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[of the several manor courts in which they are entered, or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And as such tenants had nothing to show for their estates but these customs, and admissions in pursuance of them entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court-roll, and their tenure itself a copyhold (t).

Thus copyhold tenures, as Sir Edward Coke observes (u), although very meanly descended, yet come of an antient house; for, from what has been premised, it appears that copyholders are in truth no other but villeins (x); who, by a long series of immemorial encroachments on the lord, at last established a customary right to those estates which before were held absolutely at the lord's will.] By the gradual progress of manumission also (either voluntary or constructive), the personal condition of villenage was at length everywhere commuted into freedom. At the period of the reformation in religion, this change had already become almost complete. [For Sir Thomas Smith testifies (y), that in all his time (and he was secretary to Edward the sixth), he never knew any villein in gross throughout the realm; and the few villeins regardant that were then remaining were such only as had belonged to bishops, monasteries, or other ecclesiastical corporations, in the preceding times of popery: for, he tells us, that "the holy fathers, monks and friars had in their confes"sions, and specially in their extreme and deadly sickness, convinced the laity how dangerous a practice it was for one Christian man to hold another in bondage, so that temporal men by little and little, by reason of

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(t) F. N. B. 12.

(u) Cop. s. 32.

(x) In confirmation of this doctrine, see F. N. B. 12 C; Wright's Tenures, 214; 3 Reeves's Hist. Eng. Law, 158, 312. In Astle v. Grant, Doug. 725, a doubt is expressed by

Lord Loughborough, whether the opinion that copyholders sprang from villeins be well founded; but it is an opinion that rests on the highest authority, and seems too firmly settled to be shaken.

(y) Commonwealth, b. 3, c. 10.

["that terror in their consciences, were glad to manumit "all their villeins. But the said holy fathers, with the "abbots and priors, did not in like sort by theirs; for "they also had a scruple in conscience to impoverish and despoil the church so much as to manumit such as were "bound to their churches, or to the manors which the "church had gotten; and so kept their villeins still."]

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Even these remnants of the antient slavery, however, did not long survive, and the last traces of it have been entirely obliterated among us for at least two centuries; the last claim of villeinage which we find recorded in our courts being in the fifteenth year of king James the first (z). But the abolition of the personal condition did not involve that of the copyhold tenure, to which it had given birth; and we may remember that this tenure is one of those expressly reserved by the statute of Charles the second (a). In manors, therefore, we still find that species of tenants called copyholders: whose lands, though substantially their own property, are nominally part of the lord's demesnes, and are entered on the rolls of the customary court of the manor, as holden at the will of the lord according to the custom. And a manor (when in its proper and perfect state) also still comprises, according to its antient constitution (b), some portion of freehold tenants holding of the manor in perpetuity (c); and a court baron, differing from the customary court of the copyholders (though usually held at the same time), and of which the freeholders are the judges (d).

No freehold, it is to be observed, can at the present day be converted into copyhold; of which the chief and most obvious reason is, that the essence of the latter tenure is

(z) Pigg v. Caley, Noy, 27; 11 Harg. St. Tr. 342.

(a) Vide sup. p. 209. (b) Vide sup. p. 219.

(c) Glover v. Lane, 3 T. R. 447 a; Melwitch's case, 4 Rep. 26 b. Yet though there should be a failure VOL. I.

of suitors to the court baron, and consequently in strictness of law an extinction of the manor, the jurisdiction of the customary court will not be affected. (Coke's Tracts, 53.)

(d) Co. Litt. 58 a; Co. Cop. s. 31.

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immemorial custom, which can of course have no application where land is granted for the first time to be held according to that tenure (e). But, on the other hand, a copyhold is capable of being turned into freehold, by the lord's conveying to the copyholder the freehold of the particular premises, or releasing to him the seignorial rights; which is called enfranchisement (ƒ).

Copyhold, like the other tenures, involves the obligation of fealty. A copyhold tenement is descendible also, where the custom of the manor so permits, to the heir. As for the rule of descent it is the same (in the greatest number of manors) with the ordinary rule in free socage tenure; though in some it is according to the method in gavelkind, and in others according to that in boroughEnglish (g). But an incident almost peculiar to copyholds, although it sometimes occurs in freehold or customary freehold lands (h), is that of heriots. These, which are generally supposed to be a Danish custom (i), and of which more will be said in a subsequent part of the work (k), are a render of the best beast or other article (as the custom may be) to the lord, on the death of the tenant. If considered as a relic of villein tenure, there was originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seized them, even in the villein's lifetime; but it is now justly considered as one of the most oppressive circumstances which attend the modern law of tenures. The wardship in copyhold also resembles that in socage; for the lord is not guardian (except by special custom), but the guardianship belongs to the next of kin of the

(e) Revell v. Joddrell, 2 T. R. 424.

