days, with his little territory, in which he was practically a king.
Estates in copyhold are essentially distinct both in their origin and in
their nature from those of freehold estates. Copyhold lands are holden by
_copy_ of court roll, that is to say, 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 it
must be remembered that all copyhold lands belong to and are parcel of
some manor. An estate in copyhold is not a freehold; but, according to
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 of course the life and being of
copyholds.
We must remember that in former days, a baron, or great lord, becoming
possessed of a large tract of land, granted part of it to freemen for
estates in fee simple. Part of the land he reserved to himself, and this
formed the demesnes of the manor, properly so called: 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, for instance, as ploughing the demesne,
carting the manure, and other such servile work. The lands remaining after
this parcelling out, generally the poorest, formed the waste lands of the
manor, over which rights of commons were enjoyed by the tenants. In this
way arose a manor, of which it will be seen the tenants formed two
classes, the freeholders and the villeins. Now for each of these classes a
separate court was held--for the freeholders a Court Baron; for the
villeins another called a Customary Court. In the former court the suitors
were the judges; in the latter the lord only, or his steward.
In some manors the villeins were allowed to have life interests, but these
grants were not extended so as to admit any of their children. Hence arose
copyholds for life. Again, in other manors a much greater degree of
liberality was shown by the lords; and on the death of a tenant, the lord
permitted his eldest son, or indeed sometimes all his sons, or sometimes
the youngest only, 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 it
happened that the course of descent of estates of freehold was chosen as
the model for such inheritances; but in many cases dispositions of the
most capricious kind were adopted by the lord of the manor, and in course
of time actually became the custom of the manor. And thus it was that
copyholds of inheritance arose. Again, if a villein tenant 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 the
payment of a fine, would indulgently _admit_ as his tenant, on the same
terms, the other, to whose use and in whose favour the surrender had been
made. Thus arose the method now prevalent at the present day, of conveying
copyholds by _surrender_ into the hands of the lord of the manor to the
use of the purchaser, and the subsequent admittance of the latter. By long
custom and continued indulgence that which at first was a pure favour
gradually grew up into a right, and thus it came to pass that the will of
the lord, which had of course originated the custom, came at last to be
controlled by it.[4]
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., 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 further 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."
In the reign of Edward III. a case occured 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, which seems to show that even
at that time the lord could not have ejected his tenant without a cause.
And later, in the reign of Edward IV., the judges gave to copyholders a
certainty of tenure by allowing them an action of trespass on ejectment by
their lords without just cause. "Now," says Sir Edward Coke, "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."
In the present day a copyholder has as good a title as a freeholder; in
some respects a better; for all the transactions relating to the
conveyance of copyholds are entered on the court rolls of the manor, and
thus a record is preserved of the title of all the tenants.
Since the passing of the statute of _Quia Emptores_, 18 Edward I., it has
not been lawful to create a tenure of an estate in fee simple; so that
every manor bears date at least as far back as that reign; to this rule
the few seignories, which may have been subsequently created by the king's
tenants in capite, form the only exception.
The name "manor" is of Norman origin, but the estate to which it was given
existed, in its essential character, long before the Conquest; it received
a new name as the shire also did, but neither the one nor the other was
created by this change. The local jurisdiction of the thegns who had
grants of sac and soc, or who exercised judicial functions amongst their
free neighbours, were identical with the manorial jurisdictions of the new
owners.
Although long continued custom has now rendered copyholders quite
independent of the will of the 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; and, more than this, estates in copyholds
are still liable to some of the incidents of mere estates at will.
In ancient times the law laid great stress on the feudal possession or
seisin of lands, and 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. Now, as we have seen, 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. 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.
The lord, having the legal fee simple in the copyhold lands comprised in
his manor, possesses all the rights incident to such an estate, controlled
only by the custom of the manor, which is now the tenant's safeguard. Thus
he possesses a right to all the mines and minerals under the land, and
also to all timber growing on the surface, and this even though the timber
may have been planted by the tenant. However, it must be borne in mind
that these rights are somewhat interfered with by the rights which long
continued custom has given to the tenants, for the lord cannot come upon
the lands to open his mines, or to cut his timber, without the
copyholder's leave.
