these Grants an estate tayle passeth in the first without the word heires in the second without the word body in the third without either If the King by his Steward granteth a Copyhold to a man and to his heires males or heires females no Fee-simple passeth because the Lord never intended to passe such an estate If a Copyhold be Granted to an Abbot and to his heires an estate for life onely passeth So if I Grant a Copyhold to a man in Fee-simple ac sanguini suo imperpetum or sibi assign suis impeâ—pectum yet the word heires wanting no greater estate than for life passeth The same Law is if a Copyhold be granted to a man and to his heires as long as I. S. shall live this is onely an estate per anter vie a rend limitted upon this estate is good But if a Copyhold be granted to a man and to his heires as long as such a tree shall grow in such a ground this is a good Fee and a render limitted upon it is void If a Copyhold be granted to I. S. and I. N. haeredibus they are joynt Tenants for life and no inheritance passeth unto either because of the uncertainty for want of this word suis but if a Copyhold be granted to I. S. onely haerend a good Fee-simple passeth without the word suis If a Copyhold be granted to a man haered bus an estate tayle doth not passe for want of the words de corpore And if a Copyhold be granted to a man liberis aut puer suis de corpore an estate taile doth not passe for want of this word heires for what estates soever are intayles since the Statute De donis Conditionalibus were Fee-simples Conditionall but this could be no Fee-simple conditionall before the Statute without the word heires and therefore no intayle since the Statute And for the same reason if a Copyhold be granted to a man and to the issues males of his bodie an estate for life onely passeth If a Copyhold be granted to a man without expressing any certaine estate by implication of Law an estate for life onely passeth and if I grant a Copyhold to three habendum successive they are joynt Tenants unlesse by speciall Custome the word successive make their estates severall Thus much touching the creation of Copyhold estates SEC L. THe discents of Copyhold of inheritance are guided and directed by the rules of the Common Law as well as the creation of Copyhold estates If a Copyholder in Fee-simple having issue a sonne and a daugher by one venter and a sonne by an other venter dieth and the sonne by the first venter entreth and dieth the Land shall discend to the daughter Quia-possessio fratris de feodo simplici facit sororem esse haeredem But if a Copyholder in tayle have issue a son and a daughter by one venter and a son by another venter dieth and the sonne by the first venter entreth and dieth the sonne of the second venter shall inherit If a man having issue a sonne and a daughter by one venter and a sonne by another venter the eldest sonne purchaseth a Copy-hold in Fee and dieth without issue the daughter shall have the Land not the yonger sonne because he is but of the halfe blood to the other If a man hath a Copyhold by discent from his mothers side if he die without issue the Land shall goe to the heires of the mothers side and shall rather escheate than goe to the heires of the fathers side but if I purchase a Copyhold and die without issue the Land shall goe to the heires of my Fathers side but if I have no heires of my fathers side it shall goe to the heires of my mothers side rather than escheate If there be Father Vnckle and Sonne and the sonne purchaseth a Copyhold in Fee and dieth without issue the Vncle shall inherit and not the Father because an inheritance may lineally discend but not ascend If there be three brothers and the middle brother purchaseth a Copyhold in Fee and dieth without issue the eldest shall inherit because the worthiest of blood If there be two Coparteners or two Tenants in Common of a Copyhold and one dieth having issue the issue shall inherit and not the other by the survivership but otherwise it is of two joynt Tenants Should I give way to my Penne and write of this Theame till I wanted matter to write on I should make a large Volume in dilating this one point therefore I will contract my selfe intreating you to supply by your private cogitations what I have either willingly or unwittingly passed over in silence onely take this caveat by the way Though all qualities necessarily incident to estates at the Common Law are likewise incident to Copyhold estates yet the Law is not so of collaterall qualities without speciall Custome Co. 4. fo 22. a. and therefore a Copyhold shall be no assets to the heire A discent of a Copyhold shall not toll an entry A surrender made by Tenant in tayle admit a Copyhold may be intayled or by a Baron of a Copyhold which he hath in right of his wife shall make no discontinuance because these are collaterall qualities and not necessarily incident Thus much of the severall estates of Copy-holds together with their severall qualities incident to their severall estates I come now in the first place to examine how Copyholders are to impleade and be impleaded SEC LI. A Copyholder cannot in any Action reall or that savoureth of the realty or hath a dependance upon the realty implead or be impleaded in any other Court but in the Lords Court for or concerning his Copy-hold but in actions that are meerely personall he may sue or be sued at the Common Law If a Copyholder be ousted of his Copyhold by a stranger he cannot implead him by the Kings Writ but by Plaint in the Lords Court and shall make protestation to prosecute the sute in the nature of an Assize of novell disseisin of an Assize of Mort D'ancestor of a Formedon in the Discender Reverser or Remainder or in the nature of any other Writ as his cause shall require and shall put in pleg de prosequend If a Copyholder be ousted by the Lord he cannot maintaine an Assize at the Common Law because he wanteth as Franck-Tenant but he may have an action of trespasse against him at the Common Law for it is against reason that the Lord should be Judge where he himselfe is a party If in a plaint in the Lords Court touching the tytle of a Copyholder the Lord giveth false judgement he cannot maintaine a Writ of false judgement for then he should be restored to a Francke-Tenant where he lost none No Copyholder of base Tenure in ancient Demesne can maintaine a Writ of droit close or a Writ of Monstravêrunt but Tenants of Francke-tenure in ancient demesne can A Copyholder that may cut downe Timber trees by Custome by