(f) 1 Watk. Cop. 362. See further as to enfranchisement, post, p. 653. It may be remarked here that if the copyholder convey to the lord, this (though no enfranchisement, as the land in the lord's hands was already free), is an extinguish

ment of the copyhold.

(g) Third Real Property Rep. p. 14. See Muggleton v. Barnett, 2 H. & N. 653.

(h) Third Real Property Rep. p. 16; and see 21 & 22 Vict. c. 94, s. 7. (i) 2 Bl. C. 97.

(k) As to heriots, see further, post, pp. 635, 636.

infant to whom the copyhold cannot descend (1); and he, like guardian in socage, is accountable to his ward for the profits. Copyhold tenure is, in some manors, subject also to relief, of the same nature with that in socage (m), and to escheat and forfeiture. But a copyholder cannot aliene except through the medium of a surrender to the lord; and the copyhold passes not to the alienee, till the lord admits him. Fines, too, are in general payable to the lord on alienation, and there are other fines upon hereditary descent (n). [In some manors only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom; but, even when arbitrary, the courts of law, in favour of the liberty of the copyholders, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate. No fine therefore is allowed to be taken upon descents and alienations (unless in particular circumstances) of more than two years' improved value of the estate (o). From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath always shown to this species of tenants; by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands, by declaring, that the will of the lord was to be interpreted by the custom of the manor; and, where no custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes with an equitable moderation, and will not suffer the lord to extend his power so far as to disinherit the tenant.]

(1) 2 Watk. Cop. 101; Co. Litt. by Harg. 88 b, n. (13); see 11 Geo. 4 & 1 Will. 4, c. 65, s. 3—10.

(m) See Doe d. Tarrant v. Hellier, 3 T. R. 164, 169.

(n) 1 Watk. Cop. 286.

(0) Astle v. Grant, Doug. 724; Lord Verulam v. Howard, 7 Bing. 327.

The tenure that we have been describing is copyhold commonly so called, or tenure by copy of court roll, at the will of the lord, according to the custom of the manor; which, as we have seen, is lineally descended from the antient one of pure villenage. In the division, however, that we formerly made of lay tenures (p) the term copyhold is to be understood in a larger sense; and as importing, according to the view sanctioned by the highest authorities (q), every customary tenure, that is, every tenure depending on the particular custom of a manor, as opposed to free socage or freehold; which may now, since the abolition of knight-service, be considered as the general or common law tenure of the country (r). And copyhold, in this wider application of the term, comprises, besides the principal and common kind that we have just been delineating, two varieties, viz., antient demesne and customary freehold.

The first of these seems to be the same tenure as described by Bracton, under the name sometimes of privileged villenage, and sometimes of villein-socage. This, he tells us (s), is such as has been held of the kings of England from the Conquest downwards; and the tenants wherein "villana faciunt servitia, sed certa et determinata." And from these circumstances we may collect, that [what he here describes is no other than an exalted species of copyhold, subsisting at this day, viz., the tenure in antient demesne; to which—as partaking of the baseness of villenage in the nature of its services, and the freedom of

(p) Vide sup. p. 193.

(9) The st. 12 Car. 2, c. 24, sanctions no other lay tenures but "free and common socage," and "copyhold" (vide sup. p. 209). And Blackstone remarks that all lay tenures "are "now in effect reduced to two spe"cies, free tenure in common socage, and base tenure by copy of "court roll."-2 Bl. C. 101. And

see Co. Cop. ss. 17, 32; Calthorpe, 51, 54; Doe v. Huntington, 4 East, 288; Doe v. Llewellyn, 5 Tyrw. 899; 1 Gale, 193; 2 C. M. & R. 503, S. C. (r) See Wright's Ten. 138, 139; Anthony Lowe's case, 9 Rep. 123. As to the term freehold, vide sup. p. 215, n.

(s) L. 4, t. 1, c. 28, s. 5. Vide sup. p. 192.

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