CHAPTER III. The Question of Tenant Right

THE QUESTION OF TENANT RIGHT

(a) The Tenants at Will and the Leaseholders

We have said above that we cannot measure the extent of the depopulation caused by enclosure, even for those years with regard to which figures are supplied us by Royal Commissions. But, after all, it is happily less important to arrive at an exact statistical estimate of the acres enclosed and of the number of tenants displaced, than it is to get a general view of the economic forces at work and of the structure of legal relationships upon which they operated. Given the economic reasons for the consolidation of holdings which were dominant in the sixteenth century, they could hardly have failed to result in evictions on a considerable scale, unless the tenants themselves had sufficient legal security to hold their own. If they had such security, the statistical analysis of displacements given above will fall into line with the general situation and be a valuable comment upon it. If they had not, then the figures, while a useful guide to the imagination, may stand when they confirm, but hardly when they contradict, the picture given by contemporaries. The accounts of the latter, though still not freed from the charge of exaggeration, will be supported by what we know of the general disposition of economic and legal forces. They probably heighten the colour and sharpen the outlines, but their indication of tendencies will be correct.

In discussing the position of the small cultivator in the sixteenth century it was pointed out above that similarity of legal status was compatible with the greatest economic variety, and in considering their ability to resist attempted eviction it is essential to remember the converse truth, that tenants who were economically in a similar position were often from the point of view of tenure very different. Just as writers of the time lump together all classes of well-to-do small landholders under the name of yeomen, though the majority of them were not legally yeomen at all, so they constantly speak of evictions, ruinous fines, and rack-rents, without discriminating between the different classes of tenants whose different legal positions make them liable to suffer in very different degrees. One must remember, again, that in the sixteenth century a man might be called a copyholder because he held a copyhold tenement, but at the same time he might have, and very often had, additional land which he had leased from the demesne or from the waste, and in which his legal interest was quite different; he might be a freeholder and at the same time be the farmer who leased the lord's demesne, or he might be freeholder, copyholder, and leaseholder in one, and even hold at the will of the lord other land which he had been allowed to occupy "by grant of the court," for example part of the manorial waste. Hence not only were the positions of tenants at will, lessees, and copyholders considered as classes, different from each other, but there was also a difference in the legal interest which individuals had in different parts of the lands which they cultivated. Even if the law gave protection to copyholders, a point to be discussed later, they might suffer from the consolidation into large farms of those parts of their lands which they did not hold by copy, and the more they had gained in preceding years by adding to their holdings of customary land by leasing part of the demesne and of the waste, the heavier would be their loss when these additions were taken from them, while those whose holdings consisted entirely of such encroachments would be altogether ruined. Again, on those few manors where tenure at the will of the lord had not crystallised into copyhold, the tenant's position was even weaker than that of the lessee, for there was nothing but a custom unenforced by legal documents to prevent his eviction.

There was thus opportunity for a considerable displacement of population without any need of raising the difficult question of the degree of security enjoyed by copyhold tenure. When a manor was occupied only by tenants at will without copies, or when its demesne lands were leased for short terms to a number of lessees, or when its waste had been gradually taken in either by new settlers or by the customary tenants, land could be resumed by the lord without any conflict save, in the first case, with a custom which two centuries before had been powerful but now was weak, and in the second case with a terminable interest. It is not necessary to adduce instances to prove the liability of the tenant at will or lessee to eviction, because the nature of their interest makes it obvious that they could not claim to have complete legal security. Examples of the first kind are, indeed, not very common, owing to the fact that by our period tenure at will of the lord had in most places hardened into copyhold, and their comparative rarity may suggest that tenants at will who had not become copyholders had been displaced on most manors by the beginning of the century. The case of two Wiltshire manors may serve to illustrate their position. At Knyghton the whole manor was in 1554 leased to a farmer, and with the manor the rents and service of six customary tenants holding at will. At Domerham, in 1568, almost the whole of the land was in the hands of three large farmers, but "it has been granted to Richard Compton, Thomas Pryce, John Pryce, and Robert Kynge, to sow of the above said land every year 120 acres." In the second case the precariousness of the tenants' position is obvious; they are mere squatters, who are there, as it were, on sufferance. In the first case it has been recognised and mitigated, as far as the farmer is concerned, by a clause in his agreement binding him to leave the tenants in peaceable enjoyment as long as they pay their rents. But they have no security as against the lord, and are liable to immediate eviction if it proves more profitable to add their holdings to the large farm. When tenants commence an action against a lord for wrongful disseisin, it is sufficient for him to answer that they are "but his tenantry at wyll."

Roxburghe Club, Surveys of Pembroke Manors.

Ibid.

Leadam, English Hist. Rev., vol. viii. pp. 684-696.

