Land is the source of all material wealth. From it we get everything that we use or value, whether it be food, clothing, fuel, shelter, metal, or precious stones. We live on the land and from the land, and to the land our bodies or our ashes are committed when we die. The availability of land is the key to human existence, and its distribution and use are of vital importance. [1]
Property real and otherwise.
What makes an item or object someone’s ‘property’? It’s a question that has intrigued philosophers over the generations and not easy to answer for there is nothing inherent in any object that says “I am property”. The general consensus is that an object is property if it’s possession can be protected by the force of the law. As such property is capable of being bought and sold and in this regard land has two characteristics which tended to complicate the laws that surround it. It cannot be legally destroyed [any parcel of land is deemed to extend down to the centre of the earth and up into outer space] and it is of course immovable.
Both these attributes mean that land was useful in the way that other forms of property were not; in particular it allowed the current owner to plan for the future. Fortunes might be squandered, jewels could be lost, sold or stolen but land was fixed and immutable and less readily disposed of; as a result it could be used for security against loans and importantly for the future could be demised [left] to their heirs with, if necessary restrictions applied to it’s future use.
As a form of property then land has unique properties and with the development of common law in the medieval period it was regarded differently to ‘Personal’ property, such as money, goods or other moveable items. Malefactors might steal or destroy such objects but the law agreed that [if the thief had been caught] a monetary payment of equal value would be adequate restitution for their loss.
Land on the other hand was known as ‘Realty’ or ‘real’ property. The word ‘real’ derives from the Latin ‘res’ or ‘thing’ and as land was immovable the law considered that the only remedy for an owner wrongly deprived of his land was the restoration of the ‘thing’, which is to say the land. The distinction between the types of property survives to this day in the term ‘real estate’.
Feudalism
Rarely is the beginning of a story it’s actual beginning but we have to start somewhere and Europe in the centuries around the first millennium is a good time to start. It was a turbulent world but there were perhaps the first glimmerings of a more stable and settled future; the result of a new hierarchical system in society. In the seventeenth century, according to Asa Briggs, this first came to be called the feudal system. With a King at the top, the peasantry at the bottom and a whole host of middle men stability was achieved by each level in society owing some form of duty or service to the level above. Though we mostly concentrate on Kings it is important to appreciate that what happened at the top was mirrored in similar processes lower down the chain.
At all levels, individuals attended ceremonies of homage at which subordinates offered oaths of fealty but this alone was insufficient to guarantee loyalty. This was more firmly achieved by the granting of land, but to be effective these grants could not be seen to be permanent and were always made in exchange for some form of service.
The King having no overlord ,other than God, it was assumed [and surprisingly accepted] that he alone was the only person who could actually own land – in technical terms he was known as the ‘allodial owner’ of all of England’s land. The consequences of this were that no ordinary citizen could ‘own’ land in the way that we understand the word ‘own’ today. Nor, initially, could they buy, sell or bequeath it to any heirs or successors. Instead of owning land they were said to ‘hold’ the land instead.
Those in receipt of grants of land directly from the King were known as ‘tenants -in-chief’. The word tenant deriving from the Latin word ‘tenere’ meaning ‘to hold’. According to the size of the estate concerned these tenants-in-chief were able to grant land to their own tenants who became known as ‘mesne’ or intermediate lords. This process was known as sub-infeudation and resulted in cascades of tenancies of various lengths. At the bottom was the fundamental unit of feudal life – the manor. Since none of these people owned their lands, in theory at least, on the death of the tenant the land should have gone back [escheated] to the King. This was clearly not a great incentive for those tenants who wanted their children to inherit the land and so built into the feudal system was a mechanism by which this could be done.
