breuis domini regis assise mortis aÌ„tecessoris ad coÌ„em legem vel c. plegii de prosequendo F. G. c. ¶ Nowe althoughe some suche tenauntes haue an inheritaunce accordynge to the custome of the maner yet in very dede they are but tenauntes at the wyll of the lorde For as some men thynke yf the lorde wyll expell them put them forth they haue no remedye at all but to sue vnto theyr lorde by peticion desyrynge him to be good vnto them For yf they myght haue any remedye by the lawe than shold they not be called say they tenauÌ„tes at the wyll of the lorde after the custome of the maner But other men of no lesse lernynge and prudencye haue ben of contrarye sentence as lorde Bryan chife iustyce in the tyme of kynge Ed. the. iiii whose opynyon was alwayes that if such tenaunt by the custom payeng his seruices be eiected and put forth by his lord without cause reasonable he may very well brynge and maynteyne an action of trespace agaynste his lorde at the coÌ„mon lawe as appereth H. xxj Ed. iiij Also lord Danby chyefe iustice in lykewyse was of the same iudgement as appereth M. vij Ed. iiij where he saith that the tenaunt by the custome is as well iÌ„heritable to haue his land after the custome as is he that hath a free holde at the coÌ„mon lawe but the determinacion of this question I remytte to my great maysters Qui iuris no dos legum enygmata soluunt Forasomoche as yet styl of this mater Certant cuasidici adhuc sub iudicelis est ¶ Also ye shall vnderstande that thusage of some maner is whan the tenaunte wyll surrender his lande to thuse of an other that he shall take a wande in his hande delyuer it to the steward of the court and the stewarde shall delyuer the same wande in name of seisin to hym that shall take the lande and suche a tenaunt is called tenaunte by the verge Dyuerse other customes there be of surreÌ„dring of copy hold landes which here for prolixitie I wyll pÌ„termit And forasmoche as tenauÌ„tes by custome of the maner haue by the course of the coÌ„mon lawe no free holde therfore they be called tenauÌ„tes of base tenure ¶ Hytherto I haue treated of the fyrst membre of diuision that is to wyte of chatelles for as I sayd al leeses for terme of yeres at wyll be accompted in the lawe but as catelles and be comprised vnder that name saue that they be called catelles reals where as kyne oxen horses money plate corne suche lyke be called chatell personalles Nowe we wyll prosede to thexplanicion of the seconde membre that is to saye of free holdes ¶ A diuision of free holdes ¶ Free holdes or franke tenemeÌ„tes a maÌ„ may haue in suÌ„dry wyses for eyther he is seased for terme of his owne lyfe or for terme of an other maÌ„s lyfe yf for terme of his owne lyfe either he haue goteÌ„ such estate by way of purchase or els the lawe hath enâ—â—ed him thervnto I call it bi purchase whether he coÌ„meth vnto it by his owne bargayning procurement or by the gyft of his frend and I cal it by thoperacion and intytlynge of the lawe whan a man maryeth a woman that is an inherures hath issue by her and she dyeth nowe shal he haue the landes duryng his lyfe by the course of the lawe and shal be called tenaunt by the curteysye of Englande In lyke wyse yf a man be scased in fee simple or fee tayle of landes taketh a wyfe he dyeth the law gyueth vnto the wyse the thyrde parte of her husbandes landes for terme of her lyfe and she shal be called tenaunt in dower ¶ Tenaunt for terme of lyfe ¶ Tenaunt for terme of lyfe is he that holdeth landes or tenementes for terme of theyr owne lyfe or for terme of an others lyfe Howe be it the moost frequent maner of speakyng is to cal him that hath estate for terme of his owne lyfe tenaunt for lyfe and hym that hath estate for terme of an others life tenaunt pour terme dautre vie that is to saye tenaunte for terme of an oters lyfe Ye shal note that he that maketh the lees is called the lessour he to whom the lees is made the lessee so he that maketh a feffemeÌ„t is called the feffour and he to whom the feffement is made the feffee Also yf tenaunt for terme of lyfe or tenaunt pour terme dautre vie do waste the lessour or he in the reuersion shall maynteyne an action of waste agaynste hym and recouer treble damages Finally ye shal vnderstande that by an acte of parlyament made in the. xxvii yere of Henry the eyght it is enacted that no free holde nor estate of inheritaunce shall passe ne take effecte but by dede indented sealed and enrolled in one of the kinges courtes at Westminster or els within the same countie where the lande lye as by the sayd acte more at large appereth ¶ Tenaunte by the curtesye ¶ Tenaunt by the curtesye of Englande is he that hath maryed a wyfe â—herited and hath had issue by her she deed in this case the lawe of Englande permytteth hym to reteyne al his wyues landes that she had eyther iÌ„ fee simple or fee tayle so longe as