Manor decayeth and dyeth for t is not the two materiall causes of a Manor but the efficient cause knitting and uniting together those two materialll causes that maketh a Manor Hence it is that the King himselfe cannot create a perfect Manor at this day for such things as receive their perfection by the continuance of time come not within the compasse of a Kings Prerogative and therefore the King cannot grant Freehold to hold by Copie neither can the King create any new custome nor doe any thing that amounteth to the creation of a new custome and therefore a composition made betweene the King and his Tenant where he hath Herriot custome to pay 10. li. in Levie thereof every time it falleth is no binding composition for this amounteth to the creation of a new custome Et haec omnia similia sunt temporum non regum seu principum opera which fully verifieth the old saying Plus valet vulgaris consuetudo quam regalis concessio this is the sole cause why the King cannot create a perfect Manor at this day and this is the chiefe cause why a common person cannot create a perfect Manor but not the sole cause for there is this cause farther a perfect Manor cannot subsist without a perfect tenure betweene very Lord and very Tenant but a Common person cannot create a perfect tenure and consequently cannot create a perfect Manor before the Stat. of Quia emptores terrarum if any Tenant seized of Land in Fee simple had infeoffed a stranger he might have reserved what services hee thought fit or had he reserved no services yet the Law would have imployed a perfect tenure betweene the Feoffor and the Feoffee for the Feoffee was to hold off the Feoffor by the same services that the Feoffor held over on his Lord Paramount but since this Statute If a Tenant seised of Land in Fee infeoffeth a stranger neither by the expresse reservation of the Feoffor nor by the implyed reservation of the Law can there bee a perfect tenure created at this day betweene the Feoffor and the Feoffee for the Feoffee shall hold immediately of the Lord Paramount not of the Feoffor and further as the King can doe nothing which amounteth to the creation of a new custome so a common person can doe nothing which amounteth to the creation of a new tenure and therefore if there be Lord and Tenant by 10. s. rent and the Lord will confirme the estate of a Tenant Tenend by a Hawke a paire of gilt spurres a Rose or similia this is a voyd confirmation otherwise had it beene if the Lord had confirmed the estate of the Tenant Tenendum per 5. s. that had beene a good confirmation because it tendeth onely to the abridgement of an old tenure and not to the creation of a new and as it is with a confirmation so it is with a composition upon the reason of this ground it is that if the Lord of a Manor purchase forraine land lying without the Precincts and bounds of the Manor he cannot annex this unto the Manor though the Tenants be willing to doe their Services for this amounteth to the creation of a new tenure which cannot be effected at this day And therefore if a man having two Manors and the Lord would willingly have the Tenants of both these Manors to doe their sute and service to one Court this is but lost labour in the Lord to practise any such union for notwithstanding this union they will be still two in Nature howsoever the Lord covet to make them one in Name and the one Manor hath no warrant to call the Tenants to the other Manor but every act done in the one to punish the offenders in the other is traversable yet if the Tenants will voluntary submit themselves to such an innovation and the same bee continued without contradiction time may make this union perfect and of two distinct Manors in nature make one in name and use and such Manors peradventure there are thus united by the consent of the Tenants and continuance of time but the Lords power of it selfe is not sufficient to make any such union causa qua supra But if one Manor holdeth of another by way of Escheate these two Manors may be united together fortior enim est disposâ—tio legis quam hominis But in this that I exclude common persons from being able to create a tenure I may seeme to impugne many authorities which hold at this day that a tenure may bee created by a common person for to cleare this colour of contradiction know that tenures are two fold First imperfect as where a man maketh a Lease for yeares or for life or a gift in tayle here is an imperfect tenure betweene the Lessoâ— and the Lessee the Donor and the Donee and this imperfect tenure I confesse may be created by a common person at this day Secondly perfect betweene very Lord and very tenant in Fee and such a tenure a common person could never create since the Stat. of Quia Emptores terrarum and consequently a common person cannot create a perfect Manor sithence for without a perfect tenure a perfect Manor cannot subsist Thus much touching the definition of a Manor thus much I say touching the two materiall causes together with the efficient cause A word of another cause of a Manor which appeareth not in the definiâ—ion so manifestly as the other causes doe this is a cause which among the Logicians is termed Causa sine qua non and that is a Court Baron for indeede that is the chiefe prop and Pillar of a Manor which no sooner faileth but the Manor falleth to ground if wee labour to search out the antiquity of these Court Barons we shall finde them as ancient as Manors themselves For when the ancient Kings of this Realme who had all the lands of England in Demesne did conferre great quantities of land upon some great personages Vide Lamb in his explication of Saxon words verbo Thanus Bacon in his elements of the Law fol. 41. 42. 43. with liberty to parcell the land out to other inferiour Tenants reserving such duties and Services as they thought convenient and to keepe Courts where they might redresse misdemeanors within their Precincts punish offences committed by their Tenants and deside and debate controversies arising within their jurisdiction and their Courts were termed Court Barons because in ancient time such personages were called Barons and came to the Parliament and sate in the upper house but when time had wrought such an alteration that Manors fell into the hands of meane men and such as were farre unworthy of so high a calling then it grew to a custome that none but such as the King would should come to the Parliament such as the King for their extraordinary wisedome or qualitie thought good to call by writ which writ ran hac vice tanâ—um yet though Lords of Manors lost their names of Barons and
