1911 Encyclopedia Britannica
In English law, an ancient form of land tenure, legally defined as a "holding at the will of the lord according to the custom of the manor." Though nowadays of diminishing practical importance, its incidents are historically interesting. Its origin is to be found in the occupation by villani, or nonfreemen, of portions of land belonging to the manor of a feudal lord. In the time of the Domesday survey the manor was in part granted to free tenants, in part reserved by the lord himself for his own uses. The estate of the free tenants is the freehold estate of English law; as tenants of the same manor they assembled together in manorial court or court baron, of which they were the judges. The portion of the manor reserved for the lord (the demesne, or domain) was cultivated by labourers who were bound to the land ( adscripti glebae). They could not leave the manor, and their service was obligatory. These villani, however, were allowed by the lord to cultivate portions of land for their own use. It was a mere occupation at the pleasure of the lord, but in course of time it grew into an occupation by right, recognized first of all by custom and afterwards by law. This kind of tenure is called by the lawyers villenagium, and it probably marks a great advance in the general recognition of the right when the name is applied to lands held on the same conditions not by villeins but by free men. The tenants in villenage were not, like the freeholders, members of the court baron, but they appear to have attended in a humbler capacity, and to have solicited the succession to the land occupied by a deceased father, or the admission of a new tenant who had purchased the goodwill, as it might be called, of the holding, paying for such favours certain customary fines or dues. In relation to the tenants in villenage, the court baron was called the customary court. The records of the court constituted the title of the villein tenant, held by copy of the court roll (whence the term "copyhold"); and the customs of the manor therein recorded formed the real property law applicable to his case.
Copyhold had long been established in practice before it was formally recognized by the law. At first it was in fact, as it is now in the fictitious theory of the law, a tenancy at will, for which none of the legal remedies of a freeholder were available. In the reign of Edward IV., however, it was held that a tenant in villenage had an action of trespass against the lord. In this way a species of tenant-right, depending on and strongly supported by popular opinion, was changed into a legal right. But it retained many incidents characteristic of its historical origin. The life of copyhold assurance, it is said, is custom. Copyhold is necessarily parcel of a manor, and the freehold is said to be in the lord of the manor. The court roll of the manor is the evidence of title and the record of the special laws as to fines, quit rents, heriots, &c., prevailing in the manor. When copyhold land is conveyed from one person to another, it is surrendered by the owner to the lord, who by his payment of the customary fine makes a new grant of it to the purchaser. The lord must admit the vendor's nominee, but the form of the conveyance is still that of surrender and re-grant. The lord, as legal owner of the fee-simple of the lands, has a right to all the mines and minerals and to all the growing timber, although the tenant may have planted it himself. Hence it appears that the existence of copyhold tenures may sometimes be traced by the total absence of timber from such lands, while on freehold lands it grows in abundance. Hence also the popular saying that the "oak grows not except on free land." The copyholder must not commit waste either by cutting down timber, &c., or by neglecting to repair buildings. In such respects the law treats him as a mere lessee, - the real owner being supposed to be the lord. On the other hand, the lord may not enter the land to cut his own timber or open his mines. The limitations of estates usual in respect of other lands, as found in copyhold, become subject of course to the operations of its peculiar conditions as to the relation of lord and tenant. An estate for life, or pour autre vie (i.e. for another's life), an estate entail, or in fee-simple, may be carved out of copyhold.
A species of tenure resembling copyhold is what is known as customary freehold. The land is held by copy of court-roll, but not by will of the lord. The question has been raised whether the freehold of such lands is in the lord of the manor or in the tenant, and the courts of law have decided in favour of the former. In some instances copyhold for lives alone is recognized, and in such cases the lord of the manor may ultimately, when all the lives have dropped, get back the land into his own hands.
The feudal obligations attaching to copyhold tenure have been found to cause much inconvenience to the tenants, while they are of no great value to the lord. One of the most vexatious of these is the heriot, under which name the lord is entitled to seize the tenant's best beast or other chattel in the event of the tenant's death. The custom dates from the time when all the copyholder's property, including the copyholder himself, belonged to the lord, and is supposed to have been fixed by way of analogy to the custom which gave a military tenant's habiliments to his lord in order to equip his successor. Instances have occurred of articles of great value being seized as heriots for the copyhold tenements of their owners. A race horse worth £ 2000 or £3000 was thus seized. The fine payable on the admission of a new tenant, whether by alienation or succession, is to a certain extent arbitrary, but the courts long ago laid down the rule that it must be reasonable, and anything beyond two years' improved value of the lands they disallowed.
