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that these estates in villan-socage are not comprised under the denomination of Free Lands and Tenements or Freehold, within the meaning of the statutes of Henry the Sixth. And here it will be necessary to distinguish two senses of the word franktenement or freehold ; the ambiguity of which expression hath occasioned the principal embarrassment, to such as have already considered this question. By the word “freehold' then is sometimes meant the interest or estate itself, which the tenant holds in the land, sometimes the tenure by which that estate is holden.” (a)
Again, (b) “ That such as have a freehold interest only in lands, and not a freehold tenure, are incapable of voting at elections, will appear by considering the consequences of the opposite doctrine; which would be the allowance of all copyholders, of the basest kind, to have equally votes.
For they may likewise have a freehold interest, as Lord Coke has before observed ; being generally either tenants for life or in fee; in which case it is held, that they have fee and freehold by custom, (Kitch. tit. Cop.); or in other words, that the latter, viz. the copyholder in fee, hath a customary estate of inheritance, (9 Rep. 75. b.): terms, that in their import are at least equivalent to the customary freehold, which our courts of law have sometimes applied to the estate of villan-socmen.”
And again (c): “ It hath been before hinted, and must not be dissembled, that our law books and courts of law have frequently (especially of late years) distinguished these estates, in antient demesne and elsewhere, by the name of customary freeholds ; and have laid it down that they cannot be copyholds, unless held at the will of the lord, (Cro. Car. 229. 2 Vent. 143. Carth. 432. Lord Raym. 1225.) : and also, that a freehold may be surrendered by custom in court, without the will of the lord ; and that the alienee shall not be tenant at will, but shall have the inheritance. (Fitz. Abr. tit. Corone, 310.
(a) Vide ante, pt. 1, tit. • Pleading, &c.' p. 604. Ib. n. (S).
(6) p. 138.
Bro. Abr. tit. Custom, 2, 17. Copie
, 22. 9 Rep. 76. Co. Litt. 59. b. 1 Roll. Abr. 562.) But in all these cases the terms · freehold and freeholder, are put in opposition to 'common copyhold and copyholder, to un mere copyholder, as Brook expresses it, (Ten. per Copie, 22.,) or such as are sprung from the pure villenage of our antient tenures. For it would be absurd to say that lands, holden by copy, are not copyholds in any sense. The truth is, that these lands are of such an amphibious nature, that, when compared with mere copyholds, they may with sufficient propriety be called freeholds; and, when compared with absolute freeholds, they may with equal, or greater propriety, be denominated copyholds. We do not contend that they are copyholds of base tenure, subject to all the servile badges of pure villenage ; but copyholds of a privileged tenure, retaining some badges of servility and not others; or rather (negatively) that they are not, purely and absolutely, freeholds. Whereas the question in all the adjudged cases above cited has been, whether common copyhold or not; and it has been very justly determined that this species of lands is not common copyhold : but it does not therefore follow that it is purely and simply freehold; being on the contrary usually distinguished into a third intermediate state, under the mixed and complicated denominations of customary freehold, free copyhold, or as Lord Coke expresses it, (Cop. s. 32.,) copyhold of frank tenure.”
“ It perhaps may be also objected, that Lord Coke (in the passage just cited,) declares, that in these copyholds of frank tenure, the freehold resteth in the tenant and not in the lord (a). But this word · freehold’ must there be understood
(a) It is not so, the freehold is in the lord, as we shall presently see, but there is much dicta for Lord Coke's position. Vide N. 1. Co. Lit. 59. b. Hughs v. Harrys, Cro. Car. 229. Rogers v. Bradly, 2 Vent. 143.
Gale v. Noble, Carth. 432. 5 East 66, 77, in Roe d. Conolly v. Vernon & Vyse. 7 East 304, in Doe & Danvers. Mann. Ex. Pr. 359.
Bingham v. Woodgate, post. p. 685.
