justice, he may fue both the lord, and them that took the furrender, in chancery, and shall there find relief.

3. ADMITTANCE is the laft ftage, or perfection, of copyhold affurances. And this is of three forts: first, an admittance upon a voluntary grant from the lord; fecondly, an admittance upon surrender by the former tenant; and, thirdly, an admittance upon a defcent from the ancestor.

In admittances, even upon a voluntary grant from the lord, when copyhold lands have efcheated or reverted to him, the lord 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 absolute fee-fimple, a freehold, or a chattel intereft therein; and quite to change their nature from copyhold to focage tenure, fo that he may well be reputed their abfolute owner and lord; yet if he will still continue to dispofe of them as copyhold, he is bound to obferve the antient custom precisely in every point, and can neither in tenure nor estate introduce any kind of alteration; for that were to create a new copyhold: wherefore in this respect 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 deftroy 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, so granted, subject to any charges or incumbrances by the lord 9.

IN admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an inftrument: and the tenant admitted fhall likewife be subject to no charges or incumbrances of the lord; for his claim to the estate is folely under him that made the furrender '.

AND, as in admittances upon furrenders, fo in admittances upon descents 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 surrender 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 estate 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 fhall 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 '.

ADMITTANCES, however, upon furrender differ from admittances upon descent in this: that by surrender 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 moft 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 stranger. 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. 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 obfervation might arife, 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 so the lord may be defrauded of his fine. But to this we may reply in

• 4 Rep. 27. I Rep. 140.

t 4 Rep. 23.

A a 2

the

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 cuftom in every manor is in this "point compulfory. 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 "tom, within a fhort time after notice givch of their an"ceftor's deceafe."

u Copyh. §. 41.

CHAPTER THE TWENTY-THIRD.

OF ALIENATION BY DEVISE.

HE laft method of conveying real property, is by devife,

Tor difpofition

or difpofition contained in a man's laft 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 perfonal eftates; but only into the original and antiquity of devising real estates by will, and the construction of the feveral ftatutes upon which that power is now founded.

It seems fufficiently clear, that, before the conqueft, lands were devisable by will". But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of nonalienation without the confent of the lord b. And fome have queftioned, whether this reftraint (which we may trace even from the antient Germans ) 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 ballance 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.

A a 3

c Tacit. de mor. Germ. c. 21.

that

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 equa lity and preventing the accumulation of eftates. But when Solon made a flight alteration, by permitting them (though only on failure of iffue) to dispose of their lands by testament, and devife away estates from the collateral heir, this foon produced an excess of wealth in fome, and of poverty in others; which, by a natural progreffion, first produced po pular tumults and diffentions; and these at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total fubverfion of their state and nation. On the other hand, it would now seem hard, on account of some abuses, (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 resulted from Solon's institution, 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 severely felt even in the feodal times: but it should always be strongly discouraged in a commercial country, whose welfare depends on the number of moderate fortunes engaged in the extenfion 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 disposed of by teftament ; except only in Kent, and in fome antient burghs, and a few particular manors, where their Saxon immunities by special indulgence fubfifted. And though the feodal referaint on alienations

Plutarch. in vita Solon.

2 inft. 7.

f Litt. §. 167. 1 Inft. 111.

by