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
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
this shall ever binde the Feme and her heires and yet she is not sui juris but sub potestate viri because the Custome of the Manor is the chiefe basis upon which stands the whole fabricke of the Copyhold estate and therefore what Custome doth confirme to a Copyholder the Law will ever allow and never seeke to avoid it in respect of any such imperfection in the Grantors persons and the quantity of the Lords estate is no more respected than the qualitie of his person for if his interest be lawfull be his estate never so great or never so little 't is not materiall for be it in Fee or be it in tayle or dower or as Tenant by courtesie for life or for yeares as Guardian or as Tenant by Statute or as Tenant by Elegit or at will the least of these estates is a sufficient warrant to the Lord to Grant any Copyhold esheated unto him for as long time as the Custome doth allow the ancient Rents and Services being truely reserved and these Grants shall ever binde them that have the Inheritance or Franck-Tenement of the Manor as well as offices granted for life by the chiefe Justice of the Common Pleas whose office is but at will shall ever conclude the succeeding Justice The reason of the Law is this A Copyholder upon voluntary Grants made by Copy doth not derive his estate out of the Lords estate onely for then the Copy-holders estate should cease when the Lords interest determineth Nam cessante primitivo cessat derivativus but the life of the Copy-holders estate is the Custome of the Manor and therefore whatsoever befalleth the Lords interest in his Manor be it determined by the course of time by death by forfeiture or other meanes yet if the Lord were Legitimus Dominus pro tempore how small so ever his estate was that is enough for the same Custome that fixeth a Copyholder instantly in his land upon his admittance will likewise preserve and protect his interest to the end in such manner that though the Lords interest faileth yet his shall never fall to ground being upheld by such a proppe such a pillar unlesse perchance the Copy-holder offer violence to his Founder in breaking the Custome If the Lord granteth a Copyhold and after doth sever this Copy-holder from the Manor by granting the inheritance to a stranger though now one of the chiefe pillars of a Copyhold estate is wanting viz. to be parcell of the Manor yet because the Land at the time of the Copy-holders admittance had this necessary incident this severance being a matter ex post facto cannot amount to the destruction of the Copyhold espicially being the sole act of the Lord himselfe If a Manor be granted upon Condition and before the Condition is broken the Land is granted by Copy then the Manor become forfeited and the Feoffer entreth yet the Copyhold estate remaineth untouched because lawfully established by Custome and yet all meane estates and charges whatsover granted by the Feoffee at the Common Law were voidable upon the entry of the Feoffer for wee have a ground in Law that when an entry is made for breach of a Condition the party to all intents and purposes is in the same plight that he was in at the time of the making of the estate If a man seized of a Manor in Fee dieth seized having issue a daughter and his wife being privement inseâ—nt with a sonne and the daughter granteth Lands by Copy this Grant shall stand good against the sonne for the daughter was Legitimâ— Domina pro tempore So if the Feoffee of a Manor upon Condition to infeoffe a stranger the next day maketh a voluntary Grant by Copy this shall binde and yet his interest was to have but small continuance If a Manor be Granted with a feme in Francke marriage and there is a divorce had causa paercontractus so that now the interest of the Manor is now granted to the feme onely and by relation the marriage is void ab initio yet because the Baron was Legitimus Dominus pro tempore any Copyholders estates granted before the divorce remaine good So if a man espouseth a feme seignioresse under the age of consent and after she doth disagree though the marriage by relation was voide ab initio yet Copyholds granted before disagreement shall never be avoided causa qua supra If the Lord of a Manor committeth felonie or murder and proces of Outlawry be awarded against him after the Exigent hee granteth Copyhold estates according to the Custome and then is attainted these Grants are authenticall though by relation the Manor was forfeited from the time of the Exigent awarded So if the Lord had beene attainted by Verdict or Confession any Grant by Copy after the Felony or murder committed shall stand good notwithstanding the relation If the Lord of a Manor acknowledge a Statute and then granteth Lands by Copy and after the Manor is delivered to the Cognisee in extent the Grant cannot by this be impeached And if the Lord of a Manor taketh a wife and after maketh Copyhold estates according to the Custome and dieth though the feme hath this Manor assigned unto her for her Dower yet cannot shee avoide these Copyhold estates because the Copyholders are in by a title Paramount the title of the feme viz. by Custome But paradventure if the heire after the death of his Ancestor before the Assignment made unto the feme for her Dower had granted Lands by Copy the feme might avoide these Grants because instantly upon the death of the Baron her title received his perfection and nothing more was wanting to the confirmation of her interest but though the quantity of the Lords estate in the Manor be not respected yet the quantity of his estate in the Copyhold is regarded For if a Copyholder in Fee surrender to the use of the Lord for life the Remainder over to a stranger or reserveth the Reversion to himselfe if the Lord will Grant this by Copy in Fee whatsoever estate the Lord hath in his Manor yet having but an estate for life in the Copyhold no larger estate shall passe then hee himselfe hath Quia nemo potest plus juris in alium transferre quam ipse habet and further observe that sometimes the Law respecteth the quantity of the Lords estate in the Manor for what Acts so ever are not confirmed by Custome but onely strengthned by the power authority and interest of the Lord have no longer continuance than the Lords estate continueth and therefore it is held that if a Tenant for life of a Manor granteth a licence to a Copyholder to alien and dieth the Licence is destroyed and the power of alienation ceaseth As for the quality of the Lords estate in the Manor that is much more now respected than either the qualitie of his estate or the qualitie of his person for if the Lord or he who soever it be that maketh a
