as is he that hath a free holde at the common law but the determination of this question I remit to my great maysters which caÌ„ solue the knottes and enigmaes of the lawe For asmoche as yet styl of this matter Causidici certant adhuc subiudice liâ— est ⧠Also ye shall vnderstand that the vsage of some Manour is when the tenaunte wyll surrender his land to the vse of an other that he shall take a wande in his hande and deliuer it to the stewarde of the court and the stewarde shal deliuer the same wand in name of seisin to him that shall take the lande and suche a tenaunte is called tenaunte by the verge Diuerse other customes there be of surrendryng of copy hold landes which here for tediousnes I wyll omytte And forasmoch as tenauntes by custome of the Manoure haue by the course of the common lawe no free holde therfore they be called tenauÌ„tes of base tenure Hytherto I haue treated of the first membre of oure diuision that is to wytte of chatelles for as I sayde all leases for terme of yeres and at will be accoÌ„pted in the law but as cateles and be comprysed vnder that name saue that they be called cateles reals where as kyne oxen horses moneye plate corne and suche lyke be called chatell personalles Nowe we wyll procede to thexplanicioÌ„ of the second membre that is to say of free holdes ⧠A diuision of free holdes FRee holdes or franke tenemeÌ„tes a man may haue in suÌ„dry wyses for ether he is seased for terme of his owne lyfe or for terme of an other mans life Yf he be sesed for terme of his owne life either he haue gotten such estate by way of purchase or els the law hath entiteled him therunto I call it by purchase whether he commeth vnto it by his owne barganing and procuremeÌ„t or by the gyft of his frende and I call it by the operation and intitelynge of the lawe whan a man maryeth a woman that is an in heritres and hath issue by her and she dyeth nowe shal he haue the landes durynge his life by the course of the lawe and shal be called tenaunte by the curtesye of Englande In likewise yf a man be seased in feâ— simple or fee tayle of landes and taketh a wyfe and he dyeth the law giueth vnto the wyfe the thyrde parte of her husbandes laÌ„des for terme of her life and she shal be called tenauÌ„t in dower ⧠Tenaunt for terme of life TEnaunte for terme of life is he that holdeth landes or tenemeÌ„tes for terme of his owne life or for terme of an others lyfe Howe be it the most frequent and common maner of speakynge is to call him that hath estate for terme of his own life tenaunte for life and him that hath estate for terme of an others life tenaunt pour terme dautre vie that is to saye tenaunte for terme of an others life Ye shal note that like as he that maketh the lease is called the lessoure he to whome the lease is made is called the lessee so he that maketh a feffement is called the feffoure and he to whome the feffement is made the feffee Also if tenaunte for terme of lyfe or tenaunte for terme of an other mans life do wast the lessour or he in the reuersion shall maynteyne very wel an action of waste agaynste hym and shall by the same recouer treble damages Finally ye shall vnderstand that by an acte of parliameÌ„t made in the xxvii yere of oure Souerayne lorde that now is king Henry the eight it is enacted that no free holde nor estate of inheritance shal passe ne take effecte but by dede indented sealed enrolled in one of the kynges courtê at Westmynster or els wythin the same countie where the lande dothe lye as by the sayd acte more at large appereth ⧠Tenaunt by the curtesi TEnaunt by the curtesye of Englande is he that hath maryed a wyfe inherited and hath had issue by her and she is deade in this case the lawe of Englande permytteth and suffreth the husbande of suche wyfe to reteyne all his wyues landes that she had either in fee simple or fee tayle so longe as he lyueth And this is by the curtesye and vrâ—anitie of Englande for this thing is vsed in none other region But in thys case it is requyred that the chylde ve vitall that is to saye be borne and broughte forth iâ— to this worlde aliue and therfore the common sayeng hath bene that onles the chylde be harde crye the father shall not be tenaunte by the curtesye for the onelye proue and argument of lyfe in an infaunt new borne is the vagite and cryenge Ye shal furthermore vnderstand that onlesse the husbande be in actual and reall possession of his