⧠Institutions in the lawes of Englande Cum priuilegio THe lawe is the ministracion of iustice and iustice is a constante and apermanent mynde wyll to render vnto euery ê‘sone his ryght and dutye The prudencye of lawe is a knowlege of diuyne humane thynges a science and perfyte notice of equite and iniquite of ryghtuousnes and vnryghtuousnes And forasmoch as a great porcion of the prudencye of the lawes of this realme coÌ„sisteth in the ê‘fyte knowlege of estates in landes and tenementes we shall fyrst as compendiously and as simply and playnly as we can treate of estates ¶ A diuision of estates ¶ Ye shall vnderstande that who so euer hath any estate in landes or tenemeÌ„tes eyther he hath iÌ„ the same onely a chatell a free holde or an inheritauÌ„ce Yf he hath an estate in the lande but for terme of certayne yeres or at wyl so is it called a chatell yf for terme of his lyfe or of an others lyfe it is called a free holde or franke tenement yf he hath it to hym to his heyres in see simple or in tayle so he hath an estate of inheritaunce ¶ Tenaunt for terme of yeres ¶ Tenaunt for terme of yeres is he to whom landes or tenementes be lessed for the terme of certayne yeres as is agreed bitwene the land lorde and the tenaunt And whan the lessee doth entre by force of the sayd lees and is an actuall possession of the same than he is called tenaunt for terme of yeres And here ye shal note that if the lessour that made the lees hath reserued vnto hym a yerely rent vpoÌ„ the said lees as it is accustomably vsed to be done yf the rent be behynd it shall be in his election eyther to entre and distrayne for the rent or to brynge an action of dette against him at the lawe for the arreragies of the same But in this case it is requyred that the lessour be seased of the landes or tenementes at the tyme of the makyng of the lees for otherwyse it shall be a good plee in the action of dette for the tenaunte to say that the lessour had nothyng in the lande or tenement at the tyme of the lees made excepte the lees were made by dede indented for than the plee shall not lye in the mouthe of the tenaunte or lessee to plede And it is to be knowen that in a lees for terme of yeres by dede or without dede there nede no lyuery of season to be made to the lessee but he may entre whan he wyll by vertue of his lees without any further ceremonye of lawe Note also that yf a man lesseth landes for terme of yeres thoughe the lessour chaunceth to dye before the lessee doth entre yet he may entre well ynoughe Otherwyse it is where as lyuery of season is to be made as in free holdes and in inherytaunces Also yf the tenaunt for yeres doth waste the landlord may brynge an action of waste agaynst hym and shall recouer the place wasted and his treble damages ¶ Tenaunt at wyll ¶ Tenaunt at wyl is he to whom landes or tenementes be lessed to haue and holde the same at the wyll of the lessour And in this case the lessour may put out his tenaunt at what tyme hym lysteth But yet neuertheles yf the tenaunt haue sowed the groundes with corne yf the lessour wyll entre and put out his tenauÌ„t before haruest the lawe wyll gyue hym free coÌ„mynge and goyng to repe and carye his corne awaye without any punyshment bicause he knewe not at what time the lessour wolde entre But otherwyse it is of the tenaunt for certeyne yeres for if he soweth the grounde and his terme be expired before the corne be rype in this case that lessouror he iÌ„ the reuersion may entre and take the corne bycause it was the foly of the tenaunt to sowe the grouÌ„d knowynge the ende of his terme In lykewyse tenaunt at wyll shall haue free coÌ„myng and goyng after the time of the lessours entree to cary away his houshold stuffe goodes for a reasonable space ¶ Ye shal also vnderstande that he that maketh a lees at wyll may reserue an annuel rent in which case yf the rent be behynde he may entre and distreyne the goodes and catelles of the tenaunt or at his election brynge an action of dette agaynst hym Also it is to be knowen that tenauÌ„t at wyll of a mese or tenement is not bound by thorder of lawe to susteyne repayre the houses that be ruynous as is the tenaunt for yeres and therfore none action of waste lyeth agaynst him Yet yf he do voluntary waste as yf he plucketh downe the houses or cutteth downe the trees it hath ben thought that the lessour may brynge an action of trespace agaynst hym ¶ Tenaunt by copy of courte roll ¶ There is an other kynde of tenaunt at wyll whiche is by copye of the courte rolles And this is whan a man is seased of a maner wtin whiche it hath ben vsed tyme out of mynde that the tenauntes within the precinet of the said maner haue holden landes and tenementes to them and theyr heyres in fee simple fee tayle or for terme of lyfe at the wyll of the lorde accordynge to the custome of the maner And suche can not aliene or sell his lande by his dede for yf he do the lande so aliened and solde is forfayted iÌ„ to the lordes handes but yf he wyll alieue his copy holde laude to another he must accordynge to the custome come into the courte and there surrender it in to the lordes hande to the vse of hym that shall haue the state The forme of which surrender is this Ad hanc curiam venit A. de B. sursuÌ„reddit iÌ„ eadeÌ„ curia vnuÌ„ messuagiuÌ„ c. in manus domini ad vsum C. de D. heredum suorum vel heredum de corpore c. Et super hoc venit predictus C. de D. cepit domino in eadem curia messuagium predictum habend tenend sibi c. ad voluntatem domini secundum consuetudinem manerii faciend reddend inde redditus seruicia consuetudines inde Prius debitas consuetas c. Et dat dnÌ„o pro fine c. Et fecit dnÌ„o fidelitatem ¶ These as I sayd be called tenauÌ„tes by copye of courte roll bycause they haue none other euidence concernynge theyr landes saue onely the copyes of the rolles of theyr lordes courte Neyther can these tenauntes sue or be sued for suche landes in the kynges courte by wryte or otherwyse but yf they wyll implede or sue others for suche landes they must do it by waye of playnt in the lordes courte after this sorte A. de B. querirÌ„ versus C. de D. de placito terre videlicet de vno messuagio xl acris terre iiii acris prati c. cum pertinenÌ„ Et facit protestationem sequi querelaÌ„ istam in natura