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 upon it,
belongs to the lord of the manor; 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.[5]
By the customs of manors, on every change of tenancy, whether by death,
sale, or otherwise, fines of more or less amount become payable to the
lord. By the customs of some manors the fine payable was anciently
arbitrary; but now in modern times, fines, even when arbitrary by custom,
are restrained to two years' improved value of the land after deducting
quit rents.
In some manors a fine is due on the change of the lord; but in this case
the change must always be by act of God, and not by any act of the party.
The tenure of an estate in copyholds involves an oath of fealty from the
tenant, and together also with suit to the customary court of the manor.
Another incident of the tenure, and this sometimes a very profitable one,
is the escheat to the lord on failure of heirs.
Before the abolition of forfeiture for treason and felony, the lord of a
copyholder had a great advantage over the lord of a freeholder in this
respect, that, whilst freehold lands in fee simple were forfeited to the
crown by the treason of the tenant, the copyholds of a traitor escheated
to the lord of the manor of which they were held.
One of the most curious incidents of the tenure is the right of the lord,
on the death of a tenant, to seize the tenant's best beast, horse, or
other chattel under the name of a heriot. Now it would appear that heriots
were introduced into England by the Danes. The heriot of a military tenant
was his arms and habiliments of war, which belonged to the lord for the
purpose of equipping his successor. And it would seem that in analogy to
this purely feudal custom, the lords of manors usually expected that the
best beast or other chattel of each tenant, whether he were a freeman or a
villein, should on his death be left to them. In old wills of copyholders
we constantly find this legacy to the lord of the manor the first bequest
mentioned: in fact the tenant really making a bounty of what was actually
an obligation. In cases where the tenant died intestate the heriot of the
lord was taken in the first place out of his effects, unless indeed the
lord seized the whole of the goods, which not unfrequently happened in
days before custom had so completely controlled the rights of the lord,
and at the same time protected the interests of the tenant. Heriots
survive to this day in many manors, a true badge of the ancient servility
of the tenure. Now, however, the right of the lord is confined to such a
chattel as the custom of the manor, grown into a law, will permit him to
take; and in most cases the heriot consists not of a chattel at all, but
merely of a money payment.
The mode in which copyhold land is transferred from one person to another
still retains much of the primitive simplicity of bygone ages. The
copyholder personally surrenders the lands into the hands of the lord,
generally through his steward, and this surrender is evidenced by the
delivery of some article varying according to the custom of the particular
manor: in some manors the surrender is effected by the delivery of a rod,
in others of a straw, and again in others by a glove. The surrender having
been duly effected, the purchaser is admitted, and the various documents
used are all entered upon the court rolls of the manor. The steward is the
person who makes the entries on the court rolls, and they are kept in his
custody, but subject however to the right of the tenants to inspect them.
The steward also usually presides at the copyhold courts of the manor.
A special custom is required to entitle the wife of a copyholder to any
interest in her husband's lands on his death intestate. Where such a
custom does exist the wife's interest is termed her _freebench_, and it
consists generally of a life interest in one-third part of the lands of
which the husband died possessed. Freebench in most manors differs from
the ancient right of dower in this most important particular, that whilst
the widow could claim her dower out of all the freehold lands which her
husband actually possessed at any time during the marriage, the right to
freebench does not in general attach until the actual death of the
husband, and of course may be defeated by a devise of lands by the
husband's will. From this it will be seen that freebench is no impediment
to free alienation by the husband of his copyholds without any consent on
the part of his wife. To this general rule, however, the manor of
Cheltenham forms an important exception; for by the custom of this manor
the widow's freebench attaches in the same way as the ancient right of
dower did on all the land of copyhold tenure, of which the husband at any
time during the marriage had been possessed.
Centuries have robbed the manor of much of its importance; most of the
honour and prestige has decayed which once surrounded the lord, his power
has become controlled by long continued custom, so that the copyhold
tenants are practically independent of him, and have as good a title to
their lands as freeholders. Little remains beyond the most prominent of
the old formalities, which at one time gave dignity and importance to the
lord of the manor and his court. Most of the dealings with copyhold land
are now effected out of court, and although the courts are still held at
the customary periods, they are for the most part an empty formality,
their glamour gone, yet still possessing an especial interest of their own
as evidence of the surviving of ancient customs, which have practically
remained unchanged through the roll of centuries.