THE COMPLEATE COPY-HOLDER Wherein is contained a Learned Discourse of the Antiquity and Nature of Manors and Copy-Holds VVith all things thereto incident As. Surrenders Presentments Admittances Forfeitures Customes c. Necessary both for the Lord and Tenant Together with the forme of keeping a Copy-hold Court and Court Baron By Sir EDVVARD COKE Knight LONDON Printed by T. Cotes for W. Cooke and are to be sold at his Shop at Furnivalls-Inne Gate in Holborne 1641. TO THE READER THis Copy comming to my hands perused and reverenced by men learned in the Lawes J thought most worthy of Publication The very name of the Composer who hath beene an Ornament to our Kingdome is enough to give it sufficient authority and indeere it to every wise opinion But the profit which doth attend is most considerable it being a subject so materiall declaring the Antiquitie of Manors and Copyholds and written for the good of Lords and Tenants and by consequence of all men it cannot but receive a becomming entertainement In the confidence of this truth J referre it to all judicious perusall not a little congratulating my owne happinesse to have beene an instrument of bringing so excellent a Piece from obscurity for the benefit of the Common-wealth W. C. MANORS AND COPY-HOLDS SECTION I. THough a Manor and Copyhold have such mutuall respect and reciprocall reference one to the other as that they are almost in nature of Relatives yet the knowledge of the one cannot be attained unto unlesse the sense of the other be truely apprehended for a Manor is as the bodie and Copyholds certaine members of this bodie In this Treatise I will discourse of them severally apart and beginne with the Manor it selfe especially when common reason teacheth us that totum magis illustrat partes quam partes aliquae illustrant totum SEC II. THe Saxons who held England in subjection immediately before the comming of the Normans were unacquainted with these Manors yet in effect they had Manors in those dayes in circumstance peradventure something varying in substance surely nothing differing from our Manors at this day they wanted neither demesnes nor services the two materiall causes of a Manor as Fulbecke termeth them Fulbecke in his fourth Dicalogue their demesnes they termed Inlands because the Lords kept them in their own hands and enjoyed them in their owne possession their Services they termed Vtlands because those lands were in the manurance and occupation of certaine Tenants who in consideration of the profits arising out of these lands were bound to performe unto their Lords certaine duties and services their Demesnes were of two sorts and their services likewise were of two sorts SEC III. ONe sort of their Demesnes was termed Bockland because they passed by booke and they in effect differed nothing from our Freehold lands at this day SEC IV. TH' other sort of their Demesnes was termed Folklands because they passed by Polls and were claymed and challeng'd by the Tenants not by any assurance in Writings but onely by the mouth of the people Per vocem populi and they in effect differed in nothing from Copy-hold Lands at this day SEC V. TOuching their Services one sort of their Services were Servicia libera which consisted most commonly in Render as to pay yearly such a Rent or in Vser as where the Lord reserved Common for his Cattell or in Prender as where the Lord reserved three shillings and foure loads of Estovers for fuell to be taken yearely in his Tenants grounds SEC VI. TH' other sort of Services were Servitia villana which consisted altogether in Fesance as to scoure the Lords ditches to tyle his houses to thatch his barnes or such like SEC VII ANd in the reservation of these Services the Lords had a speciall respect unto the qualitie of the Land did they transferre their Bockelands hoc est Free-hold Lands they would never reserve Villeine Services did they transferre their Folk-lands hoc est Coppy-hold Lands they would never reserve free Services but still they suited their Services according to the nature of the Land the reason I gather was this in those dayes none but men of good account and reckoning enjoyed the said Bock lands whereas Holblands were in the hands of men of meaner sort and condition and therefore had not the Lords care beene extraordinary in reserving apt Service they should have much wronged their Tenants Lamb. in his explication of the Saxon word Terra ex-scripta and thus much Lambert verifieth saying Terra ex scripto fuit haereditaria libera at que immunis terra vero sine scripto officioruÌ„ quadam servitute fâ—it obligata priorem plerum que nobiles atque ingenui posteriorem vero rustici feri pagani possidebant Lambert termeth these Bocklands Terras liberas atque immunes non quod ab omnibus servitiis fuerunt liberae aut immunes sed quod tenentes ipsi fuerunt liberi servitiis tantum liberis onerati But I much wonder why this Bockland doth to this day retaine the name of Free-hold Land sithence time hath bred such an alteration that in the point of Service a man can scarce discerne any difference betweene Free-hold Lands and Copy-hold Lands The favourable hand of time hath so infranchised these Copy-holders that whereas in the Saxons time their Services did consist wholly in Feasance now they consist in Render in Vser and in Prender as Free-holders Services did in those dayes And on the other side time hath dealt so unfavourably with Free-holders and hath so abridged them of their former freedome that if you compare the Service of the Free-holders with the Service of the Copy-holders Senties hunc potius quam illum fore liberum How many Free-holders are there at this day charged with base Services as many I doubt not as there are Copy-holders No marvell then that many able men turne Copy-holders and many Pezants turne Freeholders no marvell I say that men of all sorts and conditions promiscuously both Free-holders and Copy-holders sithence there is such small respect had unto the quality of the Land in the reservation of our Services Yet observe I pray though time hath so infranchised these Copy-holders that they have in a manner shaken off all villaine Service yet they retaine a badge of their former bondage for they remaine still subject to their Lords will therefore at this day they are termed Tenants at will but with Free-holders otherwise it is for they are not in that subjection to their Lords peradventure in this respect onely Bocklands may be termed Free-hold Lands and Folk-land Villaine Lands and yet time hath dealt very favourably with Copy-holders in this point of will as well as in the point of Service SEC VIII Bract lib. 4. Tr. 3. cap 9. numb 5. Fleta lib. 5. cap 51. FOr as I conjecture in the Saxons time sure I am in the Normans time those Copy-holders were so farre subject to the Lords will that eorum tenentes
