A way leading some distance through this apparent contradiction may, perhaps, be found by recurring to that dependence upon manorial custom which is the characteristic feature of copyhold. A copyholder is a tenant by copy of Court Roll according to the custom of the manor, and this custom is primarily what regulates his rights and obligations. The custom must be an immemorial one; mere prescription is not custom; to be binding it must have “been used time out of mind.” Given such a custom, it is this upon which the nature of the copyholder’s tenure depends; and it is noticeable that authorities who differ as to the practical outcome of it, all agree that it is with custom that the first appeal lies. But the custom of a manor is a particular and individual thing peculiar to that manor, and determining the relations between lord and tenant there and not elsewhere. In the words of a surveyor, “Their customs are not so universall as if a man have experyence of the customs and services of any mannor he shall thereby have perfect knowledge of all the rest, or if he be experte of the customes of any one mannor in any one countie that he shall nede no further enstruccions for all the residewe of the mannors within that countie.”[513] There are several different sets of customs, and therefore several different sorts of copyhold. There are, in fact, copyholders and copyholders, and there is no general law of copyhold because its essence is to be local and peculiar. The first question, therefore, which has got to be asked, when considering the question of the legal security of copyholders, relates to the custom of the manor on which they are found; for probably, if the parties go to law, this is the first question which will be asked by the court. If it is shown that in getting rid of a tenant the lord has broken the custom of the manor, there is much likelihood in the sixteenth century that the court will restore it. If this is not shown, there is little probability that the court will go behind the custom in favour of the tenants, or try to harmonise it with general principles of equity, except in so far as it declines to take account of customs which are held to be “unreasonable,” a word too vague to be much protection to a tenant or much hindrance to a lord. It is this tremendous importance of local custom which causes it to be so minutely entered in manorial documents, and which results both in the constant appeals which are made to it when cases come before the courts, and in the careful recording of contradictory opinions. Surveyors are at pains to emphasise the difference between land which is customary land and land which is not, because, while on the former the introduction of new conditions will be followed by all sorts of friction and disturbance, on the latter the tenants will have no case in opposing them. It is here that Mr. Leadam's distinction between holders of customary land and holders of land taken from the waste or the demesne becomes of real value. It is a particular exemplification of a general rule, the rule that the appeal is always to custom. The meaning of the distinction is not, as Mr. Leadam seems to suggest, that copyholders on the former always had legal protection and copyholders on the latter always had not. It is that the crucial question is always, “What sort of custom are you under?" and that, while on the customary holdings the custom may be unfavourable to the tenant’s security, it is much more likely to be unfavourable on the newer tenancies formed on land which, perhaps within the memory of persons living, was indubitably the lord’s own, not merely in the general sense in which even the villein’s land had been the lord's, but in the practical sense that it was part of his demesne to use as he pleased. In fact quite a common answer when copyholders bring an action is the statement that the land in question is not ancient copyhold but part of the demesne;[514] and when the Protector Somerset applied his popular agrarian policy to his own estates he had to get Parliament to pass a special Act to give the copyholders on his demesnes peculiar security.[515]
The significance of custom is shown in other ways as well. In the numerous petitions in Chancery addressed by copyholders their demand is constantly for a recital or confirmation of manorial customs, and the same line is taken in the fewer cases which come before the Courts of Common Law. Tenants who claim an estate of inheritance and a fixed fine on admission refuse in a body to show their copies to the surveyors, presumably for fear that, if they do, some excuse may be made to upset the custom.[516] Tenants will perjure themselves as to the nature of the custom of their manor in order to be thought to have estates of inheritance. In the days when copyholders (if they exist at all) are still very few and villeins many, men who are really villeins of St. Peter’s of Exeter come forward and swear falsely that they hold in socage, “intending all to say that they hold and ought to hold de stipite in stipitem, Anglice stock after stock";[517] but the falsehood is exposed, and they are punished with a fine of 30s. The copyhold tenants on the Northumbrian manor of Amble claim in the sixteenth century that manorial custom requires that the next of kin of the whole blood shall succeed his father, and that the fines shall be limited to two years' rent. But the surveyors repudiate their claim, remarking that “we cannot find that they have any such estate of inheritance.”[518] Elsewhere the copyholders are more fortunate, and succeed in inducing the manorial authorities themselves to make formal admission of the custom, or in proving its existence to the satisfaction of the courts. In 1567 the Dean and Chapter of Winchester Cathedral, and the one hundred and fifty-eight copyhold tenants on their manor of Crondal, enter into a solemn covenant and bargain—may we not call it a “collective bargain"?—whereby it is agreed that fixed rents, fixed fines, and copyholds of inheritance, “shall be from henceforth for ever accepted, reputed, deamed, and taken to be vearye trewe, just, certaine, and auncient customs, rights, dewtyes, and useages, between the Lorde and the Customarye tenants ...; and shall from henceforth stand, contynewe, remayne, and be of perfect force and strength to conclude and bynde the said Deane and Chapiter, their successors and assignees of the said mannour and hundred and everye parte thereof for ever.”[519] The tenants at Elswick[520] go to law with the lord of the manor on the question of the nature of their estates, and, on the records of a custom requiring the admission of a son on his father’s death being produced, the custom is confirmed by the court. Even the Government of Elizabeth, favourable as it was to the small man, would not intervene without first being informed of the nature of the custom. When a tenant appeals to them for protection, they refer the matter to the local justices, with a request to “certifie their opinions of the poor man’s right.”[521] No doubt once the Courts begin to interfere with the internal business of a manor they tend to break down some of the peculiarities of local custom, and to set up a general pattern of copyhold tenure by ruling out certain customs as “unreasonable.” Copyholders for life may not cut down timber,[522] though perhaps copyholders of inheritance may. Two and a half years' rent is held by the reign of Charles I. to be an unreasonable fine, one and a half years' to be reasonable, and the heir shall not forfeit his copyhold if he tenders such a sum when he demands admission.[523] But the definition of what is meant by “unreasonable” has been going on from that day to this, and is perhaps not yet completed. In our period it was only just beginning. At any rate we shall not be far wrong if we say that, speaking broadly, the crucial question is always whether the custom makes it easy for lords to get rid of tenants or whether it makes it difficult. If an ancient custom gives the lord a free hand, he has little trouble in getting his way. If it restricts him, the courts are likely to enforce the restriction, and though the lord still has, of course, the option of extra-legal action by way of persuasion, cajolery, or intimidation, the tenants are likely to be protected by the law.
