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
minimum tenant in tayle SEC XXI BVt a Tenant for life or yeares Brudnal and Yoxley 5. H. 7. The Justices of the Common Place 10. H 6. held that Lessee for years cannot doe fealty are both able to doe fealty according to Littletons rule that fealties are incident to every tenure except tenures in Franck-almoigne and tenants at will contrary to some erronius opinions they differ in regard that homage can be but once done unto one Lord by the same Tenant and therefore 't is agreed that if Lands descend unto me which is holden of I. S. by homage and I doe unto him homage and after other Lands descendeth unto me by another Ancestor which is holden of the same Lord by homage I shall not doe homage againe but fealty onely because I cannot twice become the Lords man but the selfe-same Tenant may severall times doe fealty unto the selfe-same Lord and therefore if a Copyholder surrendreth Whiteacre unto me for his Whiteacre I should doe fealty unto the Lord. If after another surrendreth unto me Blackeacre I shall doe fealtie likewise unto the same Lord. And thus much for services of Submission SEC XXII SErvices of Profits are of two sorts tending to the publique profit of the Common-weale as when the Lord injoyneth his Tenant to amend high wayes to repaire decayed bridges or similia 2. Tending to the private profit of the Lord as where the Tenant is injoyned to be the Lords Carver Butler or Brewer or is tyed to payle the Lords Parkes to tyle the Lords Houses to thatch the Lords Barnes and similia And thus much for corporall services Annuall services are in number infinite in nature all one for they all tend to th' increase of the Lords Coffers and are reserved in their duties as well for Copyhold Land as Freehold-Land though in the Saxons time and long after the Conquest they were never or seldome reserved for Copyhold-Land but onely for Freehold-Land I will not enumerate many particulars of annuall services for that were as endlesse as numbring the sands of the Sea onely this I say that those annuall services which here come within the compasse of my meaning consist all in Render none in Feasance for those annuall services as well as accidentall services which consist in Feasance I comprehend under corporall services thus leaving both corporall services and annuall I bend my course towards accidentall services which before I begin to particularize observe these two things by the way 1. That accidentall services differ from corporall and annuall services in this that most accidentall services are incident to the Fee and are due wiâ—hout speciall reservation of the Lord but most corporall services and all annuall services are due upon speciall reservation and are not incident unto the Fee 2. That service is taken in a double sense in strictiori sensu and in latiori sensu In strictiori sensu and in that sense the Feudists define servitium fore munus obsequii clientelario c. that duty which the Tenant oweth unto his Lord either in performing some corporall function or in discharging some annuall payment In latiori sensu and so it signifieth any duty whatsoever accruing unto the Lord by reason of his Seigniorie and in this sense these accidentall services following which prima facie may seeme better to ranke under the title of jurisdictions or rather under the name of the fruits of a Manor may very fitly be reduced to this kinde of services The services I ayme at and which I meane to treate of particularly in this place are these following 1. Wardships 2. Herriots 3. Reliefes 4. Amerciaments 5. Forfeitures 6. Escheates Now touching every one of these apart and first with Wardships SEC XXII VVArshipp est custodia heredis infra aetatem existentis Polidore Virgil saith that this was novi vectigalis genus excogitatum to helpe Hen. 3. being oppressed with much poverty by reason hee received the Kingdome greatly wasted by warres of his Ancestors and therefore needing extraordinary helpe to uphold his estate the use of Wardships was set abroach But the 33. Chapter of the grand Customary maketh mention of this to have beene used among the Normans immediatly after the erection of Manors and that the use of Wardships was a foote before H. the thirds time as appeareth manifestly by Glanvil who writeth very largely in many places in his Booke Fleta lib. 5. cap. 5. and lived in H. the seconds time Guardians are either termed Custodes or Curatores Custodes a lege curatores ab homine as Fleta speaketh The Civilians make three sorts of Guardians Tutor testamentarius 2. Tutor a-Praetore datus 3. Tutor legittimus This in every point agreeth with our Common Law so wee have Tutorem testamentarium viz. where a man possessed of certaine goods and chattells demiseth these unto his child and withall committeth the care of his childs body and disposition of his substance unto some friend this committee is Tutor testamentarius unto whom belongeth the care and custody of the childs body and the disposition of his substance untill hee accomplish the full age of foureteene yeares and then immediatly hee shall be out of Ward for his body but his goods may be kept longer for as for them they shall remaine in the trustees hands so many yeares as the Testator appointed by his last Will and Testament for though it be not in the Fathers power to restraine the libertie of his childs bodylonger then to the age of 14. yet the disposing of his goods he may commit to any for as long time as himselfe shall thinke expedient So by the Stat. 32. and 34. H. 8. If a man be seised of Socage Lands not holden of the King in Capite hee may by his last Will and Testament commit the ordering of Theoglands to what friend soever for as many yeares as shall seeme most convenient and that friend is Tutor testamentarius otherwise it is of Lands holden by Knights service for it is not in any mans power by his last Will and Testament to deprive the Lord of that duty which de jure belongeth to him and therefore if a Copy-holder dieth his heire under the age of fourteene In regard that this priviledge of appointing the heires a Guardian for their Copyhold Land untill he accomplish the age of fourteene de jure appertaineth unto the Lord. It seemeth that the father cannot prejudice the Lord in this kinde by appointing him another Guardian by his last Will and Testament haec de Tutore testamentario 2. Wee have Tutorem a Praetore datum viz. where a man deviseth goods unto his childe and appointeth him not Guardian then it is in the Ordinaries hand to commit the ordering of the Infants goods unto some trustie friend unto the age of foureteene at what time the Infant himselfe may chuse a Guardian for it is a rule in the Civill Law Invito curator non datur and this Committee est Tutor a Praetore datus
