The dependence of copyhold upon manorial custom offers an explanation of the fact that the changes of the sixteenth century displaced copyholders, although the courts would intervene when a custom which gave them security was proved to exist. The most important questions with regard to the custom which determined the copyholders' position were two: first, whether he had by it an estate of inheritance, or merely an estate for years, for life, or for lives; second, whether his payments were fixed or unalterable, or whether they could be increased at the will of the lord. If it was not an estate of inheritance his holding returned fairly frequently into the hands of the manorial authorities, who could either renew it on the old terms, or lease it at an increased rent, or amalgamate it with a large farm. In the second case, where payments were variable, lords could force a tenant to throw up his land by placing a prohibitive burden upon it. The only way of ascertaining with accuracy the real position of copyholders in our period would be to show the relative proportions in which these four arrangements are found upon each of many hundred manors. And this we cannot yet do. The figures published by Dr. Savine[524] suggest that manors on which copyholders possessed an estate of inheritance, and those where they did not, were about equal in number, while manors on which the fines were uncertain predominated over those on which they were fixed in a proportion of more than two to one. Since it would seem that the ability of the lord to demand what fine he pleased could be used as a means of excluding a successor even when the copy was not merely for life or lives but from father to son, his investigations suggest that the copyholders' tenure was more often insecure than not.

[524] _Quarterly Journal of Economics_, vol. xix.

To the examples which he has collected one may perhaps add certain others, inadequate though they are in point of quant.i.ty. Taking twenty-one[525] manors in the years 1568?-1573, of which three are in Somersetshire, one in Devonshire, and seventeen in Wiltshire, one finds that on only one out of the whole number was the copyholders' estate one of inheritance. On one manor copies were granted for four lives or less--it is expressly stated that they are not to be granted for more--and on nineteen they are granted for three lives or less. On one manor (that where the copyholders had estates of inheritance) the fine was fixed by custom at a sum which is not stated, but which could not be increased. On the remaining twenty the fine was a variable one, the general formula being that land shall be given "for such fines as buyers can fix by bargaining with the lord or his officers, both in possession and in reversion," which means that they were to be fixed by the higgling of the market. Turning next to two manors on the Welsh[526]

Border, which were in possession of the Crown, one is told that in the reign of Elizabeth the royal officers granted the tenants leases for years, renewable at the will of the tenant, and fixed the fine at two years' rent, thus giving them what was virtually an estate of inheritance. It is possible, however, that the Crown tenants received more favourable treatment than did those on manors which were in private hands. From Northumberland, again, there is a good deal of evidence which it is difficult to summarise. c.o.ke stated that "the customary tenants upon the borders of Scotland ... are mere tenants at will, and though they keep their customs inviolate, yet the lord might, sans controll, evict them."[527] At the beginning of the seventeenth century an order in Chancery ruled that none of the tenants of Lady c.u.mberland,[528] who paid a fine on the death of lord and tenant, could have an estate of inheritance; and we have clear evidence that the fines paid by the copyhold tenants of the Earl of Northumberland[529]

increased very considerably in the course of the sixteenth century. On the other hand such insecurity was not universal. A common rule on the Northumbrian border seems to have given a copyhold for life, with a tenant right of renewal to the heir, provided that a constant custom of renewal could be proved.[530] On the Crown estates in the reign of Elizabeth fines were fixed on conditions which varied from place to place; sometimes they were at discretion, sometimes one year's rent, sometimes two years' rent; and in 1609 the tenants of twelve Tynemouthshire manors got the Courts to confirm a custom limiting their fine to a definite sum, on six of them to 2 on the admission of a descendant, and 4 on alienation, and on the remaining six to one year's rent in the former case and two years' rent in the latter.[531] On eleven out of thirteen manors in Norfolk[532] and Suffolk the fines are uncertain; on one, Wighton, they are said to have been fixed at 4s. per acre "by the s.p.a.ce of 100 years at least"; on one, Aldeburgh, there is a curious distinction between the fines paid for land "in the fields,"

which are at the will of the lord, and the fines paid for cottage tenements, which are fixed at 2s. when the site is built upon and 1s.

when the site is not covered. Elsewhere when the fine is fixed the ordinary payment seems to be usually two years' rent on descent, with sometimes a small addition, sometimes a small deduction, when the tenement is alienated during the tenant's life. Estates of inheritance and fixed fines do not necessarily go together. The general situation on the small number of manors for which information has been obtained is set out below.[533] Table I relates to duration of tenancies, Table II to the character of admission fines. In each table, line (_a_) gives Dr.

Savine's figures, line (_b_) our own, line (_c_) the total of both together.

TABLE XIII

I

DURATION OF TENURE

+---------+------------+----------------+--------------+----------------+

Copyholds for

Copyholds for

Years but with

Years but with-

Manors.

