there was a class of people in a condition of down- Wright Ten. right servitude, belonging, both they, their children, 216. and effects, to the lord of the soil. The Normans, who were strangers to any other than a feudal state, might probably enfranchise all such wretched persons who fell to their share, by admitting them to fealty, Lit. § 132. in respect to the little livings they had hitherto been allowed to possess; which they were still suffered to retain, upon the like services as they had formerly been bound to perform. But this possession, as now clothed with fealty, and by that means advanced into a tenure, differed materially from the antient servile possession, and was thenceforth called villenage. 51. When manors became established, the de- Copyholds. mesnes were cultivated by the lord's villeins, who were allowed to occupy some small parts of them, in order to provide for their own subsistence. Their tenure was that of pure villenage, the services were base and uncertain; and as they might be dispossessed at any time, they were said to hold at the mere will of the lord. 220. 52. The acquiescence of lords of manors to their Wright, Ten. villeins holding the lands allotted to them, as long as they performed their services, and in permitting their children to succeed them, advanced the pretensions of the villeins, in opposition to the absolute rights of the lords, so as to give them a kind of prescriptive or customary right to their possessions; which in course of time was taken notice of by the courts of justice; and, under their sanction, became at length a part of the common law. 53. As tenants of this sort had no other title to their estates but these customs, and admissions in pursuance of them, entered on the rolls of the lord's court, or copies of such entries, witnessed by the Barr. Obs. on Stat. steward of the manor, they were called tenants by copy of court roll; and their interest a copyhold or customary estate. 54. The first mention of this tenure is in the Extenta Manerii, made in 4 Edw. I.; which, though printed among the statutes, is only an instruction to the extender of the crown, with regard to what he was to inquire into; and upon what heads and particulars he was to make his report. The words reExtent. Man. specting copyholds are-" It is to be inquired also § 9. of customary tenants, that is, to wit, how many there be, and how much land every of them holdeth; what works and customs he doth, and what the works and customs of every tenant be worth yearly; and how much rent of assise he paid yearly, beside the works and customs; and which of them may be taxed at the will of the lord, and which not." 55. There is however no mention of copyholds in the book of old tenures: some cases appear respecting them in the reign of Edward III.; and the rights of copyholders to their lands were fully settled in the 4 Rep. 21 b.' time of King Edward IV. Free Copyholds. Ante, c. 2. § 6. Lib. 1. c. 11. Black. Cons. on Copyholders. 56. Copyholds are not affected by the statute 12 Cha. II. For it is provided by the 7th section of that act, that it shall not alter or change any tenure by copy of court roll, or any services incident there unto. 57. There is another species of copyhold, which was formerly called privileged villenage, or villein socage; of the origin of which Bracton gives the following account. There were at the time of the conquest certain freemen who held their respective tenements freely, by free services, or by free customs; and being first ejected by the hand of power, they afterwards re turned, and took their own tenements again, to be held in villenage, doing therefore services that were base and servile, but certain and expressed by name. These are called ascriptitious to the soil, and yet are freemen, though they perform villein services; since they perform them, not in respect of their persons, but in respect of their tenures. 58. Tenants of this kind hold by copy of court roll. Their admittances however are not, as in common copyholds, to hold at the will of the lord, but to hold according to the custom of the manor: from whence they have been called free copyholders, or customary freeholders. 59. Sir W. Blackstone, in his Considerations on Copyholders, concludes with observing, that however the lawyers may at times have denominated these Vide Tit. 10. tenures a base species of freehold, in contradistinction c. 1. to mere copyholds; yet the law, in the main, regards them as being properly copyhold, and not freehold tenures; else they would not have subsisted at this day for they must otherwise have been involved in the general fate of the rest of our antient tenures; when by the statute 12 Cha. II. they were all abolished, and reduced to socage, 60. There remains but one more kind of tenure, Tenure in which is of a spiritual nature, and called frankalmoign, Frankalmoign. libera elymosina, or free alms; whereby a religious corporation, aggregate or sole, may hold lands to them and their successors for ever. 61. The services due for this tenure are purely Lit. § 135. spiritual; therefore the tenants are not bound to do fealty; because the service reserved is of a higher nature; and because the word frankalmoign excludes all temporal service. 62. Most of the antient monasteries and religious J Inst. 95 b. houses held their lands by this tenure. The paro § 140. chial clergy, together with many ecclesiastical and charitable, corporations still hold their lands in the same manner; But Littleton says, that in consequence of the statute Quia Emptores none can give lands to be holden in frankalmoign, except the king. TITLE I. ESTATE IN FEE SIMPLE. 1. Of Real Property. 2. Land. 6. Money to be laid out in Land. 7. Heir Looms and Charters. 10. Incorporeal Property. 11. Of Estates in Land. 13. Estates of Freehold. 23. Of Seisin. 24. Where an Entry is necessary. 31. Abatement. 33. Disseisin. 36. Abeyance of the Freehold. 39. Who may have Freehold Estates. 42. Estates in Fee Simple. 47. Abeyance of the Fee. 49. All other Estates merge in the Fee. 52. Incidents to a Fee. 55. Descendible to Heirs General. 57. Liable to Debts. 63. Of Crown Debts. 67. How contracted. 72. Bind the Lands when con- 75. Into whose hands soever they 76. How discharged. 77. Estates in Fee forfeited for 80. And for Disclaimer. 81. Qualified Fees. BY SECTION 1. Y the law of England property is divided into Of Real two kinds, namely real and personal property; Property. which are governed by distinct systems of jurisprudence. Real property consists of land, and of all rights and profits arising from and annexed to land, that are of a permanent and immoveable nature: It is usually comprised under the words lands, tenements, and hereditaments. Land means the whole surface I Inst. 6 a. of the earth; tenements is a word of still greater extent, and signifies every thing that may be holden; but hereditaments is the largest and most comprehensive word, for it includes not only lands and tenements, but whatever may be inherited. |