These Guardians termed amongst the Civilians Tutores a Praetore dati are commonly called Guardians pur nurture and thus in words we somewhat differ in matter nothing 3. We have Tutorem ligiâ—tâ—mum viz. where the interest doth de jure belong unto any without the nomination of a private person or the appointment of any publique Officer and this Guardian is twofold either ligitimus jure naturae or ligiâ—imus jure Comuni ligitimus jure naturae as where the Father or the Mother hath the Wardship of their heires apparent be it heire male or female Ligitimus jure comuni and that Guardian is twofold either Guardian in Chivalrie or Guardian in Soccage Guardian in Chivalry is where any Tenant seized of Land holden by Knights service dieth his heire male under the age of fourteene and unmarried then shall the Lord have the Ward both of the Lands and body of this heire male unto the age of 21. because the Law intendeth that before that age the heire is unable to performe Knights service according to the tenure but the heire female shall be in Ward no longer than to the age of sixteene because the heire female though shee her selfe be unable to performe Knights service yet at sixteene she is able to take a husband who in her behalfe may doe Knights service and therefore at those yeares shee shall be out of Ward nay sometimes shee shall be out of Ward before sixteene and that is either where shee is married at the death of her Ancestor or where shee is any whit above fourteene when her Ancestor dieth in neither of these Cases shall she be in Ward at all for though the Stat. of W. 1. cap. 11. giveth unto the Lord two yeares next ensuing the fourteenth yet that is to be understood where shee is under the age of fourteene and unmarried at her Ancestors death and not otherwise This for Guardian in Chivalry Guardian in Socage is where any one seized of Socage Lands dieth his heire under the age of fourteene then the next friend unto the heire to whom the inheritance cannot descend shall have the Ward of the heires body and of his Land untill the age of fourteene as if the Land descendeth unto the heire by the fathers side then the mother or next cosin of the mothers side shall have the Ward and if the Land descendeth to the heire by the mothers side then the father or next cosin on the fathers side shall have the Ward To conclude observe this difference betweene Guardian in Chivalry and Guardian in Socage that theÌ„ one receiveth the commodities of the Land to his owne use without giving any account th' other onely to the use of the heire to whom he shall be accountable whensoever it shall please the heire to call him to account after th'age of foureteene Thus much concerning Wardships a word concerning Herriots SEC XXIV HErriot or Harriot commeth of the Latine word herus Dominus because it is a duty appropriated to the Lord or it is derived from the Saxon word here exercitus because in the Saxons time when the name of Herriot was first knowne Herrior signified nothing else but a tribute given to the Lord for his better preparation towards warre as a horse trapped or a speare or armour or a sword or some suchlike Military weapon and therefore in this sense importing a thing appertaining to the warre and being due unto the Lord by reason of this service which Tenants owe unto their Lords many warlike imployments Vide Lamb. in hâ—s explication of Saxons words tit Herriot it may very fitly be derived from hence This their Herriot among the Saxons little differed from our Reliefe at this day howsoever now they differ ex diameâ—ro But let us examine the nature of our Herâ—iots at this day and not search into the nature of their Herriots in those dayes for that were to examine the nature of Reliefes not Herriots Britton thus speaketh A Herriot is a Render Britton cap. 69. made at the death of a Tenant to his Lord of the best beast found in the possession of the Tenant deceased or of some other according to the ordinance and assignment of the party deceased to the use of the Lord which toucheth not the Land at all nor the heire nor his inheritance neither hath any coÌ„parison to a Relief for it proceedeth rather of grace and good will than of right and rather from villaines than freemen to this effect speaketh Fleta Fleta lib. 4. cap. 28. Herriottum est quaedam praestatio ubi tenens liber vel servus in morte sua dominum suum respicit de meliori averio suo vel de seeundo meliori quae quidem praestatio magis fuit de gratia quam de jure nullam habet comparationem ad relevium eo quod heredi non continget quia factum antecessoris This our Herriot is twofold Herriot Service Herriot Custome Herriot Service is that Herriot which is never due without speciall reservation and is seldome reserved upon any lesse estate than an estate of inheritance Herriot Custome is that Herriot which is never due upon speciall reservation but is challenged upon some particular Custome and is usually payd upon an estate for life and for yeares as well as upon an estate of inheritance Touching the originall of these Herriots doubtlesse they are not of that antiquity which the name doth promise for though among the Saxons the name of Herriot was knowne yet the nature of both these Herriot Services and Herriot Custome was utterly unknowne untill the comming of the Normans who immediately upon the Conquest changed the name of the Saxons Herriot and termed it by the name a of Reliefe leaving notwithstanding some dâ—fference betwixt them for where the Saxons Herriot consisted usually in the payment of some military weapon our Reliefe in those dayes consisted wholly in the payment of a certaine summe of money and presently after the Normans had thus wholly altered the name and somewhat altered the nature of the Saxons Herriot then upon the parcelling of their lands unto inferior Tenants they invented this new kinde of service unknowne amongst the Saxons and termed it by the name of the Herriot Service afterward upon the infranchisement and manumission of certaine villaines these Herriot Customes were given to the Lords as a continuall future gratulation so that originally as Britton and Fleta well note they were granted meerely ex gratia but now time hath effected it that they are challenged ex debito Thus much of Herriots a word of Reliefe SEC XXV REliefe is a certaine summe of money which every Freeholder payeth unto his Lord Glâ—â—v lib. 7. cap 9. being at full age at the death of his Ancestor which in effect foundeth all one with these words of Glanvil Haeredes majores statim post decessum antecessorum suorum possunt se tenere in haereditate sua licet Domini possint feodum suum cum herede in
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
THE COMPLEATE COPY-HOLDER Wherein is contained a Learned Discourse of the Antiquity and Nature of Manors and Copy-Holds VVith all things thereto incident As. Surrenders Presentments Admittances Forfeitures Customes c. Necessary both for the Lord and Tenant Together with the forme of keeping a Copy-hold Court and Court Baron By Sir EDVVARD COKE Knight LONDON Printed by T. Cotes for W. Cooke and are to be sold at his Shop at Furnivalls-Inne Gate in Holborne 1641. TO THE READER THis Copy comming to my hands perused and reverenced by men learned in the Lawes J thought most worthy of Publication The very name of the Composer who hath beene an Ornament to our Kingdome is enough to give it sufficient authority and indeere it to every wise opinion But the profit which doth attend is most considerable it being a subject so materiall declaring the Antiquitie of Manors and Copyholds and written for the good of Lords and Tenants and by consequence of all men it cannot but receive a becomming entertainement In the confidence of this truth J referre it to all judicious perusall not a little congratulating my owne happinesse to have beene an instrument of bringing so excellent a Piece from obscurity for the benefit of the Common-wealth W. C. MANORS AND COPY-HOLDS SECTION I. THough a Manor and Copyhold have such mutuall respect and reciprocall reference one to the other as that they are almost in nature of Relatives yet the knowledge of the one cannot be attained unto unlesse the sense of the other be truely