therefore no Lord of a Manor can prescribe to have fellons goods fugitives goods Dâ—odands and such like because they cannot bee forfeited untill it appeare of Record but waves estraies wreckes and such like may be challenged by prescription because they are gained by usage without matter of Record 2. A custome never extendeth to a thing newly created and therefore if a Rent be granted out of Gavelkind-land or Land in Borough-English the rent shall descend acorcording to the course of the Common Law not according to the Custome If before the Statute 32. H. 8. Lands were deviseable in any Borough or City by speciall Custome A Rent granted out of these Lands was not deviseable by the same Custome for what things soever have their beginning since the memory of man Custome maintaines not If there be a Custome within a Manor that for every house or cottage two shillings fine shall be paid if any Tenant within these liberties maketh two houses of one or buildeth a new house hee shall not pay a fine for any of these new houses for the Custome onely extendeth to the old So if I have Estovers appendant to my house and I build a new house I shall not have Estovers for this new built house upon this ground It hath beene doubted if a man by Prescription hath course of water to his Fulling-mill hee converting these into Corne-mills whether by this conversion the Prescription is not destroyed in regard that these Come-mills are things newly created but because the qualitie of the thing and not the substance is altered therefore this alteration is held insufficient to overthrow the Prescription for if a man by Prescription hath Estovers to his house although they alter the Roomes and Chambers in the house as by making a Parlor where there was a Hall vele converso yet the Prescription stands still in force and so if by Prescription I have an ancient Window to my Hall and I convert this into a Parlor yet my neighbours upon this change cannot stoppe my Window Causa qua supra 3. Customes are likewise taken strictly though not alwayes literally There is a Custome in London that Citizens and Freemen may devise in Mortmayne A Citizen that is a Forreiner cannot devise by this Custome An Infant by the Custome of Gavelkind at th'age of fifteene may make a Feoffment yet he cannot by the Custome make a Will at that age to passe away his Land to make a Lease and a Release which amounteth to a Feoffment If there be any Custome that Copyhold-Lands may be leased by the Lord vel per Supervisor vel deputatum supervisoris This Custome giveth not power to the Lord to authorize any by his last Will and Testament to keepe a Court in their owne name and to make Leases Secundum consuetudinem Manerii but these Customes have this strict construction because they tend to the derogation of the Common Law yet they are not to be confined to literall interpretation for if there be a Custome within any Manor that Copyhold Lands may be granted in Feodo simplici by the same Custome they are grantable to one and the heires of his body for life for yeares or any other estate whatsoever because Cui licet quod majus non debet quod minus est non licere so if there be a Custome that Copyhold Lands may be granted for life by the same Custome they may be granted Durante viduitate but not e converso because an estate during Widdowhood is lesse than an estate for life Before the Statute of 32. H. 8. Lands in certaine Boroughs were devisable by Custome By the same Custome was implicite warranted authorizing Executors to sell Lands devisable Now with your patience I will onely point at the manner of pleading of Customes I finde a foure-fold kinde of Prescribing 1. To prescribe in his Predecessors as in himselfe and all those whose estate hee hath 2. To prescribe generally not tying his Prescription to place or person as where a Chiefe Justice prescribeth that it hath beene used that every Chiefe Justice may grant Offices or where a Sergeant prescribeth Quod talis habetur consuetudo that Sergeants ought to be impleaded by originall Writ and not by Bill 3. To Prescribe in a place certaine 4. To Prescribe in the place of another The first sort of these Prescriptions a Copyholder cannot use in regard of the imbecillity of his estate for no man can Prescribe in that manner but onely Tenants in Fee simple at the Common Law The second sort of these may be used sometimes by Copyholders in the pleading of a generall Custome but in alleadging of a particular Custome a Copyholder is driven to one of the last and as occasion serveth he useth sometimes the one sometimes the other If he be to clayme Common or other profit in the soyle of the Lord then he cannot prescribe in the name of the Lord for the Lord cannot prescribe to have Common or other profit in