aliquid de suo honorabili contenen amittat and therefore by this appeareth that this Stat. of Magna Charta was but an affirmance of the Common Law in this point of afferance Touching the second question know that 't is not in the power of the Court to impose a Fine or an Amerciament at their election for any offence committed but still the quality of the punishment must necessarily sute with the qualitie of the offence from the severall natures of offences committed arise the severall names of punishments inflicted The offences in respect of the place are twofold and in respect of the persons twofold In respect of the place offences committed extra curiam of which the Steward by no common possibilitie can have cognizance without the presentment of the homage and therefore the power of presenting them and imposing punishments for them belongeth unto the Jurors of the Leet and not unto the Steward and these punishments thus imposed are termed Amerciaments 2. Offences committed in Curia of which the Steward can take sufficient notice without the helping hand of the homage and therefore the punishments of these offences belong unto the Steward not unto the Jurors and these punishments thus imposed are termed Fines Thus in respect of the place offences are twofold In respect of the person they are likewise twofold Offences committed by private persons 2. Offences committed by publike Officers and Ministers of the Court in the administration of their office punishments imposed for offences of the former ranke are termed Amerciaments of the latter ranke Fines the one afferable per pares th' other not and the reason why the Statute of Magna Charta in this point of afferance extendeth not unto any offences committed in Court by private Persons Co. 8. Greislegt Cafe or publique Officers neither unto any offences committed extra curiam by publique Officers in administration of their Office is this because though the words of the Statute are generally extending unto all offences whatsoever yet th' intent of the Statute makers was not to make the Jurors Afferors in omnibus delictis mulctandis sed in iis tantummodo puniendis quorum certam possint habere notitiam Fleta lib. 1. cap. 98. intelligentiam as Fleâ—a speaketh and therefore sithence the Steward hath more certaine notice of offences committed in curia by what persons soever then the Jurors have and can better judge and discerne of the natures and qualities of offences committed Extra curiam by publike Officers than Jurors can therefore surely the intent of this Statute was to leave the punishment of these offences to the discretion of the Steward and not the afferance of the homage Thus much concerning Amerciaments a word concerning Forfeitures SEC XXVII FOrfeiture commeth of the French word Forfaict scelus quia scelerum delictorum perpetratio est forisfacturarum causa origo In our Language it signifieth the effect of transgressing rather than the transgression it selfe I meane it signifieth the penalty for the offence committed rather than the act it selfe whereby the offence it selfe is perpetrated and it extendeth both unto Lands and unto Goods unto Lands both Copyhold and Freehold Touching the causes from whence springeth the forfeiture of Copyhold Lands I shall have occasion to speake more liberally in another place and therefore I will silently passe them over speaking some few words touching the causes from whence Forfeitures of Freehold Land arise The causes are many amongst the which I have observed 1. That if any Freeholder alieneth his Land in Mortmaine hee forfeiteth his Freehold 2. If a Freeholder ceaseth for the space of two whole yeares to performe such Services or to pay such Rents as he is tied unto by his Tenure and hath not upon his Land sufficient goods or chattels to be distrained he forfeiteth his Freehold 3. If any Freeholder infringeth any condition whereunto hee is tied hee forfeiteth his Freehold Touching the causes from whence grow the forfeitures of goods they are likewise in number many and from the severall causes of forfeiting goods arise severall names of goods forfeited 1. If a Felon stealeth goods and upon pursuite made waiveth these goods and leaveth them in any part of the Manor and be not attached upon the fresh suite of the owner then are these goods forfeited to the Lord and are termed waives 2. If any beasts are found wandering in any place and be proclaimed in three market Townes adjoyning and are not claimed by the owner in a yeare and a day then are the beasts forfeited to the Lord who hath such a liberty and are termed Estrayes 3. If any suffer Shipwracke upon the Seas and through the violence of the Waves goods are cast upon the Shore and being seized by the Bayliffe are not claymed within a yeare and a day after the seisure then are these goods forfeited to the Lord who hath that Franchize and are termed Wrecks 4. If one come to a violent end without the fault of any reasonable creature then immediatley that thing which is the cause of that untimely death becommeth forfeited unto the Lord and it is termed a Deodand as this old Verse testifieth Omnia quae movent ad mortem sunt Deodanda as if a Horse striketh his Keeper and killeth him or if a man driveth his Cart and seeking to redresse it falleth and the Cart wheele running over him presseth him to death or if one felling a tree giveth warning to commers by to look to themselves and notwithstanding warning given some body is slaine by the fall of the tree the Horse in the first Case the Cart and the Horses in the second Case the Tree in the third Case are forfeited to the Lord as Deodands many other sorts of forfeited goods I might adde unto this but I will forbeare to enumerate any more in this kind and to speake more largely of these which I have already enumerated for three speciall reasons 1. Because they are duties accruing unto the Lord not meerely from the Tenants nor solely by the Act of the Tenants but most commonly from strangers and by the sole act of strangers and therefore I confesse are not aptly ranked under the name of Services 2. Because a perfect Manor may well subsist without their assistance since they adde nothing to the perfection of the essence of a Manor 3. because they are not incident unto every Manor but into such Manors onely as can challenge them either by speciall prescription or by Patent from the King for primarily and originally these forfeitures of goods belonged to the King for these reasons especially because what goods soever have no certaine owner knowne to challenge interest in them as waives estrayes and wreckes the propertie of such goods belong unto the King virtute praerogativae and thus much Bracton intimateth when he saith Sunt alia quaedam quae in nullius bonis esse dicuntur sicut wreccum maris c. aliae res quae Dominum non
