Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

Another thing which had, long before that period, lessened their numbers, was the rise of copyhold tenants. These are persons who are said to hold lands at will, but according to the custom of a manor, and those arose from the villenage tenants, as I conceive, by the following means. When a succession of mild and humane lords had neglected, for a long time, to seize their villeins goods, or to exact villein service, so that no memory remained of their having made use of such a practice, they came to be considered in another light, and became exempted from that seizure by prescription. For the lord claiming a villein in a nativo habendo, must plead, and prove, that he, or his ancestors, had exacted such services, from the person claimed, or his ancestors, otherwise he failed. Therefore, in the case I have mentioned, though a future lord had an inclination to depart from the practice of his predecessors, and revive his rights, he could not recover them for want of proof; and these persons so long indulged, became freemen. However their lands, (they being only tenants at will) might still be resumed, until, at last, they got, likewise, by the same kind of prescription, a permanent right in them also, in the way I now shall relate.

If a lord had given his villein any certain estate, it was, as I before observed, an absolute manumission for ever. But some lords, either in reward for services done, or out of bounty, gave many of those underling tenants, if not an absolute right to their holdings, at least, a fair claim and title to a permanent estate, which, in honour, the lord or his heirs could not defeat, and yet kept them in a particular kind of dependance, between freedom and absolute villenage. But the question was how this was to be done; for if the lord had given him a deed, to assure him the lands, and so entered into a contract with him, he was entirely emancipated. The way was then for the lord to enter into the roll of his court, wherein he kept the list of his tenants, that he had given such an one an estate at will, to hold to him and his heirs, or to him and the heirs of his body, or to him for life or years; and these directions being constantly complied with, grew by length of time into established rights, and they came to be called tenants at will, according to the custom of the manor.

They were still called tenants at will, because, they had been originally such, for they were never considered as, nor called, freeholders, until very lately, in one instance, they were admitted to vote for members of parliament, and their votes allowed by the house of commons. This decision was greatly exclaimed against by the tories, who were foiled by this reception, as proceeding from a spirit of party, and as being contrary to the rules of the antient law, as it certainly was. But, on the other hand, it was agreeable to common reason and justice, and to the spirit and principles also, though not to the practice of the antient constitution. For when Edward the First lays down this maxim, quæ ad omnes pertinent ab omnibus debent tractari, what reason can be assigned why a copyholder for life, who has a valuable, and as certain estate, in fact, as a freeholder, though called by a different name, and who contributes equally to the taxes and expences of the government, should not have equal privileges, and be equally intitled to be represented. They are called copyholders, from the evidence they had of their titles. The evidence that freemen had of their estates in land was either a deed, if the grant was by deed, or if it was without deed, the livery and seizen, attested by the witnesses present; but the copyholder had no deed, neither was livery and seizen given to him, as he was originally but a tenant at will. His evidence, therefore, was a copy of the rule entered in the lord’s court roll, which was his title, and from hence was he named copyholder[304].

The peculiarities attending this kind of tenure, that distinguished it from other tenures, arose from their being considered as tenants at will. Hence arose that antient opinion, that if a lord ousted his copyholder, he could have no remedy by action in the king’s court against him: But had this been the law that since prevailed, all copyholders had been long since destroyed. Therefore, in Edward the Fourth’s reign, it came to be settled, that if the lord turned out his copyholder, he might well maintain an action of ejectment against him, as a tenant for years could, or else they might sue the lord in equity to be restored.

From the same principle of its having been an estate at will, arose the right of the lord to a fine, upon the change either of lord or tenant; upon the change of the lord by the act of God only, that is by his death; upon the change of the tenant, either by the act of God, by his death; or by his own act, by his alienation. But the tenant paid no fine on the lord’s alienation; for if he was so to do, he might be ruined by being frequently charged. These fines were an acknowledgment of the lord’s ancient right of removing them, and were, in some places, by custom, fixed at a certain rate; in others, they were uncertain, and settled by the lord: However, he was not allowed to exact an unreasonable one, for if so, the tenancy would have been absolutely in his power, and of the reasonableness of the fine the judges of the king’s courts were to determine.