Much more numerous, however, than the tenants at will, were the small leaseholders who held part of the waste or of the demesne lands. A glance at the table given on page 25 will show that they form about 12 per cent. of the whole manorial population therein represented. But in parts of the country their numbers are far greater. In 1568 they form 20 per cent. of the landholders on four manors in Somersetshire and one in Devonshire. In two villages in Northamptonshire they form nearly two-thirds. On the great manor of Rochdale there are in 1626 as many as 315 leaseholders to 64 freeholders and 233 copyholders. Leaseholders possessed, of course, legal security during the period of their leases, and these were in some cases for as long as ninety-two years. But they, too, had not an interest in the land of the kind which would enable them to offer any permanent barrier to the policy of consolidating holdings. This fact, indeed, was the motive for the care which surveyors showed in discriminating between those parts of the tenants' holdings which were customary land and those which were made up of pieces taken from the demesne or from the waste, as well as for the desire to convert copyhold tenure into leases for years, which was often shown in the sixteenth century by the manorial officials. For an example illustrating the eviction of numerous small tenants who had leased the demesne we may recur to the case of Ablode which has been mentioned above. The lease of that manor to a farmer made by the monastery of St. Peter's in 1516 expressly provided that he should be allowed to get rid of the lessees, to whom the demesne lands had previously been let, as soon as their leases should have expired. Two other examples show the same class encountering exactly the same difficulty under somewhat different circumstances. The first, which relates to the waste, not to the demesne lands, comes from a survey of the lordship of Bromfield and Gale which was made by the Parliamentary surveyors in 1649. "The inclosures before mentioned," they say, "and all the rest of them within the lordship of Bromfield and Gale, fall to the lord of the soyle, because enclosed without license. For although by their fee farm estate they [i.e. the tenants] may challenge freedome of commoning, it is by the covenant of the grant as formerly and antiently was accustomed, so that they must take a new grant of all (except some old inclosures which are included in their fee farms), which is the custom of the lordshippe. And if they should enclose all their common, yet the lord would have a third part." The second illustration is given by a petition which some leasehold tenants of Whitby Strand promoted in the Court of Requests in the year 1553. When the monastery of Whitby was dissolved, its property passed first to the Crown, which disposed of it to the Duke of Northumberland, who in turn sold it to Sir John Yorke. The sufferings of the tenants may be told in their own words: "Which saide Sir John, of his extort power and might and by great and sore threatenings of the said tennants ... hathe gotten from them all the leases ... and unreasonably hathe raised rents ... and in consideration also that the said Sir John York is a man of power and might, landes, goodes and possessions; greatly frendid.... Your poor oratours ... are not able to sue against him," and petition the Court for redress. The reality of their grievance is shown sufficiently by the fact that whereas, when the estate was in the hands of the monastery, the total rents of twenty-six tenants amounted to £28, 19s. 8-1/2d., an average of about £1, 2s. 1d. per tenant, by the date of these complaints the rents alone, apart from fines, had been forced up to £64, 9s. 9d., averaging per tenant £2, 6s. 6d.

Ibid., Paynton, Stooke Trister and Cucklington, Donyett, Chedseye, South Brent and Huish. The leases at South Brent are for ninety-two years.

They are Duston in 1561 (R.O. Rentals and Surreys, Portf. 13, No. 23), and Paulspurie in 1541 (ibid., vol. ccccxix., fol. 3).

See pp. 204 and 210.

MS. Transcript by A.N. Palmer of Survey of Lordship of Bromfield and Gale in Wrexham Free Library.

Selden Society, Select Cases in the Court of Requests.

What is the conclusion to be drawn from these three examples? It is surely the special precariousness in the conditions of the sixteenth century of all those tenants whose livelihood lies mainly in land which has been taken from the demesne or from the waste, which is, in fact, in the words of Fitzherbert, "a new thing that hath not gone by custom," a thing which may "fortune to increase or decrease of rent." A piece of demesne may have been let out on lease at a low rent in the year following the great plague, or have been taken from the waste at an even earlier date. It may have remained in the hands of one family for a century without being resumed by the lord, and without any attempt being made to increase the tenants' payments. It may have been cleared and cleaned, hedged and ditched, by the sweat of generations. But, if the manorial officials have done their duty, that land has been marked as a "new thing," something for which no custom can be pleaded and which no prescription can protect. When the lord wishes to alter the condition of its tenure no vested interest can stand against him. He will throw it into a large farm, or double the rent, and the tenants can say nothing; for they are mere lessees, unprotected by the sanctity of manorial custom, and to have his way he need only wait till their leases expire. That this is no impossible supposition is shown by the records of the manor of Hewlington. In 1562 an inquiry was made into the rights of the tenants there, who seem to have been lessees for the term of forty years with a right of renewal to the heir. On investigation being made by the officers of the Crown, to whom the manor belonged, it was found that there was "a decay of the sum of one hundred and five pounds, six shillings, yearly rent, which in ancient tymes had been answered for the said landes"; which decay "as by the auncient records appeareth, did growe by reason of the great mortalitie and plague which in former tymes had been in the reign of Edward III. and also of the Rebellion of Owen Glendower and trouble that therefrom ensued; ... by reason of which mortalitie and rebellion the country was wasted, the Tenants and their houses destroyed, insomuch that the then lords of the soyle were constrayned by their stewards and officers to graunte the said landes at a lesser rent than formerlie was paid for the same to such as could be gotten to take it." Two hundred years after the great plague, its effect in reducing the rents of a few tenants on the Welsh Border is remembered: a commission calculates the sum due to the last penny, and is then required and authorised "to revise the said decayed rent," a fact which the jurors of the manor duly record in their presentment made another sixty years later. No doubt the Crown has an unusually good memory--nullum tempus occurrit regi. But what the Crown can do on this grand scale the surveyors of smaller lords do on a smaller one. As soon as the time has come when it is convenient to get rid of tenants, nothing but the most unassailable title can stand against the proof that such and such a plot of land was once part of the lord's demesne or of the lord's waste. And this, one may suspect, was a great change, which affected many families who thought themselves as safe as their neighbours. For at least two centuries before enclosing became general enough to cause alarm, the demesne and waste lands on one manor after another had been nibbled away by small encroachments; for lords had been glad to find an alternative to the cultivation of the former through labour services, and the colonising of the latter, though sometimes a source of complaint with commoners whose rights of pasture were curtailed, was welcomed by the manorial authorities as a means of improving lands which would otherwise be useless. Both together had been in fact a sort of reservoir of land upon which any surplus population could draw, and from which the more prosperous of the customary tenants could lease additions to their holdings in the manner described above. In our period the tendency is reversed. A lord is anxious to get rid of the obstruction which the small farmer's lease offers to the consolidation of holdings. He wishes to follow the advice of experts and "reduce his demeans into one entier ferme." Titles are questioned, and the small lessee, whose interest is a terminable one and unprotected by any manorial custom, is the first to suffer.

