cclvii 



''In old times it could not be disposed of by the holder, but 

 a custom gradually arose of alienating it by will, and perhaps by pur- 

 chase^ within the limits of the family. Freedom of alienation became 

 greater as the bonds of the village community or township and of the 

 family were loosened. The order of the steps would be of this 

 kind : — First, no alienation but only inheritance ; then, alienation 

 within the family^ but with the consent of the possible heirs as well as 

 the community ; lastly^ the consent of the community would become a 

 mere form. Where a lord of the manor had acquired the powers 

 of the community, he probably acquired among them the veto on 

 alienation which in historic 'times he certainly possessed. In this 

 later shape also, the restriction became a formality, but not an empty 

 one. The lord's consent to alienation could not be refused if the 

 accustomed dues and fines were paid.'' 



The steps in the transition of common to individual property have 

 been the same in India, except that freedom of bequest is an idea 

 quite foreign to Hindu law and has come into existence within a very 

 recent period. 



As regards the English " copy-holder/' Sir F. Pollock states that 

 he is a tenant of a manor^ who is said to hold his tenement " at the 

 will of the lord according to the custom of the manor." This means 

 that the tenant's rights are nominally dependent upon the will of the 

 lord ; but the lord is bound to exei'cise his will according to the 

 custom, so that the tenant is really as safe as if he were an absolute 

 owner. The tenant's title is evidenced by the records of the lord's 

 court. The tenant cannot cut timber or open mines, and he has to 

 pay a heriot on succession, — give the best beast or the best chattel. 



As regards the origin of the copy-hold tenure Sir F. Pollock 

 observes '' Blackstone's account is ' copy-holders are in truth no other 

 than villeins, who by a long series of encroachments on the lord have 

 at last established a customary right to those estates which were held 

 absolutely at the lord's will.' It would be nearer the truth to say 

 that by* a long series of encroachments and fictions the lords and 

 lawyers acting in the interest of the lords got people to believe that 

 the lord's will was the origin of those ancient (mstomary rights which 

 before were absolute." 



The following is the account given of the manner in which the 

 English law of landlord and tenant was developed : — 



*' The truth is, and it may as well be stated at this point, that 

 the law of landlord and tenant has never, at least under any usual 

 conditions, been a law of free contract. It is a law of contract 

 partly express, partly supplied by judicial interpretation^ and partly 

 controlled by legislation, and sometimes by local custom. So far 

 as the terms and conditions are express, they are in the vast 

 majority of cases framed by the landlords or their advisers. The 

 tendency of judicial interpretation has also been, until lately, to incline 

 the scale of presumption in favor of the landlord on doubtful points ; 

 and the same may be said of the ruling tendency of legislation down 

 to the middle of the present century. The allowance of local cus- 

 toms, which might have done much to redress the balance if taken 

 up betimes, depends on the tendency of the judges. When special 



K K 