were deprived of that dignity which was inherent to their names yet their Courts retaine still the name of Court Barons because they were originally erected for such personages as were Barons neither hath time beene so injurious as to eradicate the whole memory of their auncient dignity in their name there is stamps left of their nobility for they are still intituled by the name of Lords These Courts differ from Court Leets in diverse respects In this that Court Barons by the Law may be kept once every three weekes or as some thinke as often as it shall please the Lord though for the better ease both of Lords and Tenants they are kept but very seldome but a Court Leete by the Statute of magna Charta is to bee kept but twice every yeare one time within the moneth after Easter Magna Charta C. 35. 31. E. 3. Ca. 15. and another time within a moneth after Michal 2. In this that Court Barons may bee kept in any place within the Manor contrary to the opinion of Brian But a Court Leete by the Statute of Magna Charta is to be kept in certo loco ac determinato within the Precinct 3. In this that originally Court Barons belonged unto inferior Lords of Manors but Court Leets originally belonged unto the King 4. In this that Court Barons are incident unto eâ—â—â—y Manor so that every Lord of a Manor may keepe a Court Baron but few have Leets for inferiour Lords of Manors cannot keepe Court Leetes without speciall prescription or some speciall Patent from the King 5. In this that in Court Barons the suitors are Iudges but in Court Leets the Steward is Iudge 6. In this that in Court Barons the Iewrie consisteth oftentimes of lesse than twelve in Court Leets never the reason of that is because none are impanelled upon the Iewrie but Freeholders in Court Barons of the same Manor but in Court Leets strangers are oftentimes impanelled 7. In this that Court Barons cannot subsist without two suitors adminimum but Court Leets can well subsist without any suitors 8. In this that Court Barons enquire of no offences committed against the King but Court Leetes inquire of all offences under High Treason committed against the Crowne and dignity of the King In many other respects they differ as that a writ of errour lyeth upon a judgement given in a Court Leete but not in a Court Baron So in a Court Leete a Capias lyeth but in a Court Baron in steade of a Capias is used an Attachment by goods So in a Court Baron an action of debt lyeth for the Lord himselfe because the suitors are Judges but in a Court Leete the Lord cannot maintaine any action for himselfe because the Steward is Iudge but omitting these with many more I come to the Etymologie of a Manor Some derive the word Manor a manendo and then it taketh his name either from the Manor-house which the Lord maketh his dwelling place or else a manendo quia Dominus ac tenentes in Manerii sui circuit cohabitant ac manent Some thinke t is termed Manor from manuring the ground and then it taketh its name either from the Lords Demesnes which the Tenants are bound to Manure or else from the Land remaining in the Tenants hands which are likewise tilled and manured others are of opinion that it is derived of the French word mesner which signifieth to governe or guide because the Lord of a Manor hath the guiding and directing of all his Tenants within the limits of his jurisdiction and this I hold the most probable Etymologie and most agreeing with the nature of a Manor for a Manor in these dayes signifieth the jurisdiction and royalty incorporate rather than the Land or Scite Thus much touching the Etymologie A word touching the division of a Manor A Manor is twofold re nomine 2. Nomine tantum re nomine as where the two materiall causes of a Manor the efficient cause causa sine qua non doe meete and joyne together nomine tantum as where any of these causes is wanting as to insist in the two materiall causes if the Lord will transferre over to some stranger the services of all his Tenants and reserve unto himselfe the Demesnes or if he will passe away the Demesnes and reserve the services in both causes the Lord peradventure hath a Manor nomine but not otherwise because in the one cause he wanteth Demesnes in the other services So if a Manor discendeth to Co-parteners and they make partition and the intire Demesnes are allotted to the one and th' intire services to the other the Manor is now in suspence for neither of them hath any Manor but in name onely but if part of the Demesnes and part of the Services be allotted to each one then have they each of them a Manor not nomine tantum but re nomine To insist in the efficient causes If the King at this day will grant a great quantitie of land to any Subject injoyning him certaine duties and services and withall willeth that this should beare the name of a Manor howsoever this may chance to gaine the name of a Manor yet it will not be a Manor in th' estimation of the law to insist in this cause sine qua non If the King grant away a Manor to I. S. excepting the Courts and perquisites the Grantee hath a Manor in name onely So if all the Freeholders dye but one if the Lord purchase all the Freeholders land or passe away the Services of the Freeholders or release unto his Freeholders all their services notwithstanding the Demesnes and the Services of the Copiholders yet the Lord hath but a Manor in name because the Freeholders are wanting which are the maintainers and upholders of the Court Baron and consequently necessary helpe to the perfection of a Manor So if the Lord granteth away the inheritance of all his Copyholders or demiseth all his lands granted by Copie to another for 2000. yeares the Grantee in the one case and the lessee in the other have a kinde of Seigniority in grosse and may keepe a Customary Court where the Steward shall be Judge and shall take surrenders and make admittances and this in the eye of the world is a Manor though in the judgement of the law it cometh far short of one Thus much touching the division of a Manor I might here handle many collaterall jurisdictions appropriated to Lords of Manors as that our erecting Dove-houses of proving the Wills of their Tenants deceased within their Precincts in many places of inclosing Common leaving sufficient besides for the other Commoners with many of the like Sed haec lubens libensque omitio And thus closing up this part of my Treatise touching Manors I come to the other part touching Copyhold SEC XXXII INeede not stand to discourse at large th'antiquitie of the Copyholders for if you cast your eye backe to that is past