wyues landes seased of them in her right he shall not be tenaunte by curtesye after her death And therfore yf landes descende to a mans wyfe so that she is tenaunt in the lawe and to euery mans accion yet if the husbande haue not made an actuall entreedurynge the couerture and matrimony betwene theâ— he shall not be tenauÌ„â— by the curtesye for it shall be reputed and iugged his foly and negligence that he wolde not entre in her lyfe tyme. Otherwyse it is of aduousons â—â—Ì„tes and such other thynges which forthwyth when they descende be in a man or woman wythout any entre or further ceremonye of lawe Note that if tenaunte by the curtesye of England wyl suffre or make any wast in the landes or tenemeÌ„tes that he so holdeth he is punyshable therfore by action of wast Also it is to be knowne that of thinges that be in suspense a man shall not be tenaunt by the curâ—â—sye and therfore yf a man be the tenaunt in fee simple of certayne lande and doth entremary wyth a woman that is the seignoresse or lady of the same and hath issue by her and she dyeth yet he shal not be tenaunt by the curtesye of the lordshyp of seignorye bycause himself is tenaunt of the land and therfore the lordeship is suspended for the time for a man can not be both lorde and tenaunt of one thing but if he had not bene tenaunt of the lande he shulde haue had the lordeshyp after the deathe of his wyfe by the curtesie of Englande very well Of tenaunt in dower TEnaunte in dower is she that hath bene maried to an husbaÌ„d that was during the matrimony betwene them seised of landes â–ª or 〈◊〉 in fee simple or fee tayl â–ª which is nowe dede and she seased of the thyâ— departe of her husbande 's sayde landes for terme of her life For by the common lawe of the lande if the husbande be at any tyme duryng the couerture seased lawfully whether 〈◊〉 be by purchase or by discent 〈◊〉 theâ— in fee or in tayle dye his 〈◊〉 to be indowed by the course of the coÌ„mon lawe of the thyrde foâ—e And in some places
almoyne By force of whyche tenure they that holde in francke almoyne after thys sorte be bounde of ryght before god to make orisones and prayers to celebrate masses and to do other diuine seruices for yâ— soules of their graunters and feffers and for the soules of theyr heires whych be dead and for yâ— prosperous estate of their heyres that be nowe alyue And bycause of ryghte they be bounde to thys diuine seruice they be discharged by the lawe to do any other prophane or corporall seruice as fealtye or suche other lyke But neuerthelesse if suche as hold theyr tenementes in franke almoyne do omyt and leaue vndone these deuine seruices wheruÌ„to they be bouÌ„d before god the lorde can not distrein them ne yet compell them by any other meanes by the course of the coÌ„mon lawe but the onelye remedy is to complayne of them to theyr ordinarye who of ryght ought to compel suche ecclesiasticall persones to do the deuyne seruice due as afore said But here ye shall note that yf a persone of a chyrche or any other ecclesiasticall persone holdethe of hys lorde by certeyne diuine seruice to be done as to synge masse euery frydaye in the weke or placebo and â—irige or to fynde a preest to synge masse or to distribute in almes C. pence to a hondred men at suche daye in all these cases yf such diuyne seruice be vndone the lorde mayne very wel distrayn bycause the seruice is put here in certayntye Now I sayde that if in olde time a man dyd infeoffe suche ecclesiasticall persone after such sorte he shuld holde hys lande in franke almoyne but at this day it is otherwise for by the reasone of a statute called Quia emptores terrarum no man can aliene ne graunt landes or tenementes in fee simple to holde of hym selfe so that nowe yf a man beynge seased of landes in fee simple graunteth the same by liceÌ„ce to an ecclesiastical person in franke almoyne these wordes franke almoyne be voyde the ecclesiastical persone shal holde them immediatlye of yâ— lorde of the feoffer by the same seruyces yâ— the feoffer helde so that no man can hold in franke almoyne but by force of a grante made before the sayd statute onely the kinges maiesty excepted for he is out of the compasse of the-statute Finally ye shall note that where as a man holdeth in frank almoyne his lorde is bounde by the lawe to acquite him of al maner of seruice that any other lorde can haue or demauÌ„d out of the sayde landes