Selected quad for the lemma: land_n
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A80543
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The Copy-holders plea against the excess of fines, uncertain exacted of them by their lords upon their admittance.
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1653
(1653)
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Wing C6240; Thomason E724_4; Thomason E830_1; ESTC R207260
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6,173
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11
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those Lands being now much more and greater than in former times is of no moment or regard at al for where no consideration is of the Lords part who is only an instrument and compelable to admit as is before shewed and all his Charge and Costs is in keeping of his Courts his Stewards stipend The Fine ought to be set with reference to that only and not to the value of the Copihold Estate which moveth not from the Lord but where he maketh a voluntary Grant as aforesaid The ancient Presidents therfore of those Court Rolls where they have been and are wel kept are the best Presidents for Fines in such Cases and where they are lost or concealed the Rule given in Stallon and Willowes Case before mentioned by the Judges there named seemeth most agreeable to Reason and Equity Or if neither like you and that the Fines must needs be with reference to the value of the Land why should not that Rate by the Stat. of West 1. c. 36. allowed for reasonable aide which before the Statute was uncertain to be taken by Lords for the making of their eldest Sons Knights or for the Marriage of their eldest Daughters be thought sufficient Before that Statute they were both neer a Kin both reasonable and yet uncertain at the Will of the Lord Pitty it is that no Statute hath redressed the uncertainty of Copiholders Fines which being redressed in the other Case it is observed by Sir Edward Cook That Certainty the Mother of Quiet and Concord was established therein which see in his Comment upon the same Statute Page 232. But Copiholders they are still left to their Suits with their Lords to avoid these outragious and excessive Fines wherin they may find by experience those old verses cited there true Cum pare Luctari dubium cum procere stultum Cum puero-poena cum muliere pudor In English With Equals strife's not sure with great ones vain Shame with a Woman with a Child 't is pain They may find the Remedie by Law also no better than the Disease when the Chancellor or Judges before whom the reasonableness dependeth to be determined are themselves Lords of such Copiholders and biassed with their own interest and concernment and cannot be taken for such Saints as that Pope was of whom 8. H. 6.20 b. Rolfe telleth the tale but nameth him not that having committed a great offence and being told by the Cardinals that he had sinned he bad them Judge him who saying they could not because he was head of the Church bad him Judge himself who accordingly adjudged himself to be burnt and was burnt and afterwards Sainted Indeed it cannot be thought that they will give Judgment against their own proper Interests and concernment And therefore where any modern Presidents or Reports approving or allowing excessive Fines and consequently oppression shal be produced it may justlie detract from their weight and Credit if the Judges were upon the matter concerned as in their own case The Rule put by Sir Edward Cook in his Comment upon Lit. and in his 4 Report f. 27. b. before cited and in Godfreyes Case in his 11 Report f. 44. said by him to be adjudged in Stallon and Willowes Case aforesaid which is Quam rationabilis debet esse finis non desinitur sed omnibus circumstantiis inspectis pendet ex Justiciariorum discrecone How reasonable the Fine ought to be is not defined but all circumstances considered it dependeth upon the descretion of the Justices is framed by Sir Edward Cook himself and grounded by him upon another Rule in Bracton b. 2. f. 3◠◠c. 22. touching time of prescription which is Quam longum debet esse tempus non definitur in jure sed ex Justiciariorum discrecone How long the time ought to be is not defined by Law but dependeth upon the discretion of the Justices mutatis mutandis applied to this Case and as to this point owneth him for the sole Author but whether aptly applied in this Case may worthily be questioned for where the Judge is directly or indirectly concerned in another mans Case depending in Judgment before him you may well imagine which way the