Of Customary Freeholds, (or Privileged Copyholds). THE origin and peculiar character of this species of tenure will, I think, be best illustrated, by selecting some few passages from the Law Tracts of Sir William Blackstone, title "Considerations on the question, whether tenants by copy of court roll, according to the custom of the manor, though not at the will of the lord, are freeholders qualified to vote in elections for knights of the shire." (a) After showing by an able argument, chiefly drawn from the authorities of Bracton, Fleta, and Britton, that estates of this nature are no other than what were well known to our ancient law, under the denomination of estates in privileged villenage or villein socage, and that they were not free lands at the common law, our learned commentator thus proceeds (b): "As the villan-socman was distinguished from the pure villein, in that he could not be removed from his estate at the (a) By the stat. 31 G. 2. c. 14, the privilege of voting for knights of the shire was denied to all persons holding estates by copy of court roll. But see reference to 2 W.4. c. 45.s. 19, enabling copyholders for a life or lives, VOL. II. or any larger estate, of the clear yearly value of not less than ten pounds, to vote in the election of a knight or knights of the shire, ante, pt. 1. p. 661. n. (b). (b) p. 132. B will of the lord; a gleba amoveri non debet, quamdiu velit ' et possit facere debitum servitium;' so, since this will of the lord, is by custom become merely nominal, the same nominal distinction is, kept up between the common copyholders and this privileged sort; the words at the will of the lord,' being still preserved in the copies of the former, and totally omitted in those of the latter; which omission is, indeed, almost the only difference now remaining betwixt them; common copyholders having arrived (by a series of encroachment on their lords) at nearly the same estate of enfranchisement, which the privileged copyholders alone enjoyed by the antient law." 6 "Farther to confirm what has been said, Lord Coke (cop. s. 32,) (giving an account of these tenures, which he calls copyholds of frank tenure) observes, that they are most usual in ⚫ antient demesne: though sometimes out of antient demesne we meet with the like sort of copyholds: as in Northamptonshire 'there are tenants which hold by copy of court roll, and have no ' other evidence, and yet hold not at the will of the lord.' And so Mr. Kitchin (tit. cop.) (a) says, I have seen in the county of Northampton, copyholders of frank tenure, out of antient de'mesne; and they have used a writ of right close, and have no ' other evidence but by copies, according to the custom of the 'manor; but their copies are not at the will of the lord.' And again, (tit. court of antient demesne) (b), in surrenders of lands in an'tient demesne of frank tenure, it is not used to say, to hold at the will of the lord, in these copies; but to hold according to the 'custom of the manor, by the services before due; and it is not said there, at the will of the lord.' To these may be added Mr. West, who (Symboleography, S. 603,) first lays down the general definition of a copyholder; he which is admitted tenant of any lands or tenements within a manor, that time out of memory of man have been demisable, and demised to such as 'will take the same, in fee, fee tail, for life, years, or at will, 6 according to the custom of the said manor, by copy of court (a) p. 159 of the Author's edit. (b) P. 194 of the Author's edit. 'roll of the same manor. And therefore they be called tenants by copy of court roll, because they have no other writings or ' evidence, concerning such their lands and tenements, but only 'the copies of the rolls of the courts of the manors, within 'which they lie.' And then (S. 605.) he distinguishes the present species of copyholds from others, thus: In some ma nors, the tenants have the lands granted unto them and their 'heirs, in fee, fee tail, or for life, or years, according to the 'custom of the manor; and not at the will of the lord accord ing to the custom: it which case the rolls and copies ought 'to be made accordingly.' All which proves, that the omission of these words in its original, was neither fraudulent nor accidental, but is a badge well known to the law, as a kind of family distinction between such copyholds as are descended from pure, and such as are from privileged, villenage." And after exemplifying his argument by a copy of a court roll in the old chartuary, or collection of ancient deeds and forms in conveyancing, Sir William Blackstone adds (a):"This seems to be convincing evidence, that these tenures are of the same nature with Bracton's villan-socage; being chiefly found in antient demesne; the tenants not amesnable to the county court; the lands not transferable but only by surrender; not capable of a recovery at common law (b), but only by writ of right close, according to the custom of the manor; and though held by copy of court roll, yet not at the will of the lord. Those who imagine them to be of any other species of tenure, would do well to inform us what that tenure is, and to support their opinion with authorities equally cogent. Taking this then for proved, that the tenants in question are of the nature of villan-socmen; it will next be our business to shew, (a) p. 136. (b) According to the case of Oliver & Taylor, 1 Atk. 474, (citing Baker & Wase, in Lord Macclesfield's time,) a recovery might be suf fered in the Court of Common Pleas of customary freeholds, passing by surrender in a Borough Court. But now see 3 & 4 W. 4. c. 74. § 2. Vide also ante, pt. 1, p. 84, et seq. 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. (ƒ). (b) p. 138. Custom, 12. Bro. Abr. tit. Custom, 2, 17. Tenant per 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. |