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
licence of the Lord maketh a Lease for yeares the Lessee cutteth downe trees the Copyholder shall not have a Writ of waste but shall sue at the Lords Court to punish this waste If a feme Dowable by Custome of a Copyhold by plaint in the Lords Court recovereth Dower and damages no action of debt lieth at the Common Law for these damages because the action though it be in it selfe personall yet it dependeth upon the realitiy If a Copyholder maketh a Lease by Copy for Yeares or by Deede with Licence an action of debt lieth for the Rent reserved upon either Lease at the Common Law but I much doubt whether he can avow for the Rent either in the one or in the other no more than Cestuy que use before the Statute 27. H. 8. cap. 10. could avow for the Rent reserved by him upon a Lease for yeares and yet he could maintaine an action of debt for such a Rent because an action of debt is grounded upon the contract If a stranger cut downe trees growing in the Copyhold ground an action of trespasse lieth at the Common Law against him so doth it against the Lord where hee cutteth them downe when by Custome they belong to the Tenant because this is a meere personall action and damages onely are to be recovered And if a copyholder without Licence maketh a Lease for one yeare or with Licence maketh a Lease for many yeares and the Lessee be ejected he shall not sue in the Lords Court by plaint but shall have an ejection firme at the Common Law because hee hath not a Customary estate by Copy but a warrantable estate by the rules of the Common Law Thus much of the manner how Copyholders are to impleade and be impleaded SEC LII I Come now in the sixt place to shew under what Statutes Copyholders are Comprehended Copyholders are comprehended under Statute either by expresse limitation in precise words or by a secret implication upon generall words by expresse limitation in precise words As by the Statute of the first of R. 3. cap. 4. it is expressely provided that a Copyholder having Copyhold Land to the yearely value of twenty sixe shillings and sixe pence above all charges may be impanelled upon a Jury as well as he that hath twenty shillings per annum of Freehold-Land So by the Statute of 1. E. 6. cap. 14. it is expresly provided that upon the dissolution of Abbyes and Monasteries Copyholds should continue as they did before the Statute and should fall into the Kings hands So by the Statute of 2. E. 6. cap. 8. it is expresly provided that the interest of a Copy-hold should be preserved notwithstanding it be not found by Office after the decease of the Kings Tenant So by the Statute of 1. Mar. cap. 12. it is expresly provided that if any Copyholder being Yeoman Artificer Husbandman or Labourer and being of the age of eighteene or more under the age of sixtie not sicke impotent lame maymed nor having any other just or reasonable cause of excuse upon request made by any man in authourity refuseth to aide Justices in suppressing of riotous persons that then immediately he shall forfeit his Copyhold to the Lord of whom it is held during the Copyholders naturall life So by the Statute of 5. Eliz. cap. 14. it is expresly provided that the forging of a Court Roll to the intent to defraud a Copy-holder shall be as well punishable as the forging any other Charter Deede or Writing sealed whereby to defeate a Copyholder or Freeholder So by the Statute of 13. Eliz. cap. 7. It is expresly provided that the Copyhold Land as well as the Freehold Land of a Bankerupt shall be sold for the satisfying of the Creditor So by the Statute of 14. Eliz. cap. 6. It is expresly provided that if any of the Queenes subjects goeth beyond the Seaes without Licence that then the Queene shall not onely take the ordinary profits of the fugitives Copyhold Land as they arise but shall let set and make Grants by Copy and usuall Wood-sales and other things to all intents and purposes as a Tenant pro terme durante vie may doe So by the Statute of the 35. Eliz. cap. 2. It is expresly provided that if any person or persons being convicted of recusancie repaire not home to their usuall place of abode not removing from thence above five miles distant that then any person or persons thus offending shall not onely forfeit their Freehold Land to the Queene but withall their Copyhold Land to the Lord or Lords of whom it is holden Thus have I shewed in briefe under what Statute Copyholders are comprehended by expresse limitation in precise words Now I will shew you as briefely as I can under what Statute they are comprehended by secret implication upon generall words SEC LIII SOme hold that all Statutes that speake generally of Tenants extend to Tenants by Copy but it is much to be feared that wee shall wander from the Truth if we give credit to this conceit for if wee peruse the Statute we shall meete with an infinite number of them that speak generally of Tenants and yet touch not Tenants by Copy wherefore not giving way to this opinion as being erronious I will set you downe an infallible rule which will truely direct you in the exposition of the generall words in Statutes and that is thus When an Act in Parliament altereth the service tenure interest of the Land Co. 3. fo 8. or other thing in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenant there the generall words of such an Act in Parliament extend not to the Copy-hold but when an Act is generally made for the good of the Common-wealth and no prejudice may accrue by reason of the alteration of any interest Service Tenure or Custome of the Manor there usually Copy-holds are within the generall purveiw of such Acts. The Statute of West 2. ca. 1. of intailes extendeth not to Copyholds because it would be prejudiciall to the Lord for by this meanes the Tenure is altered for the Donee intayle without any speciall reservation ought to hold of the Doner by the same Service that the Doner holdeth over besides the words of the Statute are Quod voluntas Donator in charta Domini sui manifesta expressa decetero observit which proveth that the intent of the Statute was that no hereditament should be intailed within this Statute but such an one as either was given or at least may be given by Charter or Deede but Copyholds are no such hereditaments and therefore not within the body of the Act yet it is holden that Custome with the cooperation of the Statute will make an estate tayle The Statute of W. 2. ca. 20. which giveth the Elegit extendeth not to Copyhold because it would be prejudiciall to the Lord and a breach of the Custome that any stranger should have interest in the Lands holden by
