« AnteriorContinuar »
&c. &c. &c.
PART THE SECOND.
Of Customary Freeholds (or Privileged Copyholds) (a).
THE origin and peculiar character of this species of tenure will, the author thinks, 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 (b)."
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 (c) :
"As the villan-socman was distinguished from the pure villein, in that he could not be removed from his estate at the 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 state of enfranchisement which the privileged copyholders alone enjoyed by the antient law.
"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.') (d) says, 'I have seen in the county of Northampton copyholders of frank tenure out of antient demesne; 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') (e), In surrenders of lands in antient 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, according to the custom of the said manor, by copy of court 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 manors 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, according to the custom; in 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 convey(d) P. 159 of the author's edit.
(e) P. 194 of the author's edit.
ancing, Sir William Blackstone adds (ƒ): "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 (g), 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 show 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” (h).
Again (i), "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 (k): "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
(ƒ) P. 136.
(g) According to the case of Oliver & Taylor, 1 Atk. 474, (citing Baker & Wase, in Lord Macclesfield's time,) a recovery might have been suffered in the Court of Common Pleas of customary freeholds passing by surrender in a borough court.
But now see 3 & 4 Will. 4, c. 74, s. 2.
(h) Vide ante, pt. 1, tit. "Pleading,"