apprehended for a Manor is as the bodie and Copyholds certaine members of this bodie In this Treatise I will discourse of them severally apart and beginne with the Manor it selfe especially when common reason teacheth us that totum magis illustrat partes quam partes aliquae illustrant totum SEC II. THe Saxons who held England in subjection immediately before the comming of the Normans were unacquainted with these Manors yet in effect they had Manors in those dayes in circumstance peradventure something varying in substance surely nothing differing from our Manors at this day they wanted neither demesnes nor services the two materiall causes of a Manor as Fulbecke termeth them Fulbecke in his fourth Dicalogue their demesnes they termed Inlands because the Lords kept them in their own hands and enjoyed them in their owne possession their Services they termed Vtlands because those lands were in the manurance and occupation of certaine Tenants who in consideration of the profits arising out of these lands were bound to performe unto their Lords certaine duties and services their Demesnes were of two sorts and their services likewise were of two sorts SEC III. ONe sort of their Demesnes was termed Bockland because they passed by booke and they in effect differed nothing from our Freehold lands at this day SEC IV. TH' other sort of their Demesnes was termed Folklands because they passed by Polls and were claymed and challeng'd by the Tenants not by any assurance in Writings but onely by the mouth of the people Per vocem populi and they in effect differed in nothing from Copy-hold Lands at this day SEC V. TOuching their Services one sort of their Services were Servicia libera which consisted most commonly in Render as to pay yearly such a Rent or in Vser as where the Lord reserved Common for his Cattell or in Prender as where the Lord reserved three shillings and foure loads of Estovers for fuell to be taken yearely in his Tenants grounds SEC VI. TH' other sort of Services were Servitia villana which consisted altogether in Fesance as to scoure the Lords ditches to tyle his houses to thatch his barnes or such like SEC VII ANd in the reservation of these Services the Lords had a speciall respect unto the qualitie of the Land did they transferre their Bockelands hoc est Free-hold Lands they would never reserve Villeine Services did they transferre their Folk-lands hoc est Coppy-hold Lands they would never reserve free Services but still they suited their Services according to the nature of the Land the reason I gather was this in those dayes none but men of good account and reckoning enjoyed the said Bock lands whereas Holblands were in the hands of men of meaner sort and condition and therefore had not the Lords care beene extraordinary in reserving apt Service they should have much wronged their Tenants Lamb. in his explication of the Saxon word Terra ex-scripta and thus much Lambert verifieth saying Terra ex scripto fuit haereditaria libera at que immunis terra vero sine scripto officioruÌ„ quadam servitute fâ—it obligata priorem plerum que nobiles atque ingenui posteriorem vero rustici feri pagani possidebant Lambert termeth these Bocklands Terras liberas atque immunes non quod ab omnibus servitiis fuerunt liberae aut immunes sed quod tenentes ipsi fuerunt liberi servitiis tantum liberis onerati But I much wonder why this Bockland doth to this day retaine the name of Free-hold Land sithence time hath bred such an alteration that in the point of Service a man can scarce discerne any difference betweene Free-hold Lands and Copy-hold Lands The favourable hand of time hath so infranchised these Copy-holders that whereas in the Saxons time their Services did consist wholly in Feasance now they consist in Render in Vser and in Prender as Free-holders Services did in those dayes And on the other side time hath dealt so unfavourably with Free-holders and hath so abridged them of their former freedome that if you compare the Service of the Free-holders with the Service of the Copy-holders Senties hunc potius quam illum fore liberum How many Free-holders are there at this day charged with base Services as many I doubt not as there are Copy-holders No marvell then that many able men turne Copy-holders and many Pezants turne Freeholders no marvell I say that men of all sorts and conditions promiscuously both Free-holders and Copy-holders sithence there is such small respect had unto the quality of the Land in the reservation of our Services Yet observe I pray though time hath so infranchised these Copy-holders that they have in a manner shaken off all villaine Service yet they retaine a badge of their former bondage for they remaine still subject to their Lords will therefore at this day they are termed Tenants at will but with Free-holders otherwise it is for they are not in that subjection to their Lords peradventure in this respect onely Bocklands may be termed Free-hold Lands and Folk-land Villaine Lands and yet time hath dealt very favourably with Copy-holders in this point of will as well as in the point of Service SEC VIII Bract lib. 4. Tr. 3. cap 9. numb 5. Fleta lib. 5. cap 51. FOr as I conjecture in the Saxons time sure I am in the Normans time those Copy-holders were so farre subject to the Lords will that eorum tenentes
tempestive intempestive pro voluntate Domini possent resumi revocari as Bracton and Fleta both speake the Lords upon the least occasion sometimes without any colour of reason onely upon discontentment and malice sometimes againe upon some sudden fantasticke humour onely to make evident to the world the height of their power and authority would expell out of house and home their poore Copy-holders leaving them helplesse and remedilesse by any course of Law and driving them to sue by way of Petition SEC IX BVt now Copy-holders stand upon a sure ground now they weigh not their Lords displeasure they shake not at every suddaine blast of wind they eate drinke and sleepe securely onely having a speciall care of the mainechance viz. to performe carefully what duties and services soever their Tenure doth exact and Custome doth require then let Lord frowne the Copy-holder cares not knowing himselfe safe and not within any danger for if the Lords anger grow to expulsion the Law hath provided severall weapons of remedy for it is at his election either to sue a Subpena or an Action of Trespasse against the Lord. Time hath dealt very favourably with Copy-holders in divers respects SEC X. BVt I perceive my selfe rashly running into an inextricable Labyrinth I will therefore saile no longer in these unknowne coasts but will hasten homewards I will content my selse with this I know amongst the Saxons th'essentiall parts of a Manor were knowne but whether there then were the same forme of Manors which is at this day that I dare not examine for feare of being accounted more curious than judicious and therefore leaving the Saxons I draw somewhat nearer home and come to the Normans from whom wee had the very forme of Manors which is observed amongst us at this present houre SEC XI I Confesse indeede that sithence the Originall creation of Manors Time hath brought in some innovations and alterations as in giving a large freedome unto Copy-holders both in the nature of their Service and in the manner of their Tenure Yet I may boldly say that the selfe-same forme of Manors remaine unaltered in substance though something altered in circumstance Demesne termed in Latine Demanium Domanium or Dominicum