manus suas capere ita tamen moderate id fleri debet ne aliquam disseisinam haeredibus faciant possunt enim haeredes si opus fuerit violentiae Dominorum resistere dum tamen parati sunt Relivium altaretro servitia eis inde facere with this agreeth the definition of Hotoman Hotoman Comment de verbo seod verbo Relivium Relivium est honorarium quod novus vassallus introitus causâ patrono largitur quasi morte usuali altius vel alâ—o quo casu feoduÌ„ ceciderit quod jam a novo sublevatur This reliefe by the ancient Civill Law was termed Introitus and Vincentius termeth it Praestantionem seu saluationem factam pro confirmatione seu renovatione possessionis and that very aptly for indeede Reliefe is the key which opens the gate to give the heire free passage to the possession of his inheritance Bracton giveth this reason why it is called a Reliefe Bracton lib. 2. cap. 86. Quia haereditas quae jacens fuit per antecessoris decessum Releviatur in manus haeredis propter factam relevationem faciend erit ab haerede quaedam praestatio quae dicitur Relevium Skene de verbo signum tit Reliefe Skene fondly imagineth that it taketh his name a relevando in another sense for saith he Reliefe is given by the Tenant or Vassall being of perfect age after the expiring of the Wardship to the Lord of whom he held his Land by Knights service it is by Ward and Reliefe and by payment thereof he relieves and as it were raiseth up againe his lands after they were fallen downe into his superiors hands by reason of Wardship Glanvil lib 9. cap. 9. But these words of Glanvil will serve to convince him of error Taâ—dam vero eodeâ—ad aetateÌ„ pervenieâ—te facta eâ— haereditutis restitutione quietas erit a Relivio ratione custodiae this Reliefe is twofold 1. Reliefe Service 2. Reliefe Custome Reliefe Service is that which is paid upon the death of any Freeholder Reliefe Custome is that which is paid upon the death change or alienation of any Freehold according to the Custome of the place in many places halfe a yeares profit in many places a whole yeares profit and therefore where Bracton saith Quod dat Domino Relevium qui succedit jure haereditatis non autem is qui acquirit that is to be taken with this caution nisi illud etiam consuetudine praestare debet qui acquirit These Reliefes are paid as well for lands-holden in Soccage as Lands holden by Knights service for lands holden in Soccage in this manner If a Tenant in Soccage die his heire above the age of fourteene then shall the heire double the Rent that his Ancestors was woâ—â— to pay to the Lord as if the Tenant holdeth of his Lord by fealty and five shillings then shall the heire double the Rent and shall pay ten shillings viz. five shillingâ— in the name of a Reliefe over and above the five shillings which hee payeth for his Rent For Lands holden by Knights service in this manner if a Tenant by Knights service dieth his heire of full 21. if he holdeth by an intire Knights Fee hee payeth five pound if by halfe a Knights Fee then he payeth fiftie shillings if by a quarter of a Knights Fee hee payeth 25. shillings and so proportionably who so holdeth more payeth more and who holdeth lesse payeth lesse yet for the fuller apprehension of the quantity of a Reliefe let us examine what a Knights Fee signifieth A knights Fee is so much land as in ancient time was accounted a sufficient living for a Knight but whether this was rated according to the quantity or according to the value Causidici certant adhuc sub jâ—di ce lis est Some hold according to the quantity and that according to the severall computations used in severall places A Knights Fee was either more or lesse as in the Dutchie of Lancaster a Knights Fee contained foure hydes of land every hyde foure carnes of land every carne foure yard lands every yard thirty acres and every Knights Fee 1920. acres According to other computations a Knights Fee contained 680 but according to most computations a Knights Fee contained five hides of land evey hide foure yard lands every yard land 24. acres according to which computation a Knights Fee contained 480. acres so that according to severall computations a Knights Fee was more or lesse Others hold that a Knights Fee was measured according to the quality not according to the quantity according to the value not according to the content and amongst these some hold that land to the value of fifteene pound par annum made a Knights Fee and therefore Camden in sua Brâ—tan pag. Camden saith that Sub Henrich tertio quodammodo coacti fueruÌ„t equites fieri quot quot libras quindeceÌ„ exannuis terrarum redditibus colligarunt and out of Matthew Paris hee writeth that anno 1256. Exit edictum regium preceptumque est acclamatum per totum regnum ut qui haberet 16. libratas terrae supradict armis redimitus tirocinio donaretur ut Anglia sicut Italia militia roboraretur qui nollent vel qui non possunt honorem status militaris sustinere pecunia se redimerent Others hold that census â—questris was fortâ—e pound revenue in Freehold land and of this opinion is Sir Thomas Smith Smith de rep pag. 31 32 33. others held that census equestris was twentie pound revenue and this opinion is confirmed by many authorities and reasons cited in Anth. Lowes Case by an ancient Treatise de modo tenendi Parliamentum tempore Regis Edwardi filii Etheldred where it appeareth quod comitatus constabat ex viginti feodis unius militis quolibet feodo computato ad viginti libratas Baronia constabat ex 13. in feodis ac tertia parte unius feodi militis secundum computationem predicta unum feodum militis constabat ex terris ad valentiam 20. li. and therefore where the Statute of Ed. 2. dâ—militibus provideth that a Knights Living shall be measured by the value of twenty pound per annum this is but an affirmance of the Common Law 2. This is strengthened by the words of the Statute of W. 1. cap. 36. and by Fitch Fitch nat Bâ—evâ—um fo 62. this seemeth something pregnant for in both these places Soccage land to the value of twentie pound par annum are put in equipage with a Knights Fee 3. In a Writ of mesne brought per Ranulphum de Normanvile petentem versus Luciam de Kyme tenentem P. 3. E. 1. appeareth that twelve carnes of Land made a Knights Fee every carne being in ancient time of the value of five nobles per annum according to which account a Knights Fee amounted to twenty pound per annum These are the severall opinions touching the quantity of a Knights Fee imbrace of these which shall seeme most consonant to reason For my owne part I thinke that in the ancient time a Knights Fee was measured according to the number of the acres but in those dayes according to the value of the land the
reason of this alteration is that though in ancient time as well as in these dayes some lands were farre more fruitfull than others yet the value of every quantity of land was certainely rated according to the Custome of the places and never upon any occasion was the land increased or decreased and therefore were they to examine whether any man had a sufficient living for a Knight they would looke no further than to the quantitie of his land for by the quantitie they could presently judge the value but now the value is not certainely rated in any place but increaseth and decreaseth upon every occasion and therefore reason requireth that in these dayes a Knights Fee should be measured according to the value not according to the quantity of the Land for by reason of the different value of the land one man may be better able to maintaine the dignity of a Knight with two hundred acres in some place and of some land than another with foure hundred acres of other land But howsoever it is whether a Knights Fee be rated according to the value or according to the quantity let it here rest Now give mee leave to examine at what time and by what Law it was first provided that for every Knights Fee the fourth part of a Knights Revenue should be payd in the name of a Reliefe viz. 5. li. for every Barons Fee the fourth part of a Barons Revenue viz. one hundred markes for every Earles Fee the fourth part of an Earles Revenue viz. one hundred pound surely Reliefes were paid in this manner before the Statute of Magna Charta Glan vil lib 9. cap 9. and that is somewhat pregnant by this that by the very words of that Statute This Reliefe is termed