Freehold and Copyhold
| Author | Christopher Jessel |
| Pages | 65-84 |
PART II LANDS
Chapter 5 Freehold and Copyhold 67 Chapter 6 The Lands of the Lord 85 Chapter 7 Parcels 111 Chapter 8 Legal and Reputed 143
Chapter 5
Freehold and Copyhold
5.1 SERVICE, TENURE AND JURISDICTION
To this day the former status of manorial land can affect the rights both of the lord and of the owner to minerals, sporting, old rents, grazing and other rights and burdens. Land within the manor which did not belong to the lord was freehold or copyhold and, of the two, copyhold was distinctive of the manor. This book is about the law of the manor, but if it had been written at any time between 1600 and 1925 it would have been called – as many such books were called – the law of copyhold. The earliest was The Complete Copyholder; being a Learned Discourse of the Antiquity and Nature of Manors and Copyholds, with all things thereto Incident by Sir Edward Coke. The two best known were by Watkins and Scriven.
Since the enactment of the Law of Property Act 1925, s 1 there have been only two legal estates, a fee simple absolute in possession or freehold and a term of years absolute or leasehold.
1 For the authority of Watkins and Scriven, see Ecclesiastical Commissioners for England v Parr
[1894] 2 QB 420 at 428.
2 Commonhold is expressed to be a form of freehold by Commonhold and Leasehold Reform Act
2002, s 1.
68 The Law of the Manor
known as customary freehold. If it is also held ‘at the will of the lord’ it is pure copyhold. Custom which ‘is the very Soul and life of Copy-hold-estates’
according to Coke has already been considered in 4.3. Courts are examined in
13.1 and rolls in 25.2. This chapter considers how land was held and the will of the lord, and examines a few of the rules described so carefully and in such detail by Watkins and Scriven.
To say that land is held means that the holder has the right either to occupy it or to receive rents payable by or derived from an occupier. Land may be held by anyone from the king to the humblest peasant. In Domesday Book the king holds, Latin tenet, his land, and in later texts land that comes to him is said to come in manibus nostris into our hands. Likewise, the cottager held his cottage even if he could be evicted without notice. The word tenure, from Latin tenere or French tenir, suggests that all land is held from a lord except the royal demesne, but the way in which that result is reached needs some explanation. Freehold, leasehold and copyhold land are held by their respective tenures.
Tenure is one aspect of a threefold relationship, of which the other two are service and jurisdiction.
In modern law tenure, service and jurisdiction are distinct. Tenure concerns land, such as the home someone lives in or the farm on which he grows crops. Tenure is governed by land law, the law of real property for freehold land and the law of landlord and tenant for leaseholds. Jurisdiction, the law governing disputes and courts, is separate. Most present-day courts and public tribunals are provided or organised by the state, as under the Senior Courts Act (formerly the Supreme Court Act) 1981, the County Courts Act 1984 and the Tribunals Courts and Enforcement Act 2007. Private tribunals do exist, such as the City Panel on Takeovers or the disciplinary tribunal of the General Medical Council, but even if they are not regulated by Parliament they are subject to judicial review by the courts, which ensure that they operate fairly and without bias. There is also an active system of arbitration under the Arbitration Act 1996 which regulates arrangements for the private resolution of disputes but under ultimate court supervision. Courts were an important aspect of the manor and are considered further in Chapter 13.
Service or employment is different again. A contract for services, provided by an independent contractor, is distinct from a contract of service given by an employee. The contractor agrees to provide a specific result, normally works for
3 Brown’s Case (1581) 4 Co Rep 21.
4 Maitland, FW, Domesday Book and Beyond (Cambridge University Press, 1987; first published
1897) 67.
a contractual fee, sets his own hours, bears his own expenses and organises the task himself. The employee is paid a wage, attends at hours specified by his employer and follows orders. These are generalisations and do not always apply so that it can sometimes be difficult to distinguish a contract for services from a contract of service in particular circumstances, but the idea of a difference exists and is important.
In Saxon times the three were also distinct. A man might hold his land from one lord (or be free to decide for himself which lord he held it from) while owing service (particularly military service) to another while again being commended to a third (whose court he attended, whose support he looked for in disputes and whose decisions he followed). Jurisdiction went by various names but the most common was soc. This could apply to individuals who had soc over others, or to districts, such as the Soke of Peterborough which was the area of jurisdiction of the Abbot of Peterborough.
In 1066 the separation of landholding, service and soc ceased. The idea of divided lordship became unacceptable. For the Normans service, tenure and jurisdiction were three aspects of one thing. Land was held from a lord in return for services and one of those services was suit of court. The lord was bound to protect his men and to hold a court to resolve their disputes, including disputes about land. They, in turn, were bound to attend the court as suitors, and it was at the court they rendered service. Over the centuries since 1066 the three have again become separated, but it took a long time. The manor was one of the last places where the linkage persisted.
5.2 TENURE
All land (except allodial Crown Land – 24.3) is now freehold, and all freehold land (except some consecrated land – 20.6) is now held in fee simple. The tenure of all freehold land except land in ancient demesne (24.9) and possibly some land of ecclesiastical corporations (20.10) is free and common socage. The Law of Property Act 1925, s 1 provides that a legal estate in land can only be held in fee simple or as a leasehold, and leases can only be granted out of other leases, out of fees or out of Crown land. All land therefore must have a freeholder unless it is royal demesne. Since 1925 the freehold and the fee simple have been the same but this was not previously the case and the distinction still affects rights of and within manors. It is therefore necessary to look at older types of holding land. This chapter considers tenure as it used to exist and 7.3 discusses how tenure could change.
5 Ibid 47, 67; Sawyer, P, ‘1066–1086: A Tenurial Revolution?’, in Sawyer, P (ed), Domesday
Book: A Reassessment (Edward Arnold, 1985) 77.
70 The Law of the Manor
The discussion relies a good deal on older writers of standing recognised in the law as authorities, that is textbooks by respected writers of past generations. An early book is The Laws and Customs of England. As mentioned in 4.3, it is attributed to Henry de Bracton who was a judge under Henry III, but modern scholars suggest that he was the editor and the last of several contributors. The book was not so much an impartial description of the law in its time as a combination of description and reforms of which the authors approved, some of which were taken up and some not. The best-known writer on tenures is Sir Thomas Littleton, a judge under Edward IV. Littleton’s treatise, with a commentary by Sir Edward Coke published in 1628, is the leading work on the subject. Coke was no more than Bracton a detached analyst. As shown in 27.3, he was deeply involved in a dispute with the Crown in which he supported the authority of the common law with its immemorial antiquity against equity and, to a limited extent, even against Acts of Parliament. This explains why rules about the limit of legal memory in 1189 became important after his time. His book is known as Coke upon Littleton and it was the First Part of the Institutes of the Laws of England. Another respected authority is the Commentaries on the Laws of England by Sir William Blackstone, a judge and Professor of Law at Oxford, who included his own analysis of tenure.
It appears from these writers and others that tenure can be analysed in four ways, each of which is relevant to understanding the manor.
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