That yf he dothe not acquyte him but suffre him to be distreyned than he shall haue agaynst his lorde a certayne wryt called a wryt of meane and shall recouer agaynste hym hys damages and costes of his suite Of burgage A Tenure in burgage is where an auÌ„cieÌ„t broughe is of which the kynge is lorde and they whyche haue tenemeÌ„tes wtin yâ— same brough holde the same of the kyng payenge a certeyne yearly rent whych tenure in effecte is but socage tenure Lykewyse it is where as any other lorde spirituall or temporal is lord of such broughe Here ye shal note that for the most parte suche auncient burghes haue dyuers customes and vsages which other townes haue not For some burghes haue a custome that the yongest sonne shal inherite before the eldeste whyche custome is called commonlye broughe Englyshe Also in some burghes by the custome the woman shall haue for her dower al the landes and tenementes wherof her husbande was seased at anye tyme durynge the couerture Moreouer in some burghes a maÌ„ may deuise his landes or tenemeÌ„tes by testameÌ„t at the tyme of his death and by force of suche deuyse or legacye he to whome the bequeste was made after the death of the testatour maye by force of thys auncient custome entre in to the landes so to him bequethed or deuised without anye lyuery of seasone to him made or further ceremonye of lawe Dyuers other customes in Englande there be contrary to the course of the common lawe whyche if they be anye thynge probable and maye stande wyth reason are good and effectuall not withstandynge they be agaynste the common lawe Of villenage or bonde seruice A Tenant in villenage is proper lye whan a villayne that is to saye a bondman holdeth of his lord whose bondman he is certayne landes or tenementes accordynge to the custome of the Manoure or otherwyse at the wyll of hys lorde and to do his lorde villayne seruice as to beare to carye yâ— donge of his lorde out of the citie or out of hys lordê Manoure to lay it vpon the demeane landes of his lorde or to do such like seruyle villayne seruice How be it fre men in some places holde theyr tenementes laÌ„des of their lordes by custome by such sorte of seruice and theyr tenure is called tenure in villenage yet they themselues be no villaines ne of seruile condicion but fre meÌ„ For the land holden in villenage maketh not the tenant a villayn but contrary wyse a villayne may make fre land to be villayne land vnto his lorde As if a villayn purchaseth laÌ„d in fee simple or in fee tayle the lorde of the villayne maye entre into the lande so purchased by hys bondman and put hym and his heyres out for euer and this done the lord if he wil maye lease the same lande to his villayne to holde of hym in villenage And here ye shall vnderstande that seruitute or villenage is the ordinance not of the law of nature but of that law which is called Ius gentium by whyche a man is made subiecte contrary to nature vnto an other mannes dominioÌ„ For he that is a villayne or bondman eyther he is so by title of prescription that is to saye he and hys auncestoures haue bene villaynes tyme out of minde or elles he is a villayne by his owne coÌ„fession in court of recorde so that all villaynes either they be borne villaynes or elles they be made so They be borne villaines when theyr father beynge a bonde man himselfe begetteth them in lawfull wedlocke either of a fre woman or of a bond woman for so that the father be bonde the issue of him lawfully begotten muste nedes be bonde by the lawes of Englande hauynge no regarde to the coÌ„dicion of the mother where as in the ciuill lawe it is clene contrarye For there partus sequitur ventrem that is to say the seruitute or bondage of the mother maketh the chylde bonde and not of the father Howe be it the bastarde sonne of a bondeman shall not be bonde bycause a bastarde is nullius filius in the law that is to say nomans sonne They be made vyllaynes two wayes eyther by theyr owne propre acte as whan a free man beynge of full age wyll come into a court of recorde there confesse himselfe bonâ—e to an other man Or elles by the lawes of armes called Ius gentium as whan a man is taken