Copy without the admittance and ordinary allowance of the Lord. The Statute of 16. R. 2. cap. 5. which maketh it a forfeiture of Lands Tenaments and Hereditaments to the purchasor of Excommunications Bulls c. in the Court of Rome against the King c. extendeth not to Copyhold because it would be prejudiciall to the Lord to have the King so farre intereressed in his Copyhold without his consent The Stature of 2. H. 5. ca. 7. of Heretiques extends not to Copyholds for though the Lord of a Manor is yearely to receive a benefite in having the Lands after the yeare and the day forfeited unto him yet because the King is a sharer in this for feiture therefore Lands by Copy are not comprehended under the generall words besides the Statute speaketh of the Kings having annuum diem vastum of these Lands forfeited for heresie as in Lands forfeited for felony whereby it appeareth that the meaning of the Statute is that such Lands onely should be forfeited in which the King by the ordinary course of the Law should have An nuum diem vastum if the Tenant of them had committed felony but such lands are not Lands by Copy for if a Copyholder committeth felony his Copyhold is presently forfeited to the Lord therefore Copyholds are out of the generall purview of this Statute SEC LIV. THe Statute of 27. H. 8. ca. 10. of Vses toucheth not Copyholds because the transmutation of possession by the sole operation of the Statute without allowance of the Lord or the Agreement of the Tenant would tend to the prejudice both of the Lord and of the Tenant and the branch of the same Statute which speaketh of Joyntures toucheth not Copy-holds because Dowers of Copyholds are warranted by speciall Custome onely and not by the Common Law or by the generall Custome The Statute of 31. of H. 8. ca. 1. 32. H. 8. cap. 32. by which joynt-Tenements and Tenants in Common are compellable to make partition by a Writ de partitione faciend As Coparteners at the Common Law touch not Copyholds because this alteration of the Tenure without the Lords consent may sound to the prejudice of the Lord. The Statute of 32. H. 8. ca. 28. which confirmeth Leases for 21. yeares or three Lives made by Tenants in tayle or by the husband and wife of the Lands of the wife touch not Copyhold for the Statute speaketh of Leases made by Deede onely so that the intent of the Statute is to warrant the Leasing of such Lands only as are Grantable by Deede but such are not Copyhold-lands for though they may by Licence of the Lord be demised by Indenture yet in their owne name they are demiseable onely by Copy and therefore out of the generall purview of the Statute for the same reason the same Statute cap. 34. which giveth an entry to the Grantee of a Reversion upon the breach of a Condition by the particular Tenant toucheth not Copyholds SEC LV. THe Stat. of 17. E. 2. cap. 10. which giveth the Wardships of Idiots Land unto the King toucheth not the Idiots Copyhold for thereby great prejudice would accrue to the Lord. But the Statute of Marton cap. 1. which giveth damages to a feme upon a Recovery in a Writ of Dower Co. 4. fo 30. b. where the Baron dieth seised extendeth to Copyhold So that the Statute of Westm 2. cap. 3 and the three severall branches of the same Statute 1. The one which giveth the Cui in vita upon a discontinuance made by the Baron 2. The second which giveth the receit unto the feme upon the Barons refusall to defend the wives title 3. And the third which giveth a quod ei deforceat to particular Tenants extends to Copyhold So that the Statute of 31. H. 8. ca. 13. of Monaster which provideth for the avoidance of doubling of estates And the Statute 32. H. 8. cap. 9. against Champertie and buying of Litigious Titles and chap. 28. which giveth an entry in Liew of a Cui in vita Co 4. fo 26. extendeth all to Copyholds because these Statutes are beneficiall to the Common-wealth and not at all prejudiciall to the Lord in the alteration of Tenure estate Service c. So the Statute of 4. H. 7. cap. 24. of Fines extendeth to Copyholds for if a Copyholder be disseised and the Desseisor levieth a Fine with proclamations and five yeares passed without any claime made this is a barre both to the Lord and to the Copyholder So if a Copyholder make a Feoffment in Fee and the Feoffee levieth a Fine with proclamation and five yeares passe the Lord is barred but if a Copyholder levie a Fine and five yeares passe the Lord is not barred for the Fine levied the Copyhold having no Franck-Tenant is utterly voide And whereas it hath beene doubted that this Statute should not extend to Copyhold but the Lord should hereby receive grand prejudice Co. 9. fo 105. a. for he should not onely lose the Fines upon alienations or descents and the benefit of forfeiture but should withall be in hazard to be barred of his Franck-tenant and inheritance To that I answer if the Lord receive any such prejudice it is through his owne default for not making claime for in regard of the privitie in estate that is betweene him and the Copyholder he may make claime as well as the Copyholder himselfe Et vigilantibus non dormientibus jura subveniunt Thus have I shewed under what Statutes Copyholds are comprehended I come now in the seventh place to speake of Fines SEC LVI A Fine is a summe of money paide to the Lord of the Mannor for an Income into any Lands or Tenements In some Manors Fines are certaine in some incertaine Fines of Copyholds By speciall Custome Copyholders are to pay Fines upon Licences granted unto them to demise by Indenture but by generall Custome they are to pay Fines onely upon admittances If the Lord having a Copyhold by Escheate forfeiture or other meanes maketh a voluntary admittance a Fine is due unto the Lord. If a Copyholder surrendreth to the use of a stranger and the Lord admitteth a Fine is due to the Lord. So if a Copyhold descendeth and the Lord admitteth the heire where by the Custome of the Manor the wife is to have Dower and the husband is to be Tenant by the curtesie of a Copyhold either of them shall be admitted and shall pay a Fine to the Lord. If a Copyhold be granted du rante vie and the Grantee dieth living Cestuy que vie and a stranger entreth as a generall occupant he shall be admitted and shall pay a Fine And so if a Copyhold be granted to one and his heires durante vie and the Grantee dieth and his heire entereth as a speciall occupant where by the Custome of the Manor a Copyhold may be extended upon the extent the party shall be admitted and shall pay a Fine Where by the Custome of the Manor