is he that hath landes or tenementes whether it be by purchase or by discente to hym and to his heyres for euer For if a man wil purchase landes in fee simple he must nedes haue these wordes his heyres in his purchase for these only wordes to make an estate of inheritaunce Therfore yf landê be gyuen to a maÌ„ for euer and no mencyon be made of his heyres he hath an estate but for terme of his lyfe bycause these wordes his heyres do lacke Yet neuertheles yf a man by his testamente dothe deuyse landes to an other in suche place where the custome wyll serue so to do though he maketh no mencyon of heyres but sayth that he bequetheth to suche a parsone such landes to haue and to holde to hym and to his assignes for euermore here a state of inheritaunce doth passe for iÌ„ testamentê the wyl and intent of the testatour is to be pondred and not the prescripte wordes of the lawe Also these termes in the lawe franke mariage franke almoyne do include in them wordes of inherytaunce And therfore yf I gyue landes to a maÌ„ with my doughter in franke maryage without further addicyon of heyres this is an estate of inheritaunce as we shall hereafter declare more copyously In lykewyse it is of landes gyuen to an house of religion in pure and franke almes Moreouer yf landes be giuen to a man and to his blodeor to hym and to his seed he hathin both cases a state of inheritauÌ„ce in the one a fee taile and in thother a fee simple For this worde seed and blode and suche lyke do imply wordes of inheritaunce But nowe it is to be sene who be sayd mannes he yres in the lawe Ye shall therfore knowe that my brother or syster by the halfe blode that is to wyte by the fathers syde and not by the mothers or coÌ„trary wyse by the mothers and not by the fathers shal neuer be myne heyre nor none that come of them Neyther my bastarde can be myne heyre nor myne owne naturall father ne mother nor grandfather ne grandmother can be myne heyre For it is a princyple and ground in the lawe that inheritaunce maye linially descende but ascend it may not And therfore yf I haue landes in fee simple and dye without issue of my bodye my father can not be myn heire but my fathers brother or syster shal and than yf my vncle or aunte dye seased without issue my father shall haue the landes as heyre to myn vncle or to myn aunt but heyre to me he can not be But it may go from me to mine vncle or aunte well ynough for that is not called a lyniall ascensyon but a collaterall And ye shall note that by the coÌ„mon lawe of this realme my eldest sone shall haue thole inheritaunce and after hym yf he hath no issue the seconde sone and so forthe And yf I haue no sones but doughters than shall all the doughters togyther inherite yf I haue no issue at all neyther sones ne doughters than shal my eldest brother succede me but yf I haue no brother than my systers yf I haue any yf not my vncle by my fathers syde yf the landes be of myne owne purchase And to be short if ther be none aliue of my fathers syde it shal go to my mothers syde and yf there can be found no heyre neyther by fathers syde ne yet by mothers so shal it reuerte eschere as they call it to the lorde of whome it was holden for euery lande muste nedes be holden of some lorde as shall be here after shewed But if landes descende vnto me by my mothers syde than if I fayle of issue the landes shal descende onely to my heyres of my mothers syde neuer to myne heyres of my fathers syde As on the contrary syde yf I haue landes by discent from my father or his bloode they shall neuer descende to my heyres by my mothers syde Thus ye se a greate difference in this behalfe bytwene purchased landes and landes which descende from my anucestour Yf there be thre sones and the myddell sone purchaseth landes dye wtout issue theldest shall haue the landes and not the yongest Also it is a principle in our lawe that none can be myne heyre of landes that I hold in fee simple onles he be myne heyre by the hole bloode for yf a man hath issue two or thre sones by sondry wyues and theldest purchase the landes in fee and dyeth without issue his halfe brethren shall not haue the lande but it shall go to his vncle Lykewyse yf a man hath by his fyrst wyfe a sone and a doughter and by his seconde wyfe an other sone and the sone by the fyrste wyfe purchaseth landes in fee and dyeth without issue the syster shall haue the landes by discent as heyre to her brother and not to the yonger brother Otherwyse it is of landes entayled as shall be hereafter specifyed Also yf a man be seised of landes in fee simple and hath issue a sone and doughter by one wyfe a sone by another and dyeth and theldest sone entreth iÌ„ to the landes and after dyeth without issue the doughter shall haue the landes and not the yongest sone yet the yongest sone is heyre to his father but he is not so to his brother But yf in this case theldest sone had not entred after the deth of his father but had died before any entre made by hym thaÌ„ shall not the syster germayne entre but the yonger brother as heyre to his father bicause theldest brother was neuer in actuall possessyon which is requisyte to that persone that claymeth to be heyre collaterally But to the lyniall heyres it suffyseth that the auncestout shold haue ben heyre yf he had lyued I meane as thus A man is seased of landes and hath issue a sone and doughter by one wyfe and a sone by another he dyeth theldest sone entreth not but dieth without issue before he can make any actuall entree his syster shall not haue the landes as heire to her brother bicause her brother was neuer actually possessed but the yonger brother shal haue them as heyre to his father Yet yf theldest sone in that case had lefte behynd him issue of his body whether it had bene sone or doughter this issue notwithstandynge that the father was neuer possessed eyther actualy or in the lawe shal haue the landes and shal conuey his discent from his father for the sone or doughter is linial heyre where as the brother syster vncle aunte c. be heyres collateral and so obserue a dyuersitie I call an actuall possessyon whan a man entreth in dede in to landes to hym descended but a possessyon in lawe is called whan landes be descended to a persone and he hath not yet really and actually entred into them For notwithstandynge that he is not in actuall possessyon yet he is possessed in the lawe that is to saye in the