Antiquum Relevium and by Glanvil who writ before the making of this Statute this is some what manifest for he speaketh to this effect Dicitur rationabile relevium alicujus juxta consuetudinem regni de feodo unius militis centum solidos de Soccagio vero quantum valet census illius Soccagii per annum de Boronia vero nihil certum statutum est quia juxta voluntatem misricordiam Domini Regis solent Baroniae capital de relevis suis Domino Regi satisfacere from whence I gather that Statute of Magna Charta was in part an affirmance of the Common Law in part an institution of a new Law Touching Reliefe paid by Knights it was but an affirmance of the Common Law because they were certaine before the Statute Touching Reliefes paid by Barons it was an institution of a new Law because they were before uncertaine and the reasons why Dukes and Vicounts are not mentioned in this Statute as well as Earles Barons and Knights is this because when that Statute was made there was neither Duke Marquesse or Vicount in England The first Duke that ever was in England sithence the Conquest was the Blacke Prince eldest sonne to Ed. the 3. The first Marquesse that ever was in England was Robert Earle of Oxford created by R. 2. and the first Vicount that ever was in England Dominus de Bello monte created by H. 6. But though at the making of this Statute these dignities were unknowne yet they are comprehended under the equitie of the Statute and according to their severall dignities shall pay Reliefe unto the King a Duke two hundred li. a Marquesse two hundred markes and so ratably and proportionably But to conclude let us compare Herriots and Reliefes together and observe in what they differ 1. They differ in this that a Herriot lieth in Prender and a Reliefe in Render 2. In this that a Herriot is paid in the name of a Tenant deceased but a Reliefe in the name of an heire who is become Tenant 3. In this that Heriots are paid by Copyholders as well as Freeholders but Reliefe by Freeholders only 4. In this that Herriots are ever due upon a speciall reservation or upon some particular Custome but Reliefes are incident to the Fee and are due without reservation or Custome contrary to the opinion of Vincentinus who holdeth a Reliefe extrinsecam fore praestationem non in esse feodo Thus much touching Reliefes a word touching Amerciaments SEC XXVI AMerciament is a Pecuniarie punishment for any offence committed against the Lord of any Manor or as some more at large define it it is a certaine summe of money imposed upon the Tenant by the Steward by oath and presentment of the homage for the breach of any by Law made either for the profit of the whole Kingdome or for the benefit of the little Common-wealth among themselves or for default of doing sute or for other misdemeanors punishable by the same Court infinite in number and quality and this word Amerciament taketh his name froÌ„ being in the Lords mercy to be punished more or lesse at his will and pleasure and it differeth from a Fine in divers respects In that whosoever is fined may lawfully be imprisoned but whosoever is a mercied cannot 2. In this that Amerciaments are incident unto Court Barons as well as unto Court Leets and Fines are never incident to any Court Barons but to Court Leets onely or other Cou t s of Record 3. That Amerciaments are incident unto every Manor whatsoever but Fynes are incident unto some few Manors onely the reason of this difference is partly grounded upon the former difference for sithence Amerciaments are incident unto every Court Baron and Court Barons are incident unto every Manor Sequitur ex consequente that unto every Manor amerciaments are incident but ex adverso Fines being incident unto Court Leets onely and those Court Leets being in some few Manors onely not in every Manor expresly sequitur that Fines are not incident unto every Manor but unto some few Manors onely 4. In this that Amerciaments are afferable Per pares per sacramentum probâ—rum legalium hominuÌ„ de viceneto qui secunduÌ„ moduÌ„ delicti majori vel minori amerciameÌ„to delinquent mulctare possunt but Fines are never afferable in this kinde for looke what Fine soever the Court imposeth upon the delinquent that bindeth sufficiently without further afferance Give me but leave to aske two questions when had this afferance his first conception or creation 2. How may Amerciaments in Court Leets be discerned and distinguished from Fines imposed in the same Court since they are both pecuniary punishments for offences committed Touching the first question I thinke this Law of afferance was before the Statute of Magna Charta Glanv lib. 1. cap. 11. for Glanvile thus speaketh of it Est autem misericordia Domini Regis quo quis per juramentum legalium hominum de viceneto eatenus amerciandus est ne
minimum tenant in tayle SEC XXI BVt a Tenant for life or yeares Brudnal and Yoxley 5. H. 7. The Justices of the Common Place 10. H 6. held that Lessee for years cannot doe fealty are both able to doe fealty according to Littletons rule that fealties are incident to every tenure except tenures in Franck-almoigne and tenants at will contrary to some erronius opinions they differ in regard that homage can be but once done unto one Lord by the same Tenant and therefore 't is agreed that if Lands descend unto me which is holden of I. S. by homage and I doe unto him homage and after other Lands descendeth unto me by another Ancestor which is holden of the same Lord by homage I shall not doe homage againe but fealty onely because I cannot twice become the Lords man but the selfe-same Tenant may severall times doe fealty unto the selfe-same Lord and therefore if a Copyholder surrendreth Whiteacre unto me for his Whiteacre I should doe fealty unto the Lord. If after another surrendreth unto me Blackeacre I shall doe fealtie likewise unto the same Lord. And thus much for services of Submission SEC XXII SErvices of Profits are of two sorts tending to the publique profit of the Common-weale as when the Lord injoyneth his Tenant to amend high wayes to repaire decayed bridges or similia 2. Tending to the private profit of the Lord as where the Tenant is injoyned to be the Lords Carver Butler or Brewer or is tyed to payle the Lords Parkes to tyle the Lords Houses to thatch the Lords Barnes and similia And thus much for corporall services Annuall services are in number infinite in nature all one for they all tend to th' increase of the Lords Coffers and are reserved in their duties as well for Copyhold Land as Freehold-Land though in the Saxons time and long after the Conquest they were never or seldome reserved for Copyhold-Land but onely for Freehold-Land I will not enumerate many particulars of annuall services for that were as endlesse as numbring the sands of the Sea onely this I say that those annuall services which here come within the compasse of my meaning consist all in Render none in Feasance for those annuall services as well as accidentall services which consist in Feasance I comprehend under corporall services thus leaving both corporall services and annuall I bend my course towards accidentall services which before I begin to particularize observe these two things by the way 1. That accidentall services differ from corporall and annuall services in this that most accidentall services are incident to the Fee and are due wiâ—hout speciall reservation of the Lord but most corporall services and all annuall services are due upon speciall reservation and are not incident unto the Fee 2. That service is taken in a double sense in strictiori sensu and in latiori sensu In strictiori sensu and in that sense the Feudists define servitium fore munus obsequii clientelario c. that duty which the Tenant oweth unto his Lord either in performing some corporall function or in discharging some annuall payment In latiori sensu and so it signifieth any duty whatsoever accruing unto the Lord by reason of his Seigniorie and in this sense these accidentall services following which prima facie may seeme better to ranke under the title of jurisdictions or rather under the name of the fruits of a Manor may very fitly be reduced to this kinde of services The services I ayme at and which I meane to treate of particularly in this place are these following 1. Wardships 2. Herriots 3. Reliefes 4. Amerciaments 