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
tempestive intempestive pro voluntate Domini possent resumi revocari as Bracton and Fleta both speake the Lords upon the least occasion sometimes without any colour of reason onely upon discontentment and malice sometimes againe upon some sudden fantasticke humour onely to make evident to the world the height of their power and authority would expell out of house and home their poore Copy-holders leaving them helplesse and remedilesse by any course of Law and driving them to sue by way of Petition SEC IX BVt now Copy-holders stand upon a sure ground now they weigh not their Lords displeasure they shake not at every suddaine blast of wind they eate drinke and sleepe securely onely having a speciall care of the mainechance viz. to performe carefully what duties and services soever their Tenure doth exact and Custome doth require then let Lord frowne the Copy-holder cares not knowing himselfe safe and not within any danger for if the Lords anger grow to expulsion the Law hath provided severall weapons of remedy for it is at his election either to sue a Subpena or an Action of Trespasse against the Lord. Time hath dealt very favourably with Copy-holders in divers respects SEC X. BVt I perceive my selfe rashly running into an inextricable Labyrinth I will therefore saile no longer in these unknowne coasts but will hasten homewards I will content my selse with this I know amongst the Saxons th'essentiall parts of a Manor were knowne but whether there then were the same forme of Manors which is at this day that I dare not examine for feare of being accounted more curious than judicious and therefore leaving the Saxons I draw somewhat nearer home and come to the Normans from whom wee had the very forme of Manors which is observed amongst us at this present houre SEC XI I Confesse indeede that sithence the Originall creation of Manors Time hath brought in some innovations and alterations as in giving a large freedome unto Copy-holders both in the nature of their Service and in the manner of their Tenure Yet I may boldly say that the selfe-same forme of Manors remaine unaltered in substance though something altered in circumstance Demesne termed in Latine Demanium Domanium or Dominicum is taken in a double sense proprie and improprie proprie for that Land which is in the Kings owne hands Chopimus de demonio froute lib. 2. and the Chopimus saith that Domanium est illud quod consecratum unitum incorporatum est regiae Coronae take Domanium in this sense and then you exclude all common persons from being seized in Dominico for admit the King passe over the Demesne Lands as soone as they come into a common persons hands desinunt esse terrae Dominicales for though the Kings Pattentee hath the land granted to him and to his Heires yet comming from the King must necessarily be holden of the King it is contrary to the nature of Demesne Lands to be holden of any therefore though those Lands which commonly are termed ancient Demesne viz. such Lands as were quondam in the hands of Edw. the Confessor may properly be termed generally ancient Demesne because they were in ancient time in the Kings owne possession yet to terme them at this day the Lords Demesnes or the Tenants Demesnes being severed from the Crowne is improper ca. qua super SEC XII THen by this it appeareth that those lands are termed impropriè Demesne which are in the hands of an inferiour Lord or Tenants nor can such a one in proprietie of speech be said to stand seized of any Land whatsoever in Dominico suo but if you observe narrowly the manner of pleadings the words are used in a proper sense for you shall never finde that an inferiour Lord or Tenant will plead that he is simply seized in Dominico but still with this addition in Dominico suo ut de feodo and that very aptly for this word Fee implieth thus much that his estate is not absolute but depending upon some superior Lord therefore I conclude with the Feudists that a common person may aptly be said to stand seized in Feodo or in Dominico suo ut de seod but improperly in Dominico simply the King è converso may properly be said to stand seized Dominico simply but in Feodo improperly or in Dominico suo ut de feodo Bracton divideth these Demesne Lands into two branches under the first are comprehended those Lands which the Lord injoyeth in his owne possession under the second those Lands which are in the hands of the inferior Copy-holders His words are these Dominicum dicitur quod quis habet ad mensam suam idcirco Anglice vocat Bordland Bract. lib. 4. tract 3. cap. 9. numb 5. dicitur etiam Dominicum villinagium quod traditur villanis quod quis tempestâ—ve intempestive resumere possit pro voluntate sua revocare SEC XIII Fleta agreeth with Bracton in this division Fleta lib. 5. cap. 5. and unto these two he addes more sorts of Demesne Lands His words are these Dominicum est multiplex est autem Dominicum proprie terra ad mensam assignata villinagium quod traditur villanis