statute De Donis, the power of creating estates tail in copyhold lands must rest on a custom to entail. In like manner the power of barring the entail formerly depended on custom, and was effected either by a customary recovery or preconcerted forfeiture and regrant, or in some cases by a simple surrender 1. Since the Act for the Abolition of Fines and Recoveries (3 and 4 Will. IV, c. 74) an estate tail in copyholds can be barred by a simple surrender with the concurrence of the protector where i there is one.

The change in the position of the copyholder is thus summed up by Sir Edward Coke2: For, as I conjecture, in the Saxons' time, sure I am in the Normans' time, these copyholders were so far subject to the lord's will, that the lords upon the least occasion (sometimes without any colour of reason, only upon discontentment and malice, sometimes again upon some sudden fantastick humour, only to make evident to the world the height of their power and authority,) would expel out of house and home their poor copyholders, leaving them helpless and remediless by any course of law, and driving them to sue by way of petition. But now copyholders stand upon a sure ground; now they weigh not their lord's displeasure, they shake not at every sudden blast of wind, they eat, drink, and sleep securely; only having a special care of the main chance, to perform carefully what duties and services soever their tenure doth exact, and custom doth require: then let lord frown, the copyholder cares not, knowing himself safe, and not within any danger. For if the lord's anger grow to expulsion, the law hath provided several weapons of remedy; for it is at his election either to sue a subpoena3, or an action of trespass against the lord. Time has dealt very favourably with copyholders in divers respects.'

It might have been expected that so anomalous a class of

3 This is the technical expression for proceedings in Chancery. See

Chap. VI.

rights as that which constitutes copyhold tenure would before the present time have been assimilated to the other forms of property in land. This however has not been done. Copyholds might at any period have been enfranchised (or converted into freeholds) by the conveyance of the freehold by the lord to the copyholder, or extinguished by surrender of the copyhold by the tenant to the lord. Various acts have in recent times created facilities for this process by providing means for the assessment and commutation of the lord's rights and otherwise; and at the present day either lord or copyholder may compel enfranchisement by taking the proper steps through the action of the Copyhold Commissioners.

Where copyholds have not been enfranchised (and there is still a large though gradually decreasing amount of land subject to copyhold tenure) the rights are still regulated entirely by custom. And inasmuch as the characteristics of this form of property depend entirely upon custom, they must have prevailed from a time whereof the memory of the man runneth not to the contrary. In practice this means that the customary usages should be shown to have existed as far back as available evidence goes, from which the legal inference arises that they have existed from time immemorial, that is, ever since the first year of Richard I1.

LITTLETON, c. ix. sect. 73. (Tenant by Copy.) Tenant by copy of court roll is as if a man be seised of a manor within which manor there is a custom, which hath been used time out of

1 This date seems to have become fixed as giving a definite meaning to the expression time whereof' etc., in consequence of its having been fixed by the Statute of Westminster I (3 Edw. I, cap. 39) as the period of limitation in the case of a writ of right. Evidence therefore which shows that the custom alleged could not have prevailed in the time of Richard I has been held sufficient to show that the custom is not a legal one (see Bryant v. Foot, Law Reports, 3 Queen's Bench, 497). This principle however, notwithstanding the requirements of logic, must not be applied to copyholds; since, as has been seen, it cannot be maintained as an historical fact that copyhold estates existed at that time.

mind of man, that certain tenants within the same manor have used to have lands and tenements, to hold to them and their heirs in fee simple, or fee tail, or for term of life, at the will of the lord according to the custom of the same manor.

Sect. 74. And such a tenant may not alien his land by deed, for then the lord may enter as into a thing forfeited unto him. But if he will alien his land to another, it behoveth him after the custom to surrender the tenements in court into the hands of the lord, to the use1 of him that shall have the estate, in this form, or to this effect:-A. of B. cometh into this court and surrendereth in the same court a mease into the hands of the lord to the use of C. of D. and his heirs or the heirs issuing of his body, or for term of life, etc. And upon that cometh the aforesaid C. of D. and taketh of the lord in the same court the aforesaid mease 2, etc. To have and to hold to him and to his heirs, or to him and to his heirs issuing of his body, or to him for term of life at the lord's will, after the custom of the manor, to do and yield therefore the rents, services, and customs thereof before due and accustomed, and giveth the lord for a fine etc., and maketh unto the lord his fealty 3.