he lyueth And this is by the curteysye of Englande for this thynge is vsed in none other region But in this case it is requyred that the chylde ve vitall that is to say be borne and brought forth in to this worlde alyue and therfore the coÌ„mon sayenge hath ben that onlesse the chylde be herde crye the father shall not be tenaunte by the curtesye for thonely proue and argument of lyfe in an infaunt newe borne is the vagite and cryenge Ye shall vnderstande that onlesse the husband be in actual possession of his wyues landes and seased of them in her ryghte he shall not be tenaunt by curtesye after her deth And therfore yf landes descende to a mans wyfe so that she is tenauÌ„t in the lawe and to euery mans accion yet yf the husbande haue not made an actuall entree duryng the couerture he shall not be tenaunte by the curtesye for it shall be reputed his foly and negligence that he wolde not entre in her lyfe Otherwyse it is of aduousons rentes and suche other thynges whiche forthwith whan they discende be in a man without any entre or further ceremonye Note that if tenaunt by the curtesye wyl suffre or make any wast in the landes or tenemeÌ„tes that he so holdeth he is punyshable therfore by action of waste Also it is to be knowen that of thinges that be in suspence a man shall not be tenauÌ„t by the curtesye therfore yf a man be the tenauÌ„t in fee simple of certayne lande doth entremary with a woman that is the seignoresse or lady of the same hath issue by her she dyeth yet he
chapitre it is enacted that yf in case the lordes do mary theyr warde to vylaynes or others wheare is a dispargement yf suche heyre so maried be within thage of xiiij yeres or of suche age that the sayd warde can not consente to the maryage Than yf the frendes of this heyre complayne or fele them selues greued with this vnmete maryage the next of kyn to the heire vnto whom the heritage can not descende may entre in to the landes and put out the gardeyne in cheualrye yf the next kyndesman wyll not thus do another kyndesman of the infante maye do it and shall take the issues and profites to the vse of the heyre and shall yelde accomptes therof vnto hym whan he coÌ„meth to his full age But there be dyuers other dispargementes which be not expressed in the said estatute as if the heyre beynge within age of consente and in warde be maryed to a creple as to one that hath but one fote or one hande or that is a defforme creature or hauynge any horryble disease or contynuall infyrmitye All these and suche lyke be dispargementes But here ye shall vnderstande that it shall be sayd no dispargemente onlesse the heyre be so maryed beynge within the age of discrecyon that is to saye of .xiiij. yeres For yf he be of that age or aboue and consenteth to suche maryage it is no dispargement neyther shall the lorde for suche maryage lose his warde bycause it shall be reputed to the folye of the heyre beynge of age of discrecyon to consent to suche maryage Now yf the gardeyn offre to the heyre beinge in his warde a conuenient maryage without dispargement and the heyre refuseth it as he may very wel do than the lorde shal haue the value of the mariage of suche heyre whan he coÌ„meth to his full age But yf he mary hym selfe beynge in warde agaynst the wyll of his gardeyne than he shall paye the double value by force of the estatute of Merton before remembred And ye shall note that yf landes holden by knyghts seruice descende to an infante from his mother or from any of his auÌ„cestours his father beynge eytalyue in this case the lord shal not haue the maryage of this heyre for duryng the lyfe of the father the sone shal be in ward to no man Finally it is to be knowen that he whiche is gardeyne in cheualry in ryght may after he hath seased the warde graunt the same yet her by dede or without dede to another and than he to whom suche graunt is made is called gerdeyn in fayte Nowe as touchynge reliefe ye shall knowe that yf a man holdeth his lande by knyghtes seruyce and dyeth his heyre beynge of full age the full age of the male is .xxj. yeres of the female .xiiij. than yâ— lord of whome the lande is holden shall haue of the heyre reliefe Reliefe of a hole knyghtes fee is C. sÌ„ and of halfe a knyghtes fee fyftye sÌ„ c. Also a man may holde landes of a lorde by two knyghtes fees and than the heyre beynge of ful age at the deth of his auÌ„cestour shall pay to his lorde for reliefe .xl. li. ¶ Seruyce of castell garde ¶ Ye shal vnderstande that a man may hold by knyghtes seruyce and yet not holde by escuage nor shall paye no escuage for he maye holde by castell garde that is to saye by seruyce to kepe a towre of his lordê castell or some other place vpon a reasonable warnynge whan his lorde heareth that enemyes wyll come or be come in to Englande This seruice is also knyghtes seruyce and draweth to it warde maryage and