ad excolendum quae tempestive intempestive pro voluntate Domimi poterit revocari sicut est de terra commissa tenend quaÌ„diu coÌ„missori placuerit poterit dici dominicuÌ„ de quo quis habet liberum tenementum alius usum fruct etiam ubi quis habet liberum tenementum aliter curam de custode dicipoterit curatore quoruÌ„ unus dicitur ab homine alius in jure Dominicum etiam dicitur ad differentiam ejus quod tenetur in servitio Dominicum denique est omne illud tenementum de quo antecessor obiit sesitus nec refert cum usu fructu vel sine de quo si ejectus esset recuperare possit per assisam nove deseisme licet alius haberet usum fructuÌ„ sicut dici poterit de illis qui tenent in villenagio qui utuntur fruuntur non nemine proprio sed nomine domini sui SEC XIV THis opinion of Bract. and Fleta bo h consenting in one that Copy-hold Land is parcell of the Lords demesnes wanteth not moderne authority to second it for 15. Eliz. in the Excheq I finde it adjudged in the case of a common person howsoever it is otherwise in the Kings Case That if the Lord of a Manor granteth a way Omnes terras suas dominicales the Copy holds parcell of the Manors passe by these generall words neither doth this want Reason to confirme it for in the time of Henry the 3. and E. 2. when Bract. and Fleta lived Copy-holders were accompted meere Tenants at will and therefore after a sort their Lands reputed to continue still in the Lords hands and now though custome hath afforded them a surer foundation to build upon yet the Francke Tenement at the common Law resting in the Lord it can
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
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
Manor decayeth and dyeth for t is not the two materiall causes of a Manor but the efficient cause knitting and uniting together those two materialll causes that maketh a Manor Hence it is that the King himselfe cannot create a perfect Manor at this day for such things as receive their perfection by the continuance of time come not within the compasse of a Kings Prerogative and therefore the King cannot grant Freehold to hold by Copie neither can the King create any new custome nor doe any thing that amounteth to the creation of a new custome and therefore a composition made betweene the King and his Tenant where he hath Herriot custome to pay 10. li. in Levie thereof every time it falleth is no binding composition for this amounteth to the creation of a new custome Et haec omnia similia sunt temporum non regum seu principum opera which fully verifieth the old saying Plus valet vulgaris consuetudo quam regalis concessio this is the sole cause why the King cannot create a perfect Manor at this day and this is the chiefe cause why a common person cannot create a perfect Manor but not the sole cause for there is this cause farther a perfect Manor cannot subsist without a perfect tenure betweene very Lord and very Tenant but a Common person cannot create a perfect tenure and consequently cannot create a perfect Manor before the Stat. of Quia emptores terrarum if any Tenant seized of Land in Fee simple had infeoffed a stranger he might have reserved what services hee thought fit or had he reserved no services yet the Law would have imployed a perfect tenure betweene the Feoffor and the Feoffee for the Feoffee was to hold off the Feoffor by the same services that the Feoffor held over on his Lord Paramount but since this Statute If a Tenant seised of Land in Fee infeoffeth a stranger neither by the expresse reservation of the Feoffor nor by the implyed reservation of the Law can there bee a perfect tenure created at this day betweene the Feoffor and the Feoffee for the Feoffee shall hold immediately of the Lord Paramount not of the Feoffor and further as the King can doe nothing which amounteth to the creation of a new custome so a common person can doe nothing which amounteth to the creation of a new tenure and therefore if there be Lord and Tenant by 10. s. rent and the Lord will confirme the estate of a Tenant Tenend by a Hawke a paire of gilt spurres a Rose or similia this is a voyd confirmation otherwise had it beene if the Lord had confirmed the estate of the Tenant Tenendum per 5. s. that had beene a good confirmation because it tendeth onely to the abridgement of an old tenure and not to the creation of a new and as it is with a confirmation so it is with a composition upon the reason of this ground it is that if the Lord of a Manor purchase forraine land lying without the Precincts and bounds of the Manor he cannot annex this unto the Manor though the Tenants be willing to doe their Services for this amounteth to the creation of a new tenure which cannot be effected at this day And therefore if a man having two Manors and the Lord would willingly have the Tenants of both these Manors to doe their sute and service to one Court this is but lost labour in the Lord to practise any such union for notwithstanding this union they will be still two in Nature howsoever the Lord covet