is taken in a double sense proprie and improprie proprie for that Land which is in the Kings owne hands Chopimus de demonio froute lib. 2. and the Chopimus saith that Domanium est illud quod consecratum unitum incorporatum est regiae Coronae take Domanium in this sense and then you exclude all common persons from being seized in Dominico for admit the King passe over the Demesne Lands as soone as they come into a common persons hands desinunt esse terrae Dominicales for though the Kings Pattentee hath the land granted to him and to his Heires yet comming from the King must necessarily be holden of the King it is contrary to the nature of Demesne Lands to be holden of any therefore though those Lands which commonly are termed ancient Demesne viz. such Lands as were quondam in the hands of Edw. the Confessor may properly be termed generally ancient Demesne because they were in ancient time in the Kings owne possession yet to terme them at this day the Lords Demesnes or the Tenants Demesnes being severed from the Crowne is improper ca. qua super SEC XII THen by this it appeareth that those lands are termed impropriè Demesne which are in the hands of an inferiour Lord or Tenants nor can such a one in proprietie of speech be said to stand seized of any Land whatsoever in Dominico suo but if you observe narrowly the manner of pleadings the words are used in a proper sense for you shall never finde that an inferiour Lord or Tenant will plead that he is simply seized in Dominico but still with this addition in Dominico suo ut de feodo and that very aptly for this word Fee implieth thus much that his estate is not absolute but depending upon some superior Lord therefore I conclude with the Feudists that a common person may aptly be said to stand seized in Feodo or in Dominico suo ut de seod but improperly in Dominico simply the King è converso may properly be said to stand seized Dominico simply but in Feodo improperly or in Dominico suo ut de feodo Bracton divideth these Demesne Lands into two branches under the first are comprehended those Lands which the Lord injoyeth in his owne possession under the second those Lands which are in the hands of the inferior Copy-holders His words are these Dominicum dicitur quod quis habet ad mensam suam idcirco Anglice vocat Bordland Bract. lib. 4. tract 3. cap. 9. numb 5. dicitur etiam Dominicum villinagium quod traditur villanis quod quis tempestâ—ve intempestive resumere possit pro voluntate sua revocare SEC XIII Fleta agreeth with Bracton in this division Fleta lib. 5. cap. 5. and unto these two he addes more sorts of Demesne Lands His words are these Dominicum est multiplex est autem Dominicum proprie terra ad mensam assignata villinagium quod traditur villanis ad excolendum quae tempestive intempestive pro voluntate Domimi poterit revocari sicut est de terra commissa tenend quaÌ„diu coÌ„missori placuerit poterit dici dominicuÌ„ de quo quis habet liberum tenementum alius usum fruct etiam ubi quis habet liberum tenementum aliter curam de custode dicipoterit curatore quoruÌ„ unus dicitur ab homine alius in jure Dominicum etiam dicitur ad differentiam ejus quod tenetur in servitio Dominicum denique est omne illud tenementum de quo antecessor obiit sesitus nec refert cum usu fructu vel sine de quo si ejectus esset recuperare possit per assisam nove deseisme licet alius haberet usum fructuÌ„ sicut dici poterit de illis qui tenent in villenagio qui utuntur fruuntur non nemine proprio sed nomine domini sui SEC XIV THis opinion of Bract. and Fleta bo h consenting in one that Copy-hold Land is parcell of the Lords demesnes wanteth not moderne authority to second it for 15. Eliz. in the Excheq I finde it adjudged in the case of a common person howsoever it is otherwise in the Kings Case That if the Lord of a Manor granteth a way Omnes terras suas dominicales the Copy holds parcell of the Manors passe by these generall words neither doth this want Reason to confirme it for in the time of Henry the 3. and E. 2. when Bract. and Fleta lived Copy-holders were accompted meere Tenants at will and therefore after a sort their Lands reputed to continue still in the Lords hands and now though custome hath afforded them a surer foundation to build upon yet the Francke Tenement at the common Law resting in the Lord it can
be no strange thing to place their lands under the rancke of the Lords demesnes But to deliver my minde more freely in this point I thinke that howsoever according to the strict rules of Law these Copy-holds are parcell of Lands demesnes yet in propriety of speech if propriety can be in impropriety they are the more aptly called the Copy-holders demesnes for though the Franke tenement be in the Lord by the Common Law yet by the custome the inheritance abideth in the Copy-holders and it is not denied if a Copy-holder be impleaded in making tytle to his Copy-hold he may justly plead quod est seisitus in Dominico suo with this addition secundum consuetud Manerii Therefore I conclude that howsoever the Common Law valueth the tytle of the Copy-holder yet he hath such an interest confirmed unto him by Custome that the Lord having no power to resume his Lands at your owne pleasure they are though improperly called yet peradventure truly accounted the Lords demesnes and that in the eye of the world howsoever it be in the eye of the Law that these Lands alone can properly challenge the name of the Lords demesnes if any Lands in the possession of inferior Lords may properly challenge that name which the Lord reserveth in his owne hands for the maintenance of his owne Boord or Table be it his waste ground his arable ground his pasture ground or his medow be it his Copy-hold which he hath by escheate by forfiture or by purchase or be it any part of his Freehold Land of which I must speake a word by the way not to prove that it is demesne for manifesta probatione non indigentes but to shew you in what sense it is taken and how farre it extendeth SEC XV. A Freehold is taken in a double sense either 't is named a Freehold in respect of the state of the Land or in respect of the state of the Law SEC XVI IN respect of the state of the Land so Copyholders may be Freeholders for any that hath any estate for his life or any greater estate in any Land whatsoever may in this sense be termed a Freeholder SEC XVII IN respect of the state of the Law and so it is opposed to Copy holders that what Land soever is not Copyhold is Freehold and in this sense I take throughout this Discourse SEC XVIII THe name of Freeholders extendeth not onely unto Lands held per servitium militare as it did by th' ancient Lawes of Scots Skens de verb. sign tit milit and amongst whom Freeholders were knowne by the name of milites but it reacheth likewise to lands holden per servitiū Socae whether in libero Socagio or in villano Socagio Liberum Socagium is where any Tenant holds of any Lord by paying yearely a certaine summe of money in lieu of tillage and such like services and not by escuage and this is termed sometimes common Socage Socagium villanum is where the ancient services of carrying the Lords dung into the fields Stat. 37 H. 8. Cap. 20. It is so called of plowing his ground at certaine dayes of plashing his hedges and such are not turned into money but remaine still unaltered and if you doubt that such Land as is held per villanum Socagium cannot come within the compasse of Freehold Land for your satisfaction reade Bracton lib. 2. cap. 8. num 8. Hactenus de primo defunctionis membro