fords a very substantial reafon for the great variety of customs that prevail in different manors, with regard both to the defcent of the eftates, and the privileges belonging to the tenants. And these encroachments grew to be fo univerfal, that when tenure in villenage was virtually abolished, (though copyholds were referved) by the ftatute of Charles II, there was hardly a pure villein left in the nation. For fir Thomas Smith & teftifies, that in all his time (and he was fecretary to Edward VI) he never knew any villein in grofs throughout the realm; and the few villeins regardant that were then remaining were fuch only as had belonged to bifhops, monafteries, or other ecclefiaftical corporations, in the preceding times of popery. For he tells us, that "the holy fathers, monks, and friars, "had in their confeffions, and specially in their extreme and "deadly sickness, convinced the laity how dangerous a "practice it was, for one chriftian man to hold another in "bondage: fo that temporal men by little and little, by "reason of that terror in their confciences, were glad to "manumit all their villeins. But the faid holy fathers, "with the abbots and priors, did not in like fort by theirs; "for they alfo had a fcruple in confcience to empoverish and "defpoil the church fo much, as to manumit fuch as were "bond to their churches, or to the manors which the church "had gotten; and fo kept their villeins ftill." By thefe feveral means the generality of villeins in the kingdom have long ago sprouted up into copyholders: their perfons being enfranchifed by manumiffion or long acquiefcence; but their eftates, in ftrictnefs, remaining fubject to the fame fervile conditions and forfeitures as before; though, in general, the villein fervices are ufually commuted for a finall pecuniary quit-rent.

As a farther confequence of what has been premised, we may collect these two main principles, which are held to be the fupporters of the copyhold tenure, and without which it cannot exift; 1. That the lands be parcel of, and fituate within that manor, under which it is held. 2. That they have been demised, or demifable, by copy of court roll immemorially. For immemorial custom is the life of all tenures by copy; fo that no new copyhold can, ftrictly speaking, be granted at this day.

IN fome manors, where the custom hath been to permit the heir to fucceed the ancestor in his tenure, the eftates are stiled copyhoids of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for life only; for the custom of the manor has in both cases so far fuperfeded the will of the lord, that, provided the fervices be performed or ftipulated for by fealty, he cannot, in the first instance, refufe to admit the heir of his tenant upon his death; nor, in the fecond, can he remove his prefent tenant fo long as he lives, though he holds nominally by the precarious tenure of his lord's will.

THE fruits and appendages of a copyhold tenure, that it hath in common with free tenures, are fealty, fervices, (as well in rents as otherwise) reliefs, and efcheats. The two latter belong only to copyholds of inheritance; the former to thofe for life alfo. But, befides these, copyholds have also heriots, wardship, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we shall fay 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 seised them even in the villein's lifetime. These are incident to both fpecies of copyhold; but wardship and fines to those of inheritance only. Ward

fhip, in copyhold eftates, partakes both of that in chivalry and that in focage. Like that in chivalry, the lord is the legal guardian; who ufually affigns fome relation of the infant tenant to act in his ftead: and he, like guardian in focage, is accountable to his ward for the profits. Of fines, fome are in the nature of primer feifins, due on the death of each tenant, others are mere fines for alienation of the lands; in fome manors only one of these forts can be demanded, in fome both, and in others neither. They are sometimes arbitrary and at the will of the lord, fometimes fixed by cuf- ́ tom: but, even when arbitrary, the courts of law, in favour of the liberty of copyholders, have tied them down to be reasonable in their extent; otherwife they might amount to a difherifon of the eftate. No ine therefore is allowed to be taken upon defcents and alienations, (unlefs in particular circumstances) of more than two years improved value of the eftate *. From this inftance we may judge of the favourable difpofition that the law of England (which is a law of liberty) hath always fhewn to this fpecies of tenants; by removing, as far as poflible, every real badge of flavery from them, however fome nominal ones may continue. It fuffered 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 fuffered to grow up to the prejudice of the lord, as in this cafe of arbitrary fines, the law itself interpofes with an equitable moderation, and will not fuffer the lord to extend his power fo far, as to . difinherit the tenant.

THUS much for the antient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally defcended from it.

IV. THERE is yet a fourth fpecies of tenure, described by Bracton under the name fometimes of privileged villenage, and fometimes of villein-focage. This, he tells us, is such as has been held of the kings of England from the conqueft

downwards; that the tenants herein, "villana faciunt fervitia,

fed certa et determinata;" that they cannot aliene or transfer their tenements by grant or feoffment, any more than pure villeins can but muft furrender them to the lord or his fteward, to be again granted out and held in villenage. And from these circumftances we may collect, that what he here describes is no other than an exalted fpecies of copyhold, fubfifting at this day, viz. the tenure in antient demefne; to which, as partaking of the baseness of villenage in the nature of it's services, and the freedom of focage in their certainty, he has therefore given a name compounded out of both, and calls it villanum focagium.

ANTIENT demefne confifts of thofe lands or manors, which, though now perhaps granted out to private fubjects, were actually in the hands of the crown in the time of Edward the confeffor, or William the conqueror; and fo appear to have been by the great furvey in the exchequer called domefday-book m. The tenants of thefe lands, under the crown, were not all of the fame order or degree. Some of them, as Britton teftifies ", continued for a long time pure and abfolute villeins, dependent on the will of the lord: and thofe who have fucceeded them in their tenures now differ from common copyholders in only a few points. Others were in great measure enfranchised by the royal favour: being only bound in respect of their lands to perform fome of the better fort of villein fervices, but thofe determinate and certain; as, to plough the king's land for fo many days, to fupply his court with fuch 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 antient demefne, by a peculiar procefs denominated a writ of right close ; not to pay toll or taxes; not to contribute to the expences of knights of the fhire; nor to be put on juries; and the like'.

THESE tenants therefore, though their tenure be abfolutely copyhold, yet have an intereft equivalent to a freehold for, notwithstanding their services were of a base and villenous 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: "et ideo, fays Bracton, dicuntur liberi." Britton alfo, from fuch their freedom, calls them abfolutely fokemans, and their tenure fokemanries; which he defcribes to be "lands and tenements, "which are not held by knight-service, nor by grand ferjean

ty, nor by petit, but by simple services, being, as it were, "lands enfranchifed by the king or his predeceffors from "their antient demefne." And the fame name is also given them in Fleta". Hence Fitzherbert obferves", that no lands are antient demefne, but lands holden in focage: that is, not in free and common focage, but in this amphibious fubordinate clafs of villein-focage. And it is poffible, that as this fpecies of focage tenure is plainly founded upon predial fervices, or fervices of the plough, it may have given cause to imagine that all focage tenures arofe from the fame original; for want of diftinguishing, with Bracton, between free-focage or focage of frank-tenure, and villein-focage or focage of antient demesne.

LANDS holden by this tenure are therefore a species of copyhold, and as fuch preferved and exempted from the operation of the ftatute of Charles II. Yet they differ from commen copyholds, principally in the privileges beforementioned: as alfo they differ from freeholders by one cfpecial 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 feonment, and the reft; but muft pafs by furrender to the lord or his fteward, in the manner of common copyholds

Gilb. hift. of exch. 16. & 30. 1 c. 65.

M I. 1. c. 8.

w N. B. 13.

yet