his owne soyle but then the Copyholder must of necessity prescribe in a place certaine and alleadge that within such a Manor there is such a Custome that all the Tenants within that Manor have used to have Common in such a place parcell of the Manor but if he be to claime Common or other profit in the soyle of a stranger then he ought to prescribe in the name of his Lord saying that the Lord of the Manor and all his Ancestors and all those whose estate he hath were wont to have a Common in such a place for himselfe and his Tenants at will c. SEC XXXIV THus much of Customes I come now home to Copyholders and in the third place I hold it the best course to dilate upon the manner and meanes of granting Copy-holds wherein I will onely rely upon these five parts 1. Vpon the person of the Grantor 2. Vpon the person of the Grantee 3. Vpon the Grant it selfe 4. Vpon the thing Granted 5. Vpon the Instruments through whose hands as through Conduit-pipes the Lands are Gradatim conveyed to the Purchasor And first of the person of the Grantor Sometimes the Lord himselfe is Grantor sometimes a Copyholder In voluntary Grants made by the Lord himselfe the Law neither respecteth the quality of his Person nor the quantity of his Estate for be hee an Infant and so through the tendernesse of his age insufficient to dispose of any Land at the Common Law or non compos mentis an Idiot or a Lunatique and so for want of common reason unable to traffique in the world or an Out-law in any personall action and so excluded from the protection of the Law or an Excommunicate c. and so restrained ab omnium fidelium communione or at least à Sacramentorum partitipatione notwithstanding these infirmities and disabilities yet he is capable enough to make a voluntary grant by Copy for if a feme seignioresse take Baron and they two joyne in a voluntary Grant by Copy
voluntary Grant by Copy hath no lawfull interest in the Manor but onely an usurped title his Grant shall never so bind the right owner but that upon his entry hee may avoide them otherwise wee should make Custome an agent in a wrong which the Law will never suffer and yet if the Lord of a Manor by his Will in writing deviseth that his Executor shall Grant Copy hold estates Secundum consuetudinem Manerii for the payment of his debts c. and they make voluntary Grants accordingly these Grants are good notwithstanding the Executor hath no interest in the Manor nor is Dominus pro tempore If a Disseinor of a Manor dieth seized notwithstanding his heire come in by ordinary course of descent yet because the Tort commenced by his Ancestor is still inherent to his estate if any Copihold estate be granted by the heire it may be avoided by the Disseinor immediatly upon his recovery or upon his entry and so if the Disseinor infeoffe a stranger of the Manor notwithstanding the Feoffee come in by title yet no grant made by him of copyhold-Copyhold-Land shall ever binde the Disseined no more than a Grant made by the Disseinor himselfe If Tenant in Tayle of a Manor discontinueth and dieth and after the discontinuance Granteth Copyhold estates the heire recovering in a Formidon in the Discender may avoid these Grants for though the Discontinue come in under a just title yet his interest being determined by the death of the Tenant in Tayle the continuance of the possession is a Tort to the heire and Acts done by Tort-scisors tending to the dis-inheritance of the right owners Custome will never so strengthen but they may be adnihilated So if a man seized of a Manor in right of his wife Alieneth this Manor and dieth any Grant made of Copyhold estates after his death may be avoided by the feme upon her entry or upon her recovery in a Gui in vita If a Manor be Granted pr. aut vie and Cestay que vie dyeth and the Grantee continueth still in the Manor and maketh Grants by Copy these shall not binde the Grantor of the Manor for immediately upon the death of Cestay que vie the Grantee was but a Tenant at sufferance and had no Manor of Lawfull interest for a Writ of Entry ad terminum qui preter sit lieth against him as against Deforceor And so if a Tenant for life of a Manor maketh a Lease for yeares of the same Manor and dieth Copyhold estates granted by the Lessee after the death of the Tenant for life are voideable by the first Lessor If a Lessee for yeares of a Manor granteth a Copyhold in Reversion and before the Reversion eschue the terme is expired the Grant is void and so I take the Law to be if the Lessee surrendreth his terme and then before his Lease should have ended in point of limitation the Reversion falleth yet the Grantee shall not have it If a Lease be made for yeares of a Manor the Lease to be voide upon the breach of a certaine Condition if the Condition be broken