Fitzherbert, Book of Surveying, p. 32.

For reference, see p. 130, note 2.

Topographer and Genealogist, vol. i., survey of Mudford and Hinton.

(b) The Copyholders

But were the tenants at will and the leaseholders the only classes to be evicted? No allusion has yet been made to the most difficult problem which confronts the student of the sixteenth century agrarian changes--the degree of protection enjoyed by the copyholders. If this problem is the most difficult it is also one of the most important. As far as can be calculated, the copyholders far exceeded in number upon most manors all other classes of tenants together. Copyhold tenure was the rule, and tenure at will and leasehold were generally the exception, though the latter was an important exception. If all copyholders had complete security, and were readily protected in their holdings by the courts, there would be little sense in talking of an agrarian revolution; for the changes, though they might still have caused much individual suffering, could hardly have constituted anything like the serious national danger which they were thought to be by many contemporaries. Again, the copyholders were in a special sense the kernel of a manor, the representatives of an ancient social system, around which the newer relationships of leasehold were, so to speak, comparatively modern accretions. It was with them and their business that the manorial courts were concerned; a copyhold tenement could not exist apart from a manor because surrender and admission in the manorial court was essential to its recognition as copyhold; and the very name of "customary tenants," by which copyholders were often described, suggests the special antiquity and fixity of their position. Even in the sixteenth century there were still manors where there were no tenants at all except copyholders, and the mere shedding of the outer layers of small leaseholders, who had sprung up around them, would have left the organisation of such manors quite intact. It would have cut back recent developments; it would not have shaken rural society very seriously. One's view of the importance of the agrarian changes of the sixteenth century will depend, therefore, to a great extent, upon the opinion which is formed of the legal position of the copyholders.

In the following section on copyholders I have been guided largely by Dr. Savine's article in the Quarterly Journal of Economics, vol. xix.

The problem centres in the question to what extent a copyholder who was threatened with eviction could obtain protection from the courts. It is not at all easy to extract a definite answer on this point from the writers of the period, whose views as to the degree of security enjoyed by copyhold are often inconsistent with each other, and sometimes seem to be inconsistent with themselves. The layman certainly thought that copyhold tenants could be and were evicted, and this view seems to be supported by Fitzherbert. It is true that he draws a sharp distinction between the customary land, the rent of which cannot be altered, and the new intakes from the waste or the demesne, the rent of which can be forced up at the lord's pleasure. But he expressly states that copyhold tenants cannot get protection from the courts: "These manners of tennants shall not plede nor be impleded of their tenements by the king's writte"; and he implies elsewhere that the lord can increase both rent and fines. Kitchin, on the other hand, thinks that the lord can never increase the amount of the admission fine; while Coke, in a well-known passage, emphasises the copyholder's security as long as he makes no breach in the custom by failing in his services, and points out that he can protect himself either by proceedings in Chancery or by a writ of trespass.

Fitzherbert, Book of Surveying, p. 28.

Kitchin, Court Leet.

Coke, The Complete Copyholder.