5. Forfeitures 6. Escheates Now touching every one of these apart and first with Wardships SEC XXII VVArshipp est custodia heredis infra aetatem existentis Polidore Virgil saith that this was novi vectigalis genus excogitatum to helpe Hen. 3. being oppressed with much poverty by reason hee received the Kingdome greatly wasted by warres of his Ancestors and therefore needing extraordinary helpe to uphold his estate the use of Wardships was set abroach But the 33. Chapter of the grand Customary maketh mention of this to have beene used among the Normans immediatly after the erection of Manors and that the use of Wardships was a foote before H. the thirds time as appeareth manifestly by Glanvil who writeth very largely in many places in his Booke Fleta lib. 5. cap. 5. and lived in H. the seconds time Guardians are either termed Custodes or Curatores Custodes a lege curatores ab homine as Fleta speaketh The Civilians make three sorts of Guardians Tutor testamentarius 2. Tutor a-Praetore datus 3. Tutor legittimus This in every point agreeth with our Common Law so wee have Tutorem testamentarium viz. where a man possessed of certaine goods and chattells demiseth these unto his child and withall committeth the care of his childs body and disposition of his substance unto some friend this committee is Tutor testamentarius unto whom belongeth the care and custody of the childs body and the disposition of his substance untill hee accomplish the full age of foureteene yeares and then immediatly hee shall be out of Ward for his body but his goods may be kept longer for as for them they shall remaine in the trustees hands so many yeares as the Testator appointed by his last Will and Testament for though it be not in the Fathers power to restraine the libertie of his childs bodylonger then to the age of 14. yet the disposing of his goods he may commit to any for as long time as himselfe shall thinke expedient So by the Stat. 32. and 34. H. 8. If a man be seised of Socage Lands not holden of the King in Capite hee may by his last Will and Testament commit the ordering of Theoglands to what friend soever for as many yeares as shall seeme most convenient and that friend is Tutor testamentarius otherwise it is of Lands holden by Knights service for it is not in any mans power by his last Will and Testament to deprive the Lord of that duty which de jure belongeth to him and therefore if a Copy-holder dieth his heire under the age of fourteene In regard that this priviledge of appointing the heires a Guardian for their Copyhold Land untill he accomplish the age of fourteene de jure appertaineth unto the Lord. It seemeth that the father cannot prejudice the Lord in this kinde by appointing him another Guardian by his last Will and Testament haec de Tutore testamentario 2. Wee have Tutorem a Praetore datum viz. where a man deviseth goods unto his childe and appointeth him not Guardian then it is in the Ordinaries hand to commit the ordering of the Infants goods unto some trustie friend unto the age of foureteene at what time the Infant himselfe may chuse a Guardian for it is a rule in the Civill Law Invito curator non datur and this Committee est Tutor a Praetore datus
These Guardians termed amongst the Civilians Tutores a Praetore dati are commonly called Guardians pur nurture and thus in words we somewhat differ in matter nothing 3. We have Tutorem ligiâ—tâ—mum viz. where the interest doth de jure belong unto any without the nomination of a private person or the appointment of any publique Officer and this Guardian is twofold either ligitimus jure naturae or ligiâ—imus jure Comuni ligitimus jure naturae as where the Father or the Mother hath the Wardship of their heires apparent be it heire male or female Ligitimus jure comuni and that Guardian is twofold either Guardian in Chivalrie or Guardian in Soccage Guardian in Chivalry is where any Tenant seized of Land holden by Knights service dieth his heire male under the age of fourteene and unmarried then shall the Lord have the Ward both of the Lands and body of this heire male unto the age of 21. because the Law intendeth that before that age the heire is unable to performe Knights service according to the tenure but the heire female shall be in Ward no longer than to the age of sixteene because the heire female though shee her selfe be unable to performe Knights service yet at sixteene she is able to take a husband who in her behalfe may doe Knights service and therefore at those yeares shee shall be out of Ward nay sometimes shee shall be out of Ward before sixteene and that is either where shee is married at the death of her Ancestor or where shee is any whit above fourteene when her Ancestor dieth in neither of these Cases shall she be in Ward at all for though the Stat. of W. 1. cap. 11. giveth unto the Lord two yeares next ensuing the fourteenth yet that is to be understood where shee is under the age of fourteene and unmarried at her Ancestors death and not otherwise This for Guardian in Chivalry Guardian in Socage is where any one seized of Socage Lands dieth his heire under the age of fourteene then the next friend unto the heire to whom the inheritance cannot descend shall have the Ward of the heires body and of his Land untill the age of fourteene as if the Land descendeth unto the heire by the fathers side then the mother or next cosin of the mothers side shall have the Ward and if the Land descendeth to the heire by the mothers side then the father or next cosin on the fathers side shall have the Ward To conclude observe this difference betweene Guardian in Chivalry and Guardian in Socage that theÌ„ one receiveth the commodities of the Land to his owne use without giving any account th' other onely to the use of the heire to whom he shall be accountable whensoever it shall please the heire to call him to account after th'age of foureteene Thus much concerning Wardships a word concerning Herriots SEC XXIV HErriot or Harriot commeth of the Latine word herus Dominus because it is a duty appropriated to the Lord or it is derived from the Saxon word here exercitus because in the Saxons time when the name of Herriot was first knowne Herrior signified nothing else but a tribute given to the Lord for his better preparation towards warre as a horse trapped or a speare or armour or a sword or some suchlike Military weapon and therefore in this sense importing a thing appertaining to the warre and being due unto the Lord by reason of this service which Tenants owe unto their Lords many warlike imployments Vide Lamb. in hâ—s explication of Saxons words tit Herriot it may very fitly be derived from hence This their Herriot among the Saxons little differed from our Reliefe at this day howsoever now they differ ex diameâ—ro But let us examine the nature of our Herâ—iots at this day and not search into the nature of their Herriots in those dayes for that were to examine the nature of Reliefes not Herriots Britton thus speaketh A Herriot is a Render Britton cap. 69. made at the death of a Tenant to his Lord of the best beast found in the possession of the Tenant deceased or of some other according to the ordinance and assignment of the party deceased to the use of the Lord which toucheth not the Land at all nor the heire nor his inheritance neither hath any coÌ„parison to a Relief for it proceedeth rather of grace and good will than of right and rather from villaines than freemen to this effect speaketh Fleta Fleta lib. 4. cap. 28. Herriottum est quaedam praestatio ubi tenens liber vel servus in morte sua dominum suum respicit de meliori averio suo vel de seeundo meliori quae quidem praestatio magis fuit de gratia quam de jure nullam habet comparationem ad relevium eo quod heredi non continget quia factum antecessoris This our Herriot is twofold Herriot Service Herriot Custome Herriot Service is that Herriot which is never due without speciall reservation and is seldome reserved upon any lesse estate than an estate of inheritance Herriot Custome is that Herriot which is never due upon speciall reservation but is challenged upon some particular Custome and is usually payd upon an estate for life and for yeares as well as upon an estate of inheritance Touching the originall of these Herriots doubtlesse they are not of that antiquity which the