reliefe as other knyghtes seruyce dothe ¶ Of graunde sergeauntye ¶ There is also an other kynde of knyghtes seruice called graunde sergeaunty which is where a maÌ„ holdeth his landes or tenementê of the kynge by suche seruyce as he oweth in proper persone to do as to beare the banet of our soueraygne lorde the kynge or his spere or to conduct his hoste or to be his marshall or to be the sewar caruer or butler at the feest of the coronacion or to be one of the chaÌ„brelaynes of the receypte of his eschequere or to do semblable seruyces to the kynge in proper persone suche maner of seruyce I say is called graund sergeauntye and the cause why it is so called is bycause it is the moost honorable and moost worthye seruyce that is for he that holdeth by escuage is not appointed by his tenure to do any other more specyall seruice thaÌ„ an other is bounde that holdeth by escuage but he that holdeth by graunde sergeauntye is bounde to do some speciall seruyce to the kynge Also yf he that holdeth of the kynge by graunde sergeauntye dyeth his heyre beynge of full age than the heyre shall pay to the kynge for reliefe not onely C. sÌ„ as he that holdeth by escuage shall do but the clere annuall value of those landes and tenementes whiche he holdeth of the kynge by graund sergeanty Furthermore ye shall note that in the marches of Scotlande some holde of the kynge by cornage that is to saye by blowynge of an horne to warne the men of the countrey whan they here that the Scottes or theyr enimyes be commynge or be alredye entred in to Englande which seruyce is also graunde sergeauntye Graunde sergaunty is as moche to saye in latyn as magnum seruiciuÌ„ that is to saye a great or hygh seruyce lyke as petite sergeauntye is called peruuÌ„ seruitium that is to saye a lytle seruyce But to reuert agayne to the thing yf any tenaunt holdeth of any other lord than of the kynge by suche seruyce of cornage than it is no grauÌ„d sergeauntye but yet it is knightes seruyce and draweth to it warde maryage and reliefe for none can holde by graunde sergeauntye but of the kynge Finally ye shal vnderstande that all they whiche holde of the kynge by this seruyce called graunde sergeauntye do holde of the kynge by knyghtese seruyce and the kynge shal haue of them warde mariage and reliefe but escuage he shall not haue of them onelesse they hold by escuage of hym by expresse wordê ¶ Petite sergeaunty ¶ Tenaunt by petite sergeauntye is he that holdeth his lande immediatly of our soueraygne lorde the kynge by this seruyce to pay to the kynge yerely a bowe or a spere a dagger a swerde a payre of gauntlettes a payre of spores of golde shafte or such other smal thingê apê‘teynyng to the warre and this seruyce is in effect but socage bycause that suche a tenaunt is not bounde by his tenure to go ne do any thing in his owne propre ê‘sone touching the warre but onely to rendre and paye yerely certeyn thynges to the kynge as a man oughte to paye a rente wherfore this seruyce of petite sergeaunty is no knyghtes seruyce but yet ye shall note that a man can not holde neyther by petite sergeauntye neyther by graunde sergeaunty but of the kynge
onely ¶ Homage auncestrell ¶ Tenaunt by homage auncestrel is he whiche holdeth his lande of his lorde by homage and bothe he and his auncestours whose heyre he is haue holden the same land of the sayd lorde of his auncestours tyme out of minde by homage and haue done vnto them homage and this is called homage auncestrell by reason of the longe continuauÌ„ce whiche hath ben by title of prescription as well concernynge the tenauncy in the blode of the tenaunt as concernynge the segnorye in the blode of the lorde And this seruyce of homage auncestrell draweth vnto it warrantye that is to saye yf the lorde which is now in lyfe hath ones receyued the homage of his tenauÌ„t he ought to warrant the same tenaunt what tyme so euer he shal be impleaded or sued for suche land so holden of hym by homage auncestrell Moreouer suche seruyce of homage auncestrell draweth to it acquitale yâ— is to saye the lord ought to acquite the tenure agaynst all other lordes that can demaunde any maner of seruyce out of the tenauncye Wherfore yf in this case the tenaunt whiche holdeth by homage auncestrell be impleaded of his landes and voucheth is lorde to warraunty who coÌ„meth in by processe and demaundeth of the tenaunte what he hath to bynde hym to the warrante and the tenure sheweth how he and his aucestours whose heyre he is haue holden his lande of hym and of his auÌ„cestours tyme out of mynde the lord yf he can not denye this and yf he haue receiued the homage of suche a tenaunte is bounde by the lawe to warrant hym his lande so that yf the tenaunt lose his lande in defaute of the lorde thus vouched that is to saye called to warranty he shall recouer agaynst hym so moche in value of those landes