the Bailiffe of the Manor is to have the Wardship of the Copyhold heire being under the age of fourteene such a Guardian shall neither be admitted nor pay a Fine because he is but a partnor of the profits and that not in his owne right but in the right of him to whom he is Guardian If the Copyhold Lands of a Bankerupt be sold according to the Statute of the 13. Eliz. cap. 7. the Vendee shall be admitted and pay a Fine If a Villaine purchaseth a Copyhold the Lord of the Villaine may enter and seize it and the Lord of the Manor shall admit him and have a Fine If a Copyhold be granted upon Condition and the Condition be broken and the Granter entreth hee shall not be admitted neither pay a Fine because upon the breach of the Condition and the entry he is to all intents in Statu quo prius as if no grant at all had beene made If a Copyholder in Fee surrendreth for life reserving the Reversion and the Lessee for life dieth the Copyholder shall not be admitted to his Reversion neither shall he pay a fine because the Reversion was never out of him If a Copyholder be disseised and then entereth upon the Desseisor or recovereth by plaint in the nature of an Assize he shall not be admitted neither shall he pay a Fine for he continueth still Tenant by Copy notwithstanding the disseisin but where by a plaint a Copyhold is recovered upon the accruer of a new Tytle where he that recovereth was never admitted nor paid Fine there upon his recovery an admittance is requisite and a Fine is due as if a Copyholder dieth seised a stranger abateth and the heire recovereth by plaint in the nature of an Assize of Mort d'auncester upon this recovery hee shall be admitted and pay a Fine If I take a wife Copyhold in Fee though by this inter-marriage there accrueth a present interest to me yet because I am seised non jure proprio but jure alieno therefore I shall not be admitted neither shall I pay a Fine The same Law is Vid. Plowden com 4 18. b. if she be a Termor of a Copyhold for though the terme by the inter-marriage be so vested in me that I may dispose of it without controule yet because before disposer I am possessed of it but in the right of my wife therefore I shall neither be admitted nor pay a Fine If a Copyhold be surrendred for life the remainder to a stranger though the admittance of Tenant for life be sufficient to invest the estate in him in the Remainder yet upon the death of Tenant for life hee in the Remainder shall be admitted and pay a Fine So if a Copyhold be granted to three habend success vie whereby Custome successive is in force if any one dieth he that next succeedeth shall be admitted and pay a Fine If two Coparteners or Tenants in Common of a Copyhold be and the one dieth and the other hath all by discent hee shall be admitted and shall pay a Fine But if two joynt-Tenants be of a Copyhold one dieth the other shall have all by the survivorship without admittance or paying Fine because joynt-tenants to all intents and purposes are seised per my per tout If two severall Copyholders joyne in a Grant of their Copyhold by one Copy or if one Copyholder having severall Copy-holds granteth them by one Copy yet the Grantee shall pay severall Fines for they shall inure as severall Grants Co. 4 fo 27. b. But if two joynt-Tenants two Tenants in Common or Tenant for life and hee in the Remainder joyne in the Grant of a Copy-hold one Fine onely is due and it shall inure as one Grant onely so if a surrender be made and after a common Recovery is had by plaint in the nature of a Writ of entry in Le post for the better assurance one Fine onely shall be paid And thus much of Fines I come now in the next place to Forfeitures wherein I will chiefely rely upon these foure points 1. What Acts amount to a Forfeiture 2. What persons are able to forfeit 3. What persons are able to take benefit of a Forfeiture 4. What Acts amount to a confirmation of an estate forfeit SEC LVII OF Acts which amount to Forfeiture some are Forfeits eo instante that they are committed some are not Forfeits till presentment Offences which are apparant and notorious by which the Lord by common presumption cannot chuse but have notice are Forfeitures eo instante that they are committed as if by speciall Custome upon the discent of any Copyhold of Inheritance the heire is tyed upon three solemne Proclamations made at three severall Courts to come in and be admitted to his Copyhold if he faileth to come in this failer is a forfeiture Ipso facto So if a Copyholder be sufficiently warned to appeare and he faileth this is a forfeiture Ipso facto But if he be hindred by sicknesse or by over flowing of waters or if he be much in debt and feare to be arrested or if hee be a Bankerupt and keepeth his house then his default is no forfeiture If a Copyholder in the Court be called and summoned to be sworne of the homage and refuseth this is a forfeiture Ipso facto So if a Copyholder be sworne of the homage and then refuseth to present the Articles according to his Oath this is a forfeiture Ipso facto So if a Copyholder will sweare in Court that he is none of the Lords Copyholder this is a forfeiture Ipso facto But if a Copyholder in presence of the Court speaketh unreverent words of the Lord as that the Lord exacteth extorteth unreasonable Fines and undue-Services this is fineable only but no forfeiture and if he saith in Court that he will devise a meanes no longer to be the Lords Copyholder this is neither cause of fine not forfeiture for peradventure the meanes that hee intended was lawfull viz. by passing away his Copyhold Et ubi sensus verborum est multiplex verba semper sunt accipienda in meliori sensu If the Steward sheweth a Court roll to a Copyholder to prove that his Land is holden by Copy and that the Copyholder saith he is a Freeholder and sheweth a Deed pretending thereby to procure his Land to be Freehold and teareth in peeces the Court-Roll this is a forfeiture Ipso facto So if the Lord Co. 4. fo 27. b. upon the admittance of a Copyholder the Fine by the Custome of the Manor being certaine demandeth his Fine and the Copyholder denieth to pay it upon demand this is a forfeiture ipso facto So if a Copyholder will sue a Replevin against the Lord upon the Lords lawfull distresse for his Rent or Services this is a forfeiture Ipso facto But if the Copyholdder be in doubt whether it be due or not and therefore intreateth the Lord that the homage may inquire the truth this is no forfeiture