It is not surprising, in view of the variety of opinion as to the copyholders' status which obtained in the sixteenth century, that there should have been much disagreement about it among historians. It seems possible, however, at any rate to narrow the limits of conjecture by ruling certain theories out of account. In the first place one can hardly now accept the view put forward by Mr. Leadam, that, at any rate after 1467, all copyholders had complete legal security, as complete, it would appear, as freehold, though guaranteed by different remedies. He holds that copyholders who occupied customary land, and who were "tenants at will according to the custom of the manor," could get redress either by petition in the Court of the lord with an appeal to Chancery, or by an action of trespass in the Common Pleas, the classes who suffered from eviction being "tenants at will at Common Law," who, though sometimes described as inferior copyholders, were not really copyholders at all, because they did not occupy the lands set apart as customary lands. This view, according to which the lord could clear off his estate all the newer copyhold tenancies on the demesne or waste, but was debarred by the courts from touching the tenancies on the customary land of the manor, receives a certain support from the great pains shown by the manorial authorities in distinguishing between the two. But, while it rightly emphasises the special features of the tenure of customary land, it is difficult to reconcile what we actually know of the position of copyholders with this theory as to the complete security of copyhold tenure. To the objection that contemporaries who could hardly have been mistaken certainly supposed that copyholders suffered, Mr. Leadam would, no doubt, answer that they were thinking of the "inferior copyholders" who held pieces of the demesne or waste. But this answer has got to meet difficulties which are really overwhelming. On the one hand, the historical confirmation which Mr. Leadam seeks, by trying to trace the distinction postulated back into the remote regions of tenure in villeinage, can no longer be accepted now that the difference between villeinage "regardant" and villeinage "en gros," on which he relies, has been proved to refer not to differences in the tenure by which the serfs held their lands, but simply to different methods of pleading, which have nothing to do with the question of the tenant's security, but merely with the form in which cases were argued in the courts. On the other hand, it cannot be made to fit the facts of the copyholders' position in the sixteenth century. The truth is that copyholders were not safe even on the sacred customary land itself. It is quite certain that a great many copyholds were not copyholds of inheritance, but copyholds for life, which returned into the hands of the lord with the death of every tenant. It is certain also, as will be shown later, that fines for admission to customary holdings were on some manors raised enormously during the sixteenth century. How can one reconcile these facts with the view that the lord could make no alteration in the treatment of the customary land which would jeopardise the copyholders' interest?

Leadam, Trans. Royal Hist. Soc., New Series, vol. vi.

Vinogradoff, Villainage in England, pp. 48-56.

Nor is it easy to accept the sharply contrasted theory of Professor Ashley. Where Mr. Leadam sees absolute security of tenure guaranteed by the courts, Professor Ashley sees absolute insecurity mitigated by a once powerful but now decaying custom. In the past, when the lord's land had been dependent on labour services for its cultivation, the last thing he wanted to do was to get rid of the tenants, and therefore custom had made it a rule of practice, though not of law, that first villein, and then copyhold, tenements should pass in the manorial court from father to son. But just when this custom was on the way to become law through the action of the courts in extending protection to copyholders, changed economic conditions made pasture farming much more profitable than tillage, and so supplied landowners with a strong motive for breaking it down. In the struggle which followed custom and public opinion were on the side of the tenants, but the law was on the side of the landlords, and copyholders were evicted without being able to obtain any legal redress, not merely through ignorance or intimidation, but because no legal protection was offered them by the courts. There is perhaps only one serious objection to this ingenious theory. But that is insuperable. It is that in certain circumstances, at any rate, the courts did in fact offer protection to copyholders who were threatened with eviction. In the fifteenth century a considerable number of cases came before the Court of Chancery. In the sixteenth century the same business, which in view of the number of copyholders must have been a lucrative one, came before the Common Law Courts. The case of the year 1482, which is quoted by Professor Ashley to show the hesitation which the judges felt as to whether a copyholder had any legal remedy, is really one of a long series in which the courts considered the claims of copyholders, and which Coke must have had in mind when he said, "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, sleep securely ... let the lord frown, the copyholder cares not, knowing himself safe, and not within any danger." To overlook that series of cases is really to misread a change of the first importance, a change which almost amounted to a legal revolution. Suppose that at the present day the courts were to begin to protect the "tenant right" of workmen who have given their lives to a trade by ruling that any man dismissed after fifteen years continuous service should either be reinstated or receive compensation? The change would be greater--but would it be much greater?--than the momentous departure that was made by the judges who for the first time decided that a man impleaded for a villein tenement should have an action in Chancery. For centuries such actions could not be brought, and if brought would have been simply sent back to the court of the manor with the endorsement "our lord the king does not interfere in matters of villeinage." Now the tide is reversed. From 1439 onwards a stream of equitable jurisdiction flows out from the Chancery to secure the title of the very class which has hitherto had no legal title at all. Tenure in villeinage becomes copyhold. Clearly the discovery of these cases by Dr. Savine must alter the whole standpoint from which we view the struggle between lords and copyholders in the sixteenth century. If one must reject the view of Mr. Leadam that copyholders on customary land had complete legal security, one must also, it would seem, reject the view of Professor Ashley that the courts never interfered in their favour. Somehow or another one must reconcile a good deal of insecurity with a good deal of protection, the complaints of contemporaries that copyholders suffered from enclosures with the equally indisputable fact that they were fairly often protected by the law.

Ashley, Economic History, Part I., vol. ii. pp. 274-282.

Coke upon Littleton, 60 b.

Coke, The Complete Copyholder.

Note-book of Bracton pl., 1237: "Dominus rex non vult se de eis intromittere" (quoted Vinogradoff, Villainage in England, p. 46, note 2).

On this point see English Hist. Review, vol. viii. p. 296.

