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. Everything 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 court roll; that is, the muniments of the title to such 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).
In former days a baron or great lord, becoming possessed 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 called (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 (f). 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 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 copyholds 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 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).
Definition of copyholds.
Origin of copyholds.
(a) Co. Cop. s. 32, Tr, p, 58.
(b) Ante, p. 115.
Copyholds for lives.
(c) Co. Cop. s. 14, Tr. 11; Attorney-General v. Parsons, 2 Cro. & Jerv. 279, 308.
(d) 2 Black. Com. 90.
(e) Ante, p. 117.
(f) 2 Watkins on Copyholds, 4, 5; 1 Scriveu on Copyholds, 5, 6.
(g) Co. Litt. 58 a.
The rise of the copyholder from a state of uncertainty to 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 (l), which seems to show that the lord could not, at the time, have ejected his tenant without cause (w). And in states that a passage in Britton, which had escaped his search, 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.
Copyholds of inheritance.
Surrender and admittance.
The will of the lord gradually controlled by the custom.
Rise of copyholders to certainty of tenure.
(h) 2 Black. Com. 03 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.
(k) Britton, 165.
(l) Year Look, 13 Edw. III. 26 a.
(m) 4 Rep. 21 b. Mr. Ballam the reign of Edward 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 (0), "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 in 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.
(n) Co. Litt. 61 a. Equity has also a concurrent jurisdiction. Andrews v. Hulse, 4 Kay & J. 392.
(o) Co. Cop. s. 9, Tr. p. 6.