name doth promise for though among the Saxons the name of Herriot was knowne yet the nature of both these Herriot Services and Herriot Custome was utterly unknowne untill the comming of the Normans who immediately upon the Conquest changed the name of the Saxons Herriot and termed it by the name a of Reliefe leaving notwithstanding some dâ—fference betwixt them for where the Saxons Herriot consisted usually in the payment of some military weapon our Reliefe in those dayes consisted wholly in the payment of a certaine summe of money and presently after the Normans had thus wholly altered the name and somewhat altered the nature of the Saxons Herriot then upon the parcelling of their lands unto inferior Tenants they invented this new kinde of service unknowne amongst the Saxons and termed it by the name of the Herriot Service afterward upon the infranchisement and manumission of certaine villaines these Herriot Customes were given to the Lords as a continuall future gratulation so that originally as Britton and Fleta well note they were granted meerely ex gratia but now time hath effected it that they are challenged ex debito Thus much of Herriots a word of Reliefe SEC XXV REliefe is a certaine summe of money which every Freeholder payeth unto his Lord Glâ—â—v lib. 7. cap 9. being at full age at the death of his Ancestor which in effect foundeth all one with these words of Glanvil Haeredes majores statim post decessum antecessorum suorum possunt se tenere in haereditate sua licet Domini possint feodum suum cum herede in
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
be no strange thing to place their lands under the rancke of the Lords demesnes But to deliver my minde more freely in this point I thinke that howsoever according to the strict rules of Law these Copy-holds are parcell of Lands demesnes yet in propriety of speech if propriety can be in impropriety they are the more aptly called the Copy-holders demesnes for though the Franke tenement be in the Lord by the Common Law yet by the custome the inheritance abideth in the Copy-holders and it is not denied if a Copy-holder be impleaded in making tytle to his Copy-hold he may justly plead quod est seisitus in Dominico suo with this addition secundum consuetud Manerii Therefore I conclude that howsoever the Common Law valueth the tytle of the Copy-holder yet he hath such an interest confirmed unto him by Custome that the Lord having no power to resume his Lands at your owne pleasure they are though improperly called yet peradventure truly accounted the Lords demesnes and that in the eye of the world howsoever it be in the eye of the Law that these Lands alone can properly challenge the name of the Lords demesnes if any Lands in the possession of inferior Lords may properly challenge that name which the Lord reserveth in his owne hands for the maintenance of his owne Boord or Table be it his waste ground his arable ground his pasture ground or his medow be it his Copy-hold which he hath by escheate by forfiture or by purchase or be it any part of his Freehold Land of which I must speake a word by the way not to prove that it is demesne for manifesta probatione non indigentes but to shew you in what sense it is taken and how farre it extendeth SEC XV. A Freehold is taken in a double sense either 't is named a Freehold in respect of the state of the Land or in respect of the state of the Law SEC XVI IN respect of the state of the Land so Copyholders may be Freeholders for any that hath any estate for his life or any greater estate in any Land whatsoever may in this sense be termed a Freeholder SEC XVII IN respect of the state of the Law and so it is opposed to Copy holders that what Land soever is not Copyhold is Freehold and in this sense I take throughout this Discourse SEC XVIII THe name of Freeholders extendeth not onely unto Lands held per servitium militare as it did by th' ancient Lawes of Scots Skens de verb. sign tit milit and amongst whom Freeholders were knowne by the name of milites but it reacheth likewise to lands holden per servitiū Socae whether in libero Socagio or in villano Socagio Liberum Socagium is where any Tenant holds of any Lord by paying yearely a certaine summe of money in lieu of tillage and such like services and not by escuage and this is termed sometimes common Socage Socagium villanum is where the ancient services of carrying the Lords dung into the fields Stat. 37 H. 8. Cap. 20. It is so called of plowing his ground at certaine dayes of plashing his hedges and such are not turned into money but remaine still unaltered and if you doubt that such Land as is held per villanum Socagium cannot come within the compasse of Freehold Land for your satisfaction reade Bracton lib. 2. cap. 8. num 8. Hactenus de primo defunctionis membro ad secundum properemus pauca de servitiis Domino debitis periractemus Services in individuo are manifold in specie threefold 1. Corporall services 2. Annuall services 3. Accidentall services Corporall services are of two sorts Services of Submission services of Profit SEC XIX SErvices of Submission are homage and fealty which are certaine Ceremonies used among tenants whereby they submit themselves unto their Lords and binde themselves by solemne oath or by faithfull promise from that day forward to become the Lords men for life for member for terrene honour or adminimum to owe unto him faith for the Lands which they hold of him Both these Ceremonies are used at the first entrance or admittance of any Tenant and both tend to one end viz. to inforce every Tenant to acknowledge and confesse himselfe Tenant unto his immediate Lord yet they differ in many materiall points SEC XX. IN regard of their severall manner of performance for in doing fealty the Tenant taketh a solemne oath in doing homage only giveth his faithfull promise and thence it is that fealty is accounted the more sacred service though homage be the more humble service and performed with farre greater reverence than fealty in many respects for in doing homage the Tenant kneeleth in doing fealty he standeth in doing homage the Tenant must remaine uncovered in doing fealty he may remaine covered in doing homage the Lord kisseth his Tenant in doing fealty he kisseth him not Lastly in doing homage the Tenant promiseth to become the Lords man for life for member and terrene honor In doing fealty he onely sweareth to become the Lords faithfull Tenant the reason of this difference I learne to be this Skens de verb. signum Homage because homage especially concerneth service in warre properly appertaineth unto Knights service but fealty chiefely concerneth service at home and properly appertaineth to Socage tenure and though now 't is held that a Tenant by Socage may doe homage and that homage ex se maketh Socage tenure and not Knights service yet originally homage was invented for Tenants by Knights service and such as were bound by their tenure to attend their Lords in the warres but fealty was primarily devised for Tenants in Socage and such as were bound by their tenure to manure the Lords ground and carefully to discharge all rurall affaires and this agreeth with the ancient Lawes in Scotland for amongst them none were accounted Freeholders but onely Tenants by Knights service and consequently none but they could doe homage and therefore marvell not why in doing homage the Tenant promiseth to become the Lords man for life for member for terrene honor in doing fealty hee onely sweareth to become the Lords faithfull Tenant 2. They differ in regard of the persons to whom they are performed and that two wayes In respect none is capable of receiving homage but the Lord in person but the Lords Steward or his Bailiffe is capable to receive fealty in the Lords behalfe 2. In respect that a Lord who hath but an estate for his life in his Seigniory cannot receive homage but such a Lord may receive fealty 3. They differ in regard of the persons to whom they are performed and that two wayes 1. In respect th t no Copyholder is capable of doing homage but he is of doing fealty witnesse common experience 2. In respect that a Tenant for life or yeares is unable to doe homage for t is a ground in Law that none can doe homage but tenant in fee-simple or ad