Feudal Incidents
Tenants not only had to provide some service to their overlord [dealt with below] but also had to agree to the payment of what were known as feudal incidents. These were wide ranging in extent but the most important was ‘feudal relief’ and ‘premier seisin’. If a tenant died his heir had to pay a ‘relief’ [or fee] to the overlord [2]. So long as the relief was paid the heir could continue to occupy the land uninterrupted. Unfortunately for the heirs the overlord was entitled to income from their lands until the relief had been paid paid. This right, known as premier seisin, gave little incentive for the overlord to claim their relief immediately and led many to setting extortionate rates of relief which took a long time for the heir to raise. Abuses for feudal incidents was so bad that in 1215 after his Barons had rebelled King John was forced to sign Magna Carta which included [Clause 2] specific limitations on the relief charged.
“If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a ‘relief’, the heir shall have his inheritance on payment of the ancient scale of ‘relief’. That is to say, the heir or heirs of an earl shall pay £100 for the entire earl’s barony, the heir or heirs of a knight 100s. at most for the entire knight’s ‘fee’, and any man that owes less shall pay less, in accordance with the ancient usage of ‘fees’.”
Although the Magna Carta was aimed at the King a similar principle operated lower down the social scale and by the 13th century the right to claim premier seisin by the tenants in chief was abolished. In future only the King could claim premier seisin and in 1660 all remaining feudal incidents were abolished from freehold land [see below].
The ideas behind feudal relief persisted well into the future however. Our modern form of inheritance tax has it’s origins in such ideas. More importantly for the future though was the development of a form of tenure that allowed land to be passed down the generations with no limit to the length of time on the tenure. As long as an heir had been nominated and the relief had been paid the tenancy continued within a line of succession. Only if no heir, or possible heir, existed would the land return to the crown.
Feudal Service
Feudal incidents were not the only payments made to the King or overlord. In exchange for the land the tenant had to provide some form of service. The most prestigious and honourable form of tenure was ‘Free’ service and the most servile was known, as you might guess, as unfree service.
We will start with Free service of which there were several forms such as serjeanty [non military service to the king] and frankalmoign [praying] but these are not considered here. The most important ‘free’ service was to provide military help to the King or overlord when called upon to do so. As the centuries passed the nature of free services changed and some forms of agricultural service were also recognised as being ‘free’. For the free holder the amount of work they had to perform was defined and limited. Unsurprisingly land held by free service became known as freehold land and as the centuries passed the nature of freehold tenure changed again mainly by the tenant making a monetary payment known as a ‘quit rent’ in lieu of his feudal service. As the value of money declined with time these payments eventually became too expensive to collect and were eventually abandoned; thus passed the last remnant of feudal service for free tenants.
The same thing applied to feudal incidents; Magna Carta was just the beginning of the end and as the common law developed they became more tightly regulated and appear in many cases to have been abandoned until finally, in 1660, the Tenures abolition act abolished almost all feudal incidents.
The Statute of Quia Emptores 1290
In 1290 the feudal system suffered what was to be a fatal blow. The original intention of William the Conqueror had been that all grants of land should be life tenures and would revert back to the crown on the tenant’s death but this was clearly not going to satisfy the Barons and by 1100 land was being inherited on payment to the King or overlord of a feudal relief.
The process of sub-infeudation however led to so many complications in the apportionment of the service that it was effectively abolished by the statute of Quia emptores. “A free tenant was henceforth forbidden to sub-infeudate but was permitted to alienate the whole or part of his land by substitution, that is, the new tenant took the place of the former tenant, who departed from the scene.” [3] In this way the chain of tenancies, incidents and service was broken leading to the modern concept of freehold as one of absolute ownership. It now remains to consider what happened to the land under unfree tenure.
Unfree or villein tenure, later called copyhold.
In an era when, if you wanted to eat, you had to grow your own food everyone had to hold some land on which to grow it. For nearly three hundred years after the Norman Conquest the people at the bottom of the social pile held their small portion of land in ‘villeinage’, as unfree or servile tenure was named. Slavery would be another.