but a Prescription may both by the Comon-Law and the Civill and therefore where the Statute 1. H. 8. saith that all actions popular must be brought within three yeares after the offence commi ted whosoever offendeth against this Statute and doth escape uncalled for three yeares he may be justly said to prescribe an immunity against any such action 2. A Custome toucheth many men in generall Prescription this or that man in particular and that is the reason why Prescription is personall and is alwayes made in the name of some person certaine and his Ancestors or those whose estate he hath but a Custome having no person certaine in whose name to prescribe is therefore called and alledged after this manner In such a Borough in such a Manor there is this or that Custome And for Vsage that is the efficient cause or rather the life of both for Custome and Prescription lose their being if Vsage faile Should I goe about to make a Catalogue of severall Customes I should with Sisiphus saxum volvere undertake an endlesse piece of worke therefore I will forbeare since the relation would be an argument of great curiosity and a taske of great difficulty I will onely set downe a briefe distinction of Customes and leave the particulars to your owne observation Customes are either generall or particular generall which are part of the Common law being currant through the whole Common-wealth and used in every County every City every Towne and every Manor Particular which are confined to shorter bounds and limits and have not such choyce of fields to walke in as generall Customes have These particular Customes are of two sorts either disallowing what generall Customes doe allow or allowing what generall Customes doe disallow as for example sake By the generall Customes of Manors it is in the Copiholders power to sell to whom he pleaseth but by a particular Custome used in some places the Copyholder before he can inforce his Lord to admit any one to his Copihold is to make a proffer to the next of the blood or to the next of his Neighbours ab oriente solis who giving as much as the partie to whom the Surrender was made should have it so on the other side by the generall Customes of Manors the passing away of Copyhold land by deede for more than for one yeare without licence is not warranted yet some particular customes in some Manors doe it so by the generall Customes of Manors Presentments or any other act done in the Leete after the moneth expired contrary to the Statute of magna Charta and 31. E 3. are voyd yet by some particular Customes such acts are good and so in millions of the like as in the sequell of this discourse shall be made manifest And therefore not to insist any longer in dilucidating this point let us in few words learne the way how to examine the validitie of a Custome For our direction in this businesse wee shall doe well to observe these sixe Rules which will serve us for exact tryall 1. Customes and Prescriptions ought to be reasonable and therefore a Custome that no Tenant of the Manor shall put in his Chattell to use his common in Campis seminatis after the Corne severed untill the Lord have put in his Chattell is a voyd Custome because unreasonable for peradventure the Lord will never put in his Chattell and then the Tenants shall lose their profits so if the Lord will prescribe that he hath such a Custome within his Manor that if any mans beasts be taken by him upon his Demesnes damage Fesant that he may detaine them untill the owners of the beasts give him such recompence for his harmes as he himselfe shall request this is an unreasonable Custome for no man ought to be his owne Judge 2. Customes and Prescriptions ought to be according to common right and therefore if the Lord will prescribe to have of every Copyholder belonging to his Manor for every Court he keepeth a certaine summe of money this is a voyd prescription because it is not according to common Right for hee ought for Iustice sake to doe it Gratis but if the Lord prescribe to have a certaine Fee of his Tenants for keeping an extraordinary Court which is purchased onely for the benefit of some particular Tenants to take up their Copyholds and such like this is a good prescription and according to common right 3. They ought to be upon good consideration and therefore if the Lord will prescribe that whosoever passeth through the Kings High way which lyeth through his Manor should pay him a peny for passing this prescription is voyd because it is not upon a good consideration but if hee will prescribe to have a peny of every one that passeth over such a bridge within his Manor which bridge the Lord doth use to repaire this is a good prescription and upon a good consideration So if the Lord will prescribe to have a fine at the marriage of his Copyholder in which Manor the custome doth admit the husband to be Tenant by the curtesie or the feme Tenant in Dower of a Copyhold this prescription is good and upon a good consideration but in such Manors where these estates are not allowed the Law is otherwise 4. They ought to be compulsary and therefore if the Lord will prescribe that every Copyholder ought to give him so much every moneth to beare his charges in time of warre this prescription is voyd but to prescribe they ought to pay so much money for that purpose is a good prescription for a payment is compulsary but a gift is Arbitrary at the voluntary liberty of the giver 5. They ought to be certaine and therefore if the Lord will prescribe that whensoever any of his Copy-holders dye without heire that then another of the Copyholders shall hold the same lands for the yeere following this prescription is voyd for the incertainty but if the Lord will prescribe to have of his Copy-holders 2. d. an Acre Rent in time of warre foure pence an Acre this prescription is certaine enough 6. They ought to be beneficiall to them that alledge the prescription and therefore if the Lord prescribeth that the custome hath alwayes beene within the Manor that what distresse soever is taken within his Manor for any common persons cause is to be impounded for a certaine time within his pound this is no good prescription for the Lord is hereby to receive a charge and no commoditie but if the prescription goeth further that the Lord should have for every beast so impounded a certaine summe of money this is a good prescription If we desire to be more fully satisfied in the generall knowledge of prescriptions and Customes wee shall finde many Maximes which make very materiall for this purpose amongst which I have made choyse of these three as most worthy of your observation 1. Things gained by matter of Record onely cannot be challenged by prescription and
