With regard to the estates which may be holden in copyholds, in strict legal intendment a copyholder can have but one estate; and that is an estate at will, the smallest estate known to the law, being determinable at the will of either party. For though custom has now rendered copyholders independent of the will of then 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 part of the manor, but which were anciently granted to freemen and their heirs (d). Of all the copyholds he is the feudal possessor; and the seisin he thus has is not without its substantial advantages. The lord having a legal estate in fee simple in the copyhold lands, possesses all the rights incident to such an estate (e), controlled only by the custom of the manor, which is now the tenant's safeguard. Thus he possesses a right to all mines and minerals under the lands (f), and also to all timber growing on the surface, even though planted by the tenant (g). These rights, however, are somewhat interfered with by the rights which custom has given to the copyhold tenants; for the lord cannot come upon the lands to open his mines, or to cut his timber, without the copyholder's leave. And hence it is that timber is so seldom to be seen upon lands subject to copyhold tenure (h). Again, if a copyholder should grant a lease of his copyhold lands, beyond the term of a year, without his lord's consent, such a lease would be a cause of forfeiture to the lord, unless it were authorized by a special custom of the manor (i). For such an act would be imposing on the lord a tenant of his own lands, without the authority of custom: and custom alone is the life of all copyhold assurances (J). So a copyholder cannot commit any waste, either voluntary by opening mines, cutting down timber or pulling down buildings, or permissive, by neglecting to repair. For the land, with all that is under it or on it, belongs to the lord: the tenant has nothing but a customary right to enjoy the occupation; and if he should in any way exceed this right, a cause of forfeiture to his lord would at once accrue (k).
Estates in copyholds.
An estate at will.
The lord is actually seised of all the copyhold lands of his manor.
(a) 1 Watk. Cop. 44, 45; 1 Scriv. Cop. 605.
(b) Ante, pp. 22, 137.
(c) Watk. Descents, 51 (59, 4th ed.)
The lord has a right to mines and timber.
Lease of copyholds.
(d) Ante, pp. 307, 308.
(e) Ante, p. 77.
(f) 1 Watk. Cop. 333; 1 Scriv. Cop. 25, 508. See Bowser v. Maclean, 2 De G., F. & J. 415.
(g) 1 Watk. Cop. 332; 1 Scriv. Cop. 499.
(h) There is a common proverb, "The oak scorns to grow except on free land." It is certain that in Sussex and in other parts of England the boundaries of copyholds. may be traced by the entire absence of trees on one side of a line, and their luxuriant growth on the other. 3rd Rep. of Real Property Commissioners, p. 15.
(i) 1 Watk. Cop. 327; 1 Scriv. Cop. 544; Doe d. Robinson, v. Bousfield, 6 Q. B. 492.
(j) By stat. 21 & 22 Vict. c. 77, s. 3, the lords of settled manors may be empowered to grant licences to their copyhold tenants to lease their lands to the same extent and for the same purposes as leases may be authorized of freehold land. See ante, p. 26.
A peculiar species of copyhold tenure prevails in the north of England, and is to be found also in other parts of the kingdom, particularly within manors of the tenure of ancient demesne (l); namely, a tenure by copy of court roll, but not expressed to be at the will of the lord. The lands held by this tenure are denominated customary freeholds. This tenure has been the subject of a great deal of learned discussion (m); but the Courts of Law have now decided that, as to these lands, as well as to pure copyholds, the freehold is in the lord, and not in the tenant (n). If a conjecture may be hazarded on so doubtful a subject, it would seem that these customary freeholds were originally held at the will of the lords, as well as those proper copyholds in which the will is still expressed as the condition of tenure (o); but that these tenants early acquired, by their lord's indulgence, a right to hold their lands on performance of certain fixed services as the condition of their tenure; and the compliment now paid to the lords of other copyholds, in expressing the tenure to be at their will, was, consequently, in the case of these customary freeholds, long since dropped. That the tenants have not the fee simple in themselves appears evident from the fact, that the right to mines and timber, on the lands held by this tenure, belongs to the lord in the same manner as in other copyholds (p). Neither can the tenants generally grant leases without the lord's consent (q). The lands are, moreover, said to be parcel of the manors of which they are held, denoting that in law they belong, like other copyholds, to the lord of the manor, and are not merely held of him, like the estates of the freeholders (r). In law, therefore, the estates of these tenants cannot, in respect of their lords, be regarded as any other than estates at will, though this is not now actually expressed. If there should be any customary freeholds in which the above characteristics, or most of them, do not exist, such may with good reason be regarded as the actual freehold estates of the tenants. The tenants would then possess the rights of other freeholders in fee simple, subject only to a customary mode of alienation. That such a state of things may, and in some cases does exist, is the opinion of some very eminent lawyers (s). But a recurrence to first principles seems has always been by deed of grant, or bargain and sale, without livery of seisin, lease for a year, or inrol-mcnt. Some of the judges, however, seemed to doubt the validity of such a custom. See also Perrymem's case, 5 Rep. 84; Pas-gingham, app., Pitty, resp., 17 C. B. 299.