A way leading some distance through this apparent contradiction may, perhaps, be found by recurring to that dependence upon manorial custom which is the characteristic feature of copyhold. A copyholder is a tenant by copy of Court Roll according to the custom of the manor, and this custom is primarily what regulates his rights and obligations. The custom must be an immemorial one; mere prescription is not custom; to be binding it must have "been used time out of mind." Given such a custom, it is this upon which the nature of the copyholder's tenure depends; and it is noticeable that authorities who differ as to the practical outcome of it, all agree that it is with custom that the first appeal lies. But the custom of a manor is a particular and individual thing peculiar to that manor, and determining the relations between lord and tenant there and not elsewhere. In the words of a surveyor, "Their customs are not so universall as if a man have experyence of the customs and services of any mannor he shall thereby have perfect knowledge of all the rest, or if he be experte of the customes of any one mannor in any one countie that he shall nede no further enstruccions for all the residewe of the mannors within that countie." There are several different sets of customs, and therefore several different sorts of copyhold. There are, in fact, copyholders and copyholders, and there is no general law of copyhold because its essence is to be local and peculiar. The first question, therefore, which has got to be asked, when considering the question of the legal security of copyholders, relates to the custom of the manor on which they are found; for probably, if the parties go to law, this is the first question which will be asked by the court. If it is shown that in getting rid of a tenant the lord has broken the custom of the manor, there is much likelihood in the sixteenth century that the court will restore it. If this is not shown, there is little probability that the court will go behind the custom in favour of the tenants, or try to harmonise it with general principles of equity, except in so far as it declines to take account of customs which are held to be "unreasonable," a word too vague to be much protection to a tenant or much hindrance to a lord. It is this tremendous importance of local custom which causes it to be so minutely entered in manorial documents, and which results both in the constant appeals which are made to it when cases come before the courts, and in the careful recording of contradictory opinions. Surveyors are at pains to emphasise the difference between land which is customary land and land which is not, because, while on the former the introduction of new conditions will be followed by all sorts of friction and disturbance, on the latter the tenants will have no case in opposing them. It is here that Mr. Leadam's distinction between holders of customary land and holders of land taken from the waste or the demesne becomes of real value. It is a particular exemplification of a general rule, the rule that the appeal is always to custom. The meaning of the distinction is not, as Mr. Leadam seems to suggest, that copyholders on the former always had legal protection and copyholders on the latter always had not. It is that the crucial question is always, "What sort of custom are you under?" and that, while on the customary holdings the custom may be unfavourable to the tenant's security, it is much more likely to be unfavourable on the newer tenancies formed on land which, perhaps within the memory of persons living, was indubitably the lord's own, not merely in the general sense in which even the villein's land had been the lord's, but in the practical sense that it was part of his demesne to use as he pleased. In fact quite a common answer when copyholders bring an action is the statement that the land in question is not ancient copyhold but part of the demesne; and when the Protector Somerset applied his popular agrarian policy to his own estates he had to get Parliament to pass a special Act to give the copyholders on his demesnes peculiar security.

Topographer and Genealogist, vol. i. The surveyor is Humberstone.

Calendar of Proceedings in Chancery in the Reign of Ed. VI., vol. i. p. cxxxvii.: "To the Right Honourable Sir Richard Riche, Kt., Lord Riche and Lord Chancellor of England. In humble wise sheweth and complaineth unto your lordeshippe your daley orator Richard Cullyer of Wymondham ... yeoman, and John Cullyer his son," that whereas they "were admitted tenants (of 20 acres) to hold the same to them and their heirs ... and contynued seased of the said 20 acres as of fee, as tenants at will, by copy of Court Roll" now "Thomas Knyvett, Esq. ... of late claimed 10 acres of the said 20 acres to be the demeanes of the said manor." Knyvett (i.) answers, "The said lond ys and have been tyme out of mynde parcell of the demeanes of the moytie of the said manor of Cromwell." (ii.) Denies that "the premises have been used to be dymytted or be dymittable by copie of Court Roll for term of lyfe or lyves as in fee"; on the contrary "yt may appear that the same have been letten by term of yeres."

In 1548 an Act was passed "for the assurance to the tenants of graunts and leases made for the Duke of Somerset's demesne lands." It begins, "Whereas of truth noe custom or usage can or maye by the lawes of this realm be annexed or knytt to any meases, lands, tenements, or hereditaments letten by copye of Court Roll ... albeyt those words 'secundum consuetudinem manerii,' be rehearsed and expressed in the saide Court Rolle or coppie had or made, except that the same meases, lands, tenements, or other hereditaments, so letten be of olde customarie or coppieholde land, and have byn used by all the tyme whereof memory of man is not to the contrary to be letten or demysed by copie of court roll."