you shall easily perceive that Copyholders though very meanely discended yet they come of an ancient house and therefore if in this point you desire satisfaction call to minde what I have already spoken and if I mistake not it will sufficiently answer your desire Give me leave to goe a steppe further and to examine the severall names which Copyholders have had from time to time allotted unto them together with their proper Etymologies immediatly upon the Conquest they were knowne by the name of Villaines or Tenants in Villanage so termed by the Normans either in respect of Imbecillity and incertainty of their estates which were grounded upon a very weake foundation wholly depending upon the will of the Lord and Oustable at his pleasure or in respect of their Services which savoured of nothing but slavery whether they were certa ac determinata or incerta ac indeterminata ubi sciri non poterit vespere quale servitium facere deberent in Crastino as Bracton speaketh contrary to the opinion of some who hold that the Service of Copiholders were never subject to such incertainties or lastly in respect of the persons who for the most part were Villaines howsoever some free men did sometimes hold Land by the same Tenure the least of these three reasons is sufficient to make them deserve that name but joyne them together and then hee that judgeth most favorably of them will thinke this the truest title that could be bestowed upon them yet some there are who in behalfe of these Tenants sticke not to maintaine howsoever in respect of their estates they may not unfitly be termed Tenants in Villanage being in such strange subjection to their Lords that neither in respect of their Services nor their Persons they could merit that name especially if we take the word in that reproachfull sense that it is usually taken in at this houre But if wee account those villaine Services which any way touch Husbandry as Plowing Sowing Reaping and such like and these men villaines who exercise themselves in any point of Husbandry then they agrue that their Tenure could in no wise have an apter terme than this for they confesse that these Copyholders were for the most part Rustici Pagani and their Services wholâ—y ad Rusticitatem tendentia Howsoever I dare not wholly disallow of this opinion though I cannot altogether approve of it for I admit and in a manner consent that amongst the Normans these Services which wee call Rurall Services were called villaine Services and those men whom we terme Husbandmen were termed Villaines and doe hold that the Copyhold Services in those dayes were more slavish than Rurall and they themselves rather Bondmen than Husbandmen otherwise we should make their Tenure differ in nothing from ancient Soccage Tenure which I assure my selfe is otherwise for though Soccagres were Rustiques and in that sense Villaines yet their Tenure was never noted by the name of a Tenure in Villenage till in many places their Corporall Services begun to be turned into money then for distinction sake the one began to be called Liberum Soccagium the other Villanium Soccagium But long before these Coppiholders were termed Villeynes and therefore without all doubt their Tenure was in basenesse and slavery a degree above the ancient Soccage Tenure till at length the Lords of Manors being framed to more civility began then to thinke it a most uncharitable part to keepe their poore Tenants in that bondage therefore out of the remorse of their owne consciences and the compassion of their Tenants miseries by little and little they infranchised them and released them of their heavier burthens reserving Services of another nature in liew of them Thus having shaken off the fetters of their bondage they were presently freed of their opprobrious name and had other new gentle stiles and titles conferred upon them they were every where then called Tenants by Copy of Court Roll or Tenanâ—s at will according to the Custome of the Manor which styles import unto us three things 1. Nomen 2. Originem 3. Titulum His name is Tenant by Copy of Court Roâ—e for he is not called Tenant by Court-Role but by Copy of Court-Roll and this is the sole Tenant in Law who holdeth by Copy of any Record Charter Deede or any other thing 2. His commencement is at the will of the Lord. For these Tenants in their birth as well as the Customary Tenants upon the borders of Scotland who have the name of Tenant were meere Tenants at will and though they keepe the Customes inviolated yet the Lord might sans controll eject them neither was their estate hereditarie in the beginning as appeareth by Britton Britton Ca. 66. for if they died their estate was presently determined as in case of a Tenant at will at common Law and in some points to this present houre the Law regardeth them no more than a meere Tenant at will for the Freehold at the Common Law resteth not in them but in their Lords unlesse it be in Copyholds of Franke Tenure which are most usuall in ancient Demesne though sometimes out of ancient Demesne wee shall meete with the like sort of Copyholds as in Northamton-Shire there are Tenants which hold by Copy of Court-Roll and have no other evidence and yet hold not at the will of the Lord. These kinde of Copyholders have the Franke Tenure in them and it is not in their Lords as in case of Copyholds in base Tenure Besides Copyholders shall not attourne upon the granting away of the Manor no more than Tenants at will at the Common Law and their estate can be no infranchisement to a villaine no more then a meere estate at will And further their Lands are parcell of the Lords Demesnes as well as Lands granted away at Will according to the course of the Common Law and for his Title and Assurance that is according to the Custome of the Manor For the Custome of the Manor hath so established and so fixed them in their Land that if they doe their Services and Duties and performe the Customes of the Manor they are as well inheritable according to the Custome as he that hath a Franck Tenement at the Common Law and sithence Custome is the life and soule of Copyhold Estates and whatsoever shall or can be spoken touching Copy-holds ariseth from this Head and from this Fountaine Give mee leave in the second place to speake something concerning them SEC XXXIII CVstomes are defined to be a Law or Right not written which being established by long use and the consent of our Ancestors hath beene and is daily practised Custome Prescription and Vsage howsoever there be correspondencie amongst them and dependancie one on the other Custome Prescription and Vsage how they differ and in common speech one of them is taken for another yet they are three distinct things Custome and Prescription differ in this 1. Custome cannot have any commencement since the memory of man
therefore no Lord of a Manor can prescribe to have fellons goods fugitives goods Dâ—odands and such like because they cannot bee forfeited untill it appeare of Record but waves estraies wreckes and such like may be challenged by prescription because they are gained by usage without matter of Record 2. A custome never extendeth to a thing newly created and therefore if a Rent be granted out of Gavelkind-land or Land in Borough-English the rent shall descend acorcording to the course of the Common Law not according to the Custome If before the Statute 32. H. 8. Lands were deviseable in any Borough or City by speciall Custome A Rent granted out of these Lands was not deviseable by the same Custome for what things soever have their beginning since the memory of man Custome maintaines not If there be a Custome within a Manor that for every house or cottage two shillings fine shall be paid if any Tenant within these liberties maketh two houses of one or buildeth a new house hee shall not pay a fine for any of these new houses for the Custome onely extendeth to the old So if I have Estovers appendant to my house and I build a new house I shall not have Estovers for this new built house upon this ground It hath beene doubted if a man by Prescription hath course of water to his Fulling-mill hee converting these into Corne-mills whether by this conversion the Prescription is not destroyed in regard that these Come-mills are things newly created but because the qualitie of the thing and not the substance is altered therefore this alteration is held insufficient to overthrow