eye and consyderacyon of the lawe forasmuche as he is tenaunt to euery mannes action that wylsue for the said landes for els there shold insue an intolerable inconuenience as we shal more copiously open in an other place Ye shall vnderstande that this worde inheritaunce is not onely to be accoÌ„modate and applyed to that whiche coÌ„meth by discente from a mannes auncestours but also to euery purchase in fee simple or fee tayle ¶ Fee tryle ¶ Ye shall vnderstande that before the statute of Westminster seconde there was no state taile but al was fee simple eyther purely or condicionally as appereth by the pÌ„tence of the said statute but now sithens the promulgatynge of that statute dyuers formes of state tayles haue rysen Fee tayle is whan it is lymytted in the gyfte what heyres and by whome engendred shall inheryte As I gyue landes to a man and to his heyres and go no further this is fee simple but yf I make a lymitacion and adde of his body begoten now is it fee tayle that is to saye a fee or inheritaunce lymtted determinate or assigned So that yf I gyue landes to a man and to his heyres he hath fee simple but yf I gyue landes to him and to his heyres of his bodye lawfully begoten he hath but a fee tayle forasmoche as I appoynte lymite prescrybe and determyne the heyres â–ª and for lacke of suche heyres the gyft shal be expired and worne out and the landes shall reuerte agayne to the gyuer or his heyres But ye muste obserue that there be two kyndes of fee tayle There is a generall tayle and a specyall tayle Fee tayle gnÌ„rall is as where landes be gyuen to a man to his heyres of his body begoten without expressynge by what woman they are to be begoteÌ„ And therfore Yf a man be tenauÌ„te in the generall tayle of landes and taketh a wyfe and hath issue by her and she dieth he taketh an other wyfe of whoÌ„ he hath also other issue here either of these issues is inheritable to this lande entayled But yf I expresse in the gyfte by what woman the heyres shall be procreate than is it an especyall tayle as yf landes be gyuen to a maÌ„ and to the heyres of his body lawfully begoten by Katherin his wyfe this is an especiall tayle for the issue of him by an other woman shall neuer iÌ„heryte by force of the tayle Lykewyse it is yf landes be gyuen to a womaÌ„ and to the heyres of her body lawfully begoteÌ„ and she we not by what man this is a generall tayle but yf I adde saye by suche a man her husbande than is it an especyall tayle Also yf I gyue landes to a man and to his wyfe and to the 〈◊〉 of theyr two bodyes lawfully begoten this is an especyall tayle as well in the husbande as my wyfe Semblably it is if a man gyueth landes to an other man with his doughter or kynswoman in franke maryage this iÌ„plyeth a state tayle especiall and as well the man as the woman hathe estate in the speciall tayle But yf I gyue landes to a man and to a woman and to his heyres that he shall begete of her here the woman hath estate but for terme of her lyfe the husbande an estate in the especiall tayle In lykewyse it is on the womans behalfe as yf I gyue landes to a man and his wyfe and to her heyres of the body of her sayd husbande engendred he hath an estate but for terme of lyfe and she an estate in the speciall tayle But in bothe cases yf I had sayd to the heyres and not his or her heyres than sholde eyther of them haue had an estate in the speciall tayle bicause this worde heyres is as well referred to th one as to thother Ye shall also vnderstande that if landes be gyuen to a man to the heyres males of his body this is a state tayle and in this case the heyre female shall neuer inheryte Finally it is to be noted that of landes wiche a man hath in fee simple the possession of the brother shall cause the syster germayne to inherite and not the brother by the halfe blode as here to fore was said but of landes entayled otherwise it is Therfore yf a man be seised of landes in the generall tayle hath issue by his fyrst wyfe a sone and a doughter and a sone by an otherwyse and dyeth and theldest sone entreth iÌ„ to the landes and dyeth the syster germayne shall not haue the landes but the yonger brother of the halfe bloode bycause who so euer shall inheryte landes in tayle must clayme them as next and immediate heyre not to hym that dieth last seased of the landes but to hym vnto whome the landes were fyrste giuen whiche in the case before remembred is the sone and not the doughter Thus ye shall obserue a greate dyuersitie betwene the fassion of successyon in landes of fee simple and of fee tayle ¶ Tenaunt after possibilitie of issue extincte ¶ Whan landes or tenementes be giuen to a man and to his wyfe and to the heyres of theyr two bodyes lawfully begoten yf in this case eyther of them chaunce to dye before they haue issue betwene theÌ„ he or she that ouerlyueth is styll tenaunt in tayle but without al possybylitie of any issue the can be heyre to these landes entayled for this cause he or she thus ouerlyuynge is called tenaunte after possibilitie of issue extinct for in suche a tenauÌ„t is all possibilitie of issue that maye be inherytable to these landes by force of the gifte in tayle vtterly extincte and quenched and by his or her deth the state tayle shal expyre cease be abolysshed for euer and shal reuerte agayne to the gyuer