to denote the interest, and not the tenure of the land (a). And this depends upon a nicety in the modern law, derived from a very substantial and solid reason in the old law. When lands were in fact held in pure villenage, the tenant was really tenant at the lord's will, and therefore the law did not allow him to have the freehold of the land, but declared it to remain in the lord; for tenant at will hath hardly any interest at all, much less a freehold interest. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate for life or in fee, but yet continued to be stiled in their copies tenants at the will of the lord ; (the omission of which, in their state of villenage, would have been a manumission of their persons, Mirr. c. 2. s. 28. Litt. s. 204, 205-6,) the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest : and therefore continued, and still continues, to determine that the freehold of lands so holden abides in the lord of the manor, and not in the tenant, though he really holds to him and his heirs for ever, since he is also said to hold at another's will. But as to these copyholders of free or privileged tenure, the case is otherwise. They do not, 'nor ever did, hold at the lord's will; either in fact, or nominally. There is therefore no absurdity in allowing them capable of enjoying a freehold interest; and on that account the law doth not suppose the freehold of these lands to rest in the lord of whom they are holden, but in the tenants themselves (6). Bracton indeed makes a distinction (1. 2. c. 8. s. 2.) between native villan-socmen, who are born within antient demesne, and such as are adventitious, who hold by compact and convention with the lord ; apprehending that, though the latter may have a freehold interest, the former cannot. Compact ' and the consent of the lord may make the latter's estate a 'freehold :' and again,' in the person of one it shall be free
(@) Ante, p. 668. n. (a).
is an erroneous supposition, ante p. 669 (n. a.); et vide post.
' hold, in the person of the other villenage.' And yet, granting their interest to be freehold, it does not follow that their tenure is free; for their services, though certain, were not free but villan services ; and therefore Bracton in the same section declares, that although the service be certain from a villan socage, yet the tenant shall not therefore have a freehold.””
“ 2. A second argument to shew that these tenures in villansocage are not free tenures, will arise from their method of transfer or alienation, which was before remarked; nainely, by surrender into the hands of the lord, and not by the usual conveyances by deed at the common law. Of these, feoffment with livery of seisin is still the principal, and was the only original conveyance by which a freehold could pass, till the statute of uses in the reign of Henry the Eighth.”
And after adducing as a third ground of argument, that tenants in villan-socage are not free tenants, their inability to sue or be sued for their lands, or of course to levy a fine or suffer a recovery in the King's courts of common law (a), but only in the court baron of the lord, by the peculiar writ of right close (b), the learned author further observes (c) :-“4. A fourth argument to prove that this tenure cannot be a free tenure, is this : that though the lands be not held at the will of the lord, and therefore the tenant cannot, nor ever could, be ousted at the lord's pleasure, as was formerly the case in common copyholds; yet still the lands are liable to forfeiture, and the tenant may be ousted by his own default, for the non-payment and non-performance of his rents and services : which no free tenant, per liberum servitium, could be by the common law. For the writ of cessavit (by which lands may now be
(a) Ante, p. 667 n. (6.) Note, “ A a writ of right close. Vide post. tit. “fine levied or recovery had of lands “ Ancient Demesne ;” and reference " in the King's court proves them to there to the act 3 & 4 W. 4. c. 27, “ be frank-fee.” Old Nat. Brev. tit. by which the writ of right close is briefe de recto clauso. F. N. B. 13. abolished from the 31st Dec. 1834.
(6) Ante, pp. 666–7. Copyholders (c) p. 153. in ancient demesne cannot maintain
recovered against a freeholder, for such default for two years together,) was first given by the statute of Glocester, 6 Ed. 1, before which the lords had no remedy, but that of distress, for substraction of freehold services : and at present, this writ of cessavit may be defeated, even pending the suit, by tender of amends to the lord. But it is the very condition of the tenure in question, that the lands be holden only so long as the stipulated service is performed ; ' quamdiu velint et possint facere * debitum servitium, et solvere debitas pensiones,' as is the doctrine of Bracton, Britton, and the rest, above cited. So too the lord may seize their lands for alienation contrary to the custom; (Bro. Abr. tit. Custom, 17;) and it is not improbable that he has likewise the power of seizing, if the heir comes not in to be admitted in court at the death of the ancestor, and for other causes, according to the peculiar customs of each respective manor (a). Now it is impossible that tenants thus dependant on their lords, who may by law take the advantage of sudden forfeitures, and destroy their estates, can or ever could be ranked in the same class with absolute freeholders, whose estates are not liable to be defeated upon any such servile conditions.”
And having relied, as a fifth ground of argument against these tenants being freeholders, on the circumstances of their not being members of the county court, where all elections by freeholders are directed to be made, and their not being contributory to the wages of the knights of the shire, which were formerly raised by their constituents to defray their
expenses in parliament, our able commentator thus concludes (6) :-“6. The last argument that shall be offered upon this head is a very concise one, and is this; that, however the lawyers may at times have denominated these tenures a sort of base species of freehold, in contradistinction to mere copyholds, yet the law in the main regards them as being
(a) But see Gale v. Noble, Carth.
(6) p. 159.