Most unfree service involved working on the Lord’s land but unlike free service, where the number of days was limited, the services these people had to provide varied entirely with the whim of the lord of the manor. If they had to work for him seven days a week so be it. In the 14th century the ravages of the Black Death gave the survivors a slightly upper hand. After this time the manorial lord could no longer behave arbitrarily but had to conform to the custom of the manor. This was a small but important concession and was enforceable under common law ; it is the origin of many later common rights.
At some time or other it was recognised that it was to the advantage of the Lord and the unfree tenants, that the villeins should be allowed to pass the land they held on to their heirs. Tenure in villeinage was gradually replaced by ‘tenure by copy of the court roll’ or ‘copyhold’. The example below is taken from the Court roll of Child Okeford.
“Child Okeford Maner #### of Manor Court 22nd April Year of Our Lord 1675
John Trowbridge holds by Coppy Dated the third day of June 1653 one Cottage One house and Garden and one little close of meadow containing one acre To hold to himself and Mary his daughter for their natural lives By the paym[en]t by the year of 6s [4] and by All other burthens works and Ffines
The Moiety of the joint cottage is granted in #### unto Christopher Budden for five lifes”
Copyhold tenure started in medieval times and although wounded in 1852 by an act of parliament, was to survive until finally abolished by the Law of Property Act in 1925. The example above is from 1826 and we see it’s essential components. John Cooper was a copy holder who was in possession of a house and orchard together with a small amount of meadow land and the right to graze beasts on the common. We do not know how old he was but he held the land for four lives, his own and, given the closeness of their ages, his three children.
The first thing to say is that this tenancy would have dated back at least until the medieval period for as Blackstone noted such tenures “have been demised, or demisable, by copy of court roll immemorially. For immemorial custom is the life of all tenures by copy”.
Cooper paid a Lord’s rent of 2s and a ‘heriot’ also of 2s, two payments which are also of feudal origin. As happened with free service the actual service that was to be performed for the lord had long ago been replaced with an annual rent of 2s. As the modern equivalent is £6.78 this is not a bad rent for a house and land.
Copyhold tenures were granted for a number of lives and as each person died another would be added by a process of surrender and admittance [see here for an example at Rampisham] . This was directly analogous to the feudal relief that had to be paid by a free holder.
Copyhold tenures were of immense value to the tenant for they were de facto perpetual leases. It might be thought that the lord of the manor had all the power and prior to the Black Death [approximately] the lord could do what he wanted . In the centuries afterward however the balance of power moved “For” as Blackstone noted “the custom of the manor has in both cases so far superseded the will of the lord, that, provided the services be performed or stipulated for by fealty, he cannot, in the first instance, refuse to admit the heir of his tenant upon his death; nor, in the second, can he remove his present tenant so long as he lives.”
Life Leases
Copyhold tenures were not popular with landowners. They were rarely able to realise the true value of the estate or to rid themselves of tenants who either neglected the land or could not afford to maintain or improve it.
Stevenson in his Board of Agriculture report noted that “copyhold tenures in this county are now become very few, owing, it is presumed, in a great measure to the frauds practised on the respective lords of manors, by the customary tenants marrying in the last stage of decrepid old age very young girls by which, according to the custom of copyhold tenures in this county, the widow is entitled to her free bench on the husband’s copy hold. The few copyholds-now existing, consist chief of a mere cottage and garden, without any other lands being attached to them.”
Unsurprisingly 18th and 19th century manorial lords tried to extinguish copyhold as often as they could. This was relatively easy for if custom was broken in any way or if the tenant failed to apply for admission of an heir the copyhold was lost for ever. Thomas Hardy deals with the latter situation in “Netty Sargent’s copyhold” a short story from his book ‘Life’s little Ironies’. In this story Netty lives with her uncle who is the last life on the copyhold of a small cottage.
