[socage in their certainty,―he has therefore given a name compounded out of both, and calls it villanum socagium.] Antient demesne is a tenure existing in certain manors, [which, though now perhaps granted out to private subjects, were actually in the hands of the crown at 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 (t). The tenants] in these manors of the crown [were not all of the same order or degree. Some of them, as Britton testifies (u), 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 (r). 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 lands 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 (y); as to try the right of their property in a peculiar court of their own, called a court of antient demesne (z), and by a peculiar process, denominated a writ of right close (a); 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 (b).] Manors of antient demesne accordingly comprise, to this day, both copyholders in the proper and common sense of the term, and also such privileged tenants as above described (c), who are alone properly called tenants in antient demesne (d). As to these, though their services, like those (t) F. N. B. 14, 16; Crowther v. Oldfield, Salk. 364. (u) C. 66. (r) F. N. B. 228. (y) 4 Inst. 269. (z) Doe v. Roe, 2 Burr. 1046; Alden's case, 5 Rep. 105; and see 3 & 4 Will. 4, c. 74, ss. 4, 5, 6. (c) F. N. B. 11 M., 12 B; Co. Cop. s. 32. (d) Third Real Property Rep. 13. of pure villeins, were originally base, yet (as appears by the account of them just given) they were distinguished from the latter, in that [their services were fixed and determinate; and that they could not be compelled (like pure villeins) to relinquish their tenements at the lord's will, or to hold them against their own; "et ideo," says Bracton, " dicuntur liberi." Britton also, from such their freedom, calls them absolutely sokemans, and their tenure [sokemanries; which he describes to be "lands and tene"ments, 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 antient demesne (i).” And the same name is also given them in Fleta (k).] Tenants in antient demesne, like common copyholders, require admittance by the lord to perfect their title; and they hold according to the custom of the manor, though not ad voluntatem domini (1). 66 Customary freehold (the other variety to which we referred) exists in many parts of the kingdom. The evidences of title are to be found, as in pure or common copyhold, upon the court rolls; and the entries declare the holding to be according to the custom of the manor, but it is not said to be at the will of the lord (m). The customs of these manors are subject to great variety. But in general the incidents of customary freehold are similar to those of common copyhold (n). (i) C. 66. (k) L. 1, c. 8. (1) 2 Bl. C. 101; and acc. Co. Cop. s. 32; but see Third Real Property Rep. p. 13. (m) Co. Cop. s. 32; see Third Real Property Rep. p. 20; Co. Litt. by Harg. 52 b, n. (1). There is also a kind of customary estate called tenant right, said to be peculiar to the north of England, and which falls, like other customary estates, under the general class of copyhold, though distinguished from the common kind by many of its incidents. See Graham v. Jackson, 6 Q. B. 811; Passingham, app. Pitty, resp. 17 C. B. 313. (n) As to the state of the law with respect to the devise of customary freeholds before the stat. 7 Will. 4 & 1 Vict. c. 26, see the Third Real Property Rep. p. 22; Doe v. Llewellen, 5 Tyrw. 899; Hodgson v. Merest, 9 Price, 556. But by the 3rd section of that statute, the power of devising [Mention has hitherto been made of lay tenures only; because there is still behind, one other species of tenure reserved by the statute of Charles the second, which is of a spiritual nature, and called the tenure in frankalmoign. IV. Tenure in frankalmoign, in liberâ eleemosynâ, or free alms, is that, whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them and their successors for ever (o). The service which they were bound to render for these lands was not certainly defined: but only, in general, to pray for the souls of the donor and his heirs, dead or alive; and therefore they did no fealty, which is incident to all other services but this (p), because this divine service was of a higher and more exalted nature (q). This is the tenure by which almost all the antient 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 (r); the nature of the service being, upon the Reforma extends to all customary freehold. There has been much controversy upon the question whether the freehold, in this description of tenure, is vested in the tenant, or (as in the case of common copyhold) in the lord; see Blackst. Law Tracts, Cons. on Copyhold; 2 Scriven, 679, 3rd edit. and the cases there cited; Third Real Property Rep. 20. As to antient demesne, it is clear that the freehold is in the tenant; 2 Inst. 325; 2 Scriven, 678, (n). (o) Litt. s. 133. (p) Ib. s. 131. (q) Ib. s. 135. (r) See Third Real Property Rep. p. 7. That Blackstone is correct in stating this as the tenure of the parochial clergy, is confirmed by the language of the assisa utrum, the antient remedy of the parson for recovering of his glebe, &c. in which the point of inquiry always was "utrum tantum terræ sit libera eleemosyna pertinens ad ecclesiam ipsius, an laicum feodum."-Bract. 1. 4, tr. 5, c. 1. It is true, indeed, that in the case of a parson the inheritance is said to be in abeyance, and the parson entitled for his life only (vide post, p. 241), and this at first sight appears inconsistent with the nature of frankalmoign, which always implies a gift in perpetuity: but the difficulty is removed by the remark of Bracton (ibid. c. 2), "nihil clamare poterit nisi nomine ecclesiæ suæ, quia in ecclesiis parochialibus non fit donatio persona sed ecclesia." The inheritance, according to this view, resides not in himself, but in his church. [tion, 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 antient 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 (s): just as the Druids, among the antient Britons, had omnium rerum immunitatem (t). And, even at present, this is a tenure of a nature very distinct from all others, being not in the least feudal, 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 (u). 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 distrain, without any complaint to the visitor (x). All donations in frankalmoign are indeed now out of use; for, since the statute of Quia emptores, (18 Edward I.,) none but the king çan give lands to be holden by this tenure (y). So they are only mentioned because frankalmoign is excepted by name in the statute of Charles the second, and therefore subsists in many instances at this day.] (And see Litt. s. 646.) The tenure of the parochial clergy, however, will be of this kind only where the grant was made in the antient form, to hold ut in liberá eleemosyna. See Wats. C. L. 373; Plowd. 242; 1 Inst. 94 b. (s) Seld. Jan. 1, 42. (t) Cæsar de Bell. Gal. 1. 6, c. 13. (y) Litt. s. 140. By this statute no subject may grant lands in perpetuity to hold of himself; (ibid.) From which it follows, that none can grant in frankalmoign; for (as Littleton afterwards remarks) none may hold in frankalmoign, but of the grantor and his heirs, (s. 141,) and the estate in frankalmoign is always in perpetuity. Co. Litt. 94 b. Having made these observations with respect to tenures in general, it may be now proper to add, that in proceeding further to investigate the nature and properties of corporeal hereditaments, we shall for the present suppose them held by the ordinary tenure of free socage, or freehold; and the reader may dismiss the subject of copyhold from his consideration, till we arrive at a later part of the treatise, when we shall have occasion to devote a separate chapter to the more particular examination of property holden by that tenure (z). (z) Vide post, bk. 11. pt. 1. c. XXII. It may be desirable to mention here, that as regards some matters of general interest, there is now no distinction between freehold and copyhold in point of practical effect; the two tenures being placed by modern statutes on the same footing, as far as these subjects are concerned. These are the qualification to vote at elections of members of parliament for counties; and the qualification to serve on juries. See, as to the former, 2 Will. 4, c. 45, (the "Reform Act" of 1832,) s. 19; as to the latter, 6 Geo. 4, c. 50, s. 1. |