Ancient Tenures.
BY ENGLAND HOWLETT.
Practically all the landed property in England is, by the policy of our
laws, supposed to be granted by, dependent upon, and holden of some
superior lord, in consideration of certain services to be rendered to such
lord by the possessor of this property, and the terms or manner of their
possession is therefore called a _tenure_. Thus all the land in the
kingdom is supposed to be held, mediately or immediately, of the sovereign
who is consequently styled the lord or lady _paramount_.
All tenures being thus derived, or supposed to be derived, from the
sovereign, those who held directly under such sovereign, and in right of
the crown and dignity, were called tenants _in capite_, or _in chief_,
which was the most honourable species of tenure, although at the same time
it subjected the tenants to far greater and more burthensome services than
the inferior tenures did, and this distinction ran through all the
different sorts of tenure. William I., and other feudal sovereigns,
although they made large and numerous grants of land, always reserved a
rent or certain annual payments, which were collected by the sheriffs of
the counties in which the lands lay, to show that they still retained the
_dominium directum_ in themselves.
With our ancestors the most honourable and highly esteemed species of
tenure was that by knight service, and this was purely and entirely a
military tenure, being, in fact, the result of the feudal establishment in
England. Now to make a tenure by knight service, a determinate quantity of
land was necessary, which was called a knight's fee, _feodum militare_;
the measure of which in 3 Edward I., was estimated at twelve ploughlands,
and its value (although it varied with the times) in the reigns of Edward
I. and Edward II. was stated at L20 per annum. The knight who held this
proportion of land was bound to attend his lord to the wars for forty days
in every year, if called upon so to do, which attendance was his rent or
service for the land he claimed to hold. If, however, he held only half a
knight's fee, he was only bound to attend his lord twenty days, and so on
in proportion. This tenure of knight service drew with it several
consequences as inseparably incident to the tenure in chivalry, and one of
the most profitable, and, at the same time, arbitrary of these was
marriage. This incident called marriage was the right which the lord
possessed of disposing of his infant wards in matrimony, at their peril of
forfeiting to him, in case of their refusing a suitable match, a sum of
money equal to the value of the marriage; that is, what the suitor was
willing to pay down to the lord as the price of marrying his ward; and
double the market value was to be forfeited, if the ward presumed to marry
without the consent of the lord.
The personal attendance rendered necessary by knight service growing
troublesome and inconvenient in many respects, the tenants found means of
compounding for it; first, by sending others in their stead, and then in
process of time making a pecuniary satisfaction to the lord in lieu of it.
This pecuniary satisfaction at last came to be levied by assessments at so
much for every knight's fee; the first time this appears to have been done
was in 5 Henry II., on account of his expedition to Toulouse; but it soon
became so universal that personal attendance fell quite into disuse. From
this period we find, from our ancient histories, that when the kings went
to war, they levied scutages on their tenants, that is, on all the
landowners of the Kingdom, to defray their expenses, and to pay for the
hire of troops.
These assessments, in the time of Henry II., seem to have been made in a
most arbitrary manner, and entirely at the king's will and pleasure. The
prerogative became, indeed, abused to such an extent, that at last it
became a matter of national clamour, and King John was obliged to consent
by his _Magna Carta_, that no scutage should be imposed without the
consent of Parliament. But this clause was omitted in the Charter of Henry
III., where we only find that scutages, or escuage, should be taken as
they were used to be taken in the time of Henry II.; that is, in a
reasonable and moderate manner. Yet afterwards, by statute 25 Edward I.,
and many subsequent statutes, it was again provided, that the king should
take no aids or tasks but by the common assent of the realm; hence it was
held that scutage, or escuage, could not be levied except with the consent
of Parliament; such scutages being indeed the groundwork of all
succeeding subsidies, and the land tax of later times.