or donour from whens it came Yet forasmoche as this tenaunte after possibilytie of issue had ones an inheritaunce in him he shal not be punysshed by an action of waste though he maketh neuer so moche wast in the landes and tenementê yet in effect he is but a tenaunt for terme of lyfe ¶ Of perceners ¶ Hithervnto I haue made a compendious declaracyon of estates of all sortes but where as I sayd that amonges systers there is no pretogatyue or preeminence concernyng thenherityng of theyr auncestours landes but that they shall be al togither inheritours and make as it were but one heyre it is expedient to make a further ê“cesse in this behalfe and to shewe howe in what maner particion shall be made But ye shall vnderstande that there be besyde perceners at the coÌ„mon lawe whiche be onely systers also perceners by custome which is amonges brothers contrarye to the course of the coÌ„mon lawe and this custome is in Kent and iÌ„ other places where landes and tenementes be of the tenure of Gauel kynde Ye shall therfore knowe that whan a man is seised of landes in fee or fetayle and hath no issue but doughters and die and the doughters do
our soueraygne lorde the kynge Ye shall note also that whan a woman sole bothe homage to her lorde she shall not saye I become your woman for it is not conuentent that a woman shold be the woman or any other than of her husbande that she shall marye but she shall saye euen as the relygyous persone saythe I do vnto you homage c. That yf perchaunce a man holdeth sundry landes and tenemeÌ„tes of sundry lordes and euery of them by knyghtes seruyce than iÌ„ th ende of his homage he shall say sauynge the faythe that I owe to our soueraigne lord the kynge and to myne other lordes And it is to be knowen that none is bounde to do homage to the lorde onles it be suche a tenaunt as hath in the tenauncy an estate of fee simple or fee tayle eyther iÌ„ his owne ryght or in the ryght of another For yf a woman haue landes or tenementê in fee simple or fee tayle whiche she holdeth of her lorde by knyghtes seruyce and taketh an husband and haue issue iÌ„ this case the husbande iÌ„ the life of his wyfe shall do the homage bycause he hath a title to haue the landes bi the curtesye yf he ouerlyueth her and also he holdeth them now in his wyfes ryght yet before issue had bitwene them the homage shall be made in theyr bothe names But yf the woman dieth before homage made by her husbande in her lyfe the husbande kepeth styll the landes as tenaunt by the curtesye now he shal not do homage to his lorde bycause he hath now an estate but for terme of lyfe Fealtie is as moche to saye as a fidelitie or faythfulnes in doynge wherof the tenaunt shall holde his hande vpon a boke and say thus Heare you this my lorde I to you shall be faythfull and true fayth to you shal beare for the landes and tenementes whyche I clayme to holde of you and duely shal do you the customes and seruices whiche I owe to do you at the termes assigned as me helpeth god and his sayntes And than he shal kysse the boke but he shall not knele as he that dothe homage And ye shal obserue that homage can not be done but to the lord hym selfe where as the stewarde of the lordes courte or the baily may take fealtie for the lorde Also tenaunte for terme of lyfe shall do fealtie but homage as is sayd he cannot do Now as concernyng escuage ye shal vnderstande that he that holdeth his landes by escuage whan the kynge maketh a vyage royall in to Scotlande for the subduyng of the Scottes is bounde to be with the kynge by the space of .xl. dayes wel conueniently arayed for the warre And he that holdeth his lande but by the moite of fee of knyghtes seruyce is bounde by the force of his tenure to be with the kynge by the space of .xx. dayes and so proporcionably accordynge to the rate and quantitie of his tenure But now to the purpose after this viage royall in to Scotlande in whiche the kynge goeth in persone and after the retyre in to Englande agayn a parliament is wont to be soÌ„moned in which shal be asseised what euery ê‘sone that helde his lande by homage and went not with the kynge neyther by hym selfe nor by his deputye shall paye to his lord in satisfaction of his not seruyng accordynge to the taxacion herof euery tenaunt shall pay to his immediate lorde whether it be the kynge or other after the rate of his tenure yf he holdeth by an hoole fee the hoole escuage yf by a moitie the halfe yf be the fourthe parte of a fee the fourth parte c. and this money thus asseysed is called escuage for whiche the lorde to whom it is due maye very well distreyne But here it is to be noted that some tenauntes by custome are bounde to pay but the moite or the thyrde parte of that whiche shall be asseised by acte of parliament Yea the custome is iÌ„ some place that to what soÌ„me so euer escuage is asseised the tenauntê shal pay neuer but such acerteyne soÌ„me of money this esuage is called escuage certayne where as thother is called escuage vncertayne Finally ye shal vnderstand that escuage vncertayne is alwayes a knyghtê seruice and draweth vnto it warde maryage and reliefe but escuage certeyn is no knyghtes seruyce but of the tenure of socage as shall be herafter shewed ¶ Of warde maryage and reliefe ¶ Euery knyghtes seruyce draweth vnto it warde maryage and relife wherfore it is expedient somewhat to entreate of them Ye shall therfore be admonisshed that whan the tenauÌ„t by knightes seruyce dyeih his heyre male beyng within thage of .xxi. yeres the lorde shall haue the warde that is to saye the custodye or kepynge of the landes so holden of him to his owne vse and profyte tyl the heyre coÌ„meth to the full age of .xxi. yeres â–ª For the lawe presumeth that tyl he coÌ„meth to this age he is not able to do suche seruice as is of this tenure requyred Furthermore yf suche heyre be vnmaryed at the tyme of the deth of the tenaunt than the lorde shall haue also the warde and the maryage of hym But yf tenaunt by knyghtes seruyce