though, in general, the vellein services are usually commuted for a small pecuniary quit-rent. (h) *As a further consequence of what has been premised, we may collect these two main principles, which are held (i) to be the supporters of the [*97] copyhold tenure, and without which it cannot exist: 1. That the land be parcel of, and situate within that manor, under which it is held. 2. That they have been demised, or demisable, by copy of court-roll immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day. (15) In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are styled copyholds of inheritance; (16) in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only: for the custom of the manor has in both cases so far superseded the will of the lord, that, provided the services be performed or stipulated for by fealty, he cannot, in the first instance, refuse to admit the heir of his tenant upon his death, nor, in the second, can he remove his present tenant so long as he lives, though he holds nominally by the precarious tenure of his lord's will. (17) The fruits and appendages of a copyhold tenure, that it hath in common with free tenures, are fealty, services (as well in rents as otherwise), reliefs, and escheats. The two latter belong only to copyholds of inheritance; the former to those for life also. But besides these, copyholds have also heriots, wardship, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we shall say more hereafter, (j) are a render of the best beast or other good (as the custom may be) to the lord on the death of the tenant. This is plainly a relic of vellein tenure; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seised them even in the villein's lifetime. These are incident to both species of copyhold; but wardship and fines to those of inheritance only. Wardship, in copyhold (h) In some manors the copyholders were bound to perform the most servile offices, as to hedge and ditch the lord's grounds, to lop his trees, and reap his corn, and the like; the lord usually finding them meat and drink, and sometime (as is still the use in the highlands of Scotland) a minstrel or piper for their diversion. (Rot. Maner. de Edgware Comm. Mid.) As in the kingdom of Whidah, on the slave coast of Africa, the people are bound to cut and carry in the king's corn from off his demesne lands, and are attended by music during all the time of their labor. (Mod. Un. Hist. xvi, 429.) (i) Co. Litt. 58. (j) See ch. 28. (15) [1 Watk. Cop. 33; 2 T. R. 415; 3 B. and P. 346; Doe d. Lowes v. Davidson, 2 M. and S. 175; 2 B. and Ald. 189; Boulcott v. Winmill, 2 Camp. 261; Paine v. Ryder, 24 Beav. 154. As to where there is a special custom, see the provision made by 4 and 5 Vic. c. 35, s. 91.] (16) [It is to be noticed that the heir of copyhold lands is to be ascertained by the custom of the manor, and often according to rules very different from those which regulate the descent of freehold lands. There often exists considerable difficulty in ascertaining the customary heir. See Lock v. Colman, 1 M. and Cr. 423; 2 id. 42 and 635; Trask v. Wood, 4 M. and Cr. 324; Muggleton v. Barnett, 2 H. and N. 252; Bickley v. Bickley, Law R. 4 Eq. 216. A similar difference between the customary and common law exists as to the rights of a widow in her deceased husband's lands. See Smith v. Adams, 5 D. G. M. and G. 712.] (17) [As soon as the death of a copyhold tenant is known to the homage, it should be presented at the next general court, and three several proclamations should be made at three successive general courts for the heir or other person claiming title to the land whereof such copyholder died seised, to come in and be admitted. Proclamation is said to be unnecessary where the heir appears in court, either personally or by attorney; but, until such presentment and proclamations, the heir, though of full age, is not bound to come into court to be admitted. If, after the third proclamation, no such person claims to be admitted, a precept may be issued by the lord, or steward, to the bailiff of the manor, to seize the lands into the lords hands for want of a tenant. Watkins on Copyholds, 239; H. Chitty's Descent's 165; 1 Keb. 287; Kitch. 246; 1 Leon. 100; 3 id. 221; 4 id. 30; 1 Scriv. 341, 342. But the seizure must be quousque, etc., and not as an absolute forfeiture, unless there be a custom to warrant it. 3 T. R. 162. The admittance is merely as between the lord and the tenant, Cowp. 741, and the title of the heir to a copyhold is, as against all but the lord, complete without admittance. If the heir is refused admittance, he shall be terre-tenant, even though the lord loses his fine. Comyn, 245. For the lord is only trustee for the heir, and merely the instrument of the custom for the purpose of admittance. 1 Watk. Cop. 281; Cro. Car. 16; Co. Cop. s. 41.] estates, *partakes both of that in chivalry and that in socage. Like that [*98] in chivalry, the lord is the legal guardian; (18) who usually assigns some relation of the infant tenant to act in his stead; and he, like the guardian in socage, is accountable to his ward for the profits. Of fines, some are in the 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 favor 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) (19) of more than two years' improved value of the estate. (k) (20) From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath always shewn 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, (7) is such as has been held of the kings of England from the conquest *downwards; that the tenants herein, "villana faciunt servitia, sed certa [*99] 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 ancient 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. Ancient 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 (k) 2 Ch. Rep. 134. (1) L. 4, tr. 1, c. 28. (m) F. N. B. 14, 16. (18) [This authority of the lord must be by virtue of a special custom in a manor; for, by the 12 Car. II, c. 24, s. 8 and 9, a father may appoint a guardian by his will as to the copyholds of his child; and though this custom is not abolished in terms, nor can be said to be taken away by implication in this statute, yet, where the custom does not exist in a manor, the better opinion is that the statute will operate, and even where the custom prevails, Mr. Watkins thinks, the father may by this statute appoint a guardian of the person of his child, if not of his copyhold property. See 2 Watk. on Copyh. 104, 105.] (19) [These are where the lord is not compellable to admit, and where the grant on his part is voluntary, as in case of copyholds for lives where there is no right of renewal, or even where there is a binding custom to renew, but which allows the copyholder to put in more than one life at a time, for there in fact two admissions take place at once, and therefore there can be no hardship in a double fine. See Scriven on Copyholds, 374.] (20) [It is now established as a universal rule, that where the fine upon the descent or alienation of a copyhold is arbitrary, it cannot be more than two years' improved value. In ascertaining the yearly value, the quit-rents must be deducted, but not the land-tax. Doug. 697. The fine may be recovered by the lord in an action of assumpsit. But he has no right to it until the admission of the tenant. 