and afterwards the Lessee before the entry of the Lessor granteth estates by Copy these Grants shall never exclude the Lessor for presently upon the breach of the Condition the Lease is voyde but had the Manor beene granted for life in Tayle or in Fee I thinke Law would have fallen out otherwise for before entry the Franck-Tenement had not beene avoided and wheresoever a man may enter and avoide any estate of Franck-Tenement upon the breach of a Condition the Law adjudgeth nothing to be in him before entry and he may waive the advantage which hee might take by the breach of the Condition if he will and therefore notwithstanding the accruer of the title of the Grantor yet before this title be executed by entry the Grantee hath such a lawfull interest that what estate soever hee granteth by Copy in the interim shall stand good against the Grantor And so if an Infant infeoffe me of a Manor though hee may enter upon me at his pleasure yet Grants made by me by Copy before his entry shall never be defeated by any subsequent entry And the same Law is of Grants made by a Villayne purchaser of a Manor before the entry of the Lord or of Grants made after an alienation in Mortmayne before the Lord Paramount hath entred for a forfeiture If a Parson after Institution and before Induction a Manor being parcell of his Gleab Lands Grants Lands by Copy and after is inducted this admitting of the Copyholders is no binding act for though as to the spiritualties he be a compleate Parson presently upon the institution yet as to the temporalities he is not compleat before Induction So if a Parson be admitted instituted and inducted but doth not subscribe to the Articles according to the Statute of 13. Eliz. and granteth Lands by Copy as before This Grant shall not conclude the succeeding Incumbent because his Admission Institution and Induction were wholly voide in themselves but had the Parson beene deprived for crime or heresie or for being meere Laicus although he be declared by sentence to be uncapable of a Benefice and so his presentment voide ab initio yet because the Church was once full untill the sentence declaratory came for though the deprivation shall relate to some purposes yet because the Presentment is not in it selfe voide surely a relation shall never be so much favoured as to avoid a Copyhold estate in this kinde So much of Grants made by the Lords themselves In Grants made by Copyholders as the Law respecteth the quality of the Copyholders estate so doth it respect both the quality of his person and quantity of his estate The quality of person for whosoever is uncapable of disposing of Land at the Common Law cannot without speciall Custome passe away any Copyhold The quantity of his estate for no Copyholder can possibly passe away more than is in him and therefore if there be joynt Tenants of a Copy-hold one cannot aliene the whole But if there be two joynt Tenants of a Manor and a Copyholder escheateth one of them may grant this Copyhold and his Companion shall never avoide any part of it If a Copyholder for life the remainder over in Fee to a stranger surrendreth in Fee and the Lord admits accordingly yet an estate for life onely passeth So if the Lord of a Manor granteth a Copyhold for life where an estate in Fee is warrantable and the same Grantee surrenders in Fee to the use of a stranger and the Lord admits him secundum officium sursumredditionis I thinke no Fee passeth for though the Lords admittance may prima facie seeme to amount to a confirmation of the estate surrendred the Reversion resting in him to dispose of according to the Custome as where a Lessee for yeares at the Common Law maketh a Feoffment in Fee and maketh a Letter of Attorney to his Lessor to deliver
Infant or non comps mentis an Idiot or Lunatique an Out-law or an Excommunicate yet what things soever hee performeth as incident to his place can never be avoided for any such disabilitie because he performeth them as a Judge or at least as Customes Instrument and for his authority though it prove but counterfeit if it come to exact triall yet if in appearance or outward shew it seemeth currant that is sufficient As if I grant the Stewardship of my Manor of Dale by Patent and in the Patentees absence a stranger by my appointment keepeth Court this is authenticall If a Grant of a Stewardship be made to one and for some fault or defect in the Grant it is avoidable yet Courts kept by him before the avoidance shall stand in force and whatsoever hee did as Steward are ever unavoidable As if a Corporation retaineth a Steward by paroll and he keepeth a Court punisheth offences decideth controversies taketh surrenders maketh admittances either upon surrenders or discents these Acts being judiciall shall ever stand for currant