to make them one in Name and the one Manor hath no warrant to call the Tenants to the other Manor but every act done in the one to punish the offenders in the other is traversable yet if the Tenants will voluntary submit themselves to such an innovation and the same bee continued without contradiction time may make this union perfect and of two distinct Manors in nature make one in name and use and such Manors peradventure there are thus united by the consent of the Tenants and continuance of time but the Lords power of it selfe is not sufficient to make any such union causa qua supra But if one Manor holdeth of another by way of Escheate these two Manors may be united together fortior enim est disposâ—tio legis quam hominis But in this that I exclude common persons from being able to create a tenure I may seeme to impugne many authorities which hold at this day that a tenure may bee created by a common person for to cleare this colour of contradiction know that tenures are two fold First imperfect as where a man maketh a Lease for yeares or for life or a gift in tayle here is an imperfect tenure betweene the Lessoâ— and the Lessee the Donor and the Donee and this imperfect tenure I confesse may be created by a common person at this day Secondly perfect betweene very Lord and very tenant in Fee and such a tenure a common person could never create since the Stat. of Quia Emptores terrarum and consequently a common person cannot create a perfect Manor sithence for without a perfect tenure a perfect Manor cannot subsist Thus much touching the definition of a Manor thus much I say touching the two materiall causes together with the efficient cause A word of another cause of a Manor which appeareth not in the definiâ—ion so manifestly as the other causes doe this is a cause which among the Logicians is termed Causa sine qua non and that is a Court Baron for indeede that is the chiefe prop and Pillar of a Manor which no sooner faileth but the Manor falleth to ground if wee labour to search out the antiquity of these Court Barons we shall finde them as ancient as Manors themselves For when the ancient Kings of this Realme who had all the lands of England in Demesne did conferre great quantities of land upon some great personages Vide Lamb in his explication of Saxon words verbo Thanus Bacon in his elements of the Law fol. 41. 42. 43. with liberty to parcell the land out to other inferiour Tenants reserving such duties and Services as they thought convenient and to keepe Courts where they might redresse misdemeanors within their Precincts punish offences committed by their Tenants and deside and debate controversies arising within their jurisdiction and their Courts were termed Court Barons because in ancient time such personages were called Barons and came to the Parliament and sate in the upper house but when time had wrought such an alteration that Manors fell into the hands of meane men and such as were farre unworthy of so high a calling then it grew to a custome that none but such as the King would should come to the Parliament such as the King for their extraordinary wisedome or qualitie thought good to call by writ which writ ran hac vice tanâ—um yet though Lords of Manors lost their names of Barons and
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
by the act of the party some are determinable by death some by collaterall meanes By death as estates granted during the life of the Grantor of the Grantee or of a Stranger By collaterall meanes as estates granted quia diu fuerit innupta to a Widdow qùia diu remanserit vidua or to a Minister quamdiu Sacerdotium exercuerit Of Francke tenants created by the act of the Law some are Francketenants simpliciter some secundum quid simpliciter as the estates of a tenant in Dower of a tenant by the courtesie of an occupant a tenant in taile after possibility of issue extinct secundum quid as the estates of a tenant by Statute Merchant Stat. Staple Elegit who though they are to have the Land but for so many yeares as will give a plenary satisfaction to their debts yet by the Stat. of Westmin 2. they may mainetaine an Assize which no other tenant having but a Chattell can have All Chattells are either certaine or incertaine of Chattells certaine some are in themselves certaine some are made certaine by relation to a certainty Certaine in themselves as where Lands are granted for 20. 