If the lord (having acquired a copyhold tenement by forfeiture, escheat, or sur render to his own use) afterwards grant it away by an assurance unauthorized by the custom, the customary tenure is for ever destroyed. And if he makes a legal conveyance in fee-simple of a copyhold tenement to the tenant, the tenement is said to be enfranchised, that is, converted into freehold.
Copyholders were till very lately in capable of serving on juries, or voting at county elections of members of parlia ment; but the former disability was re moved by 6 Geo. IV. c. 50, § 1, and the latter by the 2 & 3 Win. IV. c. 45, § 19. As to the qualification for killing game under 22 and 23 Chas. II. c. 25, § 3, there seems to be no distinction between free holders and copyholders.
There are no lands of a copyhold tenure in Ireland.
Still greater changes in the nature of estates of copyhold and customary tenure are gradually taking place under the pro visions of the stat. 4 & 5 Viet. c. 35, the principal objects of which are-1. The commutation of certain manorial rights in respect of lands of copyhold and cus tomary tenure ; 2. The facilitating the enfranchisement of such lands ; and 3. The improvement of such tenure.
1. The enactments with respect to the commutation of manorial rights are partly compulsory and partly permissive. All rents, reliefs, and services (except service at the lord's court), fines, heriots, or money payments in lieu thereof, the lord's rights m timber, and in mines and minerals, may be made the subject of compulsory com mutation upon an agreement being entered into between the lord and the tenants of any manor at a meeting called in the way prescribed by the act. As soon as this agreement receives the signatures of the lord or tenants whose interests are not less than three-fonrths in value of such manor and lands, and of three-fourths in number of the tenants, it becomes (on re ceiving the confirmation of the commis sioners appointed under the act) compul sory on the lord and all the tenants of such manor. Powers are likewise given to any lord, and any one or more of the tenants, to effect by agreement between themselves a commutation, wholly voluntary, of the above-mentioned rights or any other rights of the lord, such as escheats, wait, fairs, markets, &c. The lord's rights may be commuted either for an annual rent charge and a small fixed fine not ex ceeding 5s. on death or alienation, or for the payment of a fine on death or aliena tion or any other contingency, or at any fixed period or periods to be agreed upon between the parties : such annual rent charge or such fine, as the case may be, if exceeding the sum of 20s., to be vari able according to the price of corn, upon the principle of tithe rent-charges. After the completion of the commutation, the lands are to continue to be held by copy of Court Roll, and to pass by surrender and admittance or other customary mode of conveyance. but the customs of Borough English, or Gavelkind (except in Kent), or any other customary mode of descent or custom relating to dower, freebench, or curtesy to which the lands may have been subject, are to cease, and they are to be thenceforth subject to the general law of descent, dower, and curtesy relating to lands of freehold tenure.
2. For the purpose of facilitating the enfranchisement of copyhold lands, the act enables lords of manors, whatever may be the extent of their interests, with the consent of the commissioners under the act, to enfranchise all or any of the lands holden of their manors, in con sideration of any sum or sums of money payable forthwith or at a future time, according to agreement : and tenants, whatever be the extent of their interests, are in like manner enabled, with the consent of the commissioners, to accept of enfranchisement on the terms agreed upon. After the completion of any such
enfranchisement, the lauds included in it are to become of freehold tenure, subject to the consideration agreed upon for the enfranchisement, but without prejudice to the tenant's right of common and existing limitations affecting the land.
3. The act contains a clause applicable to cases where commutation or enfran chisement has been effected, and there has been a reservation of the lord's right in mines and minerals, enabling the tenants to grant to the lord such rights of entry and way, and such other easements, as may be necessary to the enjoyment of the reserved rights. [ENFRANCHISEMENT.] It also, after stating the doubts enter tained as to the power of the courts of equity to decree a partition of lands of copyhold or customary tenure, confers that power to be exercised according to the practice of the court in freehold cases. Formerly a customary court could not be legally constituted unless two or more tenants were present to form the homage; all acts of court were by usage required to be matters of presentment by the homage ; and in a great majority of manors grants could not be made nor admissions taken except at courts held within the manors. A remedy is pro vided for these inconveniences by clauses giving power to hold customary courts though there should be no tenant of the manor holding by copy, or though no such tenant, or not more than one such tenant, should be present; enabling lords and stewards to make grants and take admissions out of court and out of the manor : and requiring the lord forthwith, upon payment of the usual fees, to enter on the rolls all such surrenders, deeds, wills, grants, and admissions as would formerly have required the formality of a court to authorize their entry or to give them legal effect ; and also declaring that no presentment of a surrender, will, or other instrument shall be essential to the validity of any such admission. But the operation of these provisions is restrained by a clause providing that 'wastes and commons are not to be granted or in closed without the consent of the homage at a court duly constituted.
The act also contains a provision ex tending the powers of the lords and tenants of certain manors to dispose of and divide ancient tenements held of the manor, subject to a due apportionment of the ancient rent where a tenement is sold in parcels.
There are likewise numerous provisions in the act for defining boundaries, settling disputes, providing for cases of disability, payment of expenses, &c., similar to those in the Tithe Commutation Act, 6 & 7 Wm. IV. c. 71.
The act applies partially to the Duchy of Lancaster, but not otherwise to Crown lands, and not at all to the Duchy of Cornwall.