[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 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,[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 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."[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 endorsement "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 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[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.