real property, is, by devife, or difpofition contained in a man's last will and teftament. And, in confidering this subject, I shall not at prefent inquire into the nature of wills and teftaments, which are more properly the inftruments to convey personal estates; but only into the original and antiquity of devifing real estates by will, and the construction of the several statutes upon which that power is now founded. IT feems fufficiently clear, that before the conqueft, lands were devifable by will. But, upon the introduction of the military tenures, the reftraint of devifing lands naturally took place, as a branch of the feodal doctrine of nonalienation without the confent of the lord. And fome have queftioned whether this reftraint (which we may trace even from the antient Germans) was not founded upon truer principles of policy, than the power of wantonly difinheriting the heir by will, and transferring the eftate, through the dotage or caprice of the ancestor, from those of his blood to utter ftrangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbours; fince it rarely happens, Wright of tenures. 1728 Tacit. de mor. Germ. c. 21. that that the fame man is heir to many others, though by art and management he may frequently become their devifee. Thus the antient law of the Athenians directed that the estate of the deceafed fhould always defcend to his children; or, on failure.of lineal defcendants, should go to the collateral relations which had an admirable effect in keeping up equality and preventing the accumulation of estates. But when Solond made a flight alteration, by permitting them (though only on failure of iffue) to difpofe of their lands by teftament, and devife away eftates from the collateral heir, this foon produced an excefs of wealth in fome, and of poverty in others which, by a natural progreffion, first produced popular tumults and diffenfions; and these at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total fubverfion of their state and nation. On the other hand, it would now feem hard, on account of fome abuses, (which are the natural confequence of free agency, when coupled with human infirmity,) to debar the owner of lands from diftributing them after his death as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar propriety; by preventing the very evil which refulted from Solon's institution, the too great accumulation of property: which is the natural confequence of our doctrine of fucceffion by primogeniture, to which the Athenians were ftrangers. Of this accumulation the ill effects were feverely felt even in the feodal times but it should always be ftrongly difcouraged in a commercial country, whofe welfare depends on the number of moderate fortunes engaged in the extension of trade. HOWEVER this be, we find that, by the common law of England fince the conqueft, no estate, greater than for term of years, could be difpofed of by teftament; except only in Kent, and in fome antient burghs, and a few particular manors, where their Saxon immunities by special indulgence Plutarch. in vita Solon. e 2 Inft. 7. fubfifted. |