he meant to set his villein on the same footing with himself, and therefore held it an implied manumission. But, in case the lord indicted him for felony, it was otherwise; for the lord could not inflict a capital punishment on his villein, without calling in the assistance of the law.

Copyhold Estates.

Villeins, by these and many other means, in process of time gained considerable ground on their lords; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an interest in many places full as good, in others' better than their lords. For the good nature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the common law, of which custom is the life, now gave them title to prescribe against their lords; and on performance of the same services, to hold their lands in spite of any determination of the lord's will. For though in general they are still said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the custom of the manor; which customs are preserved and evidenced by the rolls of the several courts-baron in which they are entered or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And, as such tenants had nothing to show for their estates but these customs and admissions in pursuance of them, entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court-roll, and their tenure itself a copyhold.

Thus copyhold tenures, as Sir Edward Coke observes, although very meanly descended, yet come of an ancient house; for, from what has been premised, it appears, that copyholders are in truth no other but villeins, who, by a long series of immemorial encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord's will.

As a further consequence of what has been premised, we may collect these two main principles, which are held to be the supporters of the copyhold tenure, and without which it cannot exist: 1. That the lands 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.

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; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only.

Incidents of Copyhold Tenure-Heriots, Wardships, Fines.

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. besides these, copyholds have also heriots, wardships, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we shall say more hereafter, 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 villein tenure; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seized 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 estates, partakes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian; 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 copyhoids, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate.

Privileged Villenage-Villein Socage.

IV. There is yet a fourth species of tenure, described by Bracton under the name sometimes of privileged villeinage, and sometimes of villein-socage. This, he tells us is such as has been held of the kings of England from the conquest downward; 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 villeinage. 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 villeinage 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. The tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies, 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. 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; 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: 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.

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 villeinous original, 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.

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, 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."

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 courtroll.

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.

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. 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), because this divine service was of a higher and more exalted nature. 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.

Chapter VII.

OF FREEHOLD ESTATES IN INHERITANCE.

Definition and Divisions.

102-119.

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 his estate in Dale to A and his heirs, everything that he can possibly grant shall pass thereby. 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.

First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by its duration and extent. And this occasions the primary division of estates into such as are freehold, and such as are less than freehold.

Estates of Freeholds.

An estate of freehold, liberum tenementum, or frank tenement, is defined by Britton to be "the possession of the soil by a freeman." 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. 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. 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 are 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.

Fee Simple.

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: generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in its original sense it is taken in contradistinction to allodium; which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. And therefore Sir Henry Spelman defines a feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord. his due services; the mere allodial property of the soil always remaining in the lord. This allodial property no subject in England has; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore, only hath absolutum et directum dominium; but all subject's lands are in the nature of feodum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feudal clogs which were laid upon the first feudatory when it was originally granted. A subject therefore hath only the usufruct, and not the absolute, property of the soil; or as Sir Edward Coke expresses it, he hath dominium utile, but not dominium directum. And hence it is that, in the most solemn acts of law, we express