2 T. R. 484. The lord assesses the fine at his peril; if he assess it too high, he is not entitled to recover it. See as to fines, Doug. 724, n.; 7 Bing. 327; 2 B. and Ad. 350; 5 Mees. and W. 608; 10 Ad. and El. 236; 3 Scott, 623.] 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 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 ancient 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 knight-service, 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 ancient demesne." And the same name is also given them in Fleta. (u) Hence Fitzherbert observes (w) that no lands are ancient 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 frank tenure, and villein-socage or socage of ancient 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, (2) that in the surrender of these lands in ancient demesne, it is not used to say [* 101 ] "to hold at the will of the lord" in their copies, but only, "to hold according to the custom of the manor." Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both ancient 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 æra 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 (n) C. 66. (p) 4 Inst. 269. (q) F. N. B. 11. (r) Ibid. 14. (t) C. 66. (u) L. 1, c. 8. (w) N. B. 13. (a) Kitchen on courts, 194. 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 ancient monasteries and religious houses held their lands; and by which the parochial clergy, and very many ecclesiastical and eleesmosynary foundations, hold them at this day; (b) the nature of the service being upon the reformation altered, and made comformable to the purer doctrines of the church of [*102] England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in ancient 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 ancient 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 feudal, 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, (21) 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, 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. (22) (y) Litt. s. 133. (a) Ibid. s. 131. (b) Bracton 1. 4, tr. 1, c. 28, ? 1. (f) Ibid. 137. (e) Litt. s. 136. (a) Ibid. s. 135, (d) Cæsar de bell. Gall, l. 6, c. 13. (21) [This statute enacts that "it shall be lawful to every freeman to sell at his own pleasure his lands and tenements, or part of them, so that the feoffee shall hold the same of the chief lord of the same fee by such service and customs as his feoffor held before."] (22) We may properly add in this place a few words in regard to tenures in America. Although the feudal system never obtained much foothold in this country, there are many things in our law of real estate which can only be understood by bearing in mind the fact that our system is based upon the common law of England, and that that law grew up while the feudal system was in force. As lands in England were held under that system, and its maxims thoroughly pervaded the law of real estate, it was not to be expected that, when grants of land were made in this country, under circumstances unknown in England, a new system of law, with new terms and maxims, would at once spring into existence to provide for the new condition of things, and bearing no trace of the system which it supplanted. As a matter of fact, however, the early grants in America were made with reference to a continuation of something like feudal tenure, and many incidents of that system attached themselves to these grants. The tenure prescribed was, tenure in free and common socage to be held of the king, as of some manor in England. When the colonies threw off allegiance to the crown, and became independent states, each of them succeeded to all the rights of the crown within its limits, while the United States as a sovereignty succeeded to all the rights of the crown to unoccupied territory not within the limits of any of the states and not previously conveyed. Being thus possessed of the vacant lands, the United States and the several individual states have proceeded to make sale and conveyance thereof, and to give titles which, though called fees, were in truth allodial. At the same time the states, by statutory and constitutional provisions, have gradually abolished such of the feudal incidents as still attached to the estates previously granted by the crown, until, as Chancellor Kent says, 3 Com. 513, "by one of those singular revolutions incident to human affairs, allodial estates, once universal in Europe, and then almost universally exchanged for feudal tenures, have now, after the lapse of many centuries, regained their primitive estimation in the minds of freemen." We still, indeed, in America recognize the sovereignty as the source of all title, and as entitled to succeed thereto in default of heirs; but this right is not peculiar to the feudal 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 of his estate in Dale to A and his heirs, every thing that he can possibly grant shall pass thereby. (a) (1) 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 three-fold 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 connexions 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. An estate of freehold, liberum tenementum, or franktenement, is de- [*104] fined 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 feudal 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 behoveth 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 were conveyed with the same solemnity, therefore no others are properly freehold estates. Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute, 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 he 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 (a) Co. Litt. 345. (b) C. 32. (c) Dr. & Stud. b. 2, d. 22. (d) 59. (e) Litt. 1. system, neither is the right of eminent domain, which is sometimes referred to in this connection as being one of the incidents of that system which still remains. The right of eminent domain is a right existing in the necessities of government, not attaching to land merely, and not dependent upon any peculiar tenure of land. (1) [In 1 Preston on Estates, 20, the term is thus defined: "The interest which any one has in lands, or any other subject of property, is called his estate, and to this term, at least in a conveyance by deed, some adjunct or expression should be added, when the time for which the estate is to continue, as for years, for life, in tail or in fee, or the manner in which it is to be held, as on condition, in joint tenancy, &c., is to be described; thus, it is said, a man has an estate in fee, in tail, for life, for years, on condition, etc." Sometimes the term "estate" is used merely as a local description, as "all my estate at Ashton;" but the word "estate) when so used in a will, always carried the fee to the devisee, unless restrained by other words, though it is otherwise in a conveyance by deed.] VOL. I.-50 393 |