biass will carry him Upon Reading the 2d Chap. Stat. 25. Edw. 3. of Treasons of Sir Edward Cook his Pleas of the Crown Page 22. upon the Word specifie in the Statute of 25. Edw. 3. of Treasons which he would have to be specially observed and to signifie perticularized and set down particulary and that nothing is left to the construction of the Judge what shall be said to be Treason if it be not specified and particularized by that Act which he further noteth to be a happy Sanctuary or place of Refuge for Judges to fly unto that no mans blood and ruine of his Family do lie upon their Consciences against Law and that if constructions by Arguments à simili or à minori ad majus had been left to the Judge the mischief before that Statute would have remained viz diversity of Opinions what should be Treason and what not which that Statute taketh away by express words may be gathered what an inconveniency it is to leave things to the construction and discretion of Judges which very inconvenience falleth out by leaving it to their discretions upon Demurrers or upon Evidence to a Jury upon the confession or Proof of the yearly value of the Land to determine whether the Fines demanded of Copiholders be reasonable or not and a hard Case it is for Copiholders if they must be fined according to the rack values of their Copihold Estates at the Lords Will or the Judges who for the most part are themselves Lords of Mannors since the Lords give nothing but their breath for their Monie as is said before and seeing of late years their Fines have been raised to such an excessive height wherby the saying of Hill in the great Case of the Honor of Gloucester 14. H. 4.9 cited upon this occasion in Godfreyes Case Cook 's 11. Report sol 44. That a Fine at the Will of the Lord is an Oppression to the People is fully verified The vulgar Objections that Copiholders are but Tenants at Will and that they had their Estates Originally upon that condition to be fineable at the Lords Will and that the value of the Land being higher now than in ancient times when their Estates were first granted to their Ancestors are no good Reasons to warrant such excessive Fines as have been exacted these last Ages for custom and continuance hath sixed an inheritance in their Estates Cooks 4 Report 21. Cooks 9 Report 76. b. and made the same Discendable to their Heirs so as they are not bare Tenants at Will Cooks 1 Report 22 21.21 Edw. 4.80 b. Brian Cook upon Lit. f. 61. but have Estates of inheritance and actionr of Trospass are maintainable against their Lords by them And if their Estates were Originally granted upon any such pretended
THE COPY-HOLDERS PLEA Against the Excess of Fines Uncertain Exacted of them by THEIR LORDS Upon their ADMITTANCE LONDON Printed by Peter Cole in Leaden-Hall and are to be sold at his Shop at the sign of the Printing-press in Cornhil neer the Royal Exchange 165â— 1654 The Coppyholders Plea against the excess of Fines uncertain Exacted of them by their Lords upon their Admittance IT is agreed of al hands That a Cook upon Littl. f. 60. Cook 11. Report 44. al excessiveness is abhorred in Law and that b Cook upon Lit. f. 59. b Cook 4 Rep. 27. b. where the Fine is uncertain yet it must be reasonable and so doth the Pleading of the Custome wherby such a Fine is Alleadged to be due to the Lord plainly shew As may be seen in the New Book of Entries f. 646. b. in the Title to Trespass Whether then 3 years Value 2 years Value a year and a half or a years Value at a rack Rent or those Fines exacted by Lords in those latter Ages may be thought to be reasonable is now to be discussed For the true understanding of which this Difference is to be well Observed viz. Between voluntary Grants of Coppyhold Estates forfeited or Escheated and Granted again de nono by the Lord and Admittances upon Surrender to the use of another or of the Heiâ— upon a Discent In the first Case the Lord may take what Fine he pleaseth upon Admittance being both Donor and Instrument to perfect his own Grant for there it is truly said Arbitrio Dominires aestimari debet That the thing is to be estimated at the Lords or Owners Will. But in the other Case the Lord is but an Instrument to perfect the Surrender or the Heirs Estate Discended to him the Lord Granteth nor doth nothing But what he is compelable to do by the Purchaser or Heir who are in by him which maketh the Surrender or the Ancester respectively after admittance and not by the Lord and therefore shal not be subject to the Charge or Incumbrances of the Lord and also the admittance of a Disseisor or other Lord which hath