and tenementes whiche the lorde had at the tyme of callinge to warrantye or at any tyme after But if the lorde neuer receyued thomage of his tenauut than he maye very wel whan he is thus voucheâ— disclayme in the segnorye and so put out the tenaunt of his warrantye Where ye shall note that in euery case that the lorde disclayme in his segnory in courte of recorde his segnory is extincte and the tenaunte shall holde from thensforthe of the nexte lorde to hym that thus disclaymed Thus ye perceyue that homage auncestrell is not but where as is alonge continuauÌ„ce as well in the bloode of the tenaunt in respecte of his tenauncye as of the lorde in respecte of his segnorye Wherfore if the tenauÌ„t doth ones aliene his landes to an other althoughe he purchaseth the same agayne yet he shall not hold any lenger by homage auÌ„cestrell by cause of this discontinuaunce but shall holde it now by the vsuall homage ¶ Of socage ¶ Socage is properly where the tenaunt is bouÌ„de to come with his soke that is to saye with his plough to earye and sowe percell of the demene landes of his lorde which seruyce in auncyente tyme was very frequent but nowe by the mutuall consent bothe of the lorde and of the tenaunt it is conuerted for the moost parte in to a yerely rente How be it the name of socage abydeth styll Wherfore nowe all that is not knyghtes seruyce is called by the name of of socage So that yf a man holdeth by fealtye onely or by fealtye homage for al maner of seruice it is but socage tenure for homage alone maketh not knyghtes seruyce yea yf a man holdeth by escuage certayne as I haue sayd here tofore he holdeth in effecte but by socage Now where a man holdeth his landes by socage dyeth his heire beynge within thage of .xiiij. yeres the lorde shall not haue the warde but the nexte of kynne to the heyre to whome the heritage can not descende shall haue the wardeshyp as wel of the lande as of the heyre tyll the heyre come to the age of .xiiij. yeres and suche gardeine is called gardeyn in socage and shall rendre accomptes to the heyre for the issues and ê“fites that he hath receiued of the landes duryng suche tyme his resonable costes and expences deducted so that he shall not haue the wardshyp to his owne vse profite as gardeyne in cheualry hath Finally ye shal vnderstande that whan tenaunt in socage dyeth the lord shal haue reliefe that is to say the value of the rent that is yerely due vnto hym of the tenauncye besyde the yerelye rent so that in effecte after the dethe of his tenaunte he shal haue of the heyre .ij. rentes saue that for the relife he maye distrayne forthwith but for thaccustomed rente he can not distrayne tyll the vsuall daye of payment be come ¶ Franke almoyne ¶ Tenaunt in franke almoyne is where an abbot or pryour or any other man of religyon or ecclesiasticall persone holdeth of his lorde in pure and perpetual almes suche tenure began fyrste in olde tyme in this maner Whan a man was seased in olde tyme of certayne landes or tenementes in his demene as of fee and of the same tenementes enfeoffed an about his couent or a pryour and his couente or any other persone ecclesiastycall as a deane of a colege mayster of an hospitall or suche lyke to haue and to holde the same landes to them and to their successours for euer in pure and perpetuall almes or in franke almes in these two cases the tenementes sholde be holden in franke almoyne By force of whiche tenure they that holde in franke almoyne after this sorte be bounde of ryght before god to make orisons prayers to celebrate masses and other diuine seruices for the soules of theyr graunters and feffars and for the soules of theyr heyres which be deed and for the prosperous estate of theyr heyres that be nowe alyue And bicause of ryght they be bouÌ„de to this diuyne seruyce they be discharged by the lawe to do any other ê“phane or corporall seruyce as fealtye or suche other lyke But neuertheles yf such as hold theyr tenementê in franke almoyne do omit these diuine seruicê whervnto they be bounde before god the lorde can not distrayne them ne yet compel them by any other meanes by the course of lawe but the onely remedy is to complayne of them to theyr ordinary who of right ought to compell suche ecclesiasticall personnes to do the diuyne seruyce due as aforesayd But here ye shall note that yf an abbotte or pryour or parsone of a churche or suche lyke holdeth of his lorde by certeyne diuyne seruyce to be done as to syng masse euery frydaye in the weke or placebo and dirige or to fynde a preeste to synge masse or to distribute in almes C. pence to a hoÌ„dred men at such day In all these cases yf suche diuyne seruyce be vndone the lorde maye very well distrayne bicause the seruyce is put in certayntye Now I sayd that yf in olde tyme a man dyd infeoffe suche spirituall ê‘sone after such sorte he shold hold his lande