Copyholds of

Right of Renewal

Copyholds for

out Right of

Inheritance.

(_i.e._

Life or Lives.

Renewal(_i.e._

virtually

Renewal

virtually Leases

Copyholds of

for Years).

Inheritance).

+---------+------------+----------------+--------------+----------------+

(_a_) 82

25

17

40

...

(_b_) 60

22

2

33

3

(_c_) 142

47

19

73

3

+---------+------------+----------------+--------------+----------------+

II

CHARACTER OF FINES

+---------+------------------+--------------------+---------------------+

Partly Certain and

Manors.

Fines Certain.

Fines Uncertain.

Partly Uncertain.

+---------+------------------+--------------------+---------------------+

(_a_) 86

28

58

...

(_b_) 61

25

35

1

(_c_) 147

53

93

1

+---------+------------------+--------------------+---------------------+

[525] Roxburghe Club, _Surveys of Pembroke Manors_. The twenty-one manors are as follows: Washerne, South Newton, North Ugford, Brudecombe, Foughlestone, Chalke, Albedeston, Chilmerke and Rugge, Staunton, Westoverton, Remesbury, Stockton, Dichampton, Berwick St. John, Wyley, North Newton, Byshopeston (all in Wilts), Donyett, Chedseye, South Brent (all in Somerset), and Paynton in Devonshire. Estates of inheritance are found at Byshopeston, and also fixed fines. At Paynton copies are granted for 4 lives or less. The common formula for fines runs: "Pro talibus finibus ut emptores et captores c.u.m domino et officiariis suis concordare vel barganizare possunt tam de terra in possessione quam in reversione."

[526] MSS. Transcript in Wrexham Free Library by A.N. Palmer, of "The Presentment and Verdict for the Manor of Hewlington," 1620 (in which the proceedings in the reign of Elizabeth are recorded), and "The Surveys of the Town and Liberty of Holt,"

1620. At Hewlington it is stated that the Crown Commissioners made an arrangement with the tenants "that if the said tenants would relinquish these said pretended estates, revive the said decayed rents, and pay two yeres Rent of the landes to the late Queen for a fine, that then the said tenants and their heirs and a.s.signes should have leases granted them for fortie years, and so from fortie years to fortie years in perpetuity." It is not expressly stated that the same arrangement was made at Holt, but it is to be inferred from the context that it was.

[527] c.o.ke, _The Complete Copyholder_.

[528] _Northumberland County History_, vol. viii. p. 238.

[529] See below, pp. 305?-306.

[530] _Northumberland County History_, vol. viii. pp. 238?-239.

[531] _Ibid._ For conditions on the Crown estates under Elizabeth see _S. P. D. Eliz._, vol. xii. pp. 69?-70: "Abstract of the Commission to the lord Chancellor ... for letting the queen's lands and tenements in Northumberland within 20 miles of the border and in the seigniories of Middleham and Richmond, Yorkshire and Barnard Castle, Bishopric of Durham," June 24, 1565.

[532] The manors are West Lexham (Holkham MSS., West Lexham, No.

87, Map), Sparham (_ibid._, Sparham Bdle., No. 5), East Dereham (R.O. Parliamentary Surveys, Norfolk, No. 1), Wighton (R.O.

Special Commissions, Duchy of Lancs., No. 839), Stockton Socon (R.O. Parliamentary Surveys, Norfolk, No. 14), Aldeburgh (R.O.

_Misc. Bks. Treas. of Receipts_, vol. clxiii.), Chatesham (R.O.

_ibid._, vol. clxiii.), Dodnash (R.O. _ibid._, vol. clxiii.), Falkenham (R.O. _ibid._, vol. clxiii.), Stratford iuxta Higham (R.O. Duchy of Lancaster, Rentals and Surveys, 9/13), St. Edmund (R.O. Parliamentary Surveys, Suffolk, No. 14), Mettingham (_Victoria County History_, Suffolk), Mark Soham (_ibid._).

[533] See Appendix II.

It will be seen that the degree of security enjoyed by copyholders varies very greatly. When the copyhold is one of inheritance, it is legally complete, unless the tenants incur forfeiture by breaking the custom. An estate for life with right of renewal is virtually as good as a copyhold of inheritance. Estates for life or lives are precarious.

Copyholds for years without right of renewal are scarcely distinguishable from leases. On the whole, when these examples are added to those of Dr. Savine, it would appear that copyholds for life or lives were more usual than copyholds of inheritance, while fixed fines were the exception and variable fines the general rule.