though his authority be grounded upon a wrong foundation for a Corporation cannot institute any such officer without writing And so if the Kings Auditor or Receiver retaine a Steward by paroll he may lawfully execute any judiciall Act but things which he performeth as Customes instrument not as Judge such as are voluntary admittances neither in the retainer by the Corporation or in this retainer by the Kings Officers shall any whit binde but if a stanger without the appointment of the Lord or consent of the right Steward or without any colour of authoritie will of his owne head come into a Manor and keepe a Court it seemeth that the performance of any judiciall duty or the executing of any act whatsoever will not be warranted especially if the Court be kept without warning given to the Bayliffe by precept according to the Custome The Office of a Steward may be forfeite three manner of wayes 1. By Abuser 2. By non user 3. By Refuser By abuser As if the Steward burne the Court Rolles or if he taketh a bribe to winke at any offence or use partiality in any cause depending before him these and the like abuses will make him subject to a forfeiture By non user as if the Steward by his Patent being tyed to keepe Court at certaine times of the yeare without request to be made by the Lord if he faileth and by his failer the Lord receive any prejudice this is a forfeiture But if the Lord be not damnified then this non user is no forfeiture As if a Parker attends not for the space of three or foure dayes and no prejudice or damage hapneth in the interim this is no forfeiture and in Offices which concerne the administration of Justice or the Commonwealth the Law is more strict then in these Offices which concerne private men for where an officer ex officio or of necessity ought to attend for the administration of Justice or for the good of the Commonwealth there non user or non attender in Court is a forfeiture though this be prejudiciall to no man as the office of the Chamberlaine in the Exchequer a Protonotary Clarke of the Warrants Exigentur Filizar or the like in the Common Pleas because the attendance of these and the like officers is of necessity for the administration of Justice so the attendance of the Clarke of the Market is of necessity for the good of the Commonwealth and so is holding of the Sheriffes turne c. By refuser the office of a Steward may be thus forfeited if the Steward be tyed by his Patent to keepe Court upon a demand or request to be made by the Lord if the Lord demandeth or requesteth him to keepe a Court and he faileth this is a forfeiture though the Lord be thereby nothing damnifyed and thus much of the Steward SEC XLVI THe under steward is the Stewards deputy and sometimes appointed by writing sometimes by paroll and the extent of his Authority is as great as the Steward 's owne Authority and his office consisteth in performance of the selfe same duties that the high Steward himselfe is to performe onely in this point the power of the Steward goeth beyond the power of the understeward that the Steward can make an admittance out of Court and it shall stand good if entry be made in the Court Roll that he that is admitted hath paid his fine and hath done fealty but the understeward though he may take a surrender out of the Court yet he cannot make any admittance out of Court without especiall Authority or particular Custome Some have thought that an understeward may be made without speciall words in the Stewards Patent authorizing him to make a Deputy but surely since it is an office of knowledge trust and discretion it cannot unlesse it be in cases of necessity As if an office of Stewardship descend unto an Infant he may make a Deputy because the Law presumeth he is himselfe uncapable to execute it so if it be granted to an Earle in respect of th'exility of the Office in a base Court and of the dignity of the person who is Praepositus Comitatus and had in ancient time the charge and custody of the whole shire whose attendance the Law intendeth to be most necessary upon the King and the Commonwealth therefore it is implyed in Law for the conveniency that hee may make a Deputy for whom he ought to answer This is one observation touching understewards in admittances made by understewards aswell as in admittances made by the Stewards themselves it is good order to expresse in the Copy and in the Court Roll the name of the understeward or of the Steward because in pleading any admittance a man must say that hee was admitted by such a one understeward or Steward naming his name And this shall suffice touching the manner and meanes of granting Copiholds Suffer mee now in the fourth place to point at the severall estates of Copiholders together with their severall qualities