waste this is no forfeiture So if a Copyhold be surrendred to the use of I. S. and before admittance I. S. committeth waste this is no forfeiture for by the same reason that hee cannot grant before admittance hee cannot forfeit before admittance If two joynt Tenants be of a Copyhold and one committeth waste he forfeiteth his part onely for no man can forfeit more than he hath granted And therefore if there be Tenant for life with a remainder over of a Copyhold and the Copyholder for life purchaseth the Manor committeth waste or doth any Act which amounteth to the extinguishment or the forfeiture of a Copyhold yet the remainder is not hereby touched And so if a Copyholder be granted to three habend successivie whereby the Custome of the Manor this word Successivie taketh place the first Copyholder cannot prejudice the other two by any Act he can doe no more than if a Copyholder in Fee by Licence maketh a Lease for yeares by Deed or without Licence by Copy and either of these Lessees committeth waste the reversion is not hereby forfeited If I have two severall Copyholds by two severall Copies and I commit waste in one this is a forfeiture of this one onely and not of the other And so if I grant these severall Copyholds by one Copy yet they continue severall as they did before and the forfeiture of the one is not the forfeiture of the other The same Law is if two severall Copy-holds Escheated to the Lord and hee regranteth them againe by one Copy And thus have I shewed what persons are able to forfeit I will now in a word shew what persons are able to take benefit of a forfeiture SEC LX. REgularly it is true that none can take benefit of a forfeiture but he that is Lord of the Manor at the time of the forfeiture And therefore if a Copyholder maketh a Feoffment and then the Lord alieneth neither the Granter nor the Grantee can take benefit of this forfeiture for neither a right of entry nor a right of action can ever be transferred from one to another And therefore if a Freeholder alieneth in Mortmaine and then the Lord granteth away his Seigniory neither the one nor the other can ever take benefit of this forfeiture So if a Lessee for life committeth waste and then the Lessor granteth away the reversion this waste is made dispunishable But if Tenant for life be of a Manor with remainder over in Fee to a stranger If a Copyholder committeth waste and then Tenant for life of the Manor dieth before entry yet he in Remainder may enter for he had an interest in the Manor at the time of the forfeiture committed though hee could not enter by reason of the State in Tenant for life which being determined his entry is now accrued unto him for the forfeiture committed in the life of Tenant for life And sometimes he that is neither Lord of the Manor at the time of the forfeiture committed nor ever after shall take benefite of a forfeiture As if a Lord of a Manor granteth a Copyhold in Fee and then granteth the Franck-Tenement or the inheritance of this Copy-hold to a stranger the Grantee though no Lord of the Manor nor able to keepe any Court Co. 4. fo 24. shall take benefite of forfeitures made by the Copyholder as if the Copyholder do make a Feoffment Lease waste deny the Rent c. Thus have I shewed what persons are able to take benefit of a forfeiture I will now in one word shew what Acts amount to a confirmation of an estate forfeited SEC LXI IF the Lord doth any thing whereby hee doth acknowledge him his Tenant after forfeiture this acknowledgement amounteth to a Confirmation as if he distreyneth upon the ground for Rent due after forfeiture or if he admitteth after the forfeiture or the like these are estoppells to the Lord so that he can never enter so the Lord have notice of such forfeitures before any such act which may amount to a confirmation be done yet some make this difference that these forfeitures onely which destroy not the Copyhold are onely conformable by subsequent acknowledgement and not those forfeitures which tend to the destructions of a Copyhold as if the Copyholder maketh a Feoffment by this the Copyholder is destroyed and therefore no subsequent acknowledgement of the Lord will ever salve this sore And this shall suffice for forfeitures I come now in the last place to shew what Acts amount to the extinguishment of a Copy-hold SEC LXII VVHeresoever a Copyhold is become not demisable by Copy either by the Act of the Lord by the Act of the Law or by the Act of the Copyholder himselfe it is extinguished for ever By the Act of the Lord as if a Copyholder Escheateth and the Lord granteth away any estate by Deede this is an extinguishment Co. 4. fo 31. So if hee maketh a Feoffment upon Condition and then entereth for breach of the Condition yet the Copyhold is extinguished because once not demisable But if the Lord keepeth the Copyhold-Lands for never so many yeares or granteth at will this destroyes not the Copyhold because it continueth ever demisable by Copy By the Act of the Law as if the Copyhold escheated be extended upon a Statute or Recognizance acknowledged by the Lord or if the feme of the Lord hath this Land assigned unto her for her Dower although these impediments be by the Act of the Law yet because they are lawfull the Land can never after be granted by Copy By the Act of the Copyholder himselfe as if he accepteth a Lease for yeares at the Common Law either mediate or immediate from the Lord of the Copyhold this is an absolute extinguishment But if he accepteth a Lease for yeares of the Manor the Copyholder by this hath not continuance but this is no extinguishment because the Land continueth still grantable by Copy If a Copyholder with Licence make a Lease for yeares to a stranger or without Licence maketh a Lease for yeares to the Lord the Copyhold is not hereby extinguished and yet it is not demisable by Copy So if a Copyholder intermarrieth with a feme Seignioresse this is a suspension onely of the Copyhold no extinguishment So if the interruption be torcious as the Lord be disseised and this disseisor dieth seised or if the Land be recovered by false verdict or erronious judgement and after the Land is recontinued it is not extinguished but may be granted arere by Copy for Non valet impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur And so I conclude with Copyholders wishing that these may ever be a perfect union betwixt them and their Lords that they may have a feeling of each others wrongs and injuries that their so little Common-wealth having all his members knit together in compleate order may flourish to the end FINIS
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
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