(c) _The Undermining of Customary Tenures_

The importance of the predominance of copyholds for lives for the question of the degree of security enjoyed by the tenant is shown by the efforts which were made by lords of manors, where copyholders had estates of inheritance, to persuade them to give up their copies and take leases instead. It is evident that in this course they encountered a good deal of opposition. On manors, however, where the copyholds escheated to the lord at intervals of one, two, or three lives, he could subst.i.tute leases for a regrant of the copies, or throw the holdings into a large farm, or retain them in his own hands. Though such action might be thought harsh, it could hardly be prevented by the tenants, since the lord could always hold the threat of eviction over their heads. One finds some manors where the striking and exceptional preponderance of small leaseholders suggests unmistakably that such a conversion of copyhold to leasehold has taken place,[534] or where the motive of the alteration is shown by the great rise in rents which has followed it. One finds others where the struggle between copyhold and leasehold is going on and is still undecided. In that struggle the chances are against the copyholders, even though their interest is protected by the law, for the law is less powerful than ignorance and fear. How can our peasants, men "very simple and ignorant of their estates,"[535] enter into the respective merits of copies and leases with the powers of the manor, armed with professional advice and all those indefinite but invincible advantages in bargaining which are given by legal knowledge, social influence, and a long tradition of authority?

It is so easy to get caught in some legal trap. In the reign of Charles I., the two hundred Crown tenants of the manor of North Wheatley, who have suffered much in the way of rack-renting from the officers of their impecunious lord, engage a lawyer to negotiate the renewal of their leases of the demesne lands. The grant is made to him, as their attorney; but, to their dismay, they find that he declines to fulfil his bargain. He has "afterward, contrary to the Trust committed to him, increased and raised the rent thereof upon the tenants, to his owne privat benefitt."[536] The tenants of Hewlington succeed, as we have seen, in inducing the Crown to recognise their estates of inheritance by granting that their forty years' leases shall be renewable at the will of the tenants. Then unexpectedly a servant of the Earl of Leicester purchases one of the townships. The tenants, in an agony of apprehension, "perceiving that they were like to have their said landes and tenements after the expiration of their said leases taken from them, and that they had no remedy by the course of the common law to helpe themselves, preferred their Bill to be relieved in Equitie." Chancery comes to their rescue. It decides that the covenant made by the Crown to the effect that their leases should be renewable at the option of the holder is binding not only on the Crown, but on all to whom it might sell the lands in question. But their troubles are not yet finished. It is one thing to get a judgment, another for the judgment to be carried out. The purchaser is servant to a great man and can afford to be dilatory and recalcitrant. We leave these villagers still pet.i.tioning "His Highness and His Honourable Council and Commissioners of Revenue that when it shall seem good unto them the said tenants may be admitted to have their leases accordingly."

[534] _E.g._ Ormesby in Norfolk, where in 1516 thirty-one tenants holding "in farm" formed the whole landholding population (R.O. Rentals and Surveys, Gen. Ser., Portf. 22, No.

18). For a great rise in rents following a probable subst.i.tution of leases for customary tenures, see the case of Lewisham in Kent. On this manor in the reign of Henry VI. the rent of the tenants (tenure unspecified) was 8, 11s. 7d., 9 plougshares, and 6s. 2-1/2d. in the abbot's hand (R.O. Rentals and Surveys, Gen. Ser., Roll 361). In 1621 it was 23, 1s. 6-1/2d. (R.O.

_Misc. Bks. Treas. of Receipt_, vol. clxxiv., fol. 1?34). In the reign of James I. we have full details. The rent of the free tenants was 17, 12s. 10-1/2d.; that of the tenants at will 9d.; that of tenants "per dimissionem" (_i.e._ lease-holders) 72, 9s. 8-1/2d. (R.O. _Misc. Bks. Aug. Off._, vol. ccccxiv., f.

33?34). It is unfortunate that we are not told how the bulk of the tenants held at the two earlier dates. But is it unreasonable to say that they were probably customary tenants, and that the introduction of leases was followed by a great rise in rents?

[535] Survey of Town and Liberty of Holt, MS. transcript in Wrexham Free Library.

[536] _S. P. D._, ch. i. vol. cli., No. 38. (See Appendix I., No. iv.)

It is so easy to be intimidated by the fear of aggravating your misfortunes. When an agent frightens some tenants by telling them the unfavourable decision of the Court of Chancery as to the tenant right of the copyholders on a neighbouring estate, do they answer, as they should, that manorial customs vary, and that they will see what the Courts say about their own? No, they make "Humble suit that your lordship will be pleased to grant them leases for twenty-one years, and they will pay, in lieu of their fine, double rent for every farm."[537]