incident to their severall estates SEC XLVII ALl estates whatsoever may be reduced to one of these three heads 1. Inheritance 2. Francktenant 3. Chattells All Inheritances are of two sorts either Fee simples or Fee tailes Of Fee simples some are determinable some are undeterminable Determinable as where Land is given to a man and his heires for so long time as Pauls steeple shall stand Vndeterminable as where Land is given to a man and his heires without further limitation Of Fee tailes some are generall some are speciall Generall as where Land is given to a man and the heires of his body or heires males or females of his body Speciall as where Land is given to a man and the heires males or females which he shall beget of such a woman All Francketenants are of two sorts either created by the act of the party or by the Act of the Law Of Francketenants created
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
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
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
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
but a Prescription may both by the Comon-Law and the Civill and therefore where the Statute 1. H. 8. saith that all actions popular must be brought within three yeares after the offence commi ted whosoever offendeth against this Statute and doth escape uncalled for three yeares he may be justly said to prescribe an immunity against any such action 2. A Custome toucheth many men in generall Prescription this or that man in particular and that is the reason why Prescription is personall and is alwayes made in the name of some person certaine and his Ancestors or those whose estate he hath but a Custome having no person certaine in whose name to prescribe is therefore called and alledged after this manner In such a Borough in such a Manor there is this or that Custome And for Vsage that is the efficient cause or rather the life of both for Custome and Prescription lose their being if Vsage faile Should I goe about to make a Catalogue of severall Customes I should with Sisiphus saxum volvere undertake an endlesse piece of worke therefore I will forbeare since the relation would be an argument of great curiosity and a taske of great difficulty I will onely set downe a briefe distinction of Customes and leave the particulars to your owne observation Customes are either generall or particular generall which are part of the Common law being currant through the whole Common-wealth and used in every County every City every Towne and every Manor Particular which are confined to shorter bounds and limits and have not such choyce of fields to walke in as generall Customes have These particular Customes are of two sorts either disallowing what generall Customes doe allow or allowing what generall Customes doe disallow as for example sake By the generall Customes of Manors it is in the Copiholders power to sell to whom he pleaseth but by a particular Custome used in some places the Copyholder before he can inforce his Lord to admit any one to his Copihold is to make a proffer to the next of the blood or to the next of his Neighbours ab oriente solis who giving as much as the partie to whom the Surrender was made should have it so on the other side by the generall Customes of Manors the passing away of Copyhold land by deede for more than for one yeare without licence is not warranted yet some particular customes in some Manors doe it so by the generall Customes of Manors Presentments or any other act done in the Leete after the moneth expired contrary to the Statute of magna Charta and 31. E 3. are voyd yet by some particular Customes such acts are good and so in millions of the like as in the sequell of this discourse shall be made manifest And therefore not to insist any longer in dilucidating this point let us in few words learne the way how to examine the validitie of a Custome For our direction in this businesse wee shall doe well to observe these sixe Rules which will serve us for exact tryall 1. Customes and Prescriptions ought to be reasonable and therefore a Custome that no Tenant of the Manor shall put in his Chattell to use his common in Campis seminatis after the Corne severed untill the Lord have put in his Chattell is a voyd Custome because unreasonable for peradventure the Lord will never put in his Chattell and then the Tenants shall lose their profits so if the Lord will prescribe that he hath such a Custome within his Manor that if any mans beasts be taken by him upon his Demesnes damage Fesant that he may detaine them untill the owners of the beasts give him such recompence for his harmes as he himselfe shall request this is an unreasonable Custome for no man ought to be his owne Judge 2. Customes and Prescriptions