TITLE V.

OF COPYHOLDS.

IN treating of tenures, that of copyhold has been reserved, as forming a totally distinct system, for separate consideration; but it will be disposed of in a much more succinct manner than have been freeholds, with their incidents; since it is, in itself, incapable of amelioration; and, would it admit of any, still it forms a superfluous system of property.

CHAP. I. Of the Origin and general Properties of Copy hold.

Unlike freeholds, which, in their general character, consisted of lands granted out, under fixed military or other honourable services, but which may also. consist of burdens on land, as rents, tithes, &c., copyholds, in their origin, are confined to lands which the lords of manors granted out of their demesnes to their villeins or slaves, on performing certain inferior services, generally of an agricultural nature, sometimes of a baser kind; but ever determinable at the sole will of the lords. By long acquiescence, however, and the increased humanity

of the times, these ripened into custom; the personal services were mostly commuted for money, under the name of quit-rents (i. e. acquittancerents); and courts of law gradually interfered to protect the tenant in his possession, in the manner established by usage, on paying and performing the accustomed rents and services.

The terms, however, of this tenure, were necessarily as various as accident or the caprice of the lord could make them; nor were they controlled by any analogy to the common law, unless where the custom was silent. In many manors, the copyhold was permitted to descend to the heir of the tenant. In others, (and these prevail more generally in the west of England, and where the land is holden of the church,) the custom has limited the tenure to the life of the tenant, or of his nominee (called cestui que vie), on the determination of which it is at the lord's option to renew the grant or not. As copyholds of inheritance, however, form by far the larger proportion, and the legal incidents to them are much more numerous, these will be always considered as intended, where not otherwise expressed. In both cases the tenure is still confined to land, and it is of its essence, that it should have been demised, or demiseable, by copy of court roll, immemorially. Under the latter words of this alternative, aided by a special custom, modern grants by copy of court roll, of the waste of a manor, have been supported, on the ground that, though

not actually so demised, still it has ever been demiseable, the waste being, till so granted, parcel of the demesnes of the manor. The terms of copyhold grants are," to hold at the will of the lord, according to the custom of the manor," the former indicating the original condition, and the latter the usage established by length of time. The property is called copyhold, because the grant, and the consequent admittance, are entered on the rolls of the manor; and copies of them, signed by the steward, are given to the tenant; and form his sole title.

With respect to the more peculiar properties of copyhold, I shall enumerate the chief of them generally, and then dilate upon some of the principal ones. Their descendible quality has been already noticed. Copyholds also carry, by the special customs of most manors, though not of common right, the incidents of curtesy and dower, which of course vary with these customs. They are alienable, inter vivos, by the mode of surrender and admittance. They are devisable by the indirect means of a surrender to the use of the tenant's will, (which operates as a declaration of such use,) and the consequent admittance of the devisee. That surrender, however, is now reduced to a legal fiction, as noticed elsewhere. In any of these dispositions, the tenant may either give his whole estate, or he may modify it into partial interests; as an estate in tail (if the custom admit of entails), or for life. All complicated modifications, however, as provisions for

wives and children, are better effected by means of trusts, as will be noticed hereafter. The tenant may also mortgage, by means of a conditional surrender; to be void on payment of the loan with interest. He may lease for a single year, by the general custom of manors; but, to grant for a longer term, the license of the lord is necessary-and, as this proceeds from his authority, by a necessary refinement, it is held to flow out of his interest; and not from that of the tenant. By the general custom, the copyholder cannot fell timber, except for repairs, nor work mines; as these are part of the freehold, which belongs to the lord. The latter, on the other hand, cannot enter on the tenant's possession to take them; so that, for enjoying these rights, their natural concurrence is necessary, unless the special custom has settled it otherwise. On the principle, that the lord, unless controulled by the custom, cannot have a tenant imposed upon him without his consent, copyholds are not extendible for debt, either by the crown, or by an individual; nor, for the same technical reason, are they assets, by law, though capable of being made so, for the payment either of debts or legacies. They escheat to the lord, for default of heirs; or become forfeited to him, on the commission of treason or felony, or for various acts in derogation of the tenancy; as, aliening by a conveyance at common law, refusal to pay the lord's fine, or quit-rent, or to perform

his services, or committing waste, &c. Not possessing any freehold quality, they cannot confer the elective franchise.

The only mode of transferring a copyhold is, by surrendering it into the hands of the lord, to the use of the nominee in the surrender, or of the tenant's last will. Under this surrender the lord admits the nominee or the devisee; who then becomes the copyholder. Such a declaration of the intent, however, does not place copyholds within the statute of uses; but, till admittance, the surrenderor or his heir, remains the tenant; a qualified interest which is attended with many fine-spun legal consequences. Copyholds are, however, the subject of trusts; and equity exercises over them an extensive jurisdiction, (which will be noticed wherever the occasion requires it,) in addition to, and occasionally in derogation of, their legal properties.

Such is the outline of the copyholder's estate. The lord's interest consists essentially of fines, on every death, and alienation, or other change of tenant; and occasionally of heriots. The further consideration, however, of these will be postponed; in order not to infringe upon the more minute view which I now propose to take of those leading incidents to the tenant's estate, accession by act of law, as descents, curtesy, dower; and by act of the party, as surrenders and admittance inter vivos, and wills.