It will easily be seen that with the degenerating of knight service, or
personal military duty into a pecuniary assessment, all the advantages
were destroyed, and nothing in fact remained but the hardships. Instead of
having a national militia, composed of barons, knights, and gentlemen,
bound by their interests and their honour to defend the king and country,
the whole system of military tenures tended to nothing else but a wretched
means of raising money to pay an army of occasional mercenaries. At length
the military tenures, with all their heavy appendages were destroyed at
one blow by statute, 12 Charles II., C. 24, which enacts "that the courts
of wards and liveries, and all wardships, liveries, primer seisins, and
ousterlemains, values and forfeitures of marriage, by reason of any tenure
of the king or others, be totally taken away. And that all fines for
alienation, tenures by homage, knight service, and escuage, and also aids
for marrying the daughter, or knighting the son, and all tenures of the
king _in capite_, be likewise taken away. And that all sorts of tenures,
held of the king or others, be turned into free and common socage; save
only tenures in frank almoign, copyholds, and the honorary services of
grand serjeanty."
Another ancient tenure was that by _Grand Serjeanty_, whereby the tenant
was bound, instead of serving the king generally in the wars, to do some
special honorary service for the king in person; as to carry his banner,
his sword, or the like; or to be his butler, champion, or other officer at
his coronation. Tenure by _cornage_ was a species of grand serjeanty,
being a grant of land upon condition that the tenant was to wind a horn
when the Scots or other enemies entered the land, in order to warn the
king's subjects.
The tenure of petit serjeanty bears a great resemblance to the tenure of
grand serjeanty; for as the one is a personal service, so the other is a
rent or render, both tending to some purpose relative to the king's
person. Petit serjeanty as defined by Littleton, consists in holding lands
of the king, by service of rendering to him annually some small implement
of war, as a bow, a sword, a lance, an arrow, or the like. This, of
course, is but socage in effect, for it is no personal service, but a
certain rent. The tenure by which the grants to the Duke of Marlborough
and the Duke of Wellington, for their great military services to the
country, are held, are of this kind, each rendering a small flag or ensign
annually, which is deposited in Windsor Castle. Bury House (New Forest),
the property of Sir Charles Mill, Bart., is held by the tenure of
presenting the king whenever he enters the New Forest with a brace of
milk-white greyhounds. A breed of these dogs is preserved by the family in
readiness. King George III. received dogs in recognition of this tenure in
1789, and the incident is the subject of one of Lawrence's pictures.
In Beckwith's edition of Blount's "Fragmenta Antiquitatis," the following
tenure is inserted from the "Black Book of Hereford."--"The tenants at
Hampton Bishop, in the county of Hereford, were to get yearly six horse
loads of rods or wattels, in the Hay Wood, near Hereford, and bring them
to Hereford to make booths (or hurdles to pen sheep in) at the fair when
they should be required; and for every load of the said rods they were to
be allowed a halfpenny at the fairs."
This tenure would appear to relate to one particular fair only, and not to
all the fairs formerly held at Hereford. The particular fair is supposed
to have been the one beginning on May 19th, and commonly called the
nine-days' fair, from the circumstance of its continuing for that length
of time. From time immemorial this fair was proclaimed, with certain
formalities, by the Bishop of Hereford's bailiff, or his deputy, the tolls
of the fair belonging to one or both of these officers. During the
continuance of the fair, the Bishop's bailiff superseded the Mayor of
Hereford as acting magistrate, the fair being held in a street opposite
the Bishop's palace.
Brienston, in Dorsetshire, was held in grand serjeanty by a curious
jocular tenure, viz.:--by finding a man to go before the king's army for
forty days when he should make war in Scotland (some records say in Wales)
bareheaded and bare-footed, in his shirt, and linen drawers, holding in
one hand a bow, and in the other an arrow without feathers.[6]
The Dukes of Athol hold the Blair Athol estate by the tenure of presenting
a white rose to the sovereign whenever he visits them there.
Land was frequently held by the tenure of protecting the church property
in times of war. Scott tells us how the Bishop of Durham gave lands to
the Danish Count, Witikind, to be held by this tenure. The story is not
true, but the tenure is;
Broad lands he gave him on Tyne and Wear,
To be held of the Church by bridle and spear;
Part of Monkwearmouth, of Tynedale part,
To better his will and soften his heart.
_Harold the Dauntless._
Canto i., IV.
The tenure of ancient demesne exists in those manors, and in those only,
which belonged to the crown in the reigns of Edward the Confessor and
William the Conqueror, and in Domesday Book are called _Terroe Regis
Edwardi_. The tenants are freeholders and possessed certain privileges,
the chief of which was a right to sue and be sued only in their lord's
court.