ad secundum properemus pauca de servitiis Domino debitis periractemus Services in individuo are manifold in specie threefold 1. Corporall services 2. Annuall services 3. Accidentall services Corporall services are of two sorts Services of Submission services of Profit SEC XIX SErvices of Submission are homage and fealty which are certaine Ceremonies used among tenants whereby they submit themselves unto their Lords and binde themselves by solemne oath or by faithfull promise from that day forward to become the Lords men for life for member for terrene honour or adminimum to owe unto him faith for the Lands which they hold of him Both these Ceremonies are used at the first entrance or admittance of any Tenant and both tend to one end viz. to inforce every Tenant to acknowledge and confesse himselfe Tenant unto his immediate Lord yet they differ in many materiall points SEC XX. IN regard of their severall manner of performance for in doing fealty the Tenant taketh a solemne oath in doing homage only giveth his faithfull promise and thence it is that fealty is accounted the more sacred service though homage be the more humble service and performed with farre greater reverence than fealty in many respects for in doing homage the Tenant kneeleth in doing fealty he standeth in doing homage the Tenant must remaine uncovered in doing fealty he may remaine covered in doing homage the Lord kisseth his Tenant in doing fealty he kisseth him not Lastly in doing homage the Tenant promiseth to become the Lords man for life for member and terrene honor In doing fealty he onely sweareth to become the Lords faithfull Tenant the reason of this difference I learne to be this Skens de verb. signum Homage because homage especially concerneth service in warre properly appertaineth unto Knights service but fealty chiefely concerneth service at home and properly appertaineth to Socage tenure and though now 't is held that a Tenant by Socage may doe homage and that homage ex se maketh Socage tenure and not Knights service yet originally homage was invented for Tenants by Knights service and such as were bound by their tenure to attend their Lords in the warres but fealty was primarily devised for Tenants in Socage and such as were bound by their tenure to manure the Lords ground and carefully to discharge all rurall affaires and this agreeth with the ancient Lawes in Scotland for amongst them none were accounted Freeholders but onely Tenants by Knights service and consequently none but they could doe homage and therefore marvell not why in doing homage the Tenant promiseth to become the Lords man for life for member for terrene honor in doing fealty hee onely sweareth to become the Lords faithfull Tenant 2. They differ in regard of the persons to whom they are performed and that two wayes In respect none is capable of receiving homage but the Lord in person but the Lords Steward or his Bailiffe is capable to receive fealty in the Lords behalfe 2. In respect that a Lord who hath but an estate for his life in his Seigniory cannot receive homage but such a Lord may receive fealty 3. They differ in regard of the persons to whom they are performed and that two wayes 1. In respect th t no Copyholder is capable of doing homage but he is of doing fealty witnesse common experience 2. In respect that a Tenant for life or yeares is unable to doe homage for t is a ground in Law that none can doe homage but tenant in fee-simple or ad
manus suas capere ita tamen moderate id fleri debet ne aliquam disseisinam haeredibus faciant possunt enim haeredes si opus fuerit violentiae Dominorum resistere dum tamen parati sunt Relivium altaretro servitia eis inde facere with this agreeth the definition of Hotoman Hotoman Comment de verbo seod verbo Relivium Relivium est honorarium quod novus vassallus introitus causâ patrono largitur quasi morte usuali altius vel alâ—o quo casu feoduÌ„ ceciderit quod jam a novo sublevatur This reliefe by the ancient Civill Law was termed Introitus and Vincentius termeth it Praestantionem seu saluationem factam pro confirmatione seu renovatione possessionis and that very aptly for indeede Reliefe is the key which opens the gate to give the heire free passage to the possession of his inheritance Bracton giveth this reason why it is called a Reliefe Bracton lib. 2. cap. 86. Quia haereditas quae jacens fuit per antecessoris decessum Releviatur in manus haeredis propter factam relevationem faciend erit ab haerede quaedam praestatio quae dicitur Relevium Skene de verbo signum tit Reliefe Skene fondly imagineth that it taketh his name a relevando in another sense for saith he Reliefe is given by the Tenant or Vassall being of perfect age after the expiring of the Wardship to the Lord of whom he held his Land by Knights service it is by Ward and Reliefe and by payment thereof he relieves and as it were raiseth up againe his lands after they were fallen downe into his superiors hands by reason of Wardship Glanvil lib 9. cap. 9. But these words of Glanvil will serve to convince him of error Taâ—dam vero eodeâ—ad aetateÌ„ pervenieâ—te facta eâ— haereditutis restitutione quietas erit a Relivio ratione custodiae this Reliefe is twofold 1. Reliefe Service 2. Reliefe Custome Reliefe Service is that which is paid upon the death of any Freeholder Reliefe Custome is that which is paid upon the death change or alienation of any Freehold according to the Custome of the place in many places halfe a yeares profit in many places a whole yeares profit and therefore where Bracton saith Quod dat Domino Relevium qui succedit jure haereditatis non autem is qui acquirit that is to be taken with this caution nisi illud etiam consuetudine praestare debet qui acquirit These Reliefes are paid as well for lands-holden in Soccage as Lands holden by Knights service for lands holden in Soccage in this manner If a Tenant in Soccage die his heire above the age of fourteene then shall the heire double the Rent that his Ancestors was woâ—â— to pay to the Lord as if the Tenant holdeth of his Lord by fealty and five shillings then shall the heire double the Rent and shall pay ten shillings viz. five shillingâ— in the name of a Reliefe over and above the five shillings which hee payeth for his Rent For Lands holden by Knights service in this manner if a Tenant by Knights service dieth his heire of full 21. if he holdeth by an intire Knights Fee hee payeth five pound if by halfe a Knights Fee then he payeth fiftie shillings if by a quarter of a Knights Fee hee payeth 25. shillings and so proportionably who so holdeth more payeth more and who holdeth lesse payeth lesse yet for the fuller apprehension of the quantity of a Reliefe let us examine what a Knights Fee signifieth A knights Fee is so much land as in ancient time was accounted a sufficient living for a Knight but whether this was rated according to the quantity or according to the value Causidici certant adhuc sub jâ—di ce lis est Some hold according to the quantity and that according to the severall computations used in severall places A Knights Fee was either more or lesse as in the Dutchie of Lancaster a Knights Fee contained foure hydes of land every hyde foure carnes of land every carne foure yard lands every yard thirty acres and every Knights Fee 1920. acres According to other computations a Knights Fee contained 680 but according to most computations a Knights Fee contained five hides of land evey hide foure yard lands every yard land 24. acres according to which computation