The dependence of copyhold upon manorial custom offers an explanation of the fact that the changes of the sixteenth century displaced copyholders, although the courts would intervene when a custom which gave them security was proved to exist. The most important questions with regard to the custom which determined the copyholders' position were two: first, whether he had by it an estate of inheritance, or merely an estate for years, for life, or for lives; second, whether his payments were fixed or unalterable, or whether they could be increased at the will of the lord. If it was not an estate of inheritance his holding returned fairly frequently into the hands of the manorial authorities, who could either renew it on the old terms, or lease it at an increased rent, or amalgamate it with a large farm. In the second case, where payments were variable, lords could force a tenant to throw up his land by placing a prohibitive burden upon it. The only way of ascertaining with accuracy the real position of copyholders in our period would be to show the relative proportions in which these four arrangements are found upon each of many hundred manors. And this we cannot yet do. The figures published by Dr. Savine[524] suggest that manors on which copyholders possessed an estate of inheritance, and those where they did not, were about equal in number, while manors on which the fines were uncertain predominated over those on which they were fixed in a proportion of more than two to one. Since it would seem that the ability of the lord to demand what fine he pleased could be used as a means of excluding a successor even when the copy was not merely for life or lives but from father to son, his investigations suggest that the copyholders' tenure was more often insecure than not.
To the examples which he has collected one may perhaps add certain others, inadequate though they are in point of quantity. Taking twenty-one[525] manors in the years 1568–1573, of which three are in Somersetshire, one in Devonshire, and seventeen in Wiltshire, one finds that on only one out of the whole number was the copyholders' estate one of inheritance. On one manor copies were granted for four lives or less—it is expressly stated that they are not to be granted for more—and on nineteen they are granted for three lives or less. On one manor (that where the copyholders had estates of inheritance) the fine was fixed by custom at a sum which is not stated, but which could not be increased. On the remaining twenty the fine was a variable one, the general formula being that land shall be given “for such fines as buyers can fix by bargaining with the lord or his officers, both in possession and in reversion,” which means that they were to be fixed by the higgling of the market. Turning next to two manors on the Welsh[526] Border, which were in possession of the Crown, one is told that in the reign of Elizabeth the royal officers granted the tenants leases for years, renewable at the will of the tenant, and fixed the fine at two years' rent, thus giving them what was virtually an estate of inheritance. It is possible, however, that the Crown tenants received more favourable treatment than did those on manors which were in private hands. From Northumberland, again, there is a good deal of evidence which it is difficult to summarise. Coke stated that “the customary tenants upon the borders of Scotland ... are mere tenants at will, and though they keep their customs inviolate, yet the lord might, sans controll, evict them.”[527] At the beginning of the seventeenth century an order in Chancery ruled that none of the tenants of Lady Cumberland,[528] who paid a fine on the death of lord and tenant, could have an estate of inheritance; and we have clear evidence that the fines paid by the copyhold tenants of the Earl of Northumberland[529] increased very considerably in the course of the sixteenth century. On the other hand such insecurity was not universal. A common rule on the Northumbrian border seems to have given a copyhold for life, with a tenant right of renewal to the heir, provided that a constant custom of renewal could be proved.[530] On the Crown estates in the reign of Elizabeth fines were fixed on conditions which varied from place to place; sometimes they were at discretion, sometimes one year’s rent, sometimes two years' rent; and in 1609 the tenants of twelve Tynemouthshire manors got the Courts to confirm a custom limiting their fine to a definite sum, on six of them to £2 on the admission of a descendant, and £4 on alienation, and on the remaining six to one year's rent in the former case and two years' rent in the latter.[531] On eleven out of thirteen manors in Norfolk[532] and Suffolk the fines are uncertain; on one, Wighton, they are said to have been fixed at 4s. per acre “by the space of 100 years at least"; on one, Aldeburgh, there is a curious distinction between the fines paid for land “in the fields," which are at the will of the lord, and the fines paid for cottage tenements, which are fixed at 2s. when the site is built upon and 1s. when the site is not covered. Elsewhere when the fine is fixed the ordinary payment seems to be usually two years' rent on descent, with sometimes a small addition, sometimes a small deduction, when the tenement is alienated during the tenant’s life. Estates of inheritance and fixed fines do not necessarily go together. The general situation on the small number of manors for which information has been obtained is set out below.[533] Table I relates to duration of tenancies, Table II to the character of admission fines. In each table, line (a) gives Dr. Savine’s figures, line (b) our own, line (c) the total of both together.
[Table XIII]
I
Duration of Tenure
| Manors. | Copyholds of Inheritance. | Copyholds for Years but with Right of Renewal (i.e. virtually Copyholds of Inheritance). | Copyholds for Life or Lives. | Copyholds for Years but without Right of Renewal (i.e. virtually Leases for Years) |
| (a) 82 | 25 | 17 | 40 | ... |
| (b) 60 | 22 | 2 | 33 | 3 |
| (c) 142 | 47 | 19 | 73 | 3 |