dyeth his heyre female beyng of thage of .xiiij. yeres or aboue theÌ„ the lorde shall not haue the warde neyther of the lande ne yet of the bodye of suche an heyre and the reason is because a woman of that age maye haue aÌ„ hushande able to do knyghtê seruyce that is to saye to wayte vpon the kynges persone whan he auaunceyth in to Scotlande with his armye royall But yf suche an heyre female be within thage of .xiiij. yeres and not maryed at the tyme of the dethe of her auncestour than the lorde shall haue the warde of the lande holden of hym tyll suche heyre female coÌ„meth to the age of .xvj. yeres by force of an acte of ê‘liament in the statute of WestmÌ„ the fyrst Note that there is a great diuersite in the lawe bitwene thages of females of males for the female hathe thus many ages apoynted by the lawe Fyrst at .vij. yeres of age the lorde her father maye distreyne his tenauntes for ayde to mary her Seconde at .ix. yeres of age she is dowable Thyrdly at xij yeres she is able to assent to matrimonye Fourthly at .xiiij. yeres she is able to haue her lande shall be out of warde if she be of this age at the deth of her auncestour Fyfthly at .xvj. yeres she shall be out of warde thoughe at the dethe of her auncestour she was within thage of .xiiij. yeres Sixthly at xxi yeres she is able to make alienacions of her landes or tenementes Where as the man hath but two ages the one at .xiiij. yeres to haue his lande holden iÌ„ socage and to assent to matrimonye the other at .xxi. to make alienacions Ye shall vnderstande that by the statute of Merton the sixth
breuis domini regis assise mortis aÌ„tecessoris ad coÌ„em legem vel c. plegii de prosequendo F. G. c. ¶ Nowe althoughe some suche tenauntes haue an inheritaunce accordynge to the custome of the maner yet in very dede they are but tenauntes at the wyll of the lorde For as some men thynke yf the lorde wyll expell them put them forth they haue no remedye at all but to sue vnto theyr lorde by peticion desyrynge him to be good vnto them For yf they myght haue any remedye by the lawe than shold they not be called say they tenauÌ„tes at the wyll of the lorde after the custome of the maner But other men of no lesse lernynge and prudencye haue ben of contrarye sentence as lorde Bryan chife iustyce in the tyme of kynge Ed. the. iiii whose opynyon was alwayes that if such tenaunt by the custom payeng his seruices be eiected and put forth by his lord without cause reasonable he may very well brynge and maynteyne an action of trespace agaynste his lorde at the coÌ„mon lawe as appereth H. xxj Ed. iiij Also lord Danby chyefe iustice in lykewyse was of the same iudgement as appereth M. vij Ed. iiij where he saith that the tenaunt by the custome is as well iÌ„heritable to haue his land after the custome as is he that hath a free holde at the coÌ„mon lawe but the determinacion of this question I remytte to my great maysters Qui iuris no dos legum enygmata soluunt Forasomoche as yet styl of this mater Certant cuasidici adhuc sub iudicelis est ¶ Also ye shall vnderstande that thusage of some maner is whan the tenaunte wyll surrender his lande to thuse of an other that he shall take a wande in his hande delyuer it to the steward of the court and the stewarde shall delyuer the same wande in name of seisin to hym that shall take the lande and suche a tenaunt is called tenaunte by the verge Dyuerse other customes there be of surreÌ„dring of copy hold landes which here for prolixitie I wyll pÌ„termit And forasmoche as tenauÌ„tes by custome of the maner haue by the course of the coÌ„mon lawe no free holde therfore they be called tenauÌ„tes of base tenure ¶ Hytherto I haue treated of the fyrst membre of diuision that is to wyte of chatelles for as I sayd al leeses for terme of yeres at wyll be accompted in the lawe but as catelles and be comprised vnder that name saue that they be called catelles reals where as kyne oxen horses money plate corne suche lyke be called chatell personalles Nowe we wyll prosede to thexplanicion of the seconde membre that is to saye of free holdes ¶ A diuision of free holdes ¶ Free holdes or franke tenemeÌ„tes a maÌ„ may haue in suÌ„dry wyses for eyther he is seased for terme of his owne lyfe or for terme of an other maÌ„s lyfe yf for terme of his owne lyfe either he haue goteÌ„ such estate by way of purchase or els the lawe hath enâ—â—ed him thervnto I call it bi purchase whether he coÌ„meth vnto it by his owne bargayning procurement or by the gyft of his frend and I cal it by thoperacion and intytlynge of the lawe whan a man maryeth a woman that is an inherures hath issue by her and she dyeth nowe shal he haue the landes duryng his lyfe by the course of the lawe and shal be called tenaunt by the curteysye of Englande In lyke wyse yf a man be scased in fee simple or fee tayle of landes taketh a wyfe he dyeth the law gyueth vnto the wyse the thyrde parte of her husbandes landes for terme of her lyfe and she shal be called tenaunt in dower ¶ Tenaunt for terme of lyfe ¶ Tenaunt for terme of lyfe is he that holdeth landes or tenementes for terme of theyr owne lyfe or for terme of an others lyfe Howe be it the moost frequent maner of speakyng is to cal him that hath estate for terme of his owne lyfe tenaunt for lyfe and hym that hath estate for terme of an others life tenaunt pour terme dautre vie that is to saye tenaunte for terme of an oters lyfe Ye shal note that he that maketh the lees is called the lessour he to whom the lees is made the lessee so he that maketh a feffemeÌ„t is called the feffour and he to whom the feffement is made the feffee Also yf tenaunt for terme of lyfe or tenaunt pour terme dautre vie do waste the lessour or he in the reuersion shall maynteyne an action of waste agaynste hym and recouer treble damages Finally ye shal vnderstande that by an acte of parlyament made in the. xxvii yere of Henry the eyght it is enacted that no free holde nor estate of inheritaunce shall passe ne take effecte but