a Knights Fee contained 480. acres so that according to severall computations a Knights Fee was more or lesse Others hold that a Knights Fee was measured according to the quality not according to the quantity according to the value not according to the content and amongst these some hold that land to the value of fifteene pound par annum made a Knights Fee and therefore Camden in sua Brâ—tan pag. Camden saith that Sub Henrich tertio quodammodo coacti fueruÌ„t equites fieri quot quot libras quindeceÌ„ exannuis terrarum redditibus colligarunt and out of Matthew Paris hee writeth that anno 1256. Exit edictum regium preceptumque est acclamatum per totum regnum ut qui haberet 16. libratas terrae supradict armis redimitus tirocinio donaretur ut Anglia sicut Italia militia roboraretur qui nollent vel qui non possunt honorem status militaris sustinere pecunia se redimerent Others hold that census â—questris was fortâ—e pound revenue in Freehold land and of this opinion is Sir Thomas Smith Smith de rep pag. 31 32 33. others held that census equestris was twentie pound revenue and this opinion is confirmed by many authorities and reasons cited in Anth. Lowes Case by an ancient Treatise de modo tenendi Parliamentum tempore Regis Edwardi filii Etheldred where it appeareth quod comitatus constabat ex viginti feodis unius militis quolibet feodo computato ad viginti libratas Baronia constabat ex 13. in feodis ac tertia parte unius feodi militis secundum computationem predicta unum feodum militis constabat ex terris ad valentiam 20. li. and therefore where the Statute of Ed. 2. dâ—militibus provideth that a Knights Living shall be measured by the value of twenty pound per annum this is but an affirmance of the Common Law 2. This is strengthened by the words of the Statute of W. 1. cap. 36. and by Fitch Fitch nat Bâ—evâ—um fo 62. this seemeth something pregnant for in both these places Soccage land to the value of twentie pound par annum are put in equipage with a Knights Fee 3. In a Writ of mesne brought per Ranulphum de Normanvile petentem versus Luciam de Kyme tenentem P. 3. E. 1. appeareth that twelve carnes of Land made a Knights Fee every carne being in ancient time of the value of five nobles per annum according to which account a Knights Fee amounted to twenty pound per annum These are the severall opinions touching the quantity of a Knights Fee imbrace of these which shall seeme most
habent sicut animalia vagantia quae sunt Domini Regis propter privilegium marium the reasons why Deodands are forfeited to the King is this Deodands were originally invented for the pacifying of Gods wrath and the appeasing of Gods anger and these things thus forfeited were according to the true intendment of the Law to be sold and money distributed among the poore and therefore upon whom could the Law have better conferred this benefit or rather imposed this charge then upon the King who representeth Gods person upon the earth and whom the Law presumeth will deale more justly and truely nay more liberally and bountifully with the poore in this kinde than any inferior Lord who peradventure out of his uncharitablenesse peradventure out of want will be so farre from adding any thing to that which is due that hee will rather unjustly substract part or unconscionably detaine the whole Since therefore these Forfeitures of goods neither adde to the perfection of a Manor neither are incident unto every Manor to spend any further time about a subject so superfluous would ill beseeme this small Treatise wherein the scope and end I ayme at is this onely to present to your view what things soever are necessarily requisite to the essence of every Manor and what Services soever are incident unto every Manor and thus much concerning Forfeitures a word concerning Escheats SEC XXVIII EScheates cometh of the French word Echear excidere are termed excadentiae which imports Lands fallen into the Lords hand for want of heire generall or speciall to inherit them but before the Lord enter into an Escheate in this kinde the homage ought to present it and being presented proclamation ought to be made to give notice to the world that if any man come in and justly claime he shall be received the homage then finding it cleare intitle the Lord as to Lands Escheated Besides this ordinary sort of Escheate there is another sort of Escheate and that is where any Freeholder committeth Felony and is attainted the King shall have animum diem vastum and then it commeth unto the Lord as an Escheate thus much concerning the nature of Services in generall and there are so many particular Services in individuo that I might insist in millions more but feare of incurring the censure of being over tedious restraineth the forwardnesse of my hand yet sithence occasion is so favourable to me I will presume so much upon your patience as to lay open the severall remedies which the Law hath provided for the obtaining of those severall Services before mentioned if perchance they be wrongfully deceived by the Tenants and for method sake I will begin with corporall Services SEC XXIX IF any Freeholder refuseth to do homage or fealty which are corporall Services of submission or to mend high wayes repaire decaied Bridges or similia which are corporall Services tending to the publique profit of the Common-weale or to discharge the office of a Carver a Butler a Brewer or such like or to payle the Lords Parke to tyle the Lords Houses or to thatch his Barnes or similia which are corporall Services tending to the private profit of the Lord If I say any Freeholder refuseth to do any of these Services being bound unto them by his Tenure then may the Lord lawfully distreine his cattle or his goods and detaine them untill satisfaction be given by performing such Services as the Law doth require and the same remedy which the Law hath provided for Corporall Services is likewise provided for Annuall Services SEC XXX FOr if any Freeholder refuseth to pay any annuall Rent or to discharge any annuall payment according to his Tenure then may the Lord lawfully distreine and in a Replevin brought by the Tenant may avow the distresse and justifie the taking But no action of debt will lye for these annuall Services no more than for Corporall Services for it is a ground in Law that as long as the Rent continueth of any estate or Franke tenement no action of debt lyeth for the arrearages of the Rent nor for any other Service whatsoever and therefore if a Lease for life be made reserving rent the Lessor cannot maintaine an action of debt for the arrearages of this Rent as long as the estate continueth but presently upon the determination of the estate an action of debt lyeth for the arrearages of the Rent incurred before the time of the determination but what hath the Law provided no other remedy for those annuall Services then a distresse Surely no before seisein none but after seisein once gained 't is at his election either to distreine or to bring an Assize and thus much touching remedies for corporall and annuall Services SEC XXXI ACcidentall Services are gotten by many differing meanes By seisure onely as the Wardship of the heires body together with the Waives Estraies Wreckes Deodands and such like forfeitures of goods 2. By th' entry onely as the Wardship of the heires Land together with Lands forfeited to the Lord either upon the breach of some condition or upon an alienation in Mortmaine 3. By Seisure or Distresse as Herriot Services contrary to the opinion of some who held