« ForrigeFortsett »
THESE tenants therefore, though their tenure be abfolutely copyhold, yet have an intereft equivalent to a freehold for, notwithstanding their fervices were of a base and villenous originals, yet the tenants were esteemed in all other respects to be highly privileged villeins; and especially for that their fervices 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, fays Bracton, dicuntur liberi." Britton alfo, from fuch their freedom, calls them abfolutely fokemans, and their tenure fokemanries; which he describes to be "lands and tenements, "which are not held by knight-service, nor by grand ferjean66 ty, nor by petit, but by simple services, being, as it were, "lands enfranchised by the king or his predeceffors from "their antient demefne." And the fame name is also given them in Fleta". Hence Fitzherbert obferves", that no lands are antient demefne, but lands holden in focage; that is, not in free and common focage, but in this amphibious fubordinate class of villein-focage. And it is poffible, that as this species of focage tenure is plainly founded upon predial services, or fervices of the plough, it may have given cause to imagine that all focage tenures arose from the fame original; for want of diftinguishing, with Bracton, between free-focage or focage of frank-tenure, and villein-focage or focage of antient demefne.
LANDS holden by this tenure are therefore a fpecies of copyhold, and as fuch preferved and exempted from the operation of the ftatute of Charles II. Yet they differ from common copyholds, principally in the privileges beforementioned as also they differ from freeholders by one efpecial 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 reft; but muft pafs by furrender to the lord or his fteward, in the manner of common copyholds :
• Gilb. hift. of exch, 16, & 30. & c. 66.
ul. 1. c. 8.
w N. B. 13.
yet with this distinction, that, in the furrender of these lands in antient demefne, it is not used to say "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 antient and modern, in which we cannot but remark the mutual connexion 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 procefs of time undergone, from the Saxon æra to the 12 Car. II. all lay tenures are now in effect reduced to two species ; free tenure in common focage, and base tenure by copy of
I MENTIONED lay tenures only; because there is ftill behind one other species of tenure, referved by the statute of Charles II, which is of a fpiritual nature, and called the tenure in frank-almoign.
V. TENURE in frankalmoign, in libera eleemofyna, or free alms, is that, whereby a religious corporation, aggregate or fole, holdeth lands of the donor to them and their fucceffors for ever. The fervice which they were bound to render for these lands was not certainly defined: but only in general to pray for the fouls of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other fervices but this 2) because this divine fervice was of a higher and more exalted nature. This is the tenure, by which almost all the antient monafteries and religious houses held their lands; and by which the parochial clergy, and very many ecclefiaftical and eleemofynary foundations, hold them at this day; the nature of the fervice being upon the reformation altered, and made conformable to the purer doctrines
* Kitchen on courts. 194.
y Litt. § 133.
# Ibid. 131.
a Ibid. 135.
Bracton. 1. 4. tr. t. c. 28. § 1.
of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great refpect that was fhewn to religion and religious men in antient times. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinoda neceffitas, of repairing the highways, building castles, and repelling invasions: just as the Druids, among the antient Britons, had omnium rerum immunitatem. And, even at prefent, this is a tenure of a nature very distinct from all others; being not in the leaft feodal but merely fpiritual. For if the service be neglected, the law gives no remedy by distress or otherwife to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor to correct it. Wherein it materially differs from what was called tenure by divine fervice: in which the tenants were obliged to do fome fpecial divine fervices in certain; as to fing so many maffes, to distribute such a fum in alms, and the like; which, being exprefsly defined and prescribed, could with no kind of propriety be called free alms; efpecially as for this, if unperformed, the lord might diftrein, without any complaint to the visitor f. All fuch donations are indeed now out of ufe: for, fince the ftatute of quia emptores, 18 Edw. I, none but the king can give lands to be holden by this tenure &, So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II, and therefore fubfifts in many inftances at this day. Which is all that shall be remarked concerning it; herewith concluding our obfervations on the nature of tenures.
CHAPTER THE SEVENTH.
OF FREEHOLD ESTATES, ÒF
HE next objects of our difquifitions are the nature and properties of eftates. An estate in lands, tenements, and hereditaments, fignifies fuch intereft as the tenant hath therein: so that if a man grants all his eftate in Dale to A and his heirs, every thing that he can poffibly grant shall pass thereby. It is called in Latin status; it fignifying the condition, or circumftance, in which the owner ftands, with regard to his property. And, to afcertain this with proper precision and accuracy, eftates may be confidered in a threefold view: first, with regard to the quantity of intereft which the tenant has in the tenement: fecondly, with regard to the time at which that quantity of intereft is to be enjoyed: and, thirdly, with regard to the number and connections of the
FIRST, with regard to the quantity of interest which the tenant has in the tenement, this is measured by it's duration and extent. Thus, either his right of poffeffion 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 circumfcribed within a certain number of years, months, or days: or, laftly, it is infinite and unlimited, being vefted in him and his reprefentatives for ever, And this occafions the primary division of a Co. Litt. 345.
eftates, into fuch as are freehold, and fuch as are less than
AN eftate of freehold, liberum tenementum, or franktenement, is defined by Britton to be " the possession of the foil " by a freeman." And St. Germyn tells us, that "the "poffeffion of the land is called in the law of England the << franktenement or freehold." Such eftate therefore, and no other, as requires actual poffeffion of the land, is legally fpeaking freebold: which actual poffeffion can, by the course of the common law, be only given by the ceremony called livery of feifin, which is the fame as the feodal inveftiture. And from these principles we may extract this description of a freehold; that it is fuch an estate in lands as is conveyed by livery of feifin, or in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton, that where a freehold shall pass, it behoveth to have livery of feifin. As therefore estates of inheritance and estates for life could not by common law be conveyed without livery of feifin, thefe are properly estates of freehold; and, as no other eftates were conveyed with the fame folemnity, therefore no others are properly freehold eftates (1).
b c. 33.
Dr. & Stud, b. 2. d. 22.
(1) A freehold eftate feems to be any eftate of inheritance, or for life, in either a corporeal or incorporeal hereditament, exifting in, or arifing from, real property of free tenure; that is, now, of all which is not copyhold. And the learned Judge has elsewhere informed us, that " tithes and spi"ritual dues are freehold eftates, whether the land out of which "they iffue are bond or free, being a separate and distinct inherit66 ance from the lands themselves. And in this view they must be “ distinguished and excepted from other incorporeal hereditaments "iffuing out of land, as rents, &c. which, in general, will fol"low the nature of their principal, and cannot be freehold, unless "the stock, from which they fpring, be freehold also." 1 Bl. Tracs, 116.