Sometimes they live to repent their bargain. "I have persuaded one John Wilson of Over-Buston," writes a manorial official to the Earl of Northumberland, "to deliver me in his copy, and he is content to take a lease at double rent."[538] A strange chance has left us a letter, in which this very John Wilson, labouring horribly amid the intricacies of grammar, expounds through one long, broken-backed sentence, what balm such "contentment" brings. "To the Right Honourable the Earl of Northumberland, the humble pet.i.tion of John Wilson, his wife and 8 poor children. Humbly complaining showeth ... your pet.i.tioner ... that whereas your said pet.i.tioner and his predecessors being ancient tenants to your honour, holding one tenement on ferme in Upper Bustone, by virtue of copyhold tenure out of the memory of man, which copies both of your said poor pet.i.tioners' great grandfather, his father's father, and his own father are yet extant to be seen: and now of late your said poor pet.i.tioner, being under age, helpless and none to do for him, and forced (G.o.d knows) by some of your honour's officers to take a lease and pay double and treble rent, in so much that your said poor pet.i.tioner, his wife, and 8 poor children is utterly now beggared and overthrown, unless your worthy good honour will be pleased to take a pitiful communication thereof, or otherwise your saide poore pet.i.tioner, his wife and poore children knows no other way but of force to give over your honour's land, by reason of the deare renting thereof, and so be constrained to go a-begging up and down the countrie."[539] Poor, patient, stiff-fingered John Wilson, so certain that he has not been treated fairly, so confident that his lordship cannot have meant him to be wronged, so easily circ.u.mvented by his lordship's brisk officials! He and his heavy kind are slow to move; but, once roused, they will not easily be persuaded to go back. It was such as he that, at one time or another in the sixteenth century, set half the English counties ablaze with the grievances of the tillers of the soil.

[537] _Northumberland County History_, vol. viii. p. 238.

[538] _Ibid._, vol. v. p. 211. The rent was raised from 18s. to 36s.

[539] _Northumberland County History_, vol. v. p. 210.

The significance of the predominance of variable fines is very evident if one turns to examine the economic relations between lords and copyhold tenants as they stood in the middle of the sixteenth century. A manor on which there was a large number of customary tenants must have often seemed from the point of the owner a rather disappointing form of property, because the first fruits of economic progress tended to pa.s.s into the hands of the tenants. The rents and services due from their holdings were fixed by custom; meanwhile prices were rising with the fall in the value of silver, and the result, as is pointed out by Maitland, was that the economic rent or unearned increment of their properties was intercepted by the copyholders, instead of being drained, as under leasehold, into the pocket of the lord.

An explanation of what is meant can best be given by recurring to the table of rents printed in Chapter III. of Part I. It will be recollected that on the manors there represented the value of the rents got by the lords from the customary tenants was often almost stationary. When the enormous fall in the purchasing power of money is remembered, it is clear that rentals must sometimes have very greatly depreciated, which of course meant that the tenants retained the surplus due to economic progress, a surplus measured by the difference between the "rents of a.s.size" and the full rack-rent for which the holding could be let if put up to compet.i.tion, and amounting sometimes to more than three-quarters of the latter. At Wilburton, for example (to quote a fresh instance), according to Maitland,[540] a virgate worth 7 or 8 only pays 1 in rent. From the compet.i.tive rents of the open market the lord was debarred by the custom of the manor. How could he tap the surplus? He did so, it may be suggested, either by inducing the tenants to exchange their copies for leases, or by raising the fines, when the fines were not fixed by custom, so as to get in a lump sum what he could not get by yearly instalments. In that case the tenant's surplus was on paper only; he was exactly in the position of an investor in a stock of inflated value, the high nominal interest of which has been capitalised in the price paid for the shares. The probability that when fines were movable, they were forced up in the sixteenth century so as to sweep away any unearned increment accruing to the holders of customary land, is not only suggested by the bitter denunciations launched against the practice by contemporaries. It is also indicated by the manorial doc.u.ments. May not this be the explanation of what Maitland justly calls "the absurdly high price" of 1261 paid in the reign of James I. by the purchasers of Wilburton, a manor the yearly value of which was at the time only 33?

The suggestion is confirmed, as far as a few manors are concerned, by the upward movement of fines revealed by the following table--

FINES PAID ON THREE MANORS IN NORTHUMBERLAND[541]

1567. 1585.

Acklington 57, 3s. 8d. or 3, 3s. 4d. 87, 10s. 0d. or 4, 17s. 2d.

per tenant. per tenant.

High Buston 11, 14s. 0d. or 2, 18s. 6d. 18, 0s. 0d. or 4, 10s. 0d.

per tenant. per tenant.

Birling 43, 7s. 6d. or 4, 6s. 9d. 72, 0s. 0d. or 7, 4s. 0d.

per tenant. per tenant.

FINES PER ACRE PAID ON SIX MANORS[542] IN WILTS AND ONE IN SOMERSET

1520-39, average fine per acre for each of 42 tenants 1s. 3d.

1540-49, " " " 28 " 2s. 11d.

1550-59, " " " 36 " 5s. 6d.

1560-69, " " " 29 " 11s. 0d.

[540] Maitland, _English Historical Review_, vol, ix., "The History of a Cambridgeshire Manor."