no good but a defeasible Estate and Interest in the Mannor Cooks 4 Rep. 27 b. Taverner and Cromwels Case 28. b. in Westwicks and Wyers Case shal bind him which hath Right after that he hath recontinued the MaÌ„nor by Action or Entry in such case otherwise it is of voluntary Grants made by a Desseisor or Tenant by Sufferance of a Mannor d Cook 4. Rep. 24. Rous and Arters Case as may be seen in Chudleighs Case Cook 's 1 Rep. 140. b. And in Clarks and Penifathers Case Cook 4. Rep. f. 23. b. and 24. where the Earl of Arundels Case T. 17. El. Dy. 343. is cited and several good Cases put upon this Difference Omitting therefore voluntary Grants upon Escheate or Forfeiture and to speak only of Admittances upon surrender and discent where the Lord giveth nothing nothing passeth from him he is only an Instrument and compellable to admit and the Party admitted is not in by him but by him which made the Surrender or his Ancestor How can a ful yeers rack Rent or those Fines now exacted and taken upon such Admittance in latter ages be deemed or thought to be equal or reasonable In the new Book of Entries in the title before cited p. 3. fol. 644. b. you shal find that famous Case adjudged in the Common Pleas p. 6. Jacob Rot. 1468. upon a Demurrer as is said there fol. 617. b. The Case was between Stallon Plaintiff and Brady Servant of Thomas Willows Lord of the Mannor of Fendiâ—ton in the County of Cambridge Defendant in which the Fine of Five pounds six shillings and eight pence demanded by the Lord of the Plaintiff who was Purchasor for his Admittance to a Coppyhold Cottage and an Acre of Pasture let at Two pounds Thirteen shillings and four pence which was two yeers value at a rack Rent was adjudged an unreasonable Fine And in the Report of that Case it is to be seen that the Lord Cook being then Chief Justice said That for the Lord of a Mannor to demand of his Coppyholders Two yeers Profits for his Fine for his Admittance it was a damnable thing And Justice Walmsely said That it was worse than Extortion and Warberton That it was a lamentable case Daniel and Foster Justices said If mean Lords might take such unreasonable Fines it would overthrow all the Estates of Coppyholders which are a great part of the Realm and that upon deliberation they al agreed in one That Copyholders are to be compared unto Land that is holden in Capite upon sale whereof if a Lycence of Alienation be sued forth there was paid to the King but a Third Part of one yeers Profit and said They could see no Reason that a mean Lord should have any more for an Admittance to any Copyhold for the Lord doth but give a Breath for his Money and doth neither add nor diminish any thing to or from himself But in Case where a Third Part of One yeers Profit had not been paid for a Fine then they held the greatest Fine that had been paid to be a reasonable Fine and no more This Case is Observable and very worthy of our notice as coming neerest to the Ancient Presidents of Fines taken in former ages appearing in the Court Rolls of Mannors where they be truly kept and not imbeziled as in too many places they are to the great injury of Copyholders who either by the wilful or negligent keeping of those Rolls are many times deprived of those Advantages and Remedies which otherwise they might have against the Exaction and Usurpations of their Lords both of Fines and Herriots and otherwise For before these hundred yeers last past or therabouts there never did arise any Questions or Controversies about the reasonableness of Copyholders Fines which do appear so moderate were they before That the Copyholders had then no Cause to Complain in that Particular and the Cases and Controversies upon that Question in our Books or Reports are but of late times Actions upon the Case for Words are not so Rare in our yeer Books as this Question about the Reasonableness of Copyholders Fines The Fines anciently taken were indeed but very smal and inconsiderable rather Gratuities and Acknowledgments given to the Lords for their Stewards Wages and Charges in keeping of those Courts at which the Copyholders had their Admittances than out of any reference or respect had to the rack Rent of the Copyhold the improvement whereof by Building or good Husbandry and by the Industry and Charges of the Tenant could in no reason be thought to be a good consideration for the Lord to ask a higher Fine the Lord bearing no share at all either in the Costs or Pains in the improvement And therfore that vulgar Objection made for the Justification of Excessive Fines taken in these daies because of the yeerly value of