Legal Lore: Curiosities of Law and Lawyers

by Unknown

Everything relating to the manor reminds us forcibly of the baron of olden 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.