The Agrarian Problem in the Sixteenth Century Part 22

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 Somersets.h.i.+re and one in Devons.h.i.+re.[494] In two villages in Northamptons.h.i.+re[495] 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 ill.u.s.trating the eviction of numerous small tenants who had leased the demesne we may recur to the case of Ablode[496] 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 cla.s.s encountering exactly the same difficulty under somewhat different circ.u.mstances. The first, which relates to the waste, not to the demesne lands, comes from a survey of the lords.h.i.+p of Bromfield and Gale which was made by the Parliamentary surveyors in 1649.[497] "The inclosures before mentioned," they say, "and all the rest of them within the lords.h.i.+p 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 lords.h.i.+ppe.

_And if they should enclose all their common, yet the lord would have a third part._" The second ill.u.s.tration is given by a pet.i.tion which some leasehold tenants of Whitby Strand[498] promoted in the Court of Requests in the year 1553. When the monastery of Whitby was dissolved, its property pa.s.sed 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 pet.i.tion 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.

[494] _Ibid._, Paynton, Stooke Trister and Cucklington, Donyett, Chedseye, South Brent and Huish. The leases at South Brent are for ninety-two years.

[495] They are Duston in 1561 (R.O. Rentals and Surreys, Portf.

13, No. 23), and Paulspurie in 1541 (_ibid._, vol. ccccxix., fol. 3).

[496] See pp. 204 and 210.

[497] MS. Transcript by A.N. Palmer of Survey of Lords.h.i.+p of Bromfield and Gale in Wrexham Free Library.

[498] 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,[499] "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 sanct.i.ty 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.[500] 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 s.h.i.+llings, 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 una.s.sailable t.i.tle 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."[501] t.i.tles are questioned, and the small lessee, whose interest is a terminable one and unprotected by any manorial custom, is the first to suffer.

[499] Fitzherbert, _Book of Surveying_, p. 32.

[500] For reference, see p. 130, note 2.

[501] _Topographer and Genealogist_, vol. i., survey of Mudford and Hinton.

(b) _The Copyholders_[502]

But were the tenants at will and the leaseholders the only cla.s.ses 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 cla.s.ses 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 const.i.tuted 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 relations.h.i.+ps 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.

[502] 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.[503] 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,[504] on the other hand, thinks that the lord can never increase the amount of the admission fine; while c.o.ke,[505] in a well-known pa.s.sage, 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 trespa.s.s.

[503] Fitzherbert, _Book of Surveying_, p. 28.

[504] Kitchin, _Court Leet_.

[505] c.o.ke, _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,[506] 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 pet.i.tion in the Court of the lord with an appeal to Chancery, or by an action of trespa.s.s in the Common Pleas, the cla.s.ses 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 distinguis.h.i.+ng 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.[507] 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?

[506] Leadam, _Trans. Royal Hist. Soc._, New Series, vol. vi.

[507] Vinogradoff, _Villainage in England_, pp. 48-56.

Nor is it easy to accept the sharply contrasted theory of Professor Ashley.[508] 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 pa.s.s 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 circ.u.mstances, 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,[509] 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 c.o.ke 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."[510] 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 endors.e.m.e.nt "our lord the king does not interfere in matters of villeinage."[511] Now the tide is reversed. From 1439 onwards a stream of equitable jurisdiction flows out from the Chancery to secure the t.i.tle of the very cla.s.s which has. .h.i.therto had no legal t.i.tle at all.

Tenure in villeinage becomes copyhold. Clearly the discovery of these cases by Dr. Savine[512] 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.

[508] Ashley, _Economic History_, Part I., vol. ii. pp. 274-282.

[509] c.o.ke upon Littleton, 60 b.

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

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

[512] 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."[513] 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 doc.u.ments, 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;[514] and when the Protector Somerset applied his popular agrarian policy to his own estates he had to get Parliament to pa.s.s a special Act to give the copyholders on his demesnes peculiar security.[515]

[513] _Topographer and Genealogist_, vol. i. The surveyor is Humberstone.

[514] _Calendar of Proceedings in Chancery in the Reign of Ed.

VI._, vol. i. p. cx.x.xvii.: "To the Right Honourable Sir Richard Riche, Kt., Lord Riche and Lord Chancellor of England. In humble wise sheweth and complaineth unto your lordes.h.i.+ppe 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."

[515] In 1548 an Act was pa.s.sed "for the a.s.surance 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 rehea.r.s.ed 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 pet.i.tions 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.[516] 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";[517] 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."[518]

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 a.s.signees of the said mannour and hundred and everye parte thereof for ever."[519] The tenants at Elswick[520] 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."[521] 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,[522] 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.[523] 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.

[516] See pp. 122-123.

[517] _Hist. MSS. Com._, Cd. 3218, p. 74. Inquisition of February 20, 1308.

[518] _Northumberland County History_, vol. v. p. 282.

[519] _Crondal Records_ (Baigent), Part I. p. 177.

[520] _Northumberland County History_, vol. viii.

[521] _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."

[522] Croke's _Reports_, vol. iii., Trin. 4 Caroli, Rot. dcciv.

case 7. Custom that copyholder for life may cut down trees p.r.o.nounced "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."

[523] _Ibid._, vol. iii., p. 198, case 8, Hill, 5 Car., Rot.

125: "The question was whether a lord of a mannor may a.s.sess 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 a.s.sessing 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 pet.i.tions 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.