PART III. OF COPYHOLDS. OUR present subject is one peculiarly connected with those olden times of English history, to which we have had occasion to make so frequent reference. Every thing relating to copyholds, reminds us of the baron of old, with his little territory, in which he was king. Estates in copyhold are, however, essentially distinct, both in their origin and in their nature, from those freehold estates, which have hitherto occupied our attention. Copyhold lands are lands holden by copy of Definition of court roll; that is, the muniments of the title to such copyholds. lands are copies of the roll or book, in which an account is kept of the proceedings in the Court of the manor to which the lands belong. For, all copyhold lands belong to, and are parcel of, some manor. An estate in copyhold is not a freehold; but, in construction of law, merely an estate at the will of the lord of the manor, at whose will copyhold estates are expressed to be holden. Copyholds are also said to be holden according to the custom of the manor to which they belong, for custom is the life of copyholds (a). holds. In former days, a baron or great lord, becoming Origin of copypossessed of a tract of land, granted part of it to freemen, for estates in fee simple, giving rise to the tenure of such estates, as we have seen in the chapter on Tenure (b). Part of the land he reserved to himself, forming the demesnes of the manor, properly so call(b) Ante, pp. 86, 87. (a) Co. Cop. s. 32, Tr. p. 58. Customary lives. ed (c): other parts of the land he granted out to his villeins or slaves, permitting them, as an act of pure grace and favour, to enjoy such lands at his pleasure; but sometimes enjoining, in return for such favour, the performance of certain agricultural services, such as ploughing the demesne, carting the manure, and other servile works. Such lands as remained, generally the poorest, were the waste lands of the manor, over which rights of common were enjoyed by the tenants (d). Thus arose a manor, of which the tenants formed two classes, the freeholders, and the villeins. For each of these classes a separate Court was held: for the freeholders, a Court Baron (e); for the villeins, another, since called a Customary Court (ƒ). In the former Court, the suitors were the judges; in the latter, the lord only, or his steward (g). In some manors, the villeins were allowed life interests, but the grants were not extended so as to admit any of their issue, in a mode similar to that in which the heirs of freemen became entitled on their ancestors' decease. Hence arose Copyholds for copyholds for lives. In other manors, a greater degree of liberality was shown by the lords; and, on the decease of a tenant, the lord permitted his eldest son, or sometimes all the sons, or sometimes the youngest, and afterwards other relations, to succeed him by way of heirship; for which privilege, however, the payment of a fine was usually required, on the admittance of the heir to the tenancy. Frequently, the course of descent of estates of freehold was chosen as the model for such inheritances; but, in many cases, dispositions the most capricious were adopted by the lord, and in time became the custom of the manor. Thus arose copy Copyholds of inheritance. (c) Co. Cop. s. 14, Tr. 11; (d) 2 Black. Com. 90. (f) 2 Watkins on Copyholds, 4, 5; 1 Scriven on Copyholds, 5, 6. (g) Co. Litt. 58 a. holds of inheritance. Again, if a villein wished to part with his own parcel of land to some other of his fellows, the lord would allow him to surrender or yield up again the land, and then, on payment of a fine, would indulgently admit as his tenant, on the same terms, the other, to whose use the surrender had been made. Thus arose the method, now prevalent, of conveying copyholds, by surrender into the hands of the lord, to the Surrender and use of the alienee, and the subsequent admittance of the latter. But by long custom and continued indulgence, that, which at first was a pure favour, gradually grew up into a right. The will of the lord, which had originated the custom, came at last to be controlled by it (h). admittance. The will of the lord gradually controlled by the custom. holders to cer tainty of tenure. The rise of the copyholder from a state of uncertainty Rise of copyto certainty of tenure, appears to have been very gradual. Britton, who wrote in the reign of Edward I. (i), thus