called copyholders; whose lands, though substantially their own property, are nominally part of the lord's demesnes, and are entered on the rolls of the customary court of the manor, as holden at the will of the lord according to the custom. And a manor (when in its proper and perfect state) also still comprises (according to its ancient constitution) some portion of freehold tenants holding of the manor in perpetuity(r), and a court baron, differing from the customary court of the copyholders (though usually held at the same time), and of which the freeholders are the judges (s).

No freehold, it is to be observed, can at the present day be converted into copyhold; of which the chief and most obvious reason is, that the essence of the latter tenure is immemorial custom, which can of course have no application where land is granted for the first time to be held in that manner(t). But, on the other hand, a copyhold is capable of being turned into freehold, by the lord's conveying to the copyholder the freehold of the particular premises, or releasing to him the seigniorial rights; which is called enfranchisement.

Copyhold, like all other tenures, involves the render of services and of fealty, and it is subject to reliefs of the same nature with those in socage, and to escheats. The wardship in copyhold also resembles that in socage, for the lord is not guardian (except by special custom), but the guardianship belongs to the next of kin of the infant, to whom the copyhold cannot descend (u); and he, like guardian in socage, is accountable to his ward for the profits. But a copyholder cannot aliene except by surrender to the lord, and the alienee has no title till the lord admits him. Fines, too, are in general payable to the lord on alienation, and there are other fines in the

(r) Glover v. Lane, 3 T. R. 447, a; Melwitch's case, 4 Rep. 26, b. (s) Co. Litt. 58, a; Co. Cop. s. 31.

(t) Revell v. Joddrell, 2 T. R. 424. (u) 2 Watk. Cop. 101; Co. Litt. by Harg. 88 b, n. (13); vide 11 G. 4 & 1 W. 4. c. 65.

nature of primer seisins. [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 favour of the liberty of the copyholders, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate. 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 (x). From this instance we may judge of the favourable 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 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.]

As for the rule of descent, it is the same (in the greatest number of manors) with the ordinary rule in free socage tenure; though in some it is according to the method in gavelkind, and in others according to that in borough English (y). But an incident almost peculiar to copyholds (though it sometimes occurs in freehold lands) (2) is that of heriots. These, which are generally supposed to be a Danish custom (a) (and of which more will be said in a subsequent part of the work), are a render

(1) Astle v. Grant, Doug. 724.
(y) Third Real Property Rep. p. 14.

VOL. I.

(z) Ibid. 16.

(a) 2 Bl. C. 97.

P

of the best beast or other article (as the custom may be) to the lord, on the death of the tenant. If considered as a relic of villein tenure, there was 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 life-time; but it is now justly considered as one of the most oppressive circumstances which attend the modern law of tenures.

The tenure that we have been describing, is copyhold commonly so called, or tenure by copy of court roll, at the will of the lord, according to the custom of the manor; which, as we have seen, is lineally descended from the ancient one of pure villenage. In the division, however, that we formerly made of tenures (b) the term copyhold is to be understood in a larger sense, and as importing (according to the view sanctioned by the highest authorities) (c) every customary tenure (that is, every tenure depending on the particular custom of a manor), as opposed to free socage or freehold; which may now (since the abolition of knight-service) be considered as the general or common law tenure of the country (d). And copyhold in this wider application of the term, comprises, besides the principal and common kind that we have just been delineating, two varieties, viz. ancient demesne, and customary freehold.

The first of these seems to be the same tenure as described by Bracton under the name sometimes of privileged villenage, and sometimes of villein-socage. This, he

tells us (e), is such as has been held of the kings of England from the conquest downwards; and the tenants wherein "villana faciunt servitia, sed certa et determinata." 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; and 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] is a tenure existing in certain [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 (f). The tenants] in these manors of the crown, [were not all of the same order or degree. Some of them, as Britton testifies (g), 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 (h). Others were in 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 (i); as, to try the right of their property in a peculiar court of their own,

(e) L. 4. t. 1. c. 28, s. 5. Vide supra, p. 175.

(f) F. N. B. 14, 16.

(g) C. 66.

(h) F. N. B. 228.

(i) 4 Inst. 269.

[called a court of ancient demesne (k), by a peculiar process denominated a writ of right close (l); 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 (m).]

Manors of ancient 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 (n), who are alone properly called tenants in ancient demesne (o). As to these, though their services, like those of pure villeins, were originally base, yet they were distinguished from the latter, [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." Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes (p) to be "lands and tenements, which are not held by knight-ser"vice, 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 (9).] Tenants in ancient demesne, like common copyholders, require admittance by the lord to perfect their title, and hold according to the custom of the manor; though not ad voluntatem domini (r).

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