ought to be according to common right and therefore if the Lord will prescribe to have of every Copyholder belonging to his Manor for every Court he keepeth a certaine summe of money this is a voyd prescription because it is not according to common Right for hee ought for Iustice sake to doe it Gratis but if the Lord prescribe to have a certaine Fee of his Tenants for keeping an extraordinary Court which is purchased onely for the benefit of some particular Tenants to take up their Copyholds and such like this is a good prescription and according to common right 3. They ought to be upon good consideration and therefore if the Lord will prescribe that whosoever passeth through the Kings High way which lyeth through his Manor should pay him a peny for passing this prescription is voyd because it is not upon a good consideration but if hee will prescribe to have a peny of every one that passeth over such a bridge within his Manor which bridge the Lord doth use to repaire this is a good prescription and upon a good consideration So if the Lord will prescribe to have a fine at the marriage of his Copyholder in which Manor the custome doth admit the husband to be Tenant by the curtesie or the feme Tenant in Dower of a Copyhold this prescription is good and upon a good consideration but in such Manors where these estates are not allowed the Law is otherwise 4. They ought to be compulsary and therefore if the Lord will prescribe that every Copyholder ought to give him so much every moneth to beare his charges in time of warre this prescription is voyd but to prescribe they ought to pay so much money for that purpose is a good prescription for a payment is compulsary but a gift is Arbitrary at the voluntary liberty of the giver 5. They ought to be certaine and therefore if the Lord will prescribe that whensoever any of his Copy-holders dye without heire that then another of the Copyholders shall hold the same lands for the yeere following this prescription is voyd for the incertainty but if the Lord will prescribe to have of his Copy-holders 2. d. an Acre Rent in time of warre foure pence an Acre this prescription is certaine enough 6. They ought to be beneficiall to them that alledge the prescription and therefore if the Lord prescribeth that the custome hath alwayes beene within the Manor that what distresse soever is taken within his Manor for any common persons cause is to be impounded for a certaine time within his pound this is no good prescription for the Lord is hereby to receive a charge and no commoditie but if the prescription goeth further that the Lord should have for every beast so impounded a certaine summe of money this is a good prescription If we desire to be more fully satisfied in the generall knowledge of prescriptions and Customes wee shall finde many Maximes which make very materiall for this purpose amongst which I have made choyse of these three as most worthy of your observation 1. Things gained by matter of Record onely cannot be challenged by prescription and
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
the Bailiffe of the Manor is to have the Wardship of the Copyhold heire being under the age of fourteene such a Guardian shall neither be admitted nor pay a Fine because he is but a partnor of the profits and that not in his owne right but in the right of him to whom he is Guardian If the Copyhold Lands of a Bankerupt be sold according to the Statute of the 13. Eliz. cap. 7. the Vendee shall be admitted and pay a Fine If a Villaine purchaseth a Copyhold the Lord of the Villaine may enter and seize it and the Lord of the Manor shall admit him and have a Fine If a Copyhold be granted upon Condition and the Condition be broken and the Granter entreth hee shall not be admitted neither pay a Fine because upon the breach of the Condition and the entry he is to all intents in Statu quo prius as if no grant at all had beene made If a Copyholder in Fee surrendreth for life reserving the Reversion and the Lessee for life dieth the Copyholder shall not be admitted to his Reversion neither shall he pay a fine because the Reversion was never out of him If a Copyholder be disseised and then entereth upon the Desseisor or recovereth by plaint in the nature of an Assize he shall not be admitted neither shall he pay a Fine for he continueth still Tenant by Copy notwithstanding the disseisin but where by a plaint a Copyhold is recovered upon the accruer of a new Tytle where he that recovereth was never admitted nor paid Fine there upon his recovery an admittance is requisite and a Fine is due as if a Copyholder dieth seised a stranger abateth and the heire recovereth by plaint in the nature of an Assize of Mort d'auncester upon this recovery hee shall be admitted and pay a