The significance of custom is shown in other ways as well. In the numerous petitions in Chancery addressed by copyholders their demand is constantly for a recital or confirmation of manorial customs, and the same line is taken in the fewer cases which come before the Courts of Common Law. Tenants who claim an estate of inheritance and a fixed fine on admission refuse in a body to show their copies to the surveyors, presumably for fear that, if they do, some excuse may be made to upset the custom. Tenants will perjure themselves as to the nature of the custom of their manor in order to be thought to have estates of inheritance. In the days when copyholders (if they exist at all) are still very few and villeins many, men who are really villeins of St. Peter's of Exeter come forward and swear falsely that they hold in socage, "intending all to say that they hold and ought to hold de stipite in stipitem, Anglice stock after stock"; but the falsehood is exposed, and they are punished with a fine of 30s. The copyhold tenants on the Northumbrian manor of Amble claim in the sixteenth century that manorial custom requires that the next of kin of the whole blood shall succeed his father, and that the fines shall be limited to two years' rent. But the surveyors repudiate their claim, remarking that "we cannot find that they have any such estate of inheritance." Elsewhere the copyholders are more fortunate, and succeed in inducing the manorial authorities themselves to make formal admission of the custom, or in proving its existence to the satisfaction of the courts. In 1567 the Dean and Chapter of Winchester Cathedral, and the one hundred and fifty-eight copyhold tenants on their manor of Crondal, enter into a solemn covenant and bargain--may we not call it a "collective bargain"?--whereby it is agreed that fixed rents, fixed fines, and copyholds of inheritance, "shall be from henceforth for ever accepted, reputed, deamed, and taken to be vearye trewe, just, certaine, and auncient customs, rights, dewtyes, and useages, between the Lorde and the Customarye tenants ...; and shall from henceforth stand, contynewe, remayne, and be of perfect force and strength to conclude and bynde the said Deane and Chapiter, their successors and assignees of the said mannour and hundred and everye parte thereof for ever." The tenants at Elswick go to law with the lord of the manor on the question of the nature of their estates, and, on the records of a custom requiring the admission of a son on his father's death being produced, the custom is confirmed by the court. Even the Government of Elizabeth, favourable as it was to the small man, would not intervene without first being informed of the nature of the custom. When a tenant appeals to them for protection, they refer the matter to the local justices, with a request to "certifie their opinions of the poor man's right." No doubt once the Courts begin to interfere with the internal business of a manor they tend to break down some of the peculiarities of local custom, and to set up a general pattern of copyhold tenure by ruling out certain customs as "unreasonable." Copyholders for life may not cut down timber, though perhaps copyholders of inheritance may. Two and a half years' rent is held by the reign of Charles I. to be an unreasonable fine, one and a half years' to be reasonable, and the heir shall not forfeit his copyhold if he tenders such a sum when he demands admission. But the definition of what is meant by "unreasonable" has been going on from that day to this, and is perhaps not yet completed. In our period it was only just beginning. At any rate we shall not be far wrong if we say that, speaking broadly, the crucial question is always whether the custom makes it easy for lords to get rid of tenants or whether it makes it difficult. If an ancient custom gives the lord a free hand, he has little trouble in getting his way. If it restricts him, the courts are likely to enforce the restriction, and though the lord still has, of course, the option of extra-legal action by way of persuasion, cajolery, or intimidation, the tenants are likely to be protected by the law.

See pp. 122-123.

Hist. MSS. Com., Cd. 3218, p. 74. Inquisition of February 20, 1308.

Northumberland County History, vol. v. p. 282.

Crondal Records (Baigent), Part I. p. 177.

Northumberland County History, vol. viii.

Acts of the Privy Council, vol. xiii. pp. 91?-92, 1581. The justices are to decide "if they thinke it agreeable with equite and justice that the poore man should be put in possession of the said landes."

Croke's Reports, vol. iii., Trin. 4 Caroli, Rot. dcciv. case 7. Custom that copyholder for life may cut down trees pronounced "a void and unreasonable custom and not allowable by law. For it is the destruction of the inheritance and against the nature of a copyholder for life. But peradventure there may be such a custom for a copyholder of inheritance."

Ibid., vol. iii., p. 198, case 8, Hill, 5 Car., Rot. 125: "The question was whether a lord of a mannor may assess two years and a half value of copyhold land according to racked rent for a fine upon surrender and admittance, and for non-payment enter for forfeiture. And all the Court conceived that one year and a half of rent improved is high enough; and the defendant assessing two years and a half it is unreasonable, and therefore the plaintiff might well refuse the payment thereof." Ibid., vol. i. p. 779, case 13, takes the rule that unreasonable fines need not be paid back to 1600 ("It was holden per curiam that if the lord demands an unreasonable fine of his coppyholder where the fine is uncertain, if he denies it, it is not any forfeiture of his copyhold"), but his judgment does not say how many years' rent is a reasonable fine. The Calendar of Chancery Proceedings, temp. Eliz., is full of petitions from tenants asking the court to declare fines excessive. The rule that a fine must not exceed two years' rent does not appear to have been accepted as binding till 1781 (Grant v. Ashe, Douglas Reports, 722?-723). But it is plain from the cases cited above that by 1600 it was recognised that some fines were unreasonable, and by 1630 that a reasonable fine should not exceed one and a half years' rent. The fact that the Chancery intervened to protect the equitable interests of copyholders earlier than the Common Law Courts leads one to suspect that there must be earlier cases than these of the Courts declaring fines unreasonable. But I have not found them.

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 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.

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 quantity. Taking twenty-one 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 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. Coke 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." At the beginning of the seventeenth century an order in Chancery ruled that none of the tenants of Lady Cumberland, 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 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. 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. On eleven out of thirteen manors in Norfolk and Suffolk the fines are uncertain; on one, Wighton, they are said to have been fixed at 4s. per acre "by the space 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. 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

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 | +---------+------------+----------------+--------------+----------------+

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 | +---------+------------------+--------------------+---------------------+

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 cum domino et officiariis suis concordare vel barganizare possunt tam de terra in possessione quam in reversione."

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 assignes 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.

Coke, The Complete Copyholder.

Northumberland County History, vol. viii. p. 238.

See below, pp. 305?-306.

Northumberland County History, vol. viii. pp. 238?-239.

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.

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.).

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 substitute 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, 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," 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." 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 petitioning "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."

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 substitution 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?