them gaineable by Distresse only not by Seisure or action as Herriot Customes for upon the eloignement of the best beast the Lord may maintain an action of detinue against the heire 5. By entry or action as Lands forfeited to the Lord by the cessing of his Tenant or Escheat accruing unto the Lord either upon the attaindeur or death of his Tenant without heire in the first the Lord may enter or maintâ—ine a Writ of Cessavit in the secord the Lord may enter or maintaine a Writ of Escheate 6. By Distresse or Action as Reliefes and Amerciaments For Reliefes the Lord may distreine or bring an action of debt neither doth this any whit impugne the former ground that as long as the rent doth continue c. because indeede Reliefe is the fruit and approvement of Services rather than any service and for Amerciaments the Lord may either distreine or bring an account of debt other remedy the Law hath provided against strangers for detaining of these duties from the Lord as to insist in one if a stranger will deraine the Wards body or the Wards land from the right Lord a writ de recto de custodia terrae heraedis lyeth against the stranger but to meddle with strangers were to wander out of the little Common weale and therefore to keepe my selfe within my bounds and limits I will here conclude touching the two materiall causes of a Manor viz. Demesnes and Services a word touching the efficient cause of a Manor and then I will end the definition of a Manor The efficient cause of a Manor is expressed in these words of long continuance for indeede time is the mother or rather the nurse of Manors time is the soule that giveth life unto every Manor without which a
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
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
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
Acres which hath ever beene demised for sixe shillings rent Escheateth to two Coparteners and one granteth three Acres reserving thre shillings pro rata this is a perfect reserving In Admittances upon surrender the Lord to no intent is reputed as owner but wholly as an instrument and the party admitted shall be subject to no other charges or incombrances of the Lord for he claimes his estate under the party that made the surrender and in the plaint in the nature of a Writ of entry in the per it shall be supposed in the per by him not by the Lord and as in admittances upon surrenders so in admittances upon descents the Lord is used as a meere instrument Co. 4. fo 27. b. and no manner of interest passeth out of him and therefore neither in the one nor in the other is any respect had unto the quality of his estate in the Manor for whether hee hath it by right or by wrong it is not materiall these admittances shall never be called in question for the Lords Title Co. 1 fo 140. b. because they are judiciall acts which every Lord is enjoyned to execute Besides in admittances upon Surrenders the Lord being accounted nothing but a necessary instrument it followeth that he hath a bare Customary power to admit secundum formam effectum sursum reddendi therefore if there be any variance betweene the admittance and the surr either in the person in the estate or in the tenure or in any other collaterall points the Lord doth onely transferre an estate according to the surr and his authority if it can take such effect As if I Surrender to the use of I.S. and the Lord admits I.N. this admittance is wholly voide and notwithstanding this admittance the Lord may afterwards admit I. S. according to the effect of his authoritie but had he admitted I. S. and I.N. joyntly then the admittance had beene void for the one and good for the other like the Case of a Devise where a Devise of a terme is made to I. S. and the Executors agree that I. S. and I.N. shall have this terme Co. 4 fo 28 this consent is voide to I.N. for after the consent of the Executors I. N. is in by the Devise Yet some are of opinion that if I surr to the use of I. S. in Fee and the Lord admits I. S. together with his eldest sonne and heire apparent that this is an estate by Estoppell to I.S. and that he shall onely claime joyntly with his sonne because hee might have refused an admittance in this manner but I can hardly be brought to thinke that this admittance giving a present interest in theson who by surrender was to have no interest till the death of his father should be any such estopell If I surr to the use of I.S. for life and the Lord admits him in Fee an estate for life onely passeth Co. 4. fo 29. So if I surr without mentioning any certaine estate because by implication of the Law estate for life onely passeth though the Lord admit in Fee no more doth passe than the implication of Law will warrant If I surr with the reservation of a rent and the Lord admits not reserving any rent or reserving a lesse rent than I reserved upon the Surrender this admittance is wholly void but if the Lord reserveth a greater rent then is the reservation void only for the surplusage and the admittance so far currant as it agreeth with my surrender If I surrender upon Condition and the Lord omits the Condition the admittance is wholly void but if my surrender be absolute Co. 4. fo 25. and the Lords admittance be conditionall the Condition is void but the admittance in all points else is good The reasons of these diversities are these where an Authority is given to any one to execute any act and he executeth it contrary to the effect of his authority this is utterly voyd but if hee executeth his authority and withall goeth beyond the limits of his warrant this is voyd for that part onely wherein he exceedeth his authority These admittances upon Surrender differ from admittances upon Discents in this that in admittances upon surrender nothing is vested in the Grantee before admittance no more then in the Voluntary admittances but in admittances upon Discents the heire is Tenant by Copy immediately upon the death of his Ancestor not to all intents and purposes for peradventure he cannot be sworne of the homage before neither can hee maintaine a plaint in the nature of an Assize in the Lords Court before because till then he is not compleate Tenant to the Lord no further forth then the Lord pleaseth to allow him for his Tenant And therefore if there bee Grandfather Father and Sonne and the Grandfather is admitted and dyeth and the Father entreth and dyeth before admittance the Sonne shall have a plaint in the nature of a writ of Ayell and not an Assize of Mort d'auncestor so that to all intents and purposes the Heire till admittance is not compleat Tenant yet to most intents especially as to strangers the Law taketh notice of him Co. 4. fo 23. as of a perfect Tenant of the Land instantly upon the death of his Auncestor for he may enter into the Land before admittance take the profits punish any trespasse done upon the ground Surrender into the hands of the Lord to whose use he pleaseth satisfying the Lord his fine due upon the Discent and by estoppell hee may prejudice himselfe of his inheritance for if an Estrange come and surrender to the use of him and his Wife before admittance hee shall ever claime joyntly with his Wife and never be taken as sole Tenant and the Lord may avow upon him before admittance for any arrearages of Rent or other Services and last of all Co. 4. fo 22. b. upon an actuall possession there shall be possessio fratris before admittance for if a Copyholder in Fee have issue a Sonne and a Daughter by one Venter and a Sonne by another venter and dyeth seised and his Sonne by the first Venter entereth into the Land and dyeth before admittance the Daughter shall inherit as Heire to her brother and not the Sonne by the second Venter as Heire to his Father and many times the possession of a Guardian or a Tearmer without an actuall entry or any claime made by the Heire will make a possessio fratris As if a Copyholder in Fee having issue a Sonne or a Daughter by one venter and a Sonne by another Venter by Licence of the Lord maketh a Lease for yeares and dyeth and the Sonne of the first Venter dyeth before the expiration of the Terme being neither admitted nor having made any actuall entry or any claime Yet this possession of the Lessee is sufficient and the Reversion shall discend to the daughter of the first Venter and not to the sonne of the second Venter But if the
