ESTATE. they are called tenants by copy of court-roll, because they COPYHOLD have no other evidence concerning their tenements but only the copies of the court-roll, and although some such tenants have an inheritance according to the custom of the manor, yet have they but a base tenure; i. e. an estate at the will of the lord, and no freehold according to the course of the common law (1). There is, however, he continues, divers diversities between tenant at will, which is in by the lease of his lessor at the common law, and tenant at will according to the custom of the manor; for tenant at will according to that custom of the manor, may, as is before said, have an estate of inheritance, according to the custom and usage of the manor: but if a man have lands and tenements which are not within such custom, and let them to another, to hold to him and his heirs at the will of the lessor, these words " to his heirs," are void. But though he is called tenant at will, secun Lit. s. 75; Co. Lit. 60, a; 4 Co. 25. Lit. s. 77, 81; and 3 Co. 7; 1 Leon. 4; Moor, 128; • Lit. s. 82. in truth nothing more than a superior kind of copyholds, held like them by copy of court-roll, but not at the will of the lord; whence, for distinction's sake, they have been generally denominated customary freeholds; see 1 Bl. L. Tr. 8vo. ed. 144, where the origin and nature of this peculiar kind of tenure is delineated with the author's usual clearness and ability. See also Co. Lit. 59, b. and 5 Co. 84, (Perryman's case); in which case it was found by the jury, that in the manor of Portchester there was a custom, according to which all alienations of land within that manor, by deed or will, were void, unless presented to be a good custom; and in the same case mention is made, that, by the court of Lidford-castle, in Devonshire, a freeholder of inheritance cannot pass his freehold except by surrender into the lord's hands. See instances of these customary tenures, Lit. s. 78, 79, 80, 81, 83, 84, where also see of tenant by the verge, which seems to differ in nothing from tenant by copy of court-roll. (1) And being considered merely as holden at the will of the lord, they consequently do not entitle the tenant to vote for knights of the shire under stat. Hen. VI. See Blac. L. Tr. and 31 Geo. II. c. 14. ESTATE. COPYHOLD dum consuetudinem manerii; yet it is not meant that the lord's pleasure is to be governed by the custom of the manor, in the determination of his will, but only that the tenant, as long as he continues tenant, is to hold the land under such terms and conditions as the custom has established' (1). Origin of This tenure arose from the grant of lands made in the ancient feudal times, by lords to their villains, to hold of such lords upon condition of performing certain mean or villain services; these grants being entered on the lord's roll, and a copy delivered to the villain as an evidence of his title, he was said to hold by copy of court-roll; these grants were however always made resumable at the will of the lord; because otherwise it would have been an enfranchisement of the tenant. But to prevent the frequent termination of these estates, by any equivocal act which might be construed to be a determination of the lord's will, they were afterwards granted in fee, i. e. to the tenant and his heirs, but still at the will of the lord, who, notwithstanding such grånt, might oust the tenant when he pleased; this however being found to be a very great inconvenience, was, it should seem, altered by some positive law, (though such law does not now appear) which preserved their estates to them and their heirs, whilst they duly performed the services, leaving them in other respects 1 Stra. 452, sed quære, and see 2 Blac. Com. 147. As to the name and origin of Copyhold, see also Co. Lit. 57, b. 76; 1 Rol. Rep. 236; Dougl. 724, n.; 2 Wooddes. 36, a. 4 Lit. s. 172; 4 Co. 21 a. 1 Co. Copyholder, 6, 7; and see Vaugh. 71; 2 Ld. Ray. 864; Pig. Recov. 41; 10 East, 259; also, 2 Watk. Cop. c. 1, and Sul. Lec. 50. Preced. Chan. 574. (1) Copyholders also hold by fealty and various services to be performed to the lord; Co. Cop. s. 10; and the obligation of doing fealty proves, says Coke, (9 Rep. 76, a; Co. Lit. 63, a.) that they have a fixed estate in the land, from which they cannot be amoved by the lord so long as they observe the customs of the manor: whereas, a tenant at will holds by no fealty or service. ESTATE. mere tenants at will (1); or, which is perhaps more pro- COPY HOLD bable, by little and little, from the indulgence of particular lords. A very perspicuous account of the origin of copyholds, is given by Sir William Blackstone, who observes', that our present copyhold tenure, or tenure by copy of courtroll at the will of the lord, appears to be lineally descended from the ancient tenure of pure villainage, spoken of in the Introduction to the preceding book; in order to obtain a clear idea of which, it will be previously necessary to take a short view of the original and nature of manors (2): These are in substance as ancient as the Saxon consti- Origin, &c. of tution", though perhaps differing a little, in some immate- manors. rial circumstances, from those that exist at this day" : just as has been observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor, manerium, a manendo°, because the usual residence of the owner, seems to have been a district of ground held by lords or great personages, who kept in their own hands so much land as was necessary for the use of their families, which were called terræ dominicles, or demesne lands; being" occupied by the lord, or dominus manerii, and his servants. The other, or tenemental lands, they distributed among their tenants; which, from the different modes of tenure, were distinguished by two different names. First, bookland, or charter-land, which was held by deed under certain rents and free services, and in effect differed nothing " Co. Cop. s. 2, and 10. • 2 Blac. Com. 90; sed vide Watk. Copyh. 