were deprived of that dignity which was inherent to their names yet their Courts retaine still the name of Court Barons because they were originally erected for such personages as were Barons neither hath time beene so injurious as to eradicate the whole memory of their auncient dignity in their name there is stamps left of their nobility for they are still intituled by the name of Lords These Courts differ from Court Leets in diverse respects In this that Court Barons by the Law may be kept once every three weekes or as some thinke as often as it shall please the Lord though for the better ease both of Lords and Tenants they are kept but very seldome but a Court Leete by the Statute of magna Charta is to bee kept but twice every yeare one time within the moneth after Easter Magna Charta C. 35. 31. E. 3. Ca. 15. and another time within a moneth after Michal 2. In this that Court Barons may bee kept in any place within the Manor contrary to the opinion of Brian But a Court Leete by the Statute of Magna Charta is to be kept in certo loco ac determinato within the Precinct 3. In this that originally Court Barons belonged unto inferior Lords of Manors but Court Leets originally belonged unto the King 4. In this that Court Barons are incident unto eâ—â—â—y Manor so that every Lord of a Manor may keepe a Court Baron but few have Leets for inferiour Lords of Manors cannot keepe Court Leetes without speciall prescription or some speciall Patent from the King 5. In this that in Court Barons the suitors are Iudges but in Court Leets the Steward is Iudge 6. In this that in Court Barons the Iewrie consisteth oftentimes of lesse than twelve in Court Leets never the reason of that is because none are impanelled upon the Iewrie but Freeholders in Court Barons of the same Manor but in Court Leets strangers are oftentimes impanelled 7. In this that Court Barons cannot subsist without two suitors adminimum but Court Leets can well subsist without any suitors 8. In this that Court Barons enquire of no offences committed against the King but Court Leetes inquire of all offences under High Treason committed against the Crowne and dignity of the King In many other respects they differ as that a writ of errour lyeth upon a judgement given in a Court Leete but not in a Court Baron So in a Court Leete a Capias lyeth but in a Court Baron in steade of a Capias is used an Attachment by goods So in a Court Baron an action of debt lyeth for the Lord himselfe because the suitors are Judges but in a Court Leete the Lord cannot maintaine any action for himselfe because the Steward is Iudge but omitting these with many more I come to the Etymologie of a Manor Some derive the word Manor a manendo and then it taketh his name either from the Manor-house which the Lord maketh his dwelling place or else a manendo quia Dominus ac tenentes in Manerii sui circuit cohabitant ac manent Some thinke t is termed Manor from manuring the ground and then it taketh its name either from the Lords Demesnes which the Tenants are bound to Manure or else from the Land remaining in the Tenants hands which are likewise tilled and manured others are of opinion that it is derived of the French word mesner which signifieth to governe or guide because the Lord of a Manor hath the guiding and directing of all his Tenants within the limits of his jurisdiction and this I hold the most probable Etymologie and most agreeing with the nature of a Manor for a Manor in these dayes signifieth the jurisdiction and royalty incorporate rather than the Land or Scite Thus much touching the Etymologie A word touching the division of a Manor A Manor is twofold re nomine 2. Nomine tantum re nomine as where the two materiall causes of a Manor the efficient cause causa sine qua non doe meete and joyne together nomine tantum as where any of these causes is wanting as to insist in the two materiall causes if the Lord will transferre over to some stranger the services of all his Tenants and reserve unto himselfe the Demesnes or if he will passe away the Demesnes and reserve the services in both causes the Lord peradventure hath a Manor nomine but not otherwise because in the one cause he wanteth Demesnes in the other services So if a Manor discendeth to Co-parteners and they make partition and the intire Demesnes are allotted to the one and th' intire services to the other the Manor is now in suspence for neither of them hath any Manor but in name onely but if part of the Demesnes and part of the Services be allotted to each one then have they each of them a Manor not nomine tantum but re nomine To insist in the efficient causes If the King at this day will grant a great quantitie of land to any Subject injoyning him certaine duties and services and withall willeth that this should beare the name of a Manor howsoever this may chance to gaine the name of a Manor yet it will not be a Manor in th' estimation of the law to insist in this cause sine qua non If the King grant away a Manor to I. S. excepting the Courts and perquisites the Grantee hath a Manor in name onely So if all the Freeholders dye but one if the Lord purchase all the Freeholders land or passe away the Services of the Freeholders or release unto his Freeholders all their services notwithstanding the Demesnes and the Services of the Copiholders yet the Lord hath but a Manor in name because the Freeholders are wanting which are the maintainers and upholders of the Court Baron and consequently necessary helpe to the perfection of a Manor So if the Lord granteth away the inheritance of all his Copyholders or demiseth all his lands granted by Copie to another for 2000. yeares the Grantee in the one case and the lessee in the other have a kinde of Seigniority in grosse and may keepe a Customary Court where the Steward shall be Judge and shall take surrenders and make admittances and this in the eye of the world is a Manor though in the judgement of the law it cometh far short of one Thus much touching the division of a Manor I might here handle many collaterall jurisdictions appropriated to Lords of Manors as that our erecting Dove-houses of proving the Wills of their Tenants deceased within their Precincts in many places of inclosing Common leaving sufficient besides for the other Commoners with many of the like Sed haec lubens libensque omitio And thus closing up this part of my Treatise touching Manors I come to the other part touching Copyhold SEC XXXII INeede not stand to discourse at large th'antiquitie of the Copyholders for if you cast your eye backe to that is past