by dede indented sealed and enrolled in one of the kinges courtes at Westminster or els within the same countie where the lande lye as by the sayd acte more at large appereth ¶ Tenaunte by the curtesye ¶ Tenaunt by the curtesye of Englande is he that hath maryed a wyfe â—herited and hath had issue by her she deed in this case the lawe of Englande permytteth hym to reteyne al his wyues landes that she had eyther iÌ„ fee simple or fee tayle so longe as he lyueth And this is by the curteysye of Englande for this thynge is vsed in none other region But in this case it is requyred that the chylde ve vitall that is to say be borne and brought forth in to this worlde alyue and therfore the coÌ„mon sayenge hath ben that onlesse the chylde be herde crye the father shall not be tenaunte by the curtesye for thonely proue and argument of lyfe in an infaunt newe borne is the vagite and cryenge Ye shall vnderstande that onlesse the husband be in actual possession of his wyues landes and seased of them in her ryghte he shall not be tenaunt by curtesye after her deth And therfore yf landes descende to a mans wyfe so that she is tenauÌ„t in the lawe and to euery mans accion yet yf the husbande haue not made an actuall entree duryng the couerture he shall not be tenaunte by the curtesye for it shall be reputed his foly and negligence that he wolde not entre in her lyfe Otherwyse it is of aduousons rentes and suche other thynges whiche forthwith whan they discende be in a man without any entre or further ceremonye Note that if tenaunt by the curtesye wyl suffre or make any wast in the landes or tenemeÌ„tes that he so holdeth he is punyshable therfore by action of waste Also it is to be knowen that of thinges that be in suspence a man shall not be tenauÌ„t by the curtesye therfore yf a man be the tenauÌ„t in fee simple of certayne lande doth entremary with a woman that is the seignoresse or lady of the same hath issue by her she dyeth yet he
abbrydge hym of parte of his power as to condycyon with hym that he shal not aliene the landes to suche a personne or suche But of gyftes in tayle other wyse it is for yf I gyue landes to a man and to the heyres of his body lawfully begoten vpon coÌ„dicion that he nor his heyres shal aliene the landes to none other ê‘sone this condicion is good and effectuall in the lawe and if he or his heyres contrary to che condicion do aliene them than the donour or his heyres maye very well entre and reteyne the landes for euer bicause this condicyon dothe stande with the statute of WestmÌ„ seconde whiche prohybiteth suche alienacions to be made Hyther vnto I haue spoken of coÌ„dicions in dede nowe wyl I shewe what be condicions in lawe that be annexed to any estates Knowe ye therfore that yf thoffyce of a ê‘ker or stewarde or suche lyke offyce be grauÌ„ted to a man for terme of his lyfe thoughe there be no condicion at al mencioned in the graunt yet the lawe speketh a condicion in this case whiche is that yf the partye to whom suche offyce is gyuen shal not execute al poyntê apperteynynge vnto his offyce accordyngly it shall be lawfull for the grauntour to entre and discharge hym of his offyce this condicion is called a condicion in lawe ¶ Of lyuery of season and of atturnement ¶ In all feffementê gyftê in tayle leeses for terme of lyfe or for terme of anothers lyfe of landes or tenementes there can be no alteracion or transmutacion of possession onlesse there be a certayne ceremonye of lawe adhibited and solempnised in the presence and syght of neyghbours or others whiche ceremony is called lyuery of season And ye shall vnderstande that this ceremonye of lyuerye of season is done whan the feffour donour lessour or theyr deputy come with the neighbours solemplye to the landes or tenementes there put the feffee donee or lessee in possession of the said landes or tenementê by deliueryng vnto hym a clod of erth or the ring of the dore or some other thynge in the name of season and for this selfe cause this ceremony of lawe is called lyuery of season that is to wyt a tradicion or gyuynge of season But this ceremony is not required in leeses for terme of yeres or in leeses at wyl in as moche as the lessour in suche case remaineth styl seased and the lessee hath only the possessyon without the season and therfore the termes of the lawe be that suche a maÌ„ is possessed where as in feffementes gyftes in tayle and leeses for lyfe he is called seased Wherfore yf a feffement or lees for lyfe be made of landes or tenementes and before liuery of season be made the feffour dyeth the heyr of the feffour shall haue the landes by the regour of the lawe notwithstandynge that the feffee hath payed to the feffour the pryce of the land and although the feffee be in possessyon But other wyse it is of alees for terme of yeres A lyke ceremonye is vsed whan rent charges whan rent seruyees and suche other thynges as passe bygraunt be graunted for it is no ful and perfyte graunt tyl it be consignyte as it were with the ceremony of atturnement This atturnement is nothynge elles but whan the tenaunt of the lande of whiche the reuersyon is graunted or out of which a rent is graunted do make some euydent signification and token that he accepteth the persone to whome the graunte is made to be in the same respecte vnto hym that the grauntour was As if the tenaunt of the lande after he haue herd of the grauÌ„t coÌ„meth to the grauntee that is to wyte to the persone to whome the graunt was made and say in this wyse or in lyke effecte I agree me to the graunt made vnto you by suche a man or I am well apayde and contented of the grauÌ„t that suche a man hath made vnto you But the moost vsual and frequent forme of atturnement is to say Syr I atturne vnto you by force of the sayd graunt or I become your tenauÌ„t or to delyuer vnto the grauÌ„tee a peny or halfpeny by way of atturnement Yf a man maketh fyrst one grauÌ„t to one persone and after another to an other persone that graunt shall stande