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, he tells us,() is such as has been held of the kings of England from the *99] 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 custom, 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 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 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."" (P) 4 Inst. 269. (9) F. N. B. 11. (*) Ibid. 14. (t) C. 66. () Gilb. Hist. of Exch. 16 and 30. (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 reformation, altered, and made conformable to the purer doctrines *of *102] 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.(f) 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. (6) Bracton, l. 4, tr. 1, c. 28, 1. (e) Seld. Jan. 1, 42. (d) Cæsar de Bell. Gall. l. 6, c. 13. (f) Ibid. 137. 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 Ellenborough, C. J., 4 East, 288. See 2 Bos. & P. 378. 4 Per. & D. 579; infra, p. 148.-SWEET. 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. CHAPTER VII. OF FREEHOLD ESTATES OF INHERITANCE. THE next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant has 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 status; it signifying 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 connections of the tenants. First, with regard to the quantity of interest which the tenant 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 of years, months, or days: or, lastly, it is infinite and unlimited, being vested in him and his representatives forever. And this occasions the primary division of *estates into such as are freehold, and such as are less than freehold. [*104 An estate of freehold, liberum tenementum, or franktenement, is defined by Britton(b) to be "the possession of the soil by a freeman." And St. Germyn(c) tells us that "the possession of the land is called in the law of England the franktenement or freehold." Such estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold : which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seisin, or, in tenements of any incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton,(d) that where a freehold shall pass, it behooveth to have livery of seisin. As, therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates are conveyed with the same solemnity, therefore no others are properly freehold estates.1 Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances abso (a) Co. Litt. 345. (e) Dr. & Stud. b. 2, d. 22. A freehold estate seems to be any estate of inheritance, or for life, in either a corporeal or incorporeal hereditament, existing in or arising from real property of free tenure; that is, now, of all which is not copyhold. And the learned judge has elsewhere informed us that tithes and spiritual dues are freehold estates, whether the land out of which they issue are bond or free, being a separate and distinct inheritance from the lands themselves. And in this view they must be distinguished and excepted from other incorporeal hereditaments issuing out of land, as rents, &c., which in general will follow the nature of their principal, and cannot be freehold, unless the stock from which they spring be freehold also." I Bl. Tracts, 116.-CHRISTIAN. As to copyholders having a freehold interest, but not a freehold tenure, see 1 Prest. on Estate, 212. 5 East, 51.-CHITTY. lute or fee-simple; and inheritances limited, one species of which we usually call fee-tail. I. Tenant in fee-simple (or, as he is frequently styled, tenant in fee) is ho that hath lands, tenements, or hereditaments, to hold to him and his heirs forever(e) generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in *105] its original sense it is *taken in contradistinction to allodium;(ƒ) which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. And therefore Sir Henry Spelman(g) defines a feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services: the mere allodial property of the soil always remaining in the lord. This allodial property no subject in England has;(h) it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominium:(i) but all subjects' lands are in the nature of feodum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feudal clogs which were laid upon the first feudatory when it was originally granted. A subject therefore hath only the usufruct, and not the absolute, property of the soil; or, as Sir Edward Coke expresses it,(k) he hath dominium utile, but not dominium directum. And hence it is, that, in the most solemn acts of law, we express the strongest and highest estate that any subject can have by these words :-" he is seised thereof in his demesne, as of fee." It is a man's demesne, dominicum, or property, since it belongs to him and his heirs forever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee: that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides. *This is the primary sense and acceptation of the word fee. But (as *106] Sir Martin Wright very justly observes)() the doctrine, "that all lands are holden," having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this its primary original sense, in contradistinction to allodium or absolute property, with which they have no concern; but generally use it to express the continuance or quantity of estate. A fee therefore, in general, signifies an estate of inheritance; being the highest and most extensive interest that a man can have in a feud: and when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it, (as a fee, or a fee-simple,) it is used in contradistinction to a fee-conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man.(m) Taking therefore fee for the future, unless where otherwise explained, in this its secondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal.(n) But there is this distinction between the two species of hereditaments: that, of a corporeal Litt. 21. See pp. 45, 47. ) Of Feuds, c. 1. (Co. Litt. 1. (*) Co. Litt. 1. () Co. Litt. 1. (") Feodum est quod quis tenet sibi et hæredibus suis, sive Prædium domini regis est directum dominium, cujus sil tenementum, sive reditus, &c. Flet. l. 5, c. 5, § 7. nullus est author nisi Deus. Ibid. |