describes this tenure, under the name of villeinage, "Villeinage is to hold part of the demesnes of any lord, entrusted to hold at his will by villein services, to improve for the advantage of the lord." And he adds that, "In manors of ancient demesne there were pure villeins of blood and of tenure, who might be ousted of their tenements at the will of their lord" (k). In the reign of Edward III., however, a case occurred in which the entry of a lord on his copyholder was adjudged lawful, because he did not do his services, by which he broke the custom of the manor (7), which seems to show that the lord could not, at that time, have ejected his tenant without cause (m). And in the reign of Ed (h) 2 Black. Com. 93, et seq. 147; Wright's Tenures, 215, et seq.; 1 Scriv. Cop. 46; Garland v. Jekyll, 2 Bing. 292. (i) 2 Reeves's History of Eng. Law, 280. (k) Britton, 165. (1) Year Book, 43 Edw. III. 25 a. (m) 4 Rep. 21 b. Mr. Hallam states that a passage in Britton, which had escaped his search, ward IV., the judges gave to copyholders a certainty of tenure, by allowing to them an action of trespass, on ejection by their lords without just cause (n). "Now," says Sir Edward Coke (o), "copyholders stand upon a sure ground; now they weigh not their lord's displeasure; they shake not at every sudden blast of wind; they eat, drink, and sleep securely; only having a special care of the main chance, namely, to perform carefully what duties and services soever their tenure doth exact, and custom doth require; then, let lord frown, the copyholder cares not, knowing himself safe." A copyholder has, accordingly, now, as good a title as a freeholder; in some respects, a better; for, all the transactions relating to the conveyance of copyholds, are entered into the court rolls of the manor, and thus a record is preserved of the title of all the tenants. In pursuing our subject, let us now follow the same course as we have adopted with regard to freeholds, and consider, first, the estates which may be holden in copyhold lands; and, secondly, the modes of their alienation. is said to confirm the doctrine, that, so long as the copyholder did continue to perform the regular stipulations of his tenure, the lord was not at liberty to divest him of his estate. 3 Hallam's Middle Ages, 261. Mr. Hallam was, perhaps, misled in his supposition by a quotation from Britton made by Lord Coke (Co. Litt. 61 a), in which the doctrine laid down by Britton as to socmen, is erroneously applied to copyholders. The passage from Britton, cited above, is also subsequently cited by Lord Coke, but with a pointing which spoils the sense. (n) Co. Litt. 61 a. (o) Co. Cop. s. 9, Tr. p. 6. CHAPTER I. OF ESTATES IN COPYHOLDS. holds. WITH regard to the estates which may be holden in Estates in copycopyholds, in strict legal intendment a copyholder can have but one estate; and that is an estate at will, An estate at the smallest estate known to the law, being determina- will. ble at the will of either party. For, though custom has now rendered copyholders independent of the will of their lords, yet all copyholds, properly so called, are still expressly stated, in the court rolls of manors, to be holden at the will of the lord (a); and, more than this, estates in copyholds are still liable to some of the incidents of a mere estate at will. We have seen that, in ancient times, the law laid great stress on the feudal possession, or seisin, of lands, and that this possession could only be had by the holder of an estate of freehold, that is, an estate sufficiently important to belong to a free man (b). Now copyholders in ancient times belonged to the class of villeins or bondsmen, and held, at the will of the lord, lands of which the lord himself was alone feudally possessed. In other words, the lands held by the copyholders still remained part and parcel of the lord's manor; and the freehold of these lands still continued vested in the lord; and this is the case at the present day with regard to all copyholds. The lord of the manor is actually seised of all the lands in the possession of his copyhold tenants (c). He has not a mere incorporeal seignory over these, as he has over his freehold tenants, or those who hold of him lands, once (a) 1 Watk. Cop. 44, 45; 1 Scriv. Cop. 605. (b) Ante, pp. 21, 107. (c) Watk. Descents, 51, (59, 4th ed.) The lord is actually seised of all the copyhold lands of his manor. |