the Prescription for if a man by Prescription hath Estovers to his house although they alter the Roomes and Chambers in the house as by making a Parlor where there was a Hall vele converso yet the Prescription stands still in force and so if by Prescription I have an ancient Window to my Hall and I convert this into a Parlor yet my neighbours upon this change cannot stoppe my Window Causa qua supra 3. Customes are likewise taken strictly though not alwayes literally There is a Custome in London that Citizens and Freemen may devise in Mortmayne A Citizen that is a Forreiner cannot devise by this Custome An Infant by the Custome of Gavelkind at th'age of fifteene may make a Feoffment yet he cannot by the Custome make a Will at that age to passe away his Land to make a Lease and a Release which amounteth to a Feoffment If there be any Custome that Copyhold-Lands may be leased by the Lord vel per Supervisor vel deputatum supervisoris This Custome giveth not power to the Lord to authorize any by his last Will and Testament to keepe a Court in their owne name and to make Leases Secundum consuetudinem Manerii but these Customes have this strict construction because they tend to the derogation of the Common Law yet they are not to be confined to literall interpretation for if there be a Custome within any Manor that Copyhold Lands may be granted in Feodo simplici by the same Custome they are grantable to one and the heires of his body for life for yeares or any other estate whatsoever because Cui licet quod majus non debet quod minus est non licere so if there be a Custome that Copyhold Lands may be granted for life by the same Custome they may be granted Durante viduitate but not e converso because an estate during Widdowhood is lesse than an estate for life Before the Statute of 32. H. 8. Lands in certaine Boroughs were devisable by Custome By the same Custome was implicite warranted authorizing Executors to sell Lands devisable Now with your patience I will onely point at the manner of pleading of Customes I finde a foure-fold kinde of Prescribing 1. To prescribe in his Predecessors as in himselfe and all those whose estate hee hath 2. To prescribe generally not tying his Prescription to place or person as where a Chiefe Justice prescribeth that it hath beene used that every Chiefe Justice may grant Offices or where a Sergeant prescribeth Quod talis habetur consuetudo that Sergeants ought to be impleaded by originall Writ and not by Bill 3. To Prescribe in a place certaine 4. To Prescribe in the place of another The first sort of these Prescriptions a Copyholder cannot use in regard of the imbecillity of his estate for no man can Prescribe in that manner but onely Tenants in Fee simple at the Common Law The second sort of these may be used sometimes by Copyholders in the pleading of a generall Custome but in alleadging of a particular Custome a Copyholder is driven to one of the last and as occasion serveth he useth sometimes the one sometimes the other If he be to clayme Common or other profit in the soyle of the Lord then he cannot prescribe in the name of the Lord for the Lord cannot prescribe to have Common or other profit in his owne soyle but then the Copyholder must of necessity prescribe in a place certaine and alleadge that within such a Manor there is such a Custome that all the Tenants within that Manor have used to have Common in such a place parcell of the Manor but if he be to claime Common or other profit in the soyle of a stranger then he ought to prescribe in the name of his Lord saying that the Lord of the Manor and all his Ancestors and all those whose estate he hath were wont to have a Common in such a place for himselfe and his Tenants at will c. SEC XXXIV THus much of Customes I come now home to Copyholders and in the third place I hold it the best course to dilate upon the manner and meanes of granting Copy-holds wherein I will onely rely upon these five parts 1. Vpon the person of the Grantor 2. Vpon the person of the Grantee 3. Vpon the Grant it selfe 4. Vpon the thing Granted 5. Vpon the Instruments through whose hands as through Conduit-pipes the Lands are Gradatim conveyed to the Purchasor And first of the person of the Grantor Sometimes the Lord himselfe is Grantor sometimes a Copyholder In voluntary Grants made by the Lord himselfe the Law neither respecteth the quality of his Person nor the quantity of his Estate for be hee an Infant and so through the tendernesse of his age insufficient to dispose of any Land at the Common Law or non compos mentis an Idiot or a Lunatique and so for want of common reason unable to traffique in the world or an Out-law in any personall action and so excluded from the protection of the Law or an Excommunicate c. and so restrained ab omnium fidelium communione or at least à Sacramentorum partitipatione notwithstanding these infirmities and disabilities yet he is capable enough to make a voluntary grant by Copy for if a feme seignioresse take Baron and they two joyne in a voluntary Grant by Copy
voluntary Grant by Copy hath no lawfull interest in the Manor but onely an usurped title his Grant shall never so bind the right owner but that upon his entry hee may avoide them otherwise wee should make Custome an agent in a wrong which the Law will never suffer and yet if the Lord of a Manor by his Will in writing deviseth that his Executor shall Grant Copy hold estates Secundum consuetudinem Manerii for the payment of his debts c. and they make voluntary Grants accordingly these Grants are good notwithstanding the Executor hath no interest in the Manor nor is Dominus pro tempore If a Disseinor of a Manor dieth seized notwithstanding his heire come in by ordinary course of descent yet because the Tort commenced by his Ancestor is still inherent to his estate if any Copihold estate be granted by the heire it may be avoided by the Disseinor immediatly upon his recovery or upon his entry and so if the Disseinor infeoffe a stranger of the Manor notwithstanding the Feoffee come in by title yet no grant made by him of Copyhold-Land shall ever binde the Disseined no more than a Grant made by the Disseinor himselfe If Tenant in Tayle of a Manor discontinueth and dieth and after the discontinuance Granteth Copyhold estates the heire recovering in a Formidon in the Discender may avoid these Grants for though the Discontinue come in under a just title yet his interest being determined by the death of the Tenant in Tayle the continuance of the possession is a Tort to the heire and Acts done by Tort-scisors tending to the dis-inheritance of the right owners Custome will never so strengthen but they may be adnihilated So if a man seized of a Manor in right of his wife Alieneth this Manor and dieth any Grant made of Copyhold estates after his death may be avoided by the feme upon her entry or upon her recovery in a Gui in vita If a Manor be Granted pr. aut vie and Cestay que vie dyeth and the Grantee continueth still in the Manor and maketh Grants by Copy these shall not binde the Grantor of the Manor for immediately upon the death of Cestay que vie the Grantee was but a Tenant at sufferance and had no Manor of Lawfull interest for a Writ of Entry ad terminum qui preter sit lieth against him as against Deforceor And so if a Tenant for life of a Manor maketh a Lease for yeares of the same Manor and dieth Copyhold estates granted by the Lessee after the death of the Tenant for life are voideable by the first Lessor If a Lessee for yeares of a Manor granteth a Copyhold in Reversion and before the Reversion eschue the terme is expired the Grant is void and so I take the Law to be if the Lessee surrendreth his terme and then before his Lease should have ended in point of limitation the Reversion falleth yet the Grantee shall not have it If a Lease be made for yeares of a Manor the Lease to be voide upon the breach of a certaine Condition if the Condition be broken and afterwards the Lessee before the entry of the Lessor granteth estates by Copy these Grants shall never exclude the Lessor for presently upon the breach of the Condition the Lease is voyde but had the Manor beene granted for life in Tayle or in Fee I thinke Law would have fallen out otherwise for before entry the Franck-Tenement had not beene avoided and wheresoever a man may