Infant or non comps mentis an Idiot or Lunatique an Out-law or an Excommunicate yet what things soever hee performeth as incident to his place can never be avoided for any such disabilitie because he performeth them as a Judge or at least as Customes Instrument and for his authority though it prove but counterfeit if it come to exact triall yet if in appearance or outward shew it seemeth currant that is sufficient As if I grant the Stewardship of my Manor of Dale by Patent and in the Patentees absence a stranger by my appointment keepeth Court this is authenticall If a Grant of a Stewardship be made to one and for some fault or defect in the Grant it is avoidable yet Courts kept by him before the avoidance shall stand in force and whatsoever hee did as Steward are ever unavoidable As if a Corporation retaineth a Steward by paroll and he keepeth a Court punisheth offences decideth controversies taketh surrenders maketh admittances either upon surrenders or discents these Acts being judiciall shall ever stand for currant though his authority be grounded upon a wrong foundation for a Corporation cannot institute any such officer without writing And so if the Kings Auditor or Receiver retaine a Steward by paroll he may lawfully execute any judiciall Act but things which he performeth as Customes instrument not as Judge such as are voluntary admittances neither in the retainer by the Corporation or in this retainer by the Kings Officers shall any whit binde but if a stanger without the appointment of the Lord or consent of the right Steward or without any colour of authoritie will of his owne head come into a Manor and keepe a Court it seemeth that the performance of any judiciall duty or the executing of any act whatsoever will not be warranted especially if the Court be kept without warning given to the Bayliffe by precept according to the Custome The Office of a Steward may be forfeite three manner of wayes 1. By Abuser 2. By non user 3. By Refuser By abuser As if the Steward burne the Court Rolles or if he taketh a bribe to winke at any offence or use partiality in any cause depending before him these and the like abuses will make him subject to a forfeiture By non user as if the Steward by his Patent being tyed to keepe Court at certaine times of the yeare without request to be made by the Lord if he faileth and by his failer the Lord receive any prejudice this is a forfeiture But if the Lord be not damnified then this non user is no forfeiture As if a Parker attends not for the space of three or foure dayes and no prejudice or damage hapneth in the interim this is no forfeiture and in Offices which concerne the administration of Justice or the Commonwealth the Law is more strict then in these Offices which concerne private men for where an officer ex officio or of necessity ought to attend for the administration of Justice or for the good of the Commonwealth there non user or non attender in Court is a forfeiture though this be prejudiciall to no man as the office of the Chamberlaine in the Exchequer a Protonotary Clarke of the Warrants Exigentur Filizar or the like in the Common Pleas because the attendance of these and the like officers is of necessity for the administration of Justice so the attendance of the Clarke of the Market is of necessity for the good of the Commonwealth and so is holding of the Sheriffes turne c. By refuser the office of a Steward may be thus forfeited if the Steward be tyed by his Patent to keepe Court upon a demand or request to be made by the Lord if the Lord demandeth or requesteth him to keepe a Court and he faileth this is a forfeiture though the Lord be thereby nothing damnifyed and thus much of the Steward SEC XLVI THe under steward is the Stewards deputy and sometimes appointed by writing sometimes by paroll and the extent of his Authority is as great as the Steward 's owne Authority and his office consisteth in performance of the selfe same duties that the high Steward himselfe is to performe onely in this point the power of the Steward goeth beyond the power of the understeward that the Steward can make an admittance out of Court and it shall stand good if entry be made in the Court Roll that he that is admitted hath paid his fine and hath done fealty but the understeward though he may take a surrender out of the Court yet he cannot make any admittance out of Court without especiall Authority or particular Custome Some have thought that an understeward may be made without speciall words in the Stewards Patent authorizing him to make a Deputy but surely since it is an office of knowledge trust and discretion it cannot unlesse it be in cases of necessity As if an office of Stewardship descend unto an Infant he may make a Deputy because the Law presumeth he is himselfe uncapable to execute it so if it be granted to an Earle in respect of th'exility of the Office in a base Court and of the dignity of the person who is Praepositus Comitatus and had in ancient time the charge and custody of the whole shire whose attendance the Law intendeth to be most necessary upon the King and the Commonwealth therefore it is implyed in Law for the conveniency that hee may make a Deputy for whom he ought to answer This is one observation touching understewards in admittances made by understewards aswell as in admittances made by the Stewards themselves it is good order to expresse in the Copy and in the Court Roll the name of the understeward or of the Steward because in pleading any admittance a man must say that hee was admitted by such a one understeward or Steward naming his name And this shall suffice touching the manner and meanes of granting Copiholds Suffer mee now in the fourth place to point at the severall estates of Copiholders together with their severall qualities incident to their severall estates SEC XLVII ALl estates whatsoever may be reduced to one of these three heads 1. Inheritance 2. Francktenant 3. Chattells All Inheritances are of two sorts either Fee simples or Fee tailes Of Fee simples some are determinable some are undeterminable Determinable as where Land is given to a man and his heires for so long time as Pauls steeple shall stand Vndeterminable as where Land is given to a man and his heires without further limitation Of Fee tailes some are generall some are speciall Generall as where Land is given to a man and the heires of his body or heires males or females of his body Speciall as where Land is given to a man and the heires males or females which he shall beget of such a woman All Francketenants are of two sorts either created by the act of the party or by the Act of the Law Of Francketenants created