but a Prescription may both by the Comon-Law and the Civill and therefore where the Statute 1. H. 8. saith that all actions popular must be brought within three yeares after the offence commi ted whosoever offendeth against this Statute and doth escape uncalled for three yeares he may be justly said to prescribe an immunity against any such action 2. A Custome toucheth many men in generall Prescription this or that man in particular and that is the reason why Prescription is personall and is alwayes made in the name of some person certaine and his Ancestors or those whose estate he hath but a Custome having no person certaine in whose name to prescribe is therefore called and alledged after this manner In such a Borough in such a Manor there is this or that Custome And for Vsage that is the efficient cause or rather the life of both for Custome and Prescription lose their being if Vsage faile Should I goe about to make a Catalogue of severall Customes I should with Sisiphus saxum volvere undertake an endlesse piece of worke therefore I will forbeare since the relation would be an argument of great curiosity and a taske of great difficulty I will onely set downe a briefe distinction of Customes and leave the particulars to your owne observation Customes are either generall or particular generall which are part of the Common law being currant through the whole Common-wealth and used in every County every City every Towne and every Manor Particular which are confined to shorter bounds and limits and have not such choyce of fields to walke in as generall Customes have These particular Customes are of two sorts either disallowing what generall Customes doe allow or allowing what generall Customes doe disallow as for example sake By the generall Customes of Manors it is in the Copiholders power to sell to whom he pleaseth but by a particular Custome used in some places the Copyholder before he can inforce his Lord to admit any one to his Copihold is to make a proffer to the next of the blood or to the next of his Neighbours ab oriente solis who giving as much as the partie to whom the Surrender was made should have it so on the other side by the generall Customes of Manors the passing away of Copyhold land by deede for more than for one yeare without licence is not warranted yet some particular customes in some Manors doe it so by the generall Customes of Manors Presentments or any other act done in the Leete after the moneth expired contrary to the Statute of magna Charta and 31. E 3. are voyd yet by some particular Customes such acts are good and so in millions of the like as in the sequell of this discourse shall be made manifest And therefore not to insist any longer in dilucidating this point let us in few words learne the way how to examine the validitie of a Custome For our direction in this businesse wee shall doe well to observe these sixe Rules which will serve us for exact tryall 1. Customes and Prescriptions ought to be reasonable and therefore a Custome that no Tenant of the Manor shall put in his Chattell to use his common in Campis seminatis after the Corne severed untill the Lord have put in his Chattell is a voyd Custome because unreasonable for peradventure the Lord will never put in his Chattell and then the Tenants shall lose their profits so if the Lord will prescribe that he hath such a Custome within his Manor that if any mans beasts be taken by him upon his Demesnes damage Fesant that he may detaine them untill the owners of the beasts give him such recompence for his harmes as he himselfe shall request this is an unreasonable Custome for no man ought to be his owne Judge 2. Customes and Prescriptions ought to be according to common right and therefore if the Lord will prescribe to have of every Copyholder belonging to his Manor for every Court he keepeth a certaine summe of money this is a voyd prescription because it is not according to common Right for hee ought for Iustice sake to doe it Gratis but if the Lord prescribe to have a certaine Fee of his Tenants for keeping an extraordinary Court which is purchased onely for the benefit of some particular Tenants to take up their Copyholds and such like this is a good prescription and according to common right 3. They ought to be upon good consideration and therefore if the Lord will prescribe that whosoever passeth through the Kings High way which lyeth through his Manor should pay him a peny for passing this prescription is voyd because it is not upon a good consideration but if hee will prescribe to have a peny of every one that passeth over such a bridge within his Manor which bridge the Lord doth use to repaire this is a good prescription and upon a good consideration So if the Lord will prescribe to have a fine at the marriage of his Copyholder in which Manor the custome doth admit the husband to be Tenant by the curtesie or the feme Tenant in Dower of a Copyhold this prescription is good and upon a good consideration but in such Manors where these estates are not allowed the Law is otherwise 4. They ought to be compulsary and therefore if the Lord will prescribe that every Copyholder ought to give him so much every moneth to beare his charges in time of warre this prescription is voyd but to prescribe they ought to pay so much money for that purpose is a good prescription for a payment is compulsary but a gift is Arbitrary at the voluntary liberty of the giver 5. They ought to be certaine and therefore if the Lord will prescribe that whensoever any of his Copy-holders dye without heire that then another of the Copyholders shall hold the same lands for the yeere following this prescription is voyd for the incertainty but if the Lord will prescribe to have of his Copy-holders 2. d. an Acre Rent in time of warre foure pence an Acre this prescription is certaine enough 6. They ought to be beneficiall to them that alledge the prescription and therefore if the Lord prescribeth that the custome hath alwayes beene within the Manor that what distresse soever is taken within his Manor for any common persons cause is to be impounded for a certaine time within his pound this is no good prescription for the Lord is hereby to receive a charge and no commoditie but if the prescription goeth further that the Lord should have for every beast so impounded a certaine summe of money this is a good prescription If we desire to be more fully satisfied in the generall knowledge of prescriptions and Customes wee shall finde many Maximes which make very materiall for this purpose amongst which I have made choyse of these three as most worthy of your observation 1. Things gained by matter of Record onely cannot be challenged by prescription and
