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earlier, and the lord bought out his tenants' interests in order to extend his pastures.
III. Customary Tenants.—In the legal classification of 111. CopyEnglish rural society the customary tenants were grouped together as a single homogeneous body, distinguished alike from the freeholders with their permanently secure tenure on the one hand, and from the leaseholders with their temporarily secure tenure on the other. In the period that is before us, the economic historian cannot afford to regard these distinctions as the artificial discriminations of the lawyers, which lie beyond his own province. While the agricultural revolution of the sixteenth century was in process, legal considerations were largely the determining factor in the situation. The wealthiest tenant who was suddenly confronted with eviction and beggary had occasion to envy the poorest freeholder, who eked out a scanty subsistence from his handful of acres, but had managed to retain his economic independence. In a movement which swept away the barriers imposed by manorial custom and divorced large numbers of the English peasantry from the soil, fixity of tenure, the validity of the title by which a man held his land, was often all that lay between him and destitution. The legal position of the copyholders during the period Legal
position of the agrarian changes has been much disputed. In the
of copre thirteenth century tenants in villeinage were not protected holders. in the king's court, and could be evicted from their holdings at the will of the lord. Their tenements were secured to them not by common law, the law of the land, but by custom, the law of the locality, which was binding upon the lord only when there was no serious inducement to disregard it. But the process which superseded predial services by money rents transformed the villein, whose land was held by oral tradition (custom), into a copyholder, whose title depended upon the written testimony (copy) of the roll of the manor. Ultimately the copyholders came to acquire complete legal security in the common law courts, but controversy has arisen as to their situation during the fifteenth and sixteenth centuries. The issue involved is whether the customary tenants, who comprised the most important element in the
rural population, were able to fortify their resistance to manorial aggression by an appeal to national justice, or whether they continued to rely solely upon the custom of the manor to withstand the invasion of the new economic tendencies. Two divergent opinions have been expressed, and the contrast between them will serve to place in a clearer light the points at variance. One view 1 holds that "the
“ legal rights of the copyholders were such as to enable them to weather the storm ”; customary tenants in the strict sense of the term were not evicted because they were entitled to the protection of the common law courts. An alternative view ? is that "the mass of the customary tenants had at the beginning of the period no legal security”, and were liable to be dispossessed by their lords without any infringement of common law. But the problem is more complex than these summary statements might lead us to infer, and
several points need consideration. Classes of To begin with, some reliance has been placed upon certain customary famous decisions pronounced by two judges in the time of
Edward IV. In 1482 Chief Justice Brian declared that
11. S. Leadam in Trans. Royal Hist. Soc. N.S. vi. 262 et passim ; and English Hist. Review, viii. 684 seq.
2 English Hist. Review, viii. 294 seq.; Ashley, Economic History, ii. 274.
3 Ibid. ii. 279. A. Savine, " English Customary Tenure", in Quarterly Journal of Economics, xix. 46.
without exception some measure of legal security, for there is evidence that some among them were not excluded from a hearing in the national courts in their struggle against arbitrary eviction. There were in fact three classes of customary tenants, those who held land by inheritance, or for life, or for a term of years; and the term copyhold thus covers a variety of meanings. Now in every case where the copyhold did not pass from father to son it reverted at intervals to the lord, and he could resume occupation without a breach either of manorial practice or common law. In this way a large part of the estate gradually fell back into the lord's hands, and became part and parcel of the demesne. Hence it follows that customary land, when held by tenants for a fixed period, was always liable to be taken from them whenever their term expired. "But the genuine copyholder, the successor of a long line of tenants holding ancient customary land, was in a different position and managed to obtain some measure of legal protection. The Court of Chancery was the pioneer in this direction, and there are cases of its intervention on behalf of the copyholder as early as the fourteenth 1 century, though they become more numerous in the fifteenth? Thus the copyholders, while
. excluded from the common law courts, were able to seek redress in the equity courts and bring a suit against the lord for the recovery of their tenements. The importance of Chancery jurisdiction at this early date in alleviating the condition of an oppressed copyholder may not have been great; it is difficult to suppose that complainants were invariably successful in attracting the attention of the royal court, but it served at any rate to pave the way for action by the Tudor law courts. In the sixteenth century i the Star Chamber and Court of Requests became prominently identified with the conflicts between the lord and his customary tenants, and lawsuits over estates of copyhold were of frequent occurrence. Another indication that copyhold afforded the tenant some measure of security is furnished by
* Savine, op. cit. 63.