enter and avoide any estate of Franck-Tenement upon the breach of a Condition the Law adjudgeth nothing to be in him before entry and he may waive the advantage which hee might take by the breach of the Condition if he will and therefore notwithstanding the accruer of the title of the Grantor yet before this title be executed by entry the Grantee hath such a lawfull interest that what estate soever hee granteth by Copy in the interim shall stand good against the Grantor And so if an Infant infeoffe me of a Manor though hee may enter upon me at his pleasure yet Grants made by me by Copy before his entry shall never be defeated by any subsequent entry And the same Law is of Grants made by a Villayne purchaser of a Manor before the entry of the Lord or of Grants made after an alienation in Mortmayne before the Lord Paramount hath entred for a forfeiture If a Parson after Institution and before Induction a Manor being parcell of his Gleab Lands Grants Lands by Copy and after is inducted this admitting of the Copyholders is no binding act for though as to the spiritualties he be a compleate Parson presently upon the institution yet as to the temporalities he is not compleat before Induction So if a Parson be admitted instituted and inducted but doth not subscribe to the Articles according to the Statute of 13. Eliz. and granteth Lands by Copy as before This Grant shall not conclude the succeeding Incumbent because his Admission Institution and Induction were wholly voide in themselves but had the Parson beene deprived for crime or heresie or for being meere Laicus although he be declared by sentence to be uncapable of a Benefice and so his presentment voide ab initio yet because the Church was once full untill the sentence declaratory came for though the deprivation shall relate to some purposes yet because the Presentment is not in it selfe voide surely a relation shall never be so much favoured as to avoid a Copyhold estate in this kinde So much of Grants made by the Lords themselves In Grants made by Copyholders as the Law respecteth the quality of the Copyholders estate so doth it respect both the quality of his person and quantity of his estate The quality of person for whosoever is uncapable of disposing of Land at the Common Law cannot without speciall Custome passe away any Copyhold The quantity of his estate for no Copyholder can possibly passe away more than is in him and therefore if there be joynt Tenants of a Copy-hold one cannot aliene the whole But if there be two joynt Tenants of a Manor and a Copyholder escheateth one of them may grant this Copyhold and his Companion shall never avoide any part of it If a Copyholder for life the remainder over in Fee to a stranger surrendreth in Fee and the Lord admits accordingly yet an estate for life onely passeth So if the Lord of a Manor granteth a Copyhold for life where an estate in Fee is warrantable and the same Grantee surrenders in Fee to the use of a stranger and the Lord admits him secundum officium sursumredditionis I thinke no Fee passeth for though the Lords admittance may prima facie seeme to amount to a confirmation of the estate surrendred the Reversion resting in him to dispose of according to the Custome as where a Lessee for yeares at the Common Law maketh a Feoffment in Fee and maketh a Letter of Attorney to his Lessor to deliver
come first the Lord must admit and I shall never avoyd it The same Law is if I surrender to the use of him that I. S. shall nominate or that I my selfe shall nominate to the Lord at the next meeting the reason of the Law is this a Surrender is a thing executory which is executed by the subsequent Admittance and nothing at all is invested in the Grantee before the Lord hath admitted him according to the Surrender and therefore if at the time of the Admittance the Grantee be in rerum natura and able to take that will serve Besides in Customarie Grants the intent of the Grantor is more respected than it should be by the strict rules of the Law which appeareth by this that if a Surrender be made of a Copiehold to the use of a last Will and the Surrender deviseth it unto two the one is admitted according to the purport of the Will this shall inure to both but though the Surrender bee a thing executory and the intent of the Grantor so much favored yet if a Copyholder will Surrender to the use of the right heires of I. S. he being alive this is voyde because it cannot take effect according to the intent of the Grantor for he would have the grant to bee executed presently which cannot bee in regard that I. S. can have no heyre till after his death So much of the Grantee and I come now to the Grant it selfe SEC XXXV A Copyhold interest connot be transferred by any other assurance then by Copy of Court Roll according to the Custome If I will exchange a Copyhold with another I cannot doe it by an ordinary exchange at the Common Law but we must surrender to each others use and the Lord admit us accordingly If I will devise a Copyhold I cannot doe it by will at the Common Law but I must surrender to the use of my last Will and Testament and in my Will I must declare my intent If I am ousted by a Copyholder a release made to him is voyde because it would be a prejudice to the Lord and besides there is no Customary right upon which the release may inure but a release inuring by the way of extinguishing where no prejudice accrueth to the Lord will serve to drowne a Copyhold right and therefore if I surrender out of Court upon condition Co. 4 fo 25. to the use of I. S. and the presentment is made absolute in Court and the admittance framed accordingly this admittance and presentment differing from the effect of the Surrender are both voyde Yet because upon the admittance the Lord is satisfied of his fine and so nothing at all prejudiced and besides here is a customary right upon which the release may be grounded I may by a release at the Common Law sufficiently confirme this voyde estaâ—e And so upon the same reason if I am ousted of a Copyhold and the Lord admit him according to the Custome a release made by me at the Common Law will extinguish my right but if I make a Lease for yeares of a Copyhold I cannot by my release passe my Reversion because this release injureth by way of inlargement to transferre an interest and not by way of extinguishment to drowne a right but my way is to surrender my Reversion into the hands of the Lord and he to Grant it over to the Lessee SEC XXXVII IF Copyhold Land come into that plight that it cannot passe by Copie it is become not alienable and therefore if the Lord of a Manor will grant to me a Copihold in Fee and after will grant the inheritance of this Copihold to a stranger in regard that now my Copihold is become no parcell of the Manor and so I cannot surrender into the hands of the Lord and the Grantee of the inheritance though I am to him a Tenant and am tyed to doe unto him all manner of services which are due without keeping of Court as to pay Rent to discharge Herriots and all other Duties of the same nature yet because the Grantee cannot keepe a Court and so is incapable of taking a Surrender or making an admittance therefore I cannot by any meanes alien for no conveiance at the Common Law will serve because it remaineth still Copihold notwithstanding and what Customes soever were incident to the Land before severance doe remaine still undestroyed as if the land were Burrow English or Gavelkind before it so continueth Co. 4. fo 24. and a decree in Chancery will not serve no more than an ordinary assurance at the Common Law for that bindeth my person onely not my interest sithence therefore Copihold estates cannot be conveyed away otherwise than by Copie of Court Roll according to the custome let us examine the nature of these customarie grants wherein three branches are to bee considered 1. The Surrender 2. Presentment 3. Admittance In some Grants a Surrender is sufficient without Presentment or Admittance In some an Admittance without a Surrender or Presentment In some a Surrender and Admittance and both necessary and in some a Surrender Presentment and Admittance are all requisite SEC XXXVIII IF a Copiholder will Surrender to the use of the Lord the interest of the Copihold is sufficiently vested in the Lord immediately upon the Surrender without any