sayd termes according to their leases agaynst suche recoueries euen as yf none such had be suffered In whiche case neuertheles the recouerer after such recouery had shal haue lyke remedy against the termers by auowry or action of dette for rentes and seruices reserued vpon the same lesses being dew afore the same recoueries and lyke actions for waste done after the same recoueries as the lessours myght haue had if no such recouery had be had Furthermore no statute staple statute marchant nor executioÌ„ by elegit shal be herafter auoyded by any such fayned recouery but like remedy shal be had to auoyd and falsefie the said recoueries as by the premisses is ordeined for the fermour or lessee for terme of yeares ⧠An acte for auoiding of recoueries by collusion against tenaÌ„tes for terme of lyfe aÌ„ 32. HeÌ„ 8. WHere diuerse persons being seased of landes tenementes and hereditameÌ„tes as tenaÌ„tes by yâ— courtesy of Englande or otherwise onely for terme of life or liues haue heretofore suffred other persons by agremeÌ„t or couin betwene them had to recouer the same against them in the kinges court by reason whereof those ê‘sons to whome the reuersion or remainder thereof hath belonged haue after the dethes of the same particular tenantes bene driuen to their actions for the recontinuance and obteyning of the said landes and tenementes so recouered to their greate importable charges and expenses and somtime haue bene clerely disherited of yâ— same it is therfore inacted that all suche recoueries herafter to be had or prosecuted by agrement of the parties or by couin against any suche particular tenant of any landes or hereditamentes wherof the same particular tenant is or herafter shal be seased as tenaÌ„t by the curtasie of England tenant in taile after possibilitie of issue extincte or otherwise for terme of lyfe shal from hensforth as against such persons to whoÌ„ the reuersioÌ„ or remainder therof shal then appertayn ageinst their heires and successours be clerely voyde and of none effecte Prouided alway that this act shal not extend to any person that shal hereafter by good title recouer any hereditamentes without frawde or couin against any such partituclar tenant by reasone of any former right or title nor to auoyd any recouery hereafter to be had against any such particular tenaunt by thassent and agrement of those in the reuersion or remaynder so that the same assent and agrement do appere of record in the kinges court ⧠Of discontinuance IT is called a discontinuaÌ„ce by the lawes of Englande when he that hath the possession of landes or tenementes for the time present yet not hauing the fe simple in himselfe nor in his own right only maketh an altâ—enation of the same laÌ„des to an other person by reasoÌ„ wherof he that shuld haue them after him and which then hath right vnto them can not entre into them but is driuen to his remedy by wey of action in such wise that the sayd landes be not vtterly shifted and gone troÌ„ such person of persons as haue right vnto them but be aloÌ„ly discontinued for a time til the person which after the death of such discontinuer hath right vnto them do recoÌ„tinew bring them home againe not by entrye but by sute and wey of action As for exemple if tenaÌ„t in taile of certaine landes doth infeffe an other in the same in se simple or fe taile and hath issue and â—peth his issue can not entre into the landes though he hath title and right vnto them but is put to his action whiche is called â— formedone in the descendre And if such tenaÌ„t in taile which maketh such a feoffement hath no issue at tyme of his death it is yet neuerthelesse a discontinuance to him which is either in the reuersion or in the remaindre so that neither th one nor thother can entre but they be driuen to their action he in the reuersion to his formedone in the reuertir and he in the remaindre to his formdone in the remaindre In like maner if a bishop doth aliene landes which be parcel of his bishoprich and dyeth this is a discontinuance to his successour forasmoch as he can not entre but is driuen to his writ of entre sine asseÌ„su capituli Semblably if a Deane be sole seised of laÌ„des as in yâ— right of his deanrye and maketh suche an alienation this is a discontinuance to his successour Also if the maistre of an hospital alieneth certaine laÌ„dâ—s of his hospital this is a discontinuaÌ„ce and his successour can not entre but is put to his writte de Ãngressu sÃne assensu coÌ„fratrum sororum But if a persoÌ„ or vicare of a church will alien any landes or tenementes whiche be parcell of his glebe landes to an other in fe simple or in fe taile and dyeth or