to act in his stead; and he, like the guardian in socage, is accountable to his ward for the profits. (42) 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. (43) No fine therefore is allowed to be taken upon descents and alienations (unless in particular circumstances) of more than two years' improved value of the estate. (k) From this instance we may judge of the favorable disposition that the law of England (which is a law of liberty) hath always shown 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

(k) 2 Ch. Rep. 134.

aid of an action under the statute, for recovery of fines alleged to be due, a demurrer was allowed. Lord Kensington v. Mansell, 13 Ves. 240.

However, as the statute of 55 Geo. III. c. 192 has since enacted that all dispositions of copyhold estates by will shall be as effectual to all intents and purposes, although no surrender shall have been made to the use of the will, as the same would have been if a surrender to the use of the will had been made, the statute of Geo. I. is, in this respect, enlarged. And it is evident the last-named statute materially qualifies the statement in the text, that "the lord is the legal guardian.

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.CHITTY.

(42) There is some obscurity as to this point; but I imagine the account given of it in the text cannot be the correct one. As the tenure clearly savored more of socage than chivalry, the lord, without a special custom warranting it, cannot well be supposed to be the guardian, but the nearest relation to whom the inheritance cannot descend. And, accordingly, in 2 Rolle's Abr. tit. Garde, P. pl. I, it is laid down by the court that “if a copyhold descend to an infant within the age of fourteen, his prochein amy, to whom the land cannot descend, shall have the custody of it, as he would of a freehold, unless there be a custom appointing it to another. If there be such a custom, that will still operate, and is not affected by the statute of Car. II. See ante, p. 88. But the present question is, Who shall now be guardian where there is no custom? Whether, though the statute will not operate to defeat a custom, it shall take place in the absence of any custom? Mr. Watkins is of opinion that it will; and even where there is a custom he thinks that the father, by will under the statute, may appoint a guardian of the body of his child. It is desirable that the law should be as he states it, but I am not aware that any decision to that effect has taken place. See 2 Watk. on Copyholds, 104.-COLERIDGE.

(43) As, in the case where the lord is not bound to renew, or, being so bound by the custom, the copyholder is allowed to put in more than one life at a time, and consequently several admissions are made at the same time, for which an increased fine may be fairly demanded. The rule generally is to take for the second life half what the immediate tenant for life pays, and for the third half what the second pays. But this must be understood by persons taking successively; for if they take as joint tenants, or as tenants in common, the single fine only would be due: to be apportioned in the latter case, each paying severally. Watk. on Copyh. I vol. 312. Scriven on Copyh. 374. It seems that coparceners are entitled to be admitted to copyhold tenements as one heir, and upon payment of one set of fees. 3 Bar. & C. 173.-CHITTY.

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 *99] from the conquest *downwards; that the tenants herein "villana faciunt servitia, sed carta et determinata," (44) 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 domesdaybook. (m) The 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. (o) Others were in a great measure enfranchised by the royal favor: 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)(45) 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)

*100] *These tenants therefore, though their tenure be absolutely copyhold, 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." (46) Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes (t) to

(1) L. 4, tr. 1, c. 28.

(m) F. N. B. 14, 56.

(n) C. 66.

(0) F. N. B. 228.

(q) F. N. B. 11.

(r) Ibid. 14.

(8) Gilb. Hist. of Exch. 16 and 30.
(t) C. 66.

(p) 4 Inst. 269.

(44) ["They perform villein services, but certain and fixed."]

(45) In an action of ejectment, it may, by leave of the court, be pleaded in abatement that the lands are part of a manor which is held in ancient demesne; but such a plea must be sworn to, and is not favored. 2 Burr. 1046.-CHITTY.

(46) ["And therefore they are called free."]

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, (47) 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 [*101 with this distinction, (x) that in the surrender of these lands in ancient demesne, 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." (48)

(u) L. 1, c. 8. (w) N. B. 13.

(x) Kitchen on Courts, 194.

(47) The account given of this tenure as altogether copyhold, appears to be erroneous, although no doubt there are copyholds of some of the lands of such manors. 3d Rep. Real Prop. Comm. p. 13. 2 Scriv. Cop. 691. Williams on Real Prop. p. 130, note d (6 ed.)

Copyhold tenure is fast disappearing in England under the influence of acts of Parliament. Chitty's English Statutes, vol. 2, title Copyhold. These acts permit the termination of the relation at the instance of either lord or tenant. The tenant becomes a freeholder and absolute owner in the modern sense. The gross value of his holding to the lord is commuted by a jury.

(48) Vinogradoff in his Villainage in England, page 168, thus sums up modern conclu

sions on Ancient Demesne and Manors:

The law of ancient demesne is primarily developed in regard to manors in the king's on hand. 2, The special protection granted to villain socmen in ancient demesne is a consequence of a certainty of condition, (and not, as stated in text, because of favor of king,) as much recognized in manors which the king still holds as those he has alienated. 3, This certainty of condition is derived from the conquest as the connecting link between Norman and Saxon periods.