Admittance of the Lord because the Lord cannot admit himselfe If the Lord will make a voluntary grant of a Copiehold no Surrender is requisite for by the Admittance of the Lord according to the custome the Copieholder is sufficiently setled in his Land without any other ceremonie If a Copyholder will Surrender in Court to the use of a stranger besides the Surrender the Admittance is requisite and if the Surrender he made out of Court into the hands of the Lord himselfe which the generall custome will warrant or into the hands of the Bailiffe or of two Tenants of the Manor which by speciall custome onely is warrantable besides a Surrender two other ceremonies are requisite the one a true presentment of the Surrender in Court by the same persons into whose hands the Surrender was made the other is an Admittance of the Lord according to the effect and tenor both of the Surrender and presentment But now more particularly of every one of them apart and first of a Surrender SEC XXXIX THis word Surrender is vocabulum artis and therefore where a Surrender is needfull if this one word be wanting all other words used in ordinary conveiances are uneffectuall and insufficient to convey any Copyhold estate for if a Copyholder come into Court and offer to passe his Copyhold by word of grant of gift of bargaine or sale or such like I doubt hee will faile of his purpose for as he is tyed to a singular forme of assurance so is he restrained to peculiar words in his assurance Surrenders are made in severall sorts according to the severall customes of Manors In some Manors where a Copyholder surrendreth his Copyhold
If the Fine by the Custome of the Manor be incertaine though a reasonable Fine be assessed yet because no man can provide for an incertainty the Copyholder is not bound to pay it presently upon demand but shall have convenient time to discharge it if the Lord limit no certaine day for payment thereof and if within convenient time it be not discharged this is a forfeiture without presentment But if the Fine be unreasonable though it be never paid it is no forfeiture and it shall be determined by the opinion of the Justices before whom the matter dependeth either upon a demurre or in Evidence to the Jury upon the confession or proofe of the yearely value of the Land whether the Fine be reasonable or not for if the Lords might Assesse unreasonable Fines at their pleasures then most estates by Copy which are a great part of the Kingdome and which have continued time out of minde might now at the will of the Lords be defeated and destroyed which would be very inconvenient If the Lord demandeth his Rent and the Copyholder denieth to pay it this is a forfeiture Ipso facto So if the Copyholder saith that hee wanteth money to discharge the Rent and therefore intreateth the Lord to forbeare untill he be better provided unlesse the Lord giveth his consent this non payment is a forfeiture Ipso facto For a Copyholder knowing his day of payment is to provide against the day but if the Lord commeth upon the Copyholders ground and demandeth his Rent and neither the Copyholder himselfe nor any other by his appointment is there present to answer their demand though this be a deniall in Law of the Rent yet this is no forfeiture But if the Lord continueth in making demand upon the ground and the Copyholder is still absent this continuall deniall in Law amounteth to a deniall in fact and maketh the Copyholders estate subject to a forfeiture without presentment If a Copyholder for life suffereth a Recovery by plaint in the Lords Court as Copyhold of the inheritance this is a forfeiture Ipso facto But if he surrender in Fee this is no forfeiture because it did not passe by Livery If a Copyholder committeth waste voluntarily or permissive this is a forfeiture Ipso facto Voluntary as if hee plucketh downe any ancient built house or if he buildeth any new house and then pulleth it downe againe or if he ploweth medow so that thereby the ground is made worse or loppeth the trees or selleth the lopping or if he cutteth downe any fruit-trees for fuell having other wood sufficient this and the like voluntary waste are forfeitures Ipso facto Permissive as if he suffereth his house to decay or fall to ground for want of necessary reparations or if hee suffereth his medowes for want of mending his banckes to be surrounded so that it becomes Rushy or worth nothing or his arrable ground so to be surrounded that it is become unprofitable These and the like permissive wasts are forfeitures Ipso facto And thus much of Acts which are forfeitures eo instante that they are committed A word of those Acts which are said not forfeitures till presentment SEC LVIII ANd such are those offences which by common presumption the Lord cannot of himselfe have notice of without notice given as if a Copyholder committeth felony or treason So if a Copyholder be Out-lawed or excommunicate that the Lord may have the profits of his Copyhold Land a presentment is necessary So if a Copyholder goeth about in any other Court to intytle any other Lord unto his Copyhold or if hee alieneth by Deede these and the like ought to be presented If a Copyholder maketh a bargaine and sale of his Copyhold and it is not in-rolled according to the Statute this is no forfeiture no more than a Feoffment without Livery because nothing passeth So if a Copyholder maketh a Feoffment of all his Lands in Dale and maketh Livery in his Charter Lands no part of his Copyhold-Land is thereby forfeited but if Livery be made in any part of the Copyhold Lands all his Copyhold Lands are forfeited If a Copyholder by Deede of bargaine and sale inrolled according to the Statute doth bargaine and sell all his Lands in Dale having both Copyhold and Freehold his Copyhold is not thereby forfeited for the Law will construe this to extend to his Freehold onely rather than by any over large constructionâ— make a forfeiture in this kinde And if a Copyholder by Deed inrolled bargaineth or selleth all his Copyhold Lands in Dale or all his Lands in Dale generally having no Freehold Lands this is a forfeiture Thus I have shewed you what Acts amount to a forfeiture Now I will shew you what persons are able to forfeit SEC LIX A Man of non sanae memoriae an Idiot or a Lunatique though they be able to take a Copyhold yet they are unable to forfeit a Copyhold because they want common reason nay common sense So an Infant that is under the age of foureteene is unable to forfeit his Copyhold because he wanteth discretion and till then hee is to be in Ward to the next of his kindred to whom th' inheritance cannot descend or to the Lord or the Bayliffe of the Manor as the Custome shall warrant So a feme covert by any Act she can doe of her selfe cannot possibly forfeit her Copyhold because she is not sui juris sed sub potestate viri but if shee doe any act which amounteth to a forfeiture by the consent of her husband this is in her a forfeiture An Infant at the age of discretion may forfeit his Copyhold not by offences which proceede from negligence or ignorance but by such as proceede from contempt If an Infant come not in to be admitted according to the Custome at three solemne proclamations made at three severall Courts or if he will suffer his houses to goe to ruine or his ground to be surrounded these Acts savouring of negligence onely are no forfeitures So if an Infant Copyholder sueth a Replevin against the Lord upon a distresse lawfully taken or if hee alieneth by Deede or the like these Acts relishing of ignorance onely are no forfeitures But if he denieth from time to time to pay the Lord the Rent or committeth voluntary waste notwithstanding often warning given him by the Lord these Acts proceeding from malice and contempt are forfeitures and so if he comitteth felony or treason If a Guardian of a Copyholder committeth waste hee shall forfeit the Wardshâ—ppe onely not the inheritance of the Copy-hold If Cestuy que use of a Copyhold committeth waste he shall not forfeit the Copy-hold If the husband committeth waste in Copyhold Lands which he hath in the right of his wife Co. 4. fo 27. a. this is a forfeiture of the wives Copyhold But if a stranger committeth waste without the consent of the husband this is no forfeiture though the wife consenteth If a Diffeisor of a Copyhold committeth