resigneth his benefice this is no discontinuance to his successour but that he may very wel entre not wtstandinge suche alienation made by his predecessour The cause of this difference Master Litletonne doth largely declare in his boke of Tenures which to auoid ê“lixitie I here omitte and remitte you to him Only of this one thing I wil admonishe you that in the .xxxij. yeare of this kingê most noble reigne it is inacted that no fine feffement or other acte to be made or suffred by the husband only of any landes or tenemeÌ„tê being the inheritaÌ„ce or frehold of his wife duringe the couerture betwene them shal be any discoÌ„tinuaÌ„ce therof or be preiudicial or hurtful to the said wife or to her heires or to such as shal haue right title or interest to the same by the death of such wife but that the same wife and her heires and such other to whom such right shall apperteine after her decesse shal may thaÌ„ lawfully entre into all such landes tenemeÌ„tes according to their rightes and titles therin ⧠That wrongful disseisin is no discent in the law inacted aÌ„ of wrongful disseisin 32. Hen. 8. WHere diuers persons afore this time haue by strength and wtout title entered into laÌ„des tenemeÌ„tes and other hereditamentes and wroÌ„gfully disseased dispossessed yâ— rightful owners and possessours therof so being seased by disseisin haue therof died seased by reason of whiche dieng sesed the parties yâ— were so disseised and dispossessed or such other persons as before suche discent myght haue laufully entred into yâ— said laÌ„des and tenementes be therby clerely excluded of their entre into yâ— said laÌ„des and tenementes put to their action for their remedy and recouery therin it is inacted that the diâ—g seased herafter of any such disseisour of any laÌ„des tenemeÌ„tes or other hereditameÌ„ts hauing no right or title therin shall not be taken or demed any such discent in the lawe for to take away the entrie of any suche persons or their heires whiche at the tyme of the same discent had good and lawful title of entre into the saide landes
of his children and payment of his dettes or otherwise at his pleasure Sauing to the King aswel the wardship and primer season of as moch as shal amouÌ„t to the clere yerely value of the thirde parte therof wtout diminution dower fraude couein charge or abridgement therof as also al fines for alienations of al such landes and tenementes so holden of him by knightes seruice in chief wherof there shal be any alteration of frehold or of inheritance made by wyl or otherwise And euery person hauing laÌ„des or truementes of estate of inheritaunce holden of the king in chief by knightê seruice other landes holden of him or of any other by knightes seruice or otherwise shall from the saide .xx. day of Iuly haue poure to giue or assigne by his testament or otherwise as is aforesayd two partes of the same in thre partes to be diuided or elles as moch therof as shal extende to yâ— yearly value of two partes of the same in three partes to be diuided in certainty Sauing to the king yâ— wardship primer season of as moch thereof as shall amounte to the yerely value of the third part wtout diminution dower couein charge or subtractioÌ„ of the same or of the ful profittes therof Sauing also al fines for alienations as is abouesayde Item euery person holding landê or other hereditamentes onely of any other than of yâ— King by knightes seruice and other landes and tenemeÌ„tes in socage or of the nature of socage tenure maye gyue dispose or assure by testament or otherwise as is aforesaid two partes therof holden by knightes seruice or as moch as shal amount to the ful yerely value of two partes in maner aboue declared And also al the landes and tenementes holden by socage or of the nature of socage tenure at his pleasure Sauing to the lorde of the landes and tenementes holden by knightes seruice for his wardship as moch therof as shal amount to the clere yearly value of the thirde parte wtout any diminutioÌ„ dower fraud c And euery person holdinge onely of the King by knightes seruice but not in chief or holdiÌ„g of yâ— king by knightes seruice and not in chiefe and also other hereditamentes of others by knightes seruice and holding also other hereditamentes of any other person in socage or of yâ— nature of socage tenure may giue deuise and assure by his last will or otherwise two partes of the hereditamentes holden