30. or 40. yeares Certaine by relation to a certainety as where Land is granted for so many yeares as I. S. hath acres of Land Of incertaine Chattells some are incertaine in their commencement some incertaine in their determination In their commencement as where a Guardian hath an estate during the minority of the heire all these estates either by the generall or by the particular Customes of Manors are of Copyholds aswell as of Freeholds in what manner soever an estate in Fee simple is warranted by the Custome Co. 4. fo 23. most inferior estates are by implication likewise warranted All Francke tenants created by the act of the party the estate of an occupant and all Chattells whatsoever without any other particular Custome are hereby warranted But the Law is otherwise Co. 4. fo 22. a. of estates in Dower by the courtesie by Statute Merchant Statute Staple or Elegit for as long as such a Copyhold by the Custome of the Manor grantable in Fee simple continueth in the Copyholders hands it is not lyable to any of these estates but if once it commeth to the Lord by Escheate forfeiture or by other meanes so long as it remaineth reunited to the Manor it is in the nature of a Freehold and shall be subject to the charges and incumbrances as Land at the Common Law and howsoever by implication these estates are not allowed in Copyholds continuing in the Copyhold possession yet by particular Custome the Wife may bee Tenant in Dower the Husband Tenant by the Curtesie a stranger Tenant by Stat. Merchant Stat. Staple or Elegit of a Copyhold resting in the Copyhold aswell as if it rested in the Lord whether an estate tayle or an estate Tayle after possibility of issue extinct which hath a necessary depending upon an estate Taile may by any particular Custome bee allowed that I may dispute but cannot determine for it is vexata quaestio much controverted but nothing concluded I will briefely touch the reasons alledged on both sides They which are against the validity of Intailes by speciall Custome doe chiefely urge these two reasons that no estates tayles were before the Stat. de donis conditionalibus but all Inheritances were Fees conditionall and the Statute being made 13. E. 1. which is within the memory of man it cannot be that any speciall Customes have any Commencement since the Statute for then a Custome might begin within time of memory which is altogether repugnant to the rules of Custome Two great inconveniencies would ensue if a Copyholder might be Intailed by speciall Custome because neither fine nor Common recovery can barre it so that he hath such an estate that he cannot of himselfe without the assent of the Lord dispose of it either for the payment of his debts for thē advancement of his wife or preferment of his yonger sonnes SEC XLVIII THe maine reasons insisted upon in defence of intailing Copyholds are these 1. In divers Manors they have beene from time to time not onely reputed as Tenants in tayle but in every mans mouth termed by that name 2. A Formed on in the Descender lyeth of a Copyholder which Writ none can bring but Tenant in tayle 3. A remainder limitted upon such an estate in such Manors hath beene allowed and therefore is no Fee conditionall for upon a Fee whether absolute or conditionall a Render can by no meanes depend 4. It is a common usage there by a Recovery to docke intayles of Copyhold or to defeate these estates by presentment that the Copyholder hath committed a forfeiture and so the Lord to seize and then to surrender it to the purchaser and therefore there is not that inconvenience which is supposed in the Copyhold scilicet want of power to dispose of such an estate without the Lords consent 5. Much inconvenience would depend upon this if Copyholds might not be intailed for it would tend to the subversion and destruction of many mens estates which from time to time they have enjoyed without contradiction and therefore for the quiet of the Common-wealth how necessary it is that Copyholds should be intayled let any man judge Thus much of the severall estates of the Copyhold A word of their severall qualities incident to severall estates SEC XLIX WHat qualities soever are necessarily incident to estates at the Common Law are incident to estates by Custome In illustrating this I will confine my selfe to the discussing of these two points 1. What words will create Copyholds of inheritance and what Copyholds of Franck-Tenant 2. How Copyholds of inheritance shall descend Touching their creation Copyholds of inheritance Co. 4. fo 2◠and Copyholds of Franck-Tenement are created by the same words that Inheritance and Franck-Tenement at the Common Law are created by If a Copyhold be granted to a man and to his heires males or heires females If to a man sanguini suo hereditabili If to a Deane and Chapter or to a Major Commonalty without any expresse estate or without a limitation of some inferior estate In all these Grants a perfect estate in Fee passeth And so peradventure if I surrender a Copy-hold to a man and his heires and he reciting this estate re-surrendreth in the same manner to me that I surrendred to him not making any mention of my heire yet this recitall seemeth sufficient to passe a good Fee-simple So if I surrender unto you as large an estate as I. S. hath in his Manor of D. and he hath a Fee-simple in his Manor it is somewhat probable that an estate in Fee simple should passe by reason of his relation without the word heires If a Copyhold be surrendred to a man semini suo haereditabili de corpore or to a man haeredibus ex ipso precreatis or to a man in Franck-marriage with his wife in