• Savine, “Copyhold Cases in the Early Chancery Proceedings", in English Hist. Review, xvii. 296 seq.
Degree of security possessed by copyholders.
the fact that the owners of abbey lands sometimes sought to compel their tenants to surrender their copies, pretending that on account of the dissolution “all our former writings are void and of none effect”i. One of the cases in the Court of Requests concerned the proceedings of a landlord who "by compulsion, threatenings and other sinister and unlawful means hath gotten into his hands many copies of court rolls ”, and in return gave leases for short terms of years, "greatly raising and enhancing the rents "2
But while it is clear that tenants who held by the custom of the manor were not exposed to a state of complete legal insecurity, we cannot postulate a condition of "ample and effective protection". When the tenants of Thingden 3 carried on their famous and interminable lawsuit for nearly half a century, pursuing the lord of the manor through every court in the land, we may admire the courage with which they confronted their lord, but we must hesitate to say whether their confidence was born of legal security '4 or
legal ignorance' 5. On the whole there seems to be good ground for denying the democratic tendencies which have been attributed to the Star Chamber and to the court which bore the honourable appellation of “The Court of Poor Men's Causes ” (Court of Requests). The position in fact is summed up in the statement that the Tudor courts sought "to restore the custom, not to mend it "6. They interfered between the lord and his tenants, but only where the lord was violating the custom of the manor. They came to the rescue of a decaying custom which was fast losing its hold over the lord and his tenants alike. They insisted that the lord should abide by the immemorial practice of his own courts, but they denied to the tenants any rights which they could not claim by the traditional usage of their own community. It seems at any rate certain that the Tudor monarchy, working through its creations-an indefatigable and all-pervading privy council and its judicial offshoots
1 A Supplication of the Poore Commons, 80.
Savine, Quarterly Journal of Economics, xix. 75. * Ibid. 69 et passim.
did not venture to set aside or ride rough-shod over seignjorial rights and admit customary tenants to their complete protection; the tenant must first be able to prove that the lord had disturbed 'the reign of custom'. But this fact raises wide issues ; if the courts of law would only interfere to protect the genuine copyhold, a new situation was thereby called into existence. The interest of the problem is shifted from the question whether the copyholder had legal remedy to the question what constitutes a perfect copyhold. The struggle in the law courts would be fought out over conflicting interpretations of manorial custom and tenant right. Two main difficulties may be indicated : was the copyhold an estate of inheritance, and was the copyhold one of customary land, or one of demesne or waste ? It was not always easy to determine the nature of the estate, nor to draw a line between land that was part of the original villenagium and land that was carved out of the demesne or the waste, which was not regarded as true copyhold. Here were the materials for endless litigation, in the midst of which the position of the copyholder would tend to be extremely precarious. The law could be invoked by the copyholder with an incontestable title who could establish a clear infringement of custom, but when we bear in mind that copyholds were not all of one kind, we must recognize the probability that many customary tenants were submerged in the torrent which carried away large numbers of the English peasantry from their land. This conclusion is strengthened by the fact that fines of admission to the copyhold might be variable 1, even apparently where the copyhold was of inheritance. Hence the lord would often be able to compel a new tenant to surrender his holding by imposing a fine beyond the tenant's capacity to pay. Lastly, whatever the legal position even of the genuine copyholders, we must not assume that law and custom invariably reigned supreme. The sixteenth century was a hard age, and an overbearing and tyrannical landlord might sometimes venture upon acts which had not come universally to be Tecognized as definitely illegal. In any case he would be
Infra, p. 148.