to whiche the tenaunt wyll atturne although it be the latter And ye shall note that yf a man be seased of a maner whiche is ê‘cell in demene and ê‘cell in seruyce and doth altene the same maner to an other onlesse the tenauntes of the maner do atturne the seruices shal not passe onely tenauntes at wyll excepted for it nedeth not to cause them to atturne Note that there is a great difference bytwene gyuynge a penye in name of season and gyuynge it by waye of atturnement for whan it is gyuen of the tenaunt to the grauntee in name of season it dothe not onely implye an atturnement but also it gyueth hym suche a season that yf the rente afterwarde be behynde and not payde he may nowe vpon the season of the peny after a lawfull distres and rescus made brynge an assyse of nouel disseason where as yf it were gyuen only by waye of atturnement he could not brynge the assyse but his wryt of rescus onely Also ye shall vnderstande that where as landes be deuisable by the custome of any auncient boroughe or city yf there be reuersion of any landes be by testamente bequethed to a man iÌ„ fee and the diuysour dyeth the deuisee that is to wyte he to whome the deuyse was made hath forth with the reuersion iÌ„ hym without further ceremonye of atturnement Lykewyse it is if a maÌ„ of seruyce that the tenaunte oweth to his lorde is called knyghtes seruyce ¶ Knyghtes seruyce ¶ Knyghtes seruyce is homage fealtie escuage and who so euer holdeth his landes by knyghtê seruyce is bounde by the lawe to do his lorde homage and fealtie and to paye escuage whan it shal be assesed by parliament Homage is the mooste reuerent seruyce that is for whan the tenaunt shall do sytte the tenaunt shal knele before hym vpon bothe knees and shal holde his handes bit wene his lordes handes saye in this wise I become your man from this day forth warde of lyfe and of membre and of terrene honour and to you shal be faythfull and loyall fayth to you shall beare for that landes that I clayme to holde of you sauynge the fayth that I beare vnto our soueraigne lorde the kynge and thaÌ„ the lorde so syttyng shal kysse hym But if an abbot or pryour or any other persone of religion shall do homage to his lorde he shall not saye I becom your maÌ„ bicause he hath professed hym selfe to be the onely man of god but shall saye I do to you homage shal be to you faythfull and true and fayth to you shall beare for the tenementes that I holde of you sauynge the fayth whiche I do owe to
in franke almoyne but nowe at this daye it is otherwyse for by the reason of a statute called Quia emtoris terratum no man can aliene ne graunte landes or tenementê in fee simple to holde of hym selfe so that nowe yf a man seased of landes in fee and graunteth the same by licence to an abbot iÌ„ franke almoyne these wordes franke almoyne be voide and the abbot shall holde them immediatly of the lorde of the feoffer by the same seruyces that the feofer held so that no man can hold in franke almoyne but by force of a grauÌ„t made before the sayd estatute onely the kynge excepted for he is out of the compas of the statute Finally ye shall note that where as a maÌ„ holdeth in franke almoyne his lorde is bounde by the lawe to acqnyte hym of al maner of seruice that any other lorde can haue or demaunde out of the sayd landes That yf he dothe not acquyte hym but suffre him to be distreyned thaÌ„ he shal haue agaynst his lorde a certayne wryt called a wryt of meane and shall recouer agaynst hym his damages and costes of his suite ¶ Of burgage ¶ A tenure in burgage is where an auncient burgh is of which the kynge is lord and they which haue tenemeÌ„tes within the same burgh holde the same of the kyng paying a certeyne annuall rent whiche tenure in effect is but socage tenure Semblably it is where as any other lorde spirituall or temperall is lorde of suche burgh Here ye shal note that for that moost parte such auncient burghes haue dyuers customes vsages whiche other townes haue not For some burghes haue a custome that the yongest sonne shall inheryte before theldest which custome is called coÌ„monly burgh Englysshe Also in some burghes by the custome the woman shal haue for her dower all the landes and tenementes wherof her husbande was seased at any tyme duringe the couerture Moreouer in some burghes a man maye deuyse his landes or tenementes by testament at the tyme of his deth and by force of suche deuyse or legacye he to whom the bequest was made after the dethe of the testatour maye by force of this auncient custome entre iÌ„ to the landes so to him bequethed or deuised wtout any lyuerye of season to hym made or further ceremony of lawe Dyuers other customes in Englande there be contrary to the course of the coÌ„mon lawe whiche yf they be any thynge probable and maye stande with reason are good and effectuall notwithstandynge they be agaynst the coÌ„mon lawe ¶ Of villenage ¶ A tenaunte in vyllenage is properly whan a vilayne that is to say a bondman holdeth of his lord whose bondman he is certayne landes or tenementes accordynge to the custome of the maner or otherwyse at the wyl of his lorde and to do his lorde villayne seruyce as to beare and to carye the donge of his lorde out of the citye or out of his lordes maner and to laye it vpon the demene landes of his lorde or to do suche lyke seruyle or villayne seruyce How be it fre men in some places holde theyr tenementes and landes of theyr lordes by custome by suche maner of seruyce theyr tenure is called tenure iÌ„ villenage and yet they them selues be no villaynes For the lande holden in villenage maketh not the tenaunte a villayne but contrarye wyse a villayne maye make free lande to be villayne lande vnto his lorde As if a villayne purchaseth lande in fee simple or in fee tayle the lord of the villayne maye entre in to the lande so purcased by his bondman put hym and his heyres out for euer and this done the lorde yf he wyll may lease the same lande to his villayne to holde of hym in villenage And