“This house, built by her great-great-grandfather, with its garden and little field, was copyhold—granted upon lives in the old way, and had been so granted for generations. Her uncle’s was the last life upon the property; so that at his death, if there was no admittance of new lives, it would all fall into the hands of the lord of the manor. But ’twas easy to admit—a slight “fine,” as ’twas called, of a few pounds, was enough to entitle him to a new deed o’ grant by the custom of the manor; and the lord could not hinder it.”
The problem was that her uncle was neglectful of arranging her admission to the copyhold. I will not spoil the story but suffice it to say that Netty won through and was added to the tenancy.
Hardy has two other mentions of copyhold both from his novel ‘The Woodlanders’.
The first is an interesting comment on the superior status of the copy holder. In the novel a man has just died and his daughter Marty sits with him,
“Beside her, in case she might require more light, a brass candlestick stood on a little round table, curiously formed of an old coffin-stool……The social position of the household in the past was almost as definitively shown by the presence of this article as that of an esquire or nobleman by his old helmets or shields. It had been customary for every well-to-do villager, whose tenure was by copy of court-roll , or in any way more permanent than that of the mere cotter, to keep a pair of these stools for the use of his own dead; but for the last generation or two a feeling of cui bono [to whom it is a benefit] had led to the discontinuance of the custom”
The second reference shows how copyhold tenures could be lost and replaced by a less secure tenure – the life lease. The hero of the book Giles Winterborne was to lose his house [as was Marty above].
“He marveled what people could have been thinking about in the past to invent such precarious tenures as these; still more, what could have induced his ancestors at Hintock and other village people to exchange their old copyholds for life leases”.
Records of life leases do not appear in the early 17th century court roll for Child Okeford and it is not until the 19th century that we have the next set of records. Here is a record of a lease for lives tenancy from the 1826 survey. Superficially it looks like a copyhold. The land held is recorded together with the lives [in this case only one], the rent, a heriot and there is a marginal note to the effect that “This is subject to an agreement for the exchange of Mrs Mathews life for Mrs Jenkins.”
Thomas Hardy describes how South’s copyhold was lost.
“They were ordinary leases for three lives which a member of the South family, some fifty years before this time had accepted of the lord of the manor in lieu of certain copyholds and other rights in consideration of having the dilapidated houses rebuilt by said lord.”
The South family had surrendered the copyhold in return for a service by the lord, rebuilding the house, which was not the lord’s responsibility under the terms of the tenure. Once the cottages had been surrendered the copyhold was terminated and could never be recreated.
No doubt the superficial similarity between the form of the tenures reassured the tenants but beyond that all was show. Unlike with a copyhold tenure, where lords had a common law obligation to admit a new person to the tenancy, there was no such obligation with life leases. In the case of Child Okeford and in Hardy’s novel, the lord had made specific, and one off provisions.
“Pinned to the parchment of the indentures was a letter ….to the effect that at any time before the last of the stated lives should drop Mr Giles Winterborne or his representative should have the privilege of adding his own and his son’s life remaining on payment of a merely nominal sum; the concession being in consequence of the elder Winterborne’s consent to demolish one of the houses and relinquish it’s site which stood at an awkward corner of the lane and impeded the way.”
Such life leases would in turn disappear in time to be replaced by simple leases for a single life for a period of years.
In 1852 an act for the Enfranchisement of Copyholds was passed which allowed copyholders to request their overlords to sell them the freehold. Various acts were passed before and after this time until in 1922 The Law of Property Act abolished all tenures other than freehold or lease hold thus ending many centuries of medieval tenures. Some remnant of feudal tenures persists however for modern freeholders are known technically as ‘tenants in fee simple’.
1 Land Law and Registration S Rowton Simpson 1976. Much of what follows is based on Simpson’s work.
2 Women could at least inherit their parent’s land.
3 Simpson ibid.
4 I am not sure what unit the ‘y ‘with a two dots [a diaeresis] means but I suspect it was an archaic term for shilling.
Categories: In Depth
John Martin of Evershot 