licence of the Lord maketh a Lease for yeares the Lessee cutteth downe trees the Copyholder shall not have a Writ of waste but shall sue at the Lords Court to punish this waste If a feme Dowable by Custome of a Copyhold by plaint in the Lords Court recovereth Dower and damages no action of debt lieth at the Common Law for these damages because the action though it be in it selfe personall yet it dependeth upon the realitiy If a Copyholder maketh a Lease by Copy for Yeares or by Deede with Licence an action of debt lieth for the Rent reserved upon either Lease at the Common Law but I much doubt whether he can avow for the Rent either in the one or in the other no more than Cestuy que use before the Statute 27. H. 8. cap. 10. could avow for the Rent reserved by him upon a Lease for yeares and yet he could maintaine an action of debt for such a Rent because an action of debt is grounded upon the contract If a stranger cut downe trees growing in the Copyhold ground an action of trespasse lieth at the Common Law against him so doth it against the Lord where hee cutteth them downe when by Custome they belong to the Tenant because this is a meere personall action and damages onely are to be recovered And if a copyholder without Licence maketh a Lease for one yeare or with Licence maketh a Lease for many yeares and the Lessee be ejected he shall not sue in the Lords Court by plaint but shall have an ejection firme at the Common Law because hee hath not a Customary estate by Copy but a warrantable estate by the rules of the Common Law Thus much of the manner how Copyholders are to impleade and be impleaded SEC LII I Come now in the sixt place to shew under what Statutes Copyholders are Comprehended Copyholders are comprehended under Statute either by expresse limitation in precise words or by a secret implication upon generall words by expresse limitation in precise words As by the Statute of the first of R. 3. cap. 4. it is expressely provided that a Copyholder having Copyhold Land to the yearely value of twenty sixe shillings and sixe pence above all charges may be impanelled upon a Jury as well as he that hath twenty shillings per annum of Freehold-Land So by the Statute of 1. E. 6. cap. 14. it is expresly provided that upon the dissolution of Abbyes and Monasteries Copyholds should continue as they did before the Statute and should fall into the Kings hands So by the Statute of 2. E. 6. cap. 8. it is expresly provided that the interest of a Copy-hold should be preserved notwithstanding it be not found by Office after the decease of the Kings Tenant So by the Statute of 1. Mar. cap. 12. it is expresly provided that if any Copyholder being Yeoman Artificer Husbandman or Labourer and being of the age of eighteene or more under the age of sixtie not sicke impotent lame maymed nor having any other just or reasonable cause of excuse upon request made by any man in authourity refuseth to aide Justices in suppressing of riotous persons that then immediately he shall forfeit his Copyhold to the Lord of whom it is held during the Copyholders naturall life So by the Statute of 5. Eliz. cap. 14. it is expresly provided that the forging of a Court Roll to the intent to defraud a Copy-holder shall be as well punishable as the forging any other Charter Deede or Writing sealed whereby to defeate a Copyholder or Freeholder So by the Statute of 13. Eliz. cap. 7. It is expresly provided that the Copyhold Land as well as the Freehold Land of a Bankerupt shall be sold for the satisfying of the Creditor So by the Statute of 14. Eliz. cap. 6. It is expresly provided that if any of the Queenes subjects goeth beyond the Seaes without Licence that then the Queene shall not onely take the ordinary profits of the fugitives Copyhold Land as they arise but shall let set and make Grants by Copy and usuall Wood-sales and other things to all intents and purposes as a Tenant pro terme durante vie may doe So by the Statute of the 35. Eliz. cap. 2. It is expresly provided that if any person or persons being convicted of recusancie repaire not home to their usuall place of abode not removing from thence above five miles distant that then any person or persons thus offending shall not onely forfeit their Freehold Land to the Queene but withall their Copyhold Land to the Lord or Lords of whom it is holden Thus have I shewed in briefe under what Statute Copyholders are comprehended by expresse limitation in precise words Now I will shew you as briefely as I can under what Statute they are comprehended by secret implication upon generall words SEC LIII SOme hold that all Statutes that speake generally of Tenants extend to Tenants by Copy but it is much to be feared that wee shall wander from the Truth if we give credit to this conceit for if wee peruse the Statute we shall meete with an infinite number of them that speak generally of Tenants and yet touch not Tenants by Copy wherefore not giving way to this opinion as being erronious I will set you downe an infallible rule which will truely direct you in the exposition of the generall words in Statutes and that is thus When an Act in Parliament altereth the service tenure interest of the Land Co. 3. fo 8. or other thing in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenant there the generall words of such an Act in Parliament extend not to the Copy-hold but when an Act is generally made for the good of the Common-wealth and no prejudice may accrue by reason of the alteration of any interest Service Tenure or Custome of the Manor there usually Copy-holds are within the generall purveiw of such Acts. The Statute of West 2. ca. 1. of intailes extendeth not to Copyholds because it would be prejudiciall to the Lord for by this meanes the Tenure is altered for the Donee intayle without any speciall reservation ought to hold of the Doner by the same Service that the Doner holdeth over besides the words of the Statute are Quod voluntas Donator in charta Domini sui manifesta expressa decetero observit which proveth that the intent of the Statute was that no hereditament should be intailed within this Statute but such an one as either was given or at least may be given by Charter or Deede but Copyholds are no such hereditaments and therefore not within the body of the Act yet it is holden that Custome with the cooperation of the Statute will make an estate tayle The Statute of W. 2. ca. 20. which giveth the Elegit extendeth not to Copyhold because it would be prejudiciall to the Lord and a breach of the Custome that any stranger should have interest in the Lands holden by