[ 37 ] Book II. is confidered as an inftrument. For, though it is in his power to keep the lands in his own hands, or to difpofe of them at his pleasure, by granting an abfolute fee-fimple, a freehold, or a chattel intereft therein; and quite to change their nature from copyhold to focage tenure, so that he may well be reputed their abfolute owner and lord; yet if he will ftill continue to difpofe of them as copyhold, he is bound to obferve the antient custom precifely in every point, and can neither in tenure nor eftate introduce any kind of alteration; for that were to create a new copyhold: wherefore in this refpect the law accounts him cuftom's inftrument. For if a copyhold for life falls into the lord's hands, by the tenant's death, though the lord may destroy the tenure and enfranchise the land, yet if he grants it out again by copy, he can neither add to nor diminish the antient rent, nor make any the minutest variation in other refpects; nor is the tenant's eftate, fo granted, fubject to any charges or incumbrances by the lord 9. IN admittances upon furrender of another, the lord is to no intent reputed as owner, but wholly as an inftrument: and the tenant admitted fhall likewise be subject to no charges or incumbrances of the lord; for his claim to the eftate is folely under him that made the furrender ". AND, as in admittances upon furrenders, fo in admittances upon defcents by the death of the ancestor, the lord is used as a mere inftrument; and, as no manner of interest paffes into him by the furrender or the death of his tenant, fo no intereft paffes out of him by the act of admittance. And therefore neither in the one cafe, nor the other, is any respect had to the quantity or quality of the lord's eftate in the manor. For whether he be tenant in fee or for years, whether he be in poffeffion by right or by wrong, it is not material; fince the admittances made by him shall not be impeached on account of his title, because they are judicial, or rather minifterial, acts, which every lord in poffeffion is bound to perform ". 3 ADMITTANCES, however, upon furrender differ from admittances upon descent in this; that by furrender nothing is vested in ceftuy que ufe, before admittance, no more than in voluntary admittances; but upon defcent the heir is tenant by copy immediately upon the death of his ancestor: not indeed to all intents and purposes, for he cannot be fworn on the homage nor maintain an action in the lord's court as tenant; but to most intents the law taketh notice of him as of a perfect tenant of the land inftantly upon the death of his ancestor, efpecially where he is concerned with any ftranger. He may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground'; nay, upon fatisfying the lord for his fine due upon the defcent, may furrender into the hands of the lord to whatever use he pleases (3). For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to intitle him to his fine, and not fo much neceffary for the ftrengthening and compleating the heir's title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and fo the lord may be defrauded of his fine. But to this we may reply in [372] the words of fir Edward Coke ", " I affure myself, if it "were in the election of the heir to be admitted or not "to be admitted, he would be beft contented without "admittance; but the custom in every manor is in this "point compulsory. For, either upon pain of forfeiture "of their copyhold, or of incurring fome great penalty, "the heirs of copyholders are inforced, in every manor, to "come into court and be admitted according to the cuf u Copyh. § 41. 4 Rep. 23. (3) The heir having as complete a title without admittance as with it, against all the world but the lord, the court of king's bench will not grant a mandamus to compel the lord to admit him. 2 T. R. 197. ❝ tom, "tom, within a fhort time after notice given of their an"ceftor's decease (4)." (4) Copyholds are not within the ftatute de donis, and cannot be intailed without a special custom within the manor; and where fuch a custom exifts, there may also be a custom to bar the estate-tail, by a recovery fuffered in the lord's court; but if no fuch cuftom appears of barring by recovery, the intail may be barred by furrender, or otherwise it would amount to a perpetuity. 2 Vef. 601. Yet in fome manors the custom of barring by one mode, is coexiftent with the cuftom of barring by the other. 2 Bl. Rep. 944. " CHAPTER THE TWENTY-THIRD, . OF ALIENATION BY DEVISE. HE laft method of conveying real property, is, by devife, TH or difpofition contained in a man's last will and teftament. And, in confidering this fubject, I fhall not at prefent inquire into the nature of wills and teftaments, which are more properly the inftruments to convey personal eftates; but only into the original and antiquity of devifing real estates by will, and the conftruction of the feveral ftatutes upon which that power is now founded. Ir feems fufficiently clear, that before the conqueft, lands were devifable by will. But, upon the introduction of the military tenures, the restraint of devifing lands naturally took place, as a branch of the feodal doctrine of nonalienation without the confent of the lord. And fome have questioned, whether this restraint (which we may trace even from the antient Germans c) was not founded upon truer principles of policy, than the power of wantonly difinheriting the heir by will, and transferring the eftate, through the dotage or caprice of the ancestor, from thofe of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and prevented one man from growing too big or powerful for his neighbours; fince it rarely happens, a Wright of tenures. 172. b See page 57. c Tacit, de mor. Germ. c. 21. that Book II. that the fame man is heir to many others, though by art and management he may frequently become their devifee. Thus the antient law of the Athenians directed that the estate of the deceased should always defcend to his children; or, on failure of lineal defcendants, fhould go to the collateral relations which had an admirable effect in keeping up equality and preventing the accumulation of cftates. But when Solon made a flight alteration, by permitting them (though only on failure of iffte) to difpofe of their lands by teftamant, and devife away eftates from the collateral heir, this foon produced an excefs of wealth in fome, and of poverty in others which, by a natural progression, first produced popular tumults and diffenfions; and thefe at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now feem hard, on account of fome abufes, (which are the natural confequence of free agency, when coupled with human infirmity) to debar the owner of lands from diftributing them after his death, as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar propriety; by preventing the very evil which refulted from Solon's inftitution, the too great accumulation of property: which is the natural confequence of our doctrine of fucceffion by primogeniture, to which the Athenians were ftrangers. Of this accumulation the ill effects were feverely felt even in the feodal times but it fhould always be ftrongly discouraged in a commercial country, whofe welfare depends on the number of moderate fortunes engaged in the extension of trade. HOWEVER this be, we find that, by the common law of England fince the conqueft, no estate, greater than for term of years, could be difpofed of by teftament; except only in Kent, and in fome antient burghs, and a few particular manors, where their Saxon immunities by special indulgence d Autarch, in vita Selow. e 2 Inft. 7. fubfifted. |