Fine If I take a wife Copyhold in Fee though by this inter-marriage there accrueth a present interest to me yet because I am seised non jure proprio but jure alieno therefore I shall not be admitted neither shall I pay a Fine The same Law is Vid. Plowden com 4 18. b. if she be a Termor of a Copyhold for though the terme by the inter-marriage be so vested in me that I may dispose of it without controule yet because before disposer I am possessed of it but in the right of my wife therefore I shall neither be admitted nor pay a Fine If a Copyhold be surrendred for life the remainder to a stranger though the admittance of Tenant for life be sufficient to invest the estate in him in the Remainder yet upon the death of Tenant for life hee in the Remainder shall be admitted and pay a Fine So if a Copyhold be granted to three habend success vie whereby Custome successive is in force if any one dieth he that next succeedeth shall be admitted and pay a Fine If two Coparteners or Tenants in Common of a Copyhold be and the one dieth and the other hath all by discent hee shall be admitted and shall pay a Fine But if two joynt-Tenants be of a Copyhold one dieth the other shall have all by the survivorship without admittance or paying Fine because joynt-tenants to all intents and purposes are seised per my per tout If two severall Copyholders joyne in a Grant of their Copyhold by one Copy or if one Copyholder having severall Copy-holds granteth them by one Copy yet the Grantee shall pay severall Fines for they shall inure as severall Grants Co. 4 fo 27. b. But if two joynt-Tenants two Tenants in Common or Tenant for life and hee in the Remainder joyne in the Grant of a Copy-hold one Fine onely is due and it shall inure as one Grant onely so if a surrender be made and after a common Recovery is had by plaint in the nature of a Writ of entry in Le post for the better assurance one Fine onely shall be paid And thus much of Fines I come now in the next place to Forfeitures wherein I will chiefely rely upon these foure points 1. What Acts amount to a Forfeiture 2. What persons are able to forfeit 3. What persons are able to take benefit of a Forfeiture 4. What Acts amount to a confirmation of an estate forfeit SEC LVII OF Acts which amount to Forfeiture some are Forfeits eo instante that they are committed some are not Forfeits till presentment Offences which are apparant and notorious by which the Lord by common presumption cannot chuse but have notice are Forfeitures eo instante that they are committed as if by speciall Custome upon the discent of any Copyhold of Inheritance the heire is tyed upon three solemne Proclamations made at three severall Courts to come in and be admitted to his Copyhold if he faileth to come in this failer is a forfeiture Ipso facto So if a Copyholder be sufficiently warned to appeare and he faileth this is a forfeiture Ipso facto But if he be hindred by sicknesse or by over flowing of waters or if he be much in debt and feare to be arrested or if hee be a Bankerupt and keepeth his house then his default is no forfeiture If a Copyholder in the Court be called and summoned to be sworne of the homage and refuseth this is a forfeiture Ipso facto So if a Copyholder be sworne of the homage and then refuseth to present the Articles according to his Oath this is a forfeiture Ipso facto So if a Copyholder will sweare in Court that he is none of the Lords Copyholder this is a forfeiture Ipso facto But if a Copyholder in presence of the Court speaketh unreverent words of the Lord as that the Lord exacteth extorteth unreasonable Fines and undue-Services this is fineable only but no forfeiture and if he saith in Court that he will devise a meanes no longer to be the Lords Copyholder this is neither cause of fine not forfeiture for peradventure the meanes that hee intended was lawfull viz. by passing away his Copyhold Et ubi sensus verborum est multiplex verba semper sunt accipienda in meliori sensu If the Steward sheweth a Court roll to a Copyholder to prove that his Land is holden by Copy and that the Copyholder saith he is a Freeholder and sheweth a Deed pretending thereby to procure his Land to be Freehold and teareth in peeces the Court-Roll this is a forfeiture Ipso facto So if the Lord Co. 4. fo 27. b. upon the admittance of a Copyholder the Fine by the Custome of the Manor being certaine demandeth his Fine and the Copyholder denieth to pay it upon demand this is a forfeiture ipso facto So if a Copyholder will sue a Replevin against the Lord upon the Lords lawfull distresse for his Rent or Services this is a forfeiture Ipso facto But if the Copyholdder be in doubt whether it be due or not and therefore intreateth the Lord that the homage may inquire the truth this is no forfeiture