Sect. 75. And these tenants are called tenants by copy of court roll; because they have no other evidence concerning their tenements, but only the copies of court rolls.

Sect. 76. And such tenants shall neither implead, nor be impleaded for their tenements by the king's writ. But if they will

1 It should be observed that a surrender to the use of the alienee has nothing to do with the uses of land discussed below in Chaps. VI. and VII. 2 And the lord is bound to admit the surrenderee.

The law still requires surrender by the tenant and admittance by the lord or his steward either in or out of the Customary Court or assemblage of copyholders. No copyholder however need be present at a Customary Court (4 and 5 Vict. c. 35. s. 86). If the surrender be made out of court it was formerly necessary that the transaction should be mentioned or presented at the next court. This is no longer the case, an entry on the court rolls being sufficient (ib. s. 89). Admittance may now take place out of the manor and without holding a court (ib. s. 88). Formerly, when copyholds were devised, a previous surrender by the copyholder to the use of his will was necessary. This is so no longer (55 Geo. III, c. 192. s. 1); nor is it necessary, as formerly, that the devisee should bring the will into the Customary Court and claim admittance; now a delivery of a copy of the will to the lord or his steward is sufficient.

.

!

implead others for their tenements, they shall have a plaint entered in the lord's court in this form or to this effect: A. of B. complains against C. of D. of a plea of land, viz. of one messuage, forty acres of land, four acres of meadow, etc., with the appurtenances, and makes protestation to follow this complaint in the nature of the king's writ of assize of mort d'ancestor at the common law, or of an assize of novel disseisin, or formedon in the descender at the common law, or in the nature of any other writ, etc.1

Sect. 77. And although that some such tenants have an inheritance according to the custom of the manor, yet they have but an estate but at the will of the lord according to the course of the common law. For it is said, that if the lord do oust them, they have no other remedy but to sue to their lords by petition; for if they should have any other remedy they should not be said to be tenants at will of the lord according to the custom of the manor. But the lord cannot break the custom which is reasonable in these cases.

But Brian, chief justice, said, that his opinion hath always been, and ever shall be, that if such tenant by custom paying his services be ejected by the lord he shall have an action of trespass against him. And so was the opinion of Danby, chief justice, in 7 Ed. 43. For he saith, that tenant by the custom is as well inheritor to have his land according to the custom as he which hath a freehold at the common law.

1 The action of ejectment was as applicable to the recovery of the possession of copyholds as of freeholds, and took the place of the remedy here described. The same fictions were applied to the one as to the other— a fictitious lease to a fictitious plaintiff by the person who was the real claimant, fictitious entry and fictitious ouster by a fictitious wrong-doer, and permission to the real defendant to defend on the terms of his admitting the truth of the above fictions. See above, Chap. III. § 17, and Blackstone, pp. 200-206.

iii.

2 Year Book, 21 Edw. IV, 80.

Ibid., 7 Ed. IV, 18.

APPENDIX TO PART I.

§ 1. Place of the Law of Real Property in the English System.

(1)1 IN the preceding chapters the growth of the Common Law relating to land has been traced to the point at which it may be said that it has attained to its full development. The changes in the law of land which remain to be noticed are mainly due to the operation of Equity and Statute Law, working upon, and professing to leave unaltered to a great extent, the basis of the Common Law. At this point therefore it will be convenient to present in a tabular form a summary of the principal heads of arrangement or classification under which it appears that English private law may most appropriately be divided, with a view to show the place occupied in the English system by the law of land. By private law is meant that branch of the law. which deals with the rights and duties 2 of persons considered in their private or individual capacity, as opposed to the rights and duties which are possessed by and incumbent on persons or bodies of persons considered as filling public, i. e. political or constitutional positions or offices, or which have relation to the whole political community, or to its magistrates and officers. Under private law, for example, are placed the class of rights and duties relating to property over things, or arising from contracts or civil injuries; under public law the rights and duties of the king, parliament, judges, and criminal law 3.

1 The numerals relate to the various members of the classification shown below, Table I.

2 For an analysis of the ideas involved in the words 'right' and 'duty' see Austin's Jurisprudence, especially lects. xii, xiv, xvi, xvii.

3 Mr. Austin objects to the classification of law as public law and pri