INTRODUCTION.

THE tenures now existing in England are- Tenures. 1. Frankalmoign, and by Divine Service. 2. Grand Serjeanty, as far as honourable services are concerned. 3. Free and Common Socage. 4. Socage, subject to the custom of Borough English. 5. Socage, subject to the custom of Gavelkind. 6. Ancient Demesne. 7. Copyhold. 8. Customary Freehold.

Frankalmoign and Grand Serjeanty (as regards merely honourable services) were expressly excepted in the statute of Charles 2nd, respecting tenures; and although of small importance, still exist, and are likely to continue to do so, as the Real Property Commissioners have recommended their not being disturbed. Free and Common Socage, the tenure by which the great bulk of Real property in England is now held, is commonly known by the name of freehold; and into this tenure, the Real Property Commissioners have advised that Borough English, Gavelkind, Ancient Demesne, Copyhold and Customary Freehold, should be converted. With the first three of these we have nothing to do; but to carry into effect the recommendation of the Commissioners as regards the two latter, and to enable, as much as possible, persons having an interest in copyhold or customary freehold, to convert their

B

Copyhold.

property into free and common socage, technically speaking, to enfranchise it, and to improve such tenure, where it is still to exist, the Act now before us was passed.

Copyholds are held by copy of Court Roll, nominally at the will of the Lord, according to the custom of the manor. "Tenant by copy of Court Roll,” says Littleton, " is as if a man be seized of a manor, within which there is a custom, that hath been used in time out of mind, that certain tenants within the same manor have used to have lands or tenements to hold to them and to their heirs in fee simple, or in fee tail, or for terms of life, &c., at the will of the lord, after the custom of the same manor: and such a tenant may not alien the land by deed, for then the lord may enter as in a thing forfeit to him. But if he will alien his land to another, him behoveth, after some custom, to surrender the tenement in some court into the lord's hands, to the use of him that shall have the estate, in such form, or to such effect" (a).

Anciently, on the grant of land by the king to a military chief, he erected it into a little state, regranting part to freemen, who held of him, as their liege lord, by certain rents and services, and allotting other part among his villeins or serfs, who occupied during his pleasure, cultivating for him such part as he retained in his own hand. By usage and indulgence these villeins grew into copyholders, and acquired a certain interest in their copyhold tenements; but the tenure retains distinct badges of its base origin. The freehold is still supposed to be in the lord,

(a) Littleton's Tenures, art. Copie of Court Roll.

the copyhold land being part of his demesne held by the tenants at his will. They cannot alien, except by surrendering to him, and the alienee and devisee have no legal title till he has admitted them.

The tenants, except in a few cases, have only the use of the surface of the land, the minerals belonging to the lord; and of the timber growing on their land they can only cut what is sufficient for fuel and repairs. As it was intended they should occupy the land themselves for their personal services, they cannot lease it for more than a year without the license of the lord; and waste or breach of any of the conditions on which they are supposed to hold, works a forfeiture.

Custom is said to be the life of Copyholds, and perhaps the multiplicity and uncertainty of the various customs in the different manors is one of the greatest evils of this description of tenure. As the custom must have been used from time out of mind, of course no new copyhold can be created, except by virtue of, and according to the custom of, the manor of which it is parcel.

Another great inconvenience arises from the difficulty of identifying the copyhold land. Freehold and copyhold lands are frequently intermixed. They are rarely distinguishable by the description of them in deeds and court rolls; the description in the latter being seldom changed, and often bearing in names, and even in quantity, no resemblance to any modern description of the parcels. When long held by the same owner, the boundaries between such of them as form part of the same inclosure are obliterated and forgotten, and it becomes necessary to make both a freehold conveyance and also a copyhold convey

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ance of the same land. If the owner, mistaking the tenure, open a mine or cut timber upon the part his land which he erroneously believes to be freehold, the land is forfeited to the lord, who may seize it upon proving it to be copyhold. Upon a sale, an insuperable objection may be taken by the purchaser, that the vendor cannot point out, with certainty, what part of the estate is freehold, and what is copyhold.

The right to trees and mines has always been a great bone of contention between the lord and the tenant. In some manors, either by special custom, or by some Act of Parliament, or deed of grant from some lord of the manor, the tenants are empowered to cut timber; in others, the lord may enter, and cut, and take away the timber, and open and work mines; but these are singular instances; and it appears now to be quite settled, although the point has been the subject of much controversy, that in the absence of any particular custom, neither the tenant without the license of the lord, nor the lord without the consent of the tenant, can cut trees, or open and work new mines.

"In consequence of the law with respect to timber," (say the Real Property Commissioners,) "generally speaking, no young tree is allowed to stand on copyhold land, and there is a common proverb that

"The oak scorns to grow except on free land." It is certain that, in Sussex, and in other parts of England, the boundaries of copyholds may be traced by the entire absence of trees on one side of a line, and their luxuriant growth on the other.

The arbitrary fine due to the lord, in most manors, on descent and alienation, has a direct tendency to

discourage agriculture, and to prevent the erection of buildings. This fine is usually considered to be the amount of two years' improved value of the premises, at the time of the admittance of the heir or alienee; and where several are admitted as joint tenants, a further claim is made, by reason that the tenancy embraces more than one life; and the principle on which the fine is to be calculated, in such a case, remains unsettled. The payment to the lord, according to the improved value, is not merely a fixed share of the profits of the soil, or any proportion of the value of the fee simple, but a tax upon the capital of the tenant, laid out in improvement. The tenant is unwilling to submit to such a tax when he can avoid it, and accordingly there is a great indisposition to build houses, or otherwise to expend any considerable sum upon land subject to such a burthen. The land remaining unimproved, no benefit accrues to the lord. It may be observed, that wherever there is a subdivision of the right to the profits of the same land between different individuals, although the parts are necessarily equal to the whole in legal interest, they are by no means so in actual value. With respect to copyholds, the benefit accruing to the lord from his rights over the copyhold tenement, bears no proportion to the injury they occasion to the tenant; and a change of the tenure, whenever it can be effected, will be for the benefit of both (b).

Heriots are also a very arbitrary and often heavy tax on the copyholder.

"Heriots are a reproach to the law of England, and must be considered as a remnant of that barba

(b) Third Report of Real Property Commissioners, p. 16.