The inconvenience caused by these feudal incidents of the tenure led to a series of statutes, having for their object the conversion of copyhold into freehold. The first Copyhold Act, that of 1841, was consolidated by the Copyhold Act 1894. Owing to the incidents attaching to land "holden by copy of court roll according to the custom of the manor" in the shape of fines and heriots, the inability to grant a lease for a term exceeding a year, and to the peculiar rules as to descent, waste, dower, curtesy, alienation, and other matters, varying often from manor to manor and widely differing from the uniform law applicable to land in general, enfranchisement, or the conversion of land held by copyhold tenure into freehold, is often desired. This could and may still be effected at common law, but only by agreement on the part of both the lord and the tenant. Moreover, it was subject to other disadvantages. The cost fell on the tenant, and the land when enfranchised was subject to the encumbrances attaching to the manor, and so an investigation into the lord's title was necessary. In 1841 an act was passed to provide a statutory method of enfranchisement, removing some of the barriers existing at common law; but the machinery created was only available where both lord and tenant were in agreement. The Copyhold Act 1852 went further, and for the first time introduced the principle of compulsory enfranchisement on the part of either party. By the Copyhold Act 1894, which now governs statutory enfranchisement, the former Copyhold Acts 1841-1887, were repealed, and the law was consolidated and improved. Enfranchisement is now effected under this act, though in certain cases it is also to be obtained under special acts, such as the Land Clauses Consolidation Act 1848; and the old common law method with all its disadvantages is still open. The Copyhold Act 1894 deals both with compulsory and with voluntary enfranchisement. In either case the sanction of the Board of Agriculture must be obtained; and powers are bestowed on it to decide questions arising on enfranchisement, with an appeal to the High Court. The actual enfranchisement, where it is compelled by one of the parties, is effected by an award made by the board; in the case of a voluntary enfranchisement it is completed by deed. Under the act it is open to both lord and tenant to compel enfranchisement, though the expenses are to be borne by the party requiring it. The compensation to the lord, in the absence of an agreement, is ascertained under the direction of the board on a valuation made by a valuer or valuers appointed by the lord and tenant; and may be paid either in a gross sum or by way of an annual rent charge issuing out of the land enfranchised, and equivalent to interest at the rate of 4% on the amount fixed upon as compensation. This rent charge is redeemable on six months' notice at twenty-five times its annual amount. The tenant, even if he is the compelling party, may elect either method; but the lord has not the same option, and where the enfranchisement is at his instance, unless there is either an agreement to the contrary or a notice on the part of the tenant to exercise his option, the compensation is a rent charge. Power is conferred on the lord to purchase the tenant's interest where a change in the condition of the land by enfranchisement would prejudice his mansion house, park or gardens; while on the other hand, in the interest of the public or the other tenants, the board is authorized to continue conditions of user for their benefit.
So far the provisions relating to compulsory enfranchisement have been dealt with; but even in the case of a voluntary agreement the lord and tenant are only entitled to accept enfranchisement with the consent of the Board of Agriculture. The consideration in addition to a gross sum or a rent charge may consist of a conveyance of land, or of a right to mines or minerals, or of a right to waste in lands belonging to the manor, or partly in one way and partly in another. The effect of enfranchisement, whether it be voluntary or compulsory, is that the land becomes of freehold tenure subject to the same laws relating to descent, dower and curtesy as are applicable to freeholds, and so freed from Borough English, Gavelkind (save in Kent), and other customary modes of descent, and from any custom relating to dower or free-bench or tenancy by curtesy. Nevertheless, the lord is entitled to escheat in the event of failure of heirs, just as if the land had not been enfranchised. The land is held under the same title as that under which it was held at the date at,which the enfranchisement takes effect; but it is not subject to any estate right, charge, or interest affecting the manor. Every mortgage of copyhold estate in the land enfranchised becomes a mortgage of the freehold, though subject to the priority of the rent charge paid in compensation under the act. All rights and interests of any person in the land and all leases remain binding in the same manner. On the other hand the tenant's rights of common still continue attached to the freehold; and, without express consent in writing of the lord or tenant respectively, the right of either in mines or minerals shall not be affected by the change. No creation of new copyholds by granting land out of the waste is permissible, save with the consent of the Board of Agriculture; and the act enacts that a valid admittance of a new copyholder may be made without holding a court.
Under the earlier acts, machinery to free the land from the burden of the old rents, fines and heriots was set up, commuting them into a rent charge or a fine. Commutation, however, is never compulsory, and differs from enfranchisement in that, whereas by enfranchisement the land in question is converted into freehold, by commutation it still continued parcel of the manor, though subject to a rent charge or a fine, as might have been agreed. The ordinary laws of descent, dower, and curtesy were, however, substituted for the customs in relation to these matters incidental to the land in question before commutation, and the timber became the tenant's.
Authorities.-C. I. Elton, Law of Copyholds (1898); C. Watkins, On Copyholds (1825); Scriven on Copyholds, ed. A. Brown (1896); A. Brown, Copyhold Enfranchisement Acts (1895).
Wednesday, August 24th, 2016
the Week of Proper 16 / Ordinary 21