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
these Grants an estate tayle passeth in the first without the word heires in the second without the word body in the third without either If the King by his Steward granteth a Copyhold to a man and to his heires males or heires females no Fee-simple passeth because the Lord never intended to passe such an estate If a Copyhold be Granted to an Abbot and to his heires an estate for life onely passeth So if I Grant a Copyhold to a man in Fee-simple ac sanguini suo imperpetum or sibi assign suis impeâ—pectum yet the word heires wanting no greater estate than for life passeth The same Law is if a Copyhold be granted to a man and to his heires as long as I. S. shall live this is onely an estate per anter vie a rend limitted upon this estate is good But if a Copyhold be granted to a man and to his heires as long as such a tree shall grow in such a ground this is a good Fee and a render limitted upon it is void If a Copyhold be granted to I. S. and I. N. haeredibus they are joynt Tenants for life and no inheritance passeth unto either because of the uncertainty for want of this word suis but if a Copyhold be granted to I. S. onely haerend a good Fee-simple passeth without the word suis If a Copyhold be granted to a man haered bus an estate tayle doth not passe for want of the words de corpore And if a Copyhold be granted to a man liberis aut puer suis de corpore an estate taile doth not passe for want of this word heires for what estates soever are intayles since the Statute De donis Conditionalibus were Fee-simples Conditionall but this could be no Fee-simple conditionall before the Statute without the word heires and therefore no intayle since the Statute And for the same reason if a Copyhold be granted to a man and to the issues males of his bodie an estate for life onely passeth If a Copyhold be granted to a man without expressing any certaine estate by implication of Law an estate for life onely passeth and if I grant a Copyhold to three habendum successive they are joynt Tenants unlesse by speciall Custome the word successive make their estates severall Thus much touching the creation of Copyhold estates SEC L. THe discents of Copyhold of inheritance are guided and directed by the rules of the Common Law as well as the creation of Copyhold estates If a Copyholder in Fee-simple having issue a sonne and a daugher by one venter and a sonne by an other venter dieth and the sonne by the first venter entreth and dieth the Land shall discend to the daughter Quia-possessio fratris de feodo simplici facit sororem esse haeredem But if a Copyholder in tayle have issue a son and a daughter by one venter and a son by another venter dieth and the sonne by the first venter entreth and dieth the sonne of the second venter shall inherit If a man having issue a sonne and a daughter by one venter and a sonne by another venter the eldest sonne purchaseth a Copy-hold in Fee and dieth without issue the daughter shall have the Land not the yonger sonne because he is but of the halfe blood to the other If a man hath a Copyhold by discent from his mothers side if he die without issue the Land shall goe to the heires of the mothers side and shall rather escheate than goe to the heires of the fathers side but if I purchase a Copyhold and die without issue the Land shall goe to the heires of my Fathers side but if I have no heires of my fathers side it shall goe to the heires of my mothers side rather than escheate If there be Father Vnckle and Sonne and the sonne purchaseth a Copyhold in Fee and dieth without issue the Vncle shall inherit and not the Father because an inheritance may lineally discend but not ascend If there be three brothers and the middle brother purchaseth a Copyhold in Fee and dieth without issue the eldest shall inherit because the worthiest of blood If there be two Coparteners or two Tenants in Common of a Copyhold and one dieth having issue the issue shall inherit and not the other by the survivership but otherwise it is of two joynt Tenants Should I give way to my Penne and write of this Theame till I wanted matter to write on I should make a large Volume in dilating this one point therefore I will contract my selfe intreating you to supply by your private cogitations what I have either willingly or unwittingly passed over in silence onely take this caveat by the way Though all qualities necessarily incident to estates at the Common Law are likewise incident to Copyhold estates yet the Law is not so of collaterall qualities without speciall Custome Co. 4. fo 22. a. and therefore a Copyhold shall be no assets to the heire A discent of a Copyhold shall not toll an entry A surrender made by Tenant in tayle admit a Copyhold may be intayled or by a Baron of a Copyhold which he hath in right of his wife shall make no discontinuance because these are collaterall qualities and not necessarily incident Thus much of the severall estates of Copy-holds together with their severall qualities incident to their severall estates I come now in the first place to examine how Copyholders are to impleade and be impleaded SEC LI. A Copyholder cannot in any Action reall or that savoureth of the realty or hath a dependance upon the realty implead or be impleaded in any other Court but in the Lords Court for or concerning his Copy-hold but in actions that are meerely personall he may sue or be sued at the Common Law If a Copyholder be ousted of his Copyhold by a stranger he cannot implead him by the Kings Writ but by Plaint in the Lords Court and shall make protestation to prosecute the sute in the nature of an Assize of novell disseisin of an Assize of Mort D'ancestor of a Formedon in the Discender Reverser or Remainder or in the nature of any other Writ as his cause shall require and shall put in pleg de prosequend If a Copyholder be ousted by the Lord he cannot maintaine an Assize at the Common Law because he wanteth as Franck-Tenant but he may have an action of trespasse against him at the Common Law for it is against reason that the Lord should be Judge where he himselfe is a party If in a plaint in the Lords Court touching the tytle of a Copyholder the Lord giveth false judgement he cannot maintaine a Writ of false judgement for then he should be restored to a Francke-Tenant where he lost none No Copyholder of base Tenure in ancient Demesne can maintaine a Writ of droit close or a Writ of Monstravêrunt but Tenants of Francke-tenure in ancient demesne can A Copyholder that may cut downe Timber trees by Custome by
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
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