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-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
Livery and seisin who executeth it accordingly though the Lessor be used as an instrument to performe the will of the Lessee yet this being his voluntary act the Law taketh it as a consent for the passing away of the whole inheritance but if you looke narrowly into both Cases you shall finde the difference in the Latter Case by the Feoffment the Fee is devested out of the Lessor and therefore a consent will serve to transferre the Reversion but in the former Case the Reversion is not pluckt out of the Lord by the Surrender and therefore an implied consent is too weake to remove it I will onely adde one observation more and so I will end with the Grantor The Law is not so strict to a Copyholder as that he must come personally into Court upon the making of every Surrender but they may Surrender by Attorney as well as Livery and Seisin may be made by Attorney at the Common Law and should the Law be otherwise great inconveniencie would ensue for how should Copyholders that are in prison or languishing upon bed or beyond the Seas surrender but by Attorney But note this difference if a man hath a bare Authority joyned with a Confidence without interest this Authority cannot be executed by Attorney therfore if I devise that my Executor shall sell my Land they cannot sell by Attorney for that were to make an Attorney upon Attorney which the Law will in no wise permit and though a man have an Authority joyned with an interest yet if the Authority be warranted by speciall Custome onely it cannot be executed by an Attorney and therefore if there be a speciall Custome that a Copyholder for life may make estate for 20. yeares to continue after his death these estates cannot be made by Attorney So if there be a speciall Custome that an Infant at the age of discretion may surrender a Copyhold this surrender being confirmed by speciall Custome onely cannot be made by Attorney And so if there be a Custome that a Copyholder out of the Court may surrender into the hands of the Lord by the hands of two Customary Tenants such Surrenders must be done in person But wheresoever there is a generall Authoritie accompanied with an interest that Authority may be executed by Attorney as Cestuy que use after the Statute of 1. R. 3. and before the Statute 27. H. 8. might have aliened by Attorney for at that time he had an absolute authority to dispose of the Land at his pleasure without any confidence reposed in him And thus much of the Grantor A word of the Grantee SEC XXXV THe same persons that are capable of a Grant by the Common Law are capable of a Grant by Copy according to the Custome of the Manor An Infant a man of non sanae memoriae an Idiot a Lunatique an Out-law or an excommunicate may be Grantees of a Copyhold estate The Lord himselfe may take a Copy-hold to his owne use one joynt Tenant may receive a Copyhold from the hands of his joynt companion because it passeth by Surrender not by Livery A feme covert may be a purchaser of Copyhold and this purchase shall stand in force untill her husband disagreeth Nay further a feme covert may receive a Copyhold estate by surrender from her husband because she commeth not in immediately by him but by mediate meanes viz. by the admittance of the Lord according to the surrender As the seme is capable of receiving a Copyhold from the hands of the Baron so by speciall Custome the Baron may take a Copyhold from the hands of his seme for in some Manors Customeâ— doth enable the feme to devise a Copyhold to the Baron but this Custome hath beene much impugned therefore I dare not justifie the validity of it What persons soever are capable of a Grant by Copy may well take by Attorney not that the Lord shall be enforced to admit any one by Attorney because upon every admittance there is fealty due by the party admitted which is a duty so inseparably annexed to the persons that it cannot be discharged by deputy and therefore no reason the Lord should be inforced to admit by Attorney but if hee will admit him it standeth good It is not necessary that upon Surrenders of Copiholds the name of the partie to whose use the Surrender is made be precisely set downe but if by any manner of circumstance the Grantee may be certainely knowne it is sufficient And therefore a Surrender made to the Lord Archbishop of Canterbury or the Lord Major of London or the high Sheriffe of Norfolke without mentioning either their Christian-name or Sir-name are good enough and certaine enough because they are certainely knowne by this name without further addition So if I Surrender to the use of the next of my blood to the use of my wife to the use of my brother or sister having but one brother or one sister these Surrenders are good without any additions because the Grantee may certainly be knowne by these words If I Surrender generally into the hands of the Lord not expressing to whose use the Surrender shall be this Surrender is a good Surrender and shall enure to the benefit of the Lord. If I surrender to the use of my sonne W. having more sonnes than one of that name yet by an averment this incertainty may be helped But if I Surrender to the use of my cosin or my friend this is so generall and so incertaine that no subsequent manifestation of my intention can any way strengthen it So if three Surrender to the use of three or foure of S. Dunstons Parish not naming the Parishiones by their names this Surrender is utterly void And so if I Surrender in the disjunction to the use of I. L. or I. N. this is insufficient for the incertainty And in customary Grants upon Surrenders the Law is not so strict as in Grants at the common Law for in Grants at the common Law if the Grantee be not in rerum natura and able to take by vertue of the Grant presently upon the Grant made it is meerely voyd But in customarie Grants upon Surrenders the Law is otherwise for though at the time of the Surrender the Grantee is not in esse or not capable of a Surrender yet if he be in esse and capable at the time of the Admittance that is sufficient and therefore if I Surrender to the use of him that shall be heyre to I. S. or to the use of I. S. next child or to the use of I. S. next wife though at the time of the Surrender I. S. had no heyre child or wife yet if afterwards he hath a childe or taketh a wife his heyre his childe or his wife may come into the Court and compell the Lord to admit according to the Surrender So if I Surrender to the use of him that shall come next into Pauls after such an houre whose fortune soever it is to
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