I mentioned the alienation of copyholders, but to alien directly they could not, being esteemed but tenants at will, yet what they cannot directly do, they may indirectly, by observing certain forms; that is, by surrendering to the lord, to the use of such a person, and then the lord is, in equity, compellable to admit into the copyhold the person for whose use it is surrendered. These surrenders are either made in the manor court, or out of it. If made in court, it is immediately entered in the court roll; if out of court, it should be presented at the next court day, and then entered. The surrender out of court must be made to the lord himself, or to the steward of the manor, or it is not good; except in some particular manors by custom, where it may be surrendered to the lord’s bailiff, or to two or more of the copyholders, who are to present it at court. When a surrender was made, the lord was only an instrument to hand it over, and therefore must admit that grantee into such estate, and no other, whom the grantor had appointed in his surrender. In many cases a court of equity will supply the want of a surrender.

Copyholders could not devise their lands by will for two reasons. First, that, in general, lands were not devisable till the reign of Henry the Eighth; and for another reason peculiar to themselves, that, being called tenants at will, they were not looked upon to have a sure and permanent estate. But when, after the invention of uses, a way was found out to evade the general law, and to make lands go by will, by the owner granting his estate to another for the use of himself, the grantor, for life, and after, for the use of such persons as he, the grantor, should name in his will; and when courts of equity were found disposed to oblige the grantee to perform the trust he had undertaken, in imitation hereof, copyhold estates began to be surrendered to the lord to the use of the copyholder’s last will; and then the lord, after his death, was obliged to admit such person as he appointed in such his will, and in the mean time, the copyholder enjoyed during his life, for the surrender only did not transfer the estate, except it was to the lord’s own use. If to any other use, the lord was but an instrument, and the land remained in the surrenderer until the admittance of the new tenant, which, in the case I have put, could not be till the old one was dead.

Another peculiarity arising from the same source, there being tenancies at will, was, that neither the husband could be tenant by the courtesy, nor the wife tenant in dower. The reason was, that every estate at will determined by the death of the tenant, neither could an estate tail be created of a copyhold; for the statutes De Donis extended not to them, and, therefore, if a gift was made in such words as would, at this day, create such an estate, it would be in the nature of a fee simple conditional at common law. However, by special custom in particular manors, copyhold might be entailed; might go to the tenant by the courtesy, and the wife might be endowed thereout[305].

Thus much I have thought requisite to shew the general nature of this tenure, and of its origin. More would be needless to say here, as there are no such in this kingdom, though the law relating to them makes a considerable part of the law of England. For the same reason I shall be very short as to the tenants in antient demesne.

Lands in antient demesne are the estates that the king had, as king, to support his family, and other expences, and were antiently unalienable. They were the lands of Edward the Confessor, and the Conqueror. But as the king could not make profit of them himself, they were given to tenants of two kinds, freeholders and copyholders. The law with respect to them stands as it does with other freeholders and copyholders, except that they have some peculiar privileges. The general reason of these privileges was, that the freeholders were originally socage, and the copyholders the villenage tenants of the king, and had these privileges granted to them because they were supposed constantly employed on the king’s land, to furnish him with corn, cattle, and other necessaries; and their privileges have continued, though the services have been changed into money, and the estates almost all alienated from the crown. These are principally as follow: They are exempted from all burthens and taxes laid on by parliament, unless they are specially named. They are not to be taxed for the wages of the knights of the shire. They are not to pay toll, or passage money for goods bought and sold in markets, for all things concerning husbandry and sustenance. They are not to be impleaded in any court, only in their manor court, nor to be summoned as jurymen, with some other privileges of the like nature, not necessary to be here insisted on[306].