which is usually expressed by a sworn jury of copyholders. The lord, or more commonly the steward, presides over the court; it is his duty to receive and record the presentments of the homage.

Gradually the interest of the copyholder came to be recognized by the regular tribunals. The great step seems to have been the recognition of the right of the tenant in villenage to maintain an action of trespass against his lord. Thus incidentally and gradually the courts of common law came to recognize and enforce the customs which had grown up in different manors; for example, the custom of allowing the eldest son to succeed his father in his holding, or of admitting as tenant the person to whom the previous holder had sold his rights. As the character of the rights depended upon the customs proved to prevail in the different manors, the rights of copyholders varied accordingly. We find various customs as to the rules of descent, duration of interest, modes of alienation, extent of power of user and otherwise, prevailing in different manors, the customs of each manor constituting the law prevailing therein. Except where altered by special custom, copyholds, as to duration of interest, time of enjoyment, mode of descent, joint tenancy and tenancy in common, in general resemble freehold interests.

Copyhold tenure presents in the main the same characteristics at the present day. Land held by copyhold tenure is always parcel of, and included in, a manor. The lord of the manor has the freehold, the copyholder holds "at the will of the lord according to the custom of the manor." The evidence of the nature and extent of his rights is to be looked for, primarily, in the court rolls of the manor. To these reference is made for ascertaining the various dues (fines, heriots, quit rents,1 and the like) which the copyholder must render to the lord. Here also is found the evidence of the mode of descent, mode of alienation, rights of the surviving husband or widow of the tenant, rights of the copyholder to

"Quieti reditus, because thereby the tenant goes quit and free of all other services." Blackstone, ii. 42.

common on the wastes of the manor, and so forth. For the lord being the freeholder, his rights of ownership remain untouched, except so far as they are limited by the copyholder's rights which have supervened. But inasmuch as the most important of the rights of ownership, the right of exclusion, is vested in the copyholder, a curious conflict sometimes arises. In some manors the copyholder may not cut timber or open mines, for these are rights belonging to the lord; but the lord cannot come upon the land to exercise them.

The copyholder has the free right of alienation, but the mode of alienation preserves curiously the history of the interest. The copyholder first surrenders the land to the lord, and the lord then admits (and may be compelled to admit) the nominee of the copyholder upon payment of the accustomed fine, if any.

The change in the position of the copyholder is thus summed up by Sir Edward Coke 1: " For, as I conjecture, in the Saxons' time, sure I am in the Norman's time, these copyholders were so far subject to the lord's will, that the lords upon the least occasion (sometimes without any color 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 'Compleat Copyholder, secs. 8, 9.1

his election either to sue a subpoena,1 or an action of trespass against the lord. Time has dealt very favorably with copyholders in divers respects."

It might have been expected that so anomalous a class of 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 Board of Agriculture.

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 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 I.2

'The technical expression for proceedings in Chancery, see page 151, post.

This date seems to have become fixed as giving a definite meaning to the expression "time whereof the memory of man runneth not to the contrary," in consequence of its having been fixed by the Statute of Westminster I. (3 Edw. I., c. 39) as the period of limitation in the case of a writ of right.

III. Tenure in the United States.

I STORY CONST., § 172. In all the colonies the lands within their limits were by the very terms of their original grants and charters to be holden of the Crown in free and common socage, and not in capite, or by knight's service. They were all holden either as of the manor of East Greenwich in Kent, or of the manor of Hampton Court in Middlesex, or of the castle of Windsor in Berkshire. All the slavish and military part of the ancient feudal tenures was thus effectually prevented from taking root in the American soil; and the colonists escaped from the oppressive burdens which for a long time affected the parent country, and were not abolished until after the restoration of Charles the Second. Our tenures thus acquired a universal simplicity; and it is believed that none but freehold tenures in socage ever were in use among us. No traces are to be found of copyhold or gavel-kind or burgage tenures. In short, for most purposes, our lands may be deemed to be perfectly allodial, or held of no superior at all, though many of the distinctions of the feudal law have necessarily insinuated themselves into the modes of acquiring, transferring and transmitting real estates. One of the most remarkable circumstances in our colonial history is the almost total absence of leasehold estates. The erection of manors, with all their attendant privileges, was, indeed, provided for in several of the charters. But it was so little congenial with the feelings, the wants, or the interests of the people, that after their erection they gradually fell into desuetude; and the few remaining in our day are but shadows of the past, the relics of faded grandeur in the last steps of decay, enjoying no privileges, and conferring no power.

3 KENT COM., 509-514. Most of the feudal incidents and consequences of socage tenure were expressly abolished in New York, by the act of 1787; and they were wholly and entirely annihilated by the New York Revised Statutes, as has been already mentioned. They were also abolished by statute in Connecticut in 1793; and they have never existed, or they have ceased to exist, in all essential respects, in every other State. The only feudal fictions and services: which can be presumed to be retained in any part of the United States consist of the feudal principle, that the lands are held of some superior or lord, to whom the obligation of fealty, and to pay a determinate rent, are due. The act of New York, in 1787, provided that the socage lands were not to be deemed discharged of "any rents certain, or other services incident, or belonging to tenure in common socage, due to the people of this State, or any mean lord, or other person, or the fealty or distresses incident thereunto." The Revised Statutes also provide, that "the abolition of tenures shall not take away or discharge any rents or services certain, which at any time heretofore have been, or hereafter may be, created or reserved." The lord paramount of all socage land was none other than the people of the State, and to them, and them only, the duty of fealty was to be rendered; and the quit-rents which were due to the king on all colonial grants, and to which the people succeeded at the Revolution, have been gradually diminished by commutation, under various acts of the legislature, and are now nearly, if not entirely extinguished.

In our endeavors to discover the marks or incidents which with us discriminated socage tenure from allodial property, we are confined to the doctrine of fealty, and of holding of a superior lord. Fealty was regarded by the ancient law as the very essence and foundation of the feudal association. It could not on any account be dispensed with, remitted, or discharged, because it was the vinculum commune, the bond or cement of the whole feudal policy. Fealty was the same as fidelitas. It was an oath of fidelity to the lord, and to