here ye shall vnderstande that seruitute or villenage is thordinaunce not of the lawe of nature but of that lawe whiche is called Ius gentium by whiche a man is made subiecte contrary to nature vnto an other mannes dominion For he that is a vyllayne or bondman eyther he is so by tytle of prescription that is to say he and his auncestours haue ben vyllaynes tyme out of mynde or elles he is a villayne by his owne confessyon in courte of recorde so that all villaynes either they be borne villaynes or elles they be made so They be borne villaynes whan theyr father bernge a bonde man hym selfe begetteth them in lawfull wedlocke eyther of a fre woman or of a bond woman for so that the father be bonde the issue of hym lawfully begoten muste nedes be bonde by the lawes of Englande hauinge no regarde to the condicion of the mother whereas in the ciuill lawe it is clene contrarye For there partus sequitur ventrem that is to saye the seruitute or bondage of the mother maketh the chylde bouÌ„de and not of the father How be it the bastarde sone of a bondman shal not be bonde bycause a bastarde is Nullius filius in the lawe They be made vyllaynes two wayes eyther by theyr owne acte as whan a free man beynge of full age wyll come in to a courte of recorde and there confesse hym selfe bonde to an other man Or elles by the lawes of armes called Ius gentium as whan a man is taken prysoner in warres and is compelled to serue and become the thrall bondman of hym that toke him the lawe calleth suche persone a vulayne And ye shall note that vyllaynes he ê“perly called in latyn Serui bycause that whan they be taken in warre the captaynes be wont not to kyll them but to sell them and so to saue theyr lyfes so that they be called Serui a seruaÌ„do that is to say of sauyng They be also called Mancipia a manu capiendo bycause that they be taken by hande of the enaemyes Nowe as I sayd by the lawe of nature we are all borne free but after that by the lawe of gentillite seruitute inuaded the worlde than ensued the benefite of manumission Manumission is De manu daâ—â—o that is to saye a gyuynge out of the hande or power For so longe as a man is in seruitute he is subiecte to the hand and power of an other and whan he is manumissed he is made free and delyuered from the said power so that a manumission is nothynge elles than an enfranchisement that is to saye a wrytynge testifieng that the lord hath enfranchisede his villayne and all his sequell Also yf the lorde maketh to his villayne an obligacion of a certeyn somme of money or graunteth to hym by his dede an annuitie or leaseth to hym by dede landes or tenementes for terme of yeres any of these actes do imply an enfraÌ„chisement Lykewyse yf the lorde maketh a feoffement to his villayne maketh vnto him liueri of season this also is an enfranchisemeÌ„t Brefely to speke where so euer the lorde coÌ„pelleth his villaine by the course of the lawe to do that thynge that he might enforce him to do or to suffre wtout thauctorite of the lawe he doth by implicacion enfranchise his villayn as if the lord wil bryng agaynst his villayne an action of det an action of accompte of couenaunt or of trespace these and suche lyke be in the eye of the lawe manumissions bycause that the lord in al these cases may haue theffecte of his suite that is to say the goodes catels and correction of his villayne wtout the compulsion of the lawe by his owne propre power and authorite which he hath vpon his villayne But if the lord sue his villayne by an appeale of felonye the villayne beynge lawfully indyted of the same before this is no infranchisement for the lord though he haue power to beate his vilayne and to spoyle hym of his goodes yet he can not put hym to deth Ye shall also vnderstande that if a mannes villayne purchaseth landes or acquire vnto hym any other thynge the lorde may by and by en 〈◊〉 sease the same in to his owne handes Wherfore yf the lord wyll brynge agaynst his vyllayne a Precipe quod reddat by whiche he demauÌ„deth agaynst his vyllayne any landes or tenementes this implyeth an enfranchesemeÌ„t forasmoche as he byndeth hym selfe to the prescripte and authoritye of the lawe where as he myght vse his owne authoritie by entryng and seasyng the sayd landes Finally ye shall marke that some vyllaynes be called vyllaynes in grosse and some be called villaines regardaunt In grosse be they of which the lorde is seuerally seased and not by reason of any lordeshyp or maner but they be called regardaunt whiche do belonge to a maner of which the lord is seased and the sayd vilaynes haue ben regardaunt that is to saye expectaunt and attendaunt tyme out of mynde to the lord of the sayd maner in doynge vnto hym suche seruyces as to a villayne appertayne ¶ The peroracion of the worke IN this presente treatyse gentyll reader I hane after my rude and grosse fassyon brefely touched and treated of the moost princypall maters concernynge the lawes of this realme that is to wyte of estates in landes and tenementes with all the circuÌ„staunces ther vnto apperteynynge and of the seruyces due of the same I was in purpose further to haue ê“ceded in thexplanyng of these semblable maters 〈…〉 in good worthe 〈…〉 as the thyng is in very dede 〈◊〉 I haue taken the same rather of others than for the vayne ostentacion of my selfe FINIS ¶ The table ¶ The preface of the boke ¶ Adiuision of estates ¶ Tenaunt for terme of yeres ¶ Tenaunt at wyll ¶ Tenaunt by copy of court roll ¶ Adiuision of free holdes ¶ Tenaunt for terme of lyfe ¶ Tenaunt by curtesye ¶ Tenannt in dower ¶ Adiuision of inheritaunces ¶ Fee simple ¶ Fee tayle ¶ Tenaunt after possibilite of issue extincte ¶ Of perceners ¶ Of condicions ¶ Of lyuerye of season and of atturnement ¶ Of seruyces ¶ Knyghtes seruyce 〈…〉 maryage and reliefe 〈…〉 of castell garde ¶ Of graunde sergeauntye ¶ Of petite sergeauntie ¶ Homage auncestrell ¶ Of socage ¶ Franke almoyne ¶ Of burgage ¶ Of villenage ¶ The peroracion of the worke ¶ The ende of the table