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

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." 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." 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 petition of John Wilson, his wife and 8 poor children. Humbly complaining showeth ... your petitioner ... that whereas your said petitioner 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 petitioners' great grandfather, his father's father, and his own father are yet extant to be seen: and now of late your said poor petitioner, being under age, helpless and none to do for him, and forced (God 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 petitioner, 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 petitioner, 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." 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 circumvented 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.

Northumberland County History, vol. viii. p. 238.

Ibid., vol. v. p. 211. The rent was raised from 18s. to 36s.

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 pass 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 assize" and the full rack-rent for which the holding could be let if put up to competition, and amounting sometimes to more than three-quarters of the latter. At Wilburton, for example (to quote a fresh instance), according to Maitland, a virgate worth £7 or £8 only pays £1 in rent. From the competitive 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 documents. 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

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 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.

Maitland, English Historical Review, vol, ix., "The History of a Cambridgeshire Manor."

Northumberland County History, vol. v.

Roxburghe Club, Surveys of Pembroke Manors. The manors are South Newton, Washerne, Donnington, Winterbourne Basset, Estoverton and Phipheld, Byshopeston (all Wilts), and South Brent and Huish (Somerset).

The figures show a steady upward movement during the third and fourth decades of the century of a little over 100 per cent., a rather less rapid rise between 1549 and 1559, and another rise of 100 per cent. between 1559 and 1569. They are of course too small to be the basis of a wide generalisation, but perhaps they may be held to offer some documentary confirmation of a grievance which bulks large in the literature of the period. The elasticity of fines at any rate corrects the impression which would be formed of the tenants' position from looking only at the comparatively stationary rents. The same tendency is suggested by the details of individual copies. It was a not uncommon practice for a tenant who was in possession and had an estate for life to buy at a later date the right of his heir to succeed him. When this was done we have an opportunity of comparing the fines paid at different periods, and the complaints of contemporaries about unreasonable and excessive fines become intelligible. This may be illustrated by a few extreme instances taken from the manors of Estoverton and Donnington in Wiltshire, and of South Brent in Somersetshire.

Fine for Copy. Fine for Reversion.

1. 6/8 (1537) £5 (1563) 2. 40/? " £13, 6s. 8d. (1566) 3. 54/4 " £23 (1561) 4. 60/? " £30 (1565) 5. 20/? " £10 (1561) 6. 20/? (1529) £40 (1563) 7. 33/4 (1542) £20 (1565) 8. 66/8 (1522) £20 (1563) 9. 13/4 (1516) £13, 6s. 8d. (1563) 10. 40/? (1513) £40 (1565) 11. 46/8 (1531) £20 (1563) 12. 6/8 (1545) £20 (1565) 13. 13/4 (1522) £5, 6s. 8d. (1558) 14. £9 (1532) £12 (1557)

Though these are extreme cases, a considerable rise is the rule and not the exception. The advantage of the fixed rent is in fact neutralised by the movable fine. Such figures give point to Crowley's outbursts, "They take our houses over our heads; they buye our groundes out of handes, they reyse our rents, they levy great, yea unreasonable fines." It is not surprising that the programme of agrarian reform put forward by the Yorkshire insurgents in 1536, and by the rebels under Ket in 1549, should have contained a demand for copyhold lands "to be charged with an easy fine, as a capon or a reasonable sum of money." It is not surprising that the Court of Chancery should have been bombarded with petitions to declare or enforce customs limiting the demands which a lord might make of an incoming tenant. It is perhaps more surprising that, in those cases where the fine was by custom uncertain, the rule that a reasonable fine was about two years' rent should not have been enforced by judges at an earlier date and more generally than it seems to have been. For in the sixteenth century, though many old economic ideas are going by the board, public opinion still clings to the conception that there is a standard of fairness in economic dealings which exists independently of the impersonal movements of the market, which honest men can discover, if they please, and which it is a matter of conscience for public authorities to enforce. Even a good Protestant who hates the Pope will admit that there is more than a little in the Canon Law prohibition of usury, and under usury, be it noted, the plain man includes rack-rents, as well as interest on capital and exorbitant prices. If to a modern economist the demand for reasonable fines and rents savours of sentimentality and confusion, he must logically condemn not only the peasants and their champions, but the statesmen; not only Ket and Hales and More and Latimer, but almost every member of every Elizabethan Privy Council. After all, all the precedents are on the side of an attempt to enforce a standard which shall be independent of the result which might be reached by higgling between this landlord and that tenant. Prices are fixed, wages are fixed, the rate of interest is fixed, though the money market is becoming more and more elusive, more and more critical of old-fashioned attempts at interference; the fines which freeholders must pay on admission have been fixed for centuries. Now that copyhold has got the protection of the Courts, it is not unnatural that tenants should ask the State to do with regard to the bargain most affecting them what it already does for bargains of nearly every other kind. It is not unnatural that, even when the fine is not settled by custom at a definite sum, they should demand nevertheless that the Courts should sanction that establishment of a "common rule," which is the ideal of the economically weak in all ages.

E. E. T. S., Crowley, The Way to Wealth.

See below, pp. 334-337.

