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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 (b). 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

(a) Ante, p. 668. n. (a).

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(b) This, as I have before noticed,

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.""

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"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; namely, 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."

"4.

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. (b.) Note, "A "fine levied or recovery had of lands "in the King's court proves them to "be frank-fee." Old Nat. Brev. tit. briefe de recto clauso. F. N. B. 13.

(b) Ante, pp. 666-7. Copyholders in ancient demesne cannot maintain

a writ of right close. Vide post. tit.
"Ancient Demesne;" and reference
there to the act 3 & 4 W. 4. c. 27,
by which the writ of right close is
abolished from the 31st Dec. 1834.
(c) p. 153.

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 (b):-" 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 (b) p. 159.

(a) But see Gale v. Noble, Carth. 432.

properly copyhold and not freehold tenures; else they could not have subsisted to this day. For they must otherwise have been involved in the general fate of the rest of our antient tenures, when by the statute of 12 Car. 2. c. 24, they all were abolished and reduced to free and common socage;-except only tenures in frankalmoign (a), and tenures by copy of courtroll (b). Free and common socage these tenures cannot be ; their surrenders, and admittances, their frequent fines for alienation, and peculiar paths of descent, (from which two last, as not being their universal properties, no argument hath been hitherto drawn,) their forfeitures, recoveries, and privileges, (still regulated by particular custom in derogation of the common law,) most clearly evince the contrary. Nor will it be pretended that they are of the nature of frankalmoign. There remains therefore no other choice; tenures by copy of courtroll they must be. This is their indelible character: it is to this they owe their present existence, and survival of other tenures. The statute has reduced all manner of lay freeholds to one and the same level, of free and common socage: but copyholds remain as they were, as various, as singular, and as servile in their tenure as ever. These tenures therefore not being free and common socage, must necessarily remain copyholds, as entirely as in the time of Bracton; of a superior order, indeed, and distinguished by some advantages (formerly real, now nominal only,) over the baser sort; but still far short of the dignity, the immunities, and the independence of that freehold tenure, which for more than three hundred years has constituted an elector of knights of the shire to serve in the English Parliament."

(a) The tenure by which all ecclesiastical persons and corporations, and lay impropriators, now hold their lands and tithes, and who even as to such tithes have a freehold interest, though issuing out of copyhold land, being a distinct inheritance. See stat.

16 & 17 Car. 2. c. 1. 10 Ann. c. 23. 1 Bl. Tr. p. 115, 116, 117. Co. Lit. 100. b. n. (1.)

(b) But part of the honorary services in grand serjeanty are also retained by the statute of 12 Car. 2. Co. Lit. 108. a. n. (1.)

The above perspicuous, classical, and highly interesting definition of the tenure now under our consideration, would, I submit, fully justify me in proceeding, without any introductory remarks, to a statement of some few cases which appear to have established that the freehold is in the lord in privileged copyholds, passing either by surrender, or by deed of grant or bargain and sale, and admittance, as well as in ordinary copyholds (a).

But I think it right (with reference to the immediate subject of the above extracts from the Law Tracts of Mr. Justice Blackstone) to notice, that customary freeholders, although holding by copy of court-roll, were in one instance allowed to vote for knights of the shire (b), even after the statute of 31 Geo. 2. c. 14. (c); and the right of customary freeholders not holding by copy of court-roll, to vote at county elections, has been considered as less doubtful (d). Yet as the statute of 18 Geo. 2. c. 18. enacted, that no person should vote in any election of a knight or knights of the shire, without having a freehold estate in the county for which he voted, of the clear yearly value of forty shillings; and since it has been determined, that the freehold of these estates, of such at least as are within and parcel of the manor, is in the lord, even when they pass (as frequently is the case) by deed of grant or bargain and sale and admittance, and are not held at the will of the lord, I agree with Mr. Serjeant Heywood (e) in supposing, that these tenants had formerly (ƒ) no right to vote at county elections.

I wish also to remind the reader, that there is a difference in

(a) Probably it would be held that customary lands not being within and parcel of the manor, but being held of the manor (as in ancient demesne tenure) form an exception to the rule, and that the freehold of those lands is presumptively in the tenant. Post. p. 678. n. (a.) See note (c.) to Le Fleming v. Simpson, 1 Mann. & Ry.

269.

(b) Contest for Leicestershire, 1770. Heyw. C. 81.

(c) Ante, p. 665 n. (a.)

(d) Gloucestershire case. Heyw. C. 82. Male 134, 285. Rogers 160. n. (e) Heyw. C. 85.

(f) i. e. prior to 2 W. 4. c. 45. Ante, pt. 1. p. 661. n. (b).

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