The origin of copyholds is involved in great obscurity. The opinion generally adopted among our lawyers and antiqua rians, and supported by the authority of Littleton, Coke, Sir Martin Wright, and Mr. Justice Blackstone, is, that copy holders have gradually arisen out of the villeins or tenants in villeinage who com sed the mass of the agricultural popu lation of England for some centuries after the Norman conquest, through the com mutation of base services into specific rents either in money or money's-worth. (See Co. Litt, 58 a-61 a; Blackstone's Comm., ii. p. 92 ; Wright on Tenures, 3rd edit., p. 215. See also Hallam's Middle Ages, vol. iii., p. 254.) [VILLEIN. AGE.] Although the change in the condition of these classes of persons was accom plished gradually, it seems in the middle of the thirteenth century to have begun to assume a more decided character. There are proofs of as early a date as the reign of Henry III. of a limitation of the services of villeins to certain specified acts which were recorded in the lord's book. The descendants of persons so privileged began to claim a customary right to be entered on the court roll on the same terms as their predecessors, and, in process of time, prevailed so far as to obtain a copy of the roll for their security. It is said in the year-book of the 42nd of Edw. III. to be "admitted for clear law that if the customary tenant or copy holder did not perform his services, the lord might seize his land as forfeited," which seems to imply a permanent in terest in the copyholder, so long as he performed the services. This view of the law is confirmed by Britton in a passage cited by Lord Coke (Co. Litt., 61 a) and was adopted by the judges in Edward IV.'s time, who held that a copyholder might maintain an action of trespass against the lord for dispossession.
The two great essentials of copy hold tenure, according to Blackstone, are : 1. That lands be parcel of and situate within that manor under which they are held; and 2, That they have been demised or demisable by copy of court roll imme morially. " For immemorial custom," says that author, ii. p. 96, " is the life of all tenures by copy ; so that no new copyhold can, strictly speaking, be grant ed at this day." The burdens to which a copyhold tenure is liable in common with free tenures, are fealty, services, reliefs, and escheats ; besides which it has certain liabilities peculiar to itself in the shape of heriots and fines. A heriot is the ren der of the best beast or other chattel (as the custom may be) to the lord on the death of a tenant.
Of fines, some are due on the death of a tenant, and others on the alienation of the land; they are sometimes fixed by the custom, sometimes arbitrary ; but in the latter case it is an established rule of law that the lord cannot demand by way of fine upon the descent or alienation of the land more than the amount of two years, improved value of the property, after deduction of the quit-rents to which it is liable. The ordinary mode of alienating a copyhold estate in fee-simple is by surrender and admittance, which is effected in the following manner :—The copyholder appears in court and professes to surrender or deliver up his land to the lord (either in person, or, which is more usual, as represented by his steward), ex pressing the surrender to be to the use of A and his heirs; and thereupon A is tatted tenant of the land to hold it to him and his heirs at the will of the lord ac cording to the custom of the manor. He
then pays a fine, and also (if required) does fealty. All these circumstances, or at least the surrender and admittance, are entered on the court rolls; and the new tenant, paying his fees to the steward, receives a copy of this fundamental docu ment of his title. Surrenders are made in various forms, as by the delivery of a rod, glove, or other symbol, to the steward or other person taking the surrender.
Surrenders may also be made to the lord in person out of court; to the steward ; and by special custom to the lord's bailiff; to two or three copyholders, or into the hands of a tenant in the presence of other persons. But when a surrender is taken out of court it must be presented by the homage or jury of copyholders at the next general court, except where a special custom authorizes a presentment at some other court. Admittances also may be made out of court and even out of the manor.
The words in the admittance " to hold at the will of the lord" are characteristic of those customary estates to which the term copyhold is in ordinary legal lan guage exclusively appropriated, in con tradistinction to what are sometimes called "customary freeholds" (which estates are very common in the north of England), and ancient demesne lands. These are all included under the term copyhold in the statute 12 Car. II. c. 24, which abo lished all the old tenures in England ex cept common soccage, copyhold, and some other specified tenures. Though custom ary freeholds and ancient demesne lands for the most part pass by surrender and admittance, the admittance is expressed to be " to hold according to the custom of the manor." The Statute of Entails (13 Edw. I.), commonly called the Statute of West minster the 2nd, does not extend to copy holds ; but in most manors a custom of entailing copyholds has prevailed. These entails might formerly be barred by a proceeding in the lord's court, analogous to a common recovery, or, in the absence of a custom authorizing such a proceed ing, by a mere surrender. And now by statute (3 & 4 Wm. IV. c. 74, § inclusive) entails of copyholds may be barred by assurances made in pursuance of the provisions of that act. It is a general rule that no statute relating to lands or tenements in which those of a customary tenure are not expressly men tioned, shall be applied to customary estates, if such application would be derogatory to the customary rights of the lord or tenant. Hence neither the Statute of Uses (27 Henry VIII. c. 10), nor the Statutes of Partitions (31 Henry VIII. c. 1, and 32 Henry VIII. c. 32), Viii. c. 1, and 32 Henry VIII. c. 32), nor the statute enabling persons having certain limited interests in lands to grant valid leases (32 Henry VIII. c. 28), nor any of the local Registry Acts, are appli cable to copyholds.