Calendar of Proceedings in Chancery in the Reign of Edward VI. Bills to establish a fine certain on admission and alienation, to get protection against exorbitant fines, &c. are common. For popular complaints see E. E. T. S., A Supplication of the Poore Commons: "These extortioners have so improved theyr lands that they make of a xls. fyne xl. pounds," &c. For an actual instance see the following case. The tenants of Austenfield claim "that of ancient time all the customary tenants of the said manor of Austenfield were finable at fines certain, until of late years the lords moved by covetousness, by troubling and vexing their copyholders, drove many of them, for the buying of their quietness, to be at fines uncertain" (William Salt Collection, vol. ix. Chancery Proceedings. Bdle. 12, No. 70).

Th. Wilson, A Discourse upon Usurie, 1584: "And therefore I would not have men altogether to be enemies to the Canon Lawe, and to condemn everything there written, because the Pope was author of them.... Naie, I will saie plainlie that there be some such lawes made by the Pope as be right godlie, saie others what they list."

Yet we shall miss the full significance of the movement which we have examined, if we take their demands without analysis, and do not look at the other side of the picture. There was much to be said on the side of the manorial authorities, harsh as they often were. The criticism which Norden, with a surveyor's experience, makes upon the outcry against the upward movement of fines, by pointing out that the whole scale of prices and payments has been shifted by the depreciation in the value of money, is perfectly justified. For money had depreciated, depreciated enormously; and landlords, who were faced with swiftly rising prices on the one hand and fixed freehold and copyhold rents on the other, were in a cleft stick from which it is not easy to blame them for extricating themselves as best they could. The truth is that if we content ourselves with the supposition of an access of exceptional unscrupulousness on the part of lords of manors which was favoured by contemporaries, we shall misread the situation. The real facts were much more complex, much more serious, much more interesting. A large impersonal cause, the flooding of Europe with American silver, upsets all traditional standards of payment. The first brunt is borne by those whose incomes are fixed, or relatively fixed, the owners of landed property, and the wage-earning classes. But all over the country thousands of new bargains are being struck as leases fall in and copies are renewed. Each fresh contract is the opportunity for a readjustment of relationships, for shifting the burden from the shoulders where it rested. The wage-earners do this to some extent, but not successfully; wages do not keep pace with prices. The landlords do it much more effectively. But there is no mechanical means of measuring what change is necessary in order to place them and their tenants in the same position relatively to each other as they were before. Once customary fines are thrown overboard, there is, unless the Government interferes, no other standard except the full fine which can be got in the open market, and, when the custom of the manor allows it to be demanded, it is demanded. Thus the readjustment, as it were, overshoots itself, and the economic rent, unearned increment, surplus value--it is difficult to avoid phrases which modern associations have made trite--only part of which represents the rise in the price of land caused by the fall in the value of money, tends, instead of being, as hitherto, shared between landlord and copyholder, to be transferred en bloc to the former. It is rarely in modern society that classes are sufficiently definite and self-contained, rarely that economic changes are sufficiently catastrophic, for a great shifting of income from one to the other to be detected. Here we can see it going on before our eyes. We can note the result. But in this matter the twentieth century is not in a position to be critical of the sixteenth.

Norden, The Surveyor's Dialogue, Book I.: "Surveyor. The tennant leaveth commonly one either in right of inheritance, or by surrender, to succeed him, and he by custome of the manor is to be accepted tenant, alwaies provided he must agree with the lord, if the custome of the manor hold not the fine certain as in few it doth.... Farmer. You much mistake it, for I will show by ancient court rolls that the fine of that which is now £20 was then but 13s. 4d., and yet will you say they are now as they were then? Surveyor. Yea, and I thinke I erre little in it. For if you consider the state of things then and now, you shall find the proportion little differing; for so much are the prices of things vendible ... now increased as may well be said to exceed the prices then as much as £20 exceede the 13s. 4d."

We may now sum up this part of our subject. The extreme lucrativeness of sheep-farming, and the depreciation in the value of money, offered an incentive to landlords to make the most profitable use which they could of their property by amalgamating small holdings into large leasehold farms, which were used mainly, though not entirely, for pasture. To carry out this new policy they had to get rid of the small tenants. When the tenants held at will, or were lessees for a short term of years, lords could do this without difficulty. When they were copyholders for one life or more, they could do it more slowly; but still they could do it in time. When they were copyholders with an estate of inheritance, lords had only two alternatives--to induce them to accept leases, or to raise the fines for admission. The latter course enabled them to offer the tenants the alternative of surrendering their holdings or paying the full competitive price which could be got for them. And thus it caused an almost revolutionary deterioration in their position. Hitherto the custom of the manor had been a dyke which protected them against the downward pressure of competition, and behind which they built up their prosperity. Now the unearned increment was transferred from tenant to landlord by the simple process of capitalising it in the fine demanded on entry. The interest of the customary tenant, therefore, virtually depreciated to the level of that of a leaseholder. The interest of the manorial lord appreciated to the full and effective ownership of all surpluses arising between the grant of one copy and the grant of the next. Thus the differences in the degree of security enjoyed by copyholders are to be explained by differences in manorial customs. Whom custom helps the law helps; who by custom are without protection, are without protection from the law, except in so far as it gradually builds up a doctrine as to what is reasonable. Long after villeinage has disappeared, copyholders still bear traces of having sprung from a class of whom the law was reluctant to take cognizance, traces of being nurtured in a "villein nest."