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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;
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 (1). But this word 'freehold' must there be understood to denote the interest, and not the tenure of the land (m). 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 mo
(1) 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; Hughes 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 and Vyse; 7 East, 304, in Doe & Danvers ; Mann. Ex. Pr. 359; Bingham v. Woodgate, post, p. 577.
(m) Ante, p. 563, n. (1).
dern copyholders, and had acquired by custom a sure and indefeasible estate for life or in fee, but yet continued to be styled 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—206,) 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 (n). Bracton indeed makes a distinction (1. 2, c. 8, s. 2,) between native villansocmen, 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 freehold, 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 show 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 seizin 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 (o), but only in the Court Baron of the
(n) This, as the author has before noticed, is an erroneous supposition; ante, p. 564, n. (I); et vide post.
(0) Ante, p. 563, n. (g). 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.
lord, by the peculiar writ of right close (p), the learned author further observes (q),-“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 nonperformance 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 recovered against a freeholder for such default for two years together), was first given by the statute of Gloucester, 6 Ed. I., 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 (r). Now it is impossible that tenants thus dependent 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 (8) :-“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 properly copyhold and not
(p) Ante, pp. 562, 563. Copyholders in ancient demesne cannot maintain a writ of right close; vide post, tit. “ Ancient Demesne;" and reference there to the act 3 & 4 Will. 4, c. 27, by which the
writ of right close was abolished from the
(9) P. 153.
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. II. c. 24, they all were abolished and reduced to free and common socage ;-except only tenures in frankalmoign (t), and tenures by copy of court-roll (u). 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 court-roll 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."
The above perspicuous, classical, and highly interesting definition of the tenure now under our consideration, would, the author submits, fully justify him 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 (x).
(1) 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 inherit
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).
(u) 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).
(r) 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. 570, n. (p); see note (c) to Le Fleming v. Simpson, 1 Mann. & Ry. 269.
But the author thinks 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 (y), even after the statute of 31 Geo. II. c. 14 (2); and the right of customary freeholders, not holding by copy of court-roll, to vote at county elections, has been considered as less doubtful(a). Yet as the statute of 18 Geo. II. 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, the author agrees with Mr. Serjeant Heywood (b) in supposing that these tenants had formerly(c) no right to vote at county elections.
The author wishes also to remind the reader that there is a difference in the mode of pleading between pure copyholds, and those of a privileged nature (denominated customary freeholds) (d), arising principally out of the circumstance of the former being held not only secundum consuetudinem manerii, but also ad voluntatem domini, whereas the latter are held according to the custom of the manor, but not at the lord's will(e). With this exception, however (f), it would appear there are no grounds of distinction between ordinary and privileged copyholds, when the latter are held by copy of court-roll, and pass by surrender and admittance (9), although not held at the will
(y) Contest for Leicestershire, 1770, Heyw. C. 81.
(z) Ante, p. 561, n. (b).
(a) Gloucestershire case, Heyw. C. 82; Male, 134, 285; Rogers, 160, n.
(6) Heyw. C. 85.
(c) i. e. prior to 2 Will. 4, c. 45; ante, pt. 1, p. 557, n. (z).
(d) Ante, pt. 1, pp. 511,513; vide also Burrell v. Dodd, 3 Bos. & Pul. 378; Leigh v. Williamson, 9 Wentw. 123.
For an explanation of the term ventionary" or customary hereditary leasehold tenure, and which exists in the assessionable manors of the Duchy of Cornwall, see the case of Ley v. Ley, 2 Mann. & Gr. 780; ante, pt. 1, tit. “ Devise,"
(e) Hughs v. Harrys, Cro. Car. 229 ; Gale v. Noble, Carth. 432; Rogers v. Bradly, 2 Vent. 144; Hill v. Bolton, Lutw. 1171; Crouther 0. Oldfeild, ib. 125; S. C. Salk. 365; S. C. 2 Ld. Raym. 1225; S. C. 6 Mod. 19; 11 Mod. 53.
(f) And see as to the writ of Right Close, and of Monstraverunt, post, tit. “ Ancient Demesne.”
(g) In many manors customary estates pass by deed or surrender, but the custom sometimes requires that the grantee should be admitted in the lifetime of the grantor, which was held to be a good custom in Fenn & Mariott, Willes, 430; ante, pt. 1, p. 24; and see Perryman's case, 5 Co. 84.
The reader is reminded that a wife was equally excluded from dower of a trust