6, 10. See 2 Blac. Com. 89, and ib. 149; also Wright Ten. 215. m See 2 Blac. Com. 9o. (1) See 1 Bac. Abr. 706, but quære the distinction. But per Coke, "they are now established by custom, and such tenant, so long as he doth his services, and does not break the custom of the manor, cannot be ejected by his lord." 4 Co. 21, b. 22, a. (2) See of the creation; division; suspension; and destruction of manors, 1 Watk.Copyh. 12, 22. COPYHOLD ESTATE. from free soccage lands; and from hence have arisen most of the freehold tenants who hold of particular manors, and owe suit and service to the same. The other species was called folk-land, which was held by no assurance in writing, but distributed among the common folk or people, at the pleasure of the lord, and resumed at his discretion; being indeed land held in villainage, which we shall presently describe more at large. The residue of the manor, being uncultivated, was termed the lord's waste, and served for public roads, and for common of pasture to the lord and his tenants. Manors were formerly called baronies, as they still are lordships; and each lord or baron was empowered to hold a domestic court, called, the court-baron, for redressing misdemeanors and nuisances within the manor, and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor; and if the number of suitors should so fail as not to leave sufficient to make a jury or homage, that is, two tenants at the least, the manor itself is lost. In the early times of our legal constitution, the king's greater barons, who had a large extent of territory held under the crown, frequently granted out smaller manors to inferior persons, to be holden of themselves; which therefore now continue to be held under a superior lord, who is called in such cases the lord paramount over all these manors: and his seignory is frequently termed an honor, not a manor, especially if it has belonged to an ancient feodal baron, or has been at any time in the hands of the crown; in imitation whereof, these inferior lords began to carve out and grant to others still more minute estates, to be held as of themselves, and were so proceeding downwards, till the superior lords observed, that by this method of sub-infeudation they lost all their feodal profits, of wardships, marriages, and escheats, which fell into the hands of these mesne or middle lords, who were the immediate supe-. riors of the ter-tenant, or him who occupied the Jand : and "Co. Cop. s. 3. And see Watk. Copy. 9; also ib. n. (o). ESTATE. also, that the mesne lords themselves were so impoverished COPYHOLD thereby, that they were disabled from performing their services to their own superiors. This occasioned, first, that provision in the thirty-second chapter of magna charta, 9 Hen. III. (which is not to be found in the first charter granted by that prince, nor in the great charter of King John) that no man should either give or sell his land, without reserving sufficient to answer the demands of his lord; and afterwards, the statute of Westm. 3. or quia emptores, 18 Ed. I. c. 1. which directs, that upon all sales or feoffments of land, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it. But these provisions, not extending to the king's own tenants in capite, the like law concerning them is declared by the statutes of prerogativa regis, 17 Ed. II. c. 6. and of 34 Ed. III. c. 15. by which last all sub-infeudations, previous to the reign of king Edward I. were confirmed, but all subsequent to that period were left open to the king's prerogative. And from hence it is clear, that all manors existing at this day, must have existed as early as king Edward the first: for it is essential to a manor, that there be tenants who hold of the lord; and, by the operation of these statutes, no tenant in capite since the accession of that prince, and no tenant of a common lord since the statute of quia emptores, could create any new tenants to hold of himself". Now with regard to the folk-land, or estates held in villainage, this was a species of tenure neither strictly feodal, Norman, or Saxon; but mixed and compounded of them all'; and which also, on account of the heriots that usually attend it, may seem to have somewhat Danish in its composition. Under the Saxon government there were, as Sir William Temple speaks", a sort of people in a condition 'See the Oxford editions of the charters. • 2 Blac. Com. 91. • Wright, 215, and notes there. "See Bac. Engl. Gov. 56; Brady's Pref. 26; and Spelm. Gloss. verb. "Servus." |