It is only the freeholders of the manor who are truly tenants in ancient demesne; and their lands pass by common-law conveyances. They form the court of ancient demesne, which is analogous to the court-baron. The copyholders form the customary court. See Third Real Property Report, p. 13. 3 B. & P. 382.

There are some estates held according to the custom of a manor, but not by copy of court-roll nor at the will of the lord. "These customary estates, known by the denomination of tenant-right, are peculiar to the northern parts of England, in which borderservices against Scotland were anciently performed before the union of England and Scotland under the same sovereign. And although these appear to have many qualities and incidents which do not properly belong to villenage tenure, either pure or privileged, (and out of one or other of these species of villenage all copyhold is derived,) and also have some which savor more of military service by escuage uncertain,-which, according to Litt. s. 99, is knights' service; and although they seem to want some of the characteristic qualities and circumstances which are considered as distinguishing this species of tenure, viz., the being holden at the will of the lord, and also the usual evidence of title by copy of court-roll; and are alienable, also, contrary to the usual mode by which copyholds are aliened, viz., by deed and admittance thereon, (if, indeed, they could be immemorially aliened at all by the particular species of deed stated in the case, viz., a bargain and sale, and which at common law would only have transferred the user;) I say, notwithstanding all these anomalous circumstances, it seems to be now so far settled in

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 era 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 and their successors forever. (y) (49) 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 eleemosynary foundations, hold them at this day; (b) the nature of the service being, upon the reformation, *102] altered, and made conformable to the purer doctrines *of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shown 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 feodal, 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., 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.

(y) Litt. 133.

(z) Ibid. 131.

(a) Ibid. 135.

(b) Bracton, l. 4, tr. 1, c. 28, 1.

(c) Seld. Jan. 1, 42.

(d) Cæsar de Bell Gall. l. 6, c. 13. [Exemption from all things.]

(e) Litt. 136.

(f) Ibid. 137.
(g) Ibid. 140.

courts of law that these customary tenant-right estates are not freehold, but that they in effect fall within the same consideration as copyholds, that the quality of their tenure in this respect cannot properly any longer be drawn into question." Per lord Ellenborough, C. J., 4 East, 288. See 2 Bos. & P. 378. 4 Per. & D. 579; infra, p. 148.—

SWEET.

(49) People v. Rennseller, 5 Selden, 334 N. Y. 1853. I Copy of court-roll." I Pingrey on R. P. 36.

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: (1) so that if a man grants all his estate in Dale to A. and his heirs, every thing that he can possibly grant shall pass thereby.(a)(2) 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 threefold 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 connections of the tenants. (3)

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 [104* freehold. (4)

An estate of freehold, liberum tenementum, or franktenement, is defined by Britton(b) to be "the possession of the soil of a freeman."(5) And St. Germyn (c) tells us that "the possession of the land is called in the law of England the franktenement or freehold."(6) 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 feodal investiture.(7) And from these principles we may extract this description of a

(a) Co. Litt. 345. (b) C. 32.

(c) Dr. & Stud. b. 2, d. 22.

(1) Kelley's heirs v. Maguire, 15 Ark. 594, Barber, 1855. Beall v. Holmes, 6 Md. 208. Harris and Johnson, 1824. Washburn on Real Prop. vol. i. 5 ed. p. 75. Bachur v. Pres. Ass'n, 77 Md. 57, 1893. Robertson v. Van Cleave, 129 Ind. 232, 1891. Fowler's Hist. of the Law of R. P. 109. Clift v. White, 2 Kernan (N. Y.) 527, 1854. Boone, Real Property, 30-32.

(2) Cruger v. Haywood, 2 S. C. Eq. 429, Desaussure, 1806.

(3) Lomax Digest, p. 3. 6 Lawson Property Rights, 2704, 1890. 1 Greenleaf's Cruise on Real Prop. 46.

(4) Washburn on Real Prop. 5 ed. vol. I, p. 57. I Barb. Rights of Pers. and Prop. 390. Tully v. Farrell, 23 Chanc. Rep. Ontario, 49, 57, 1876.

(5) Hoge v. Hollister, 2 Chan. Tenn. 610 (Cooper) 1876. Jackson & N. O. R. R. Co. v. Hemphill, 35 Miss. 22, 1858. Fisher v. Morris, 5 Wharton 360 Pa. 1839. Bradford v. State, 15 Ind. 354, 1860. Lawrence v. Pitt, 1 N. C. Law 346, Jones, 1854. Donavan v. Pitcher, 53 Ala. 417, Jones, 1875. Mere naked possession is an imperfect degree of title, which may ripen into a fee by the neglect of the real owner. Beddoe v. Wadsworth, 21 Wend. (N. Y.) 124 (1839).

(6) The right of Homestead is a new species of estate, created by statute and not known to the common law. But it seems to have all the incidents of freehold estate, and to come within the definition given by elementary writers. Kerley v. Kerley, 95 Mass. 287, Allen, 1866.

(7) Washburn on Real Prop. vol. 1, 5 ed. p. 76.