of the king by knightes seruice two partê of the hereditamentes holden of any other persoÌ„ by knightes seruice or as moch of either of them as shal amouÌ„t to the ful yearly value of two partes and also al his landes and tenemeÌ„tes so holdeÌ„ in socage or of the nature of socage tenure Sauing as wel to the king the wardship of as moch as shall extende to the clere yearely value of the thirde parte of the same so holden of him by knightes seruice without diminution c. As also to the lordes of whom any of the said landes or other hereditameÌ„tes bene holden by knightes seruice for wardshyp as moche of the same so holdeÌ„ of them by that seruice as shal amount to the clere yerly value of the thirde parte in maner aboue declared Prouided that if that thirde parte whiche in any of the cases abouesayd shal come to the king do not amount to the clere yearly value of the ful .iii part of all the sayde hereditamentes whereof the king shal be intitled to haue the custody or primer season than the kinge maye take into his handes as moch of thother two partes of the sayd hereditameÌ„tes as with that of the same hereditameÌ„tes remayning in his haÌ„des shal make vp the clere yearly value of the thirde parte of the said laÌ„des and tenementes so to be had to him in title of wardship and primer seasoÌ„ And like benefyte to be giuen to euerie lorde of whom any such hereditamentes shall be holden by knightes seruice concerniÌ„g only his third part for title of wardship Also al persons shal sue their lyueries for possessions reuersions or remaynders and also pay reliefes and heriettes like as they shuld haue done before yâ— making herof And fines for alienatioÌ„s shal be payd in the Chancery vpon writtes of entre in the post to be obteined there after the sayd .xx. day of Iuly for common recoueries to be suffered of any landes holden of the king in chiefe in lyke maner as is vsed vppon alienations of landes so holden in chief by fiâ—e or feoffement Prouided that in such cases where fines for alienations shall be paid in the Chancery for writtes of entre in the poste as is aforesayde none other fine shal be payd in the same court for any such writtes Item where two or more persons holde of the king by knightes seruice ioyntly to them to the heires of one of them and he that hath the inheritaunce therof dyeth his heire beinge wtin age the king shal haue yâ— warde and mariage of the body of such heire the life of the freholder or freholders of the landes so holden by knightes seruice notwithstanding Sauing to al women such right title of dower as they owe to haue of any landes or tenementes by the lawes of this realme to be assigned vnto them out of yâ— two partes of the said landes or tenementes seuered froÌ„ the thirde parte as is abouesaide and not otherwise And sauing also to the king the reuersions of al such tenaÌ„tes in ioyntenure and dower immediatly after the death of such tenantes if they shal happen to die during yâ— none age of the kinges wardes ⧠Of mariagies inacted aÌ„ 32. Hen. 8. IT is inacted that from the first day of Iuly in the yeare of our Lorde a M.D. and XL. al mariages within this churche of Englande contracted betwene lawful persoÌ„s as by this act we declare al persoÌ„s to be lauful that be not prohibited by gods law to mary such mariages being contract and solemnised in the face of the church consummate with bodily knowledge or frute of chyldren or chylde beynge had therin betwene yâ— parties so maryed shal be demed taken to be laufull good indissoluble not withstaÌ„dyng any precontract of matrimony not coÌ„suÌ„mate with bodily knowlege whiche either of yâ— persons so maried or both shal haue made with any other before the time of contracting that mariage which is solemnised and consuÌ„mate or wherof such frute is ensued or may ensue as afore and not withstanding any dispensation prescription law or other thynge graunted or confirmed by acte or otherwise And that no reseruation or prohibition godes lawe excepte shal trouble or impeache any mariage without leuiticall degrees And that no person shal after the said fyrst day of Iuly aforesaid be admitted in any of the spirituall courtes with in this the kinges realme or any hys other landes and dominions to any processe plee or allegation contrary to this acte FINIS EX AEDIBVS RICHARDI TAVERNERI PER RICHARDVM BANKES TYPOGRAPHVM CuÌ„ priuilegio ad imprimendum solum