Manor decayeth and dyeth for t is not the two materiall causes of a Manor but the efficient cause knitting and uniting together those two materialll causes that maketh a Manor Hence it is that the King himselfe cannot create a perfect Manor at this day for such things as receive their perfection by the continuance of time come not within the compasse of a Kings Prerogative and therefore the King cannot grant Freehold to hold by Copie neither can the King create any new custome nor doe any thing that amounteth to the creation of a new custome and therefore a composition made betweene the King and his Tenant where he hath Herriot custome to pay 10. li. in Levie thereof every time it falleth is no binding composition for this amounteth to the creation of a new custome Et haec omnia similia sunt temporum non regum seu principum opera which fully verifieth the old saying Plus valet vulgaris consuetudo quam regalis concessio this is the sole cause why the King cannot create a perfect Manor at this day and this is the chiefe cause why a common person cannot create a perfect Manor but not the sole cause for there is this cause farther a perfect Manor cannot subsist without a perfect tenure betweene very Lord and very Tenant but a Common person cannot create a perfect tenure and consequently cannot create a perfect Manor before the Stat. of Quia emptores terrarum if any Tenant seized of Land in Fee simple had infeoffed a stranger he might have reserved what services hee thought fit or had he reserved no services yet the Law would have imployed a perfect tenure betweene the Feoffor and the Feoffee for the Feoffee was to hold off the Feoffor by the same services that the Feoffor held over on his Lord Paramount but since this Statute If a Tenant seised of Land in Fee infeoffeth a stranger neither by the expresse reservation of the Feoffor nor by the implyed reservation of the Law can there bee a perfect tenure created at this day betweene the Feoffor and the Feoffee for the Feoffee shall hold immediately of the Lord Paramount not of the Feoffor and further as the King can doe nothing which amounteth to the creation of a new custome so a common person can doe nothing which amounteth to the creation of a new tenure and therefore if there be Lord and Tenant by 10. s. rent and the Lord will confirme the estate of a Tenant Tenend by a Hawke a paire of gilt spurres a Rose or similia this is a voyd confirmation otherwise had it beene if the Lord had confirmed the estate of the Tenant Tenendum per 5. s. that had beene a good confirmation because it tendeth onely to the abridgement of an old tenure and not to the creation of a new and as it is with a confirmation so it is with a composition upon the reason of this ground it is that if the Lord of a Manor purchase forraine land lying without the Precincts and bounds of the Manor he cannot annex this unto the Manor though the Tenants be willing to doe their Services for this amounteth to the creation of a new tenure which cannot be effected at this day And therefore if a man having two Manors and the Lord would willingly have the Tenants of both these Manors to doe their sute and service to one Court this is but lost labour in the Lord to practise any such union for notwithstanding this union they will be still two in Nature howsoever the Lord covet to make them one in Name and the one Manor hath no warrant to call the Tenants to the other Manor but every act done in the one to punish the offenders in the other is traversable yet if the Tenants will voluntary submit themselves to such an innovation and the same bee continued without contradiction time may make this union perfect and of two distinct Manors in nature make one in name and use and such Manors peradventure there are thus united by the consent of the Tenants and continuance of time but the Lords power of it selfe is not sufficient to make any such union causa qua supra But if one Manor holdeth of another by way of Escheate these two Manors may be united together fortior enim est disposâ—tio legis quam hominis But in this that I exclude common persons from being able to create a tenure I may seeme to impugne many authorities which hold at this day that a tenure may bee created by a common person for to cleare this colour of contradiction know that tenures are two fold First imperfect as where a man maketh a Lease for yeares or for life or a gift in tayle here is an imperfect tenure betweene the Lessoâ— and the Lessee the Donor and the Donee and this imperfect tenure I confesse may be created by a common person at this day Secondly perfect betweene very Lord and very tenant in Fee and such a tenure a common person could never create since the Stat. of Quia Emptores terrarum and consequently a common person cannot create a perfect Manor sithence for without a perfect tenure a perfect Manor cannot subsist Thus much touching the definition of a Manor thus much I say touching the two materiall causes together with the efficient cause A word of another cause of a Manor which appeareth not in the definiâ—ion so manifestly as the other causes doe this is a cause which among the Logicians is termed Causa sine qua non and that is a Court Baron for indeede that is the chiefe prop and Pillar of a Manor which no sooner faileth but the Manor falleth to ground if wee labour to search out the antiquity of these Court Barons we shall finde them as ancient as Manors themselves For when the ancient Kings of this Realme who had all the lands of England in Demesne did conferre great quantities of land upon some great personages Vide Lamb in his explication of Saxon words verbo Thanus Bacon in his elements of the Law fol. 41. 42. 43. with liberty to parcell the land out to other inferiour Tenants reserving such duties and Services as they thought convenient and to keepe Courts where they might redresse misdemeanors within their Precincts punish offences committed by their Tenants and deside and debate controversies arising within their jurisdiction and their Courts were termed Court Barons because in ancient time such personages were called Barons and came to the Parliament and sate in the upper house but when time had wrought such an alteration that Manors fell into the hands of meane men and such as were farre unworthy of so high a calling then it grew to a custome that none but such as the King would should come to the Parliament such as the King for their extraordinary wisedome or qualitie thought good to call by writ which writ ran hac vice tanâ—um yet though Lords of Manors lost their names of Barons and
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
you shall easily perceive that Copyholders though very meanely discended yet they come of an ancient house and therefore if in this point you desire satisfaction call to minde what I have already spoken and if I mistake not it will sufficiently answer your desire Give me leave to goe a steppe further and to examine the severall names which Copyholders have had from time to time allotted unto them together with their proper Etymologies immediatly upon the Conquest they were knowne by the name of Villaines or Tenants in Villanage so termed by the Normans either in respect of Imbecillity and incertainty of their estates which were grounded upon a very weake foundation wholly depending upon the will of the Lord and Oustable at his pleasure or in respect of their Services which savoured of nothing but slavery whether they were certa ac determinata or incerta ac indeterminata ubi sciri non poterit vespere quale servitium facere deberent in Crastino as Bracton speaketh contrary to the opinion of some who hold that the Service of Copiholders were never subject to such incertainties or lastly in respect of the persons who for the most part were Villaines howsoever some free men did sometimes hold Land by the same Tenure the least of these three reasons is sufficient to make them deserve that name but joyne them together and then hee that judgeth most favorably of them will thinke this the truest title that could be bestowed upon them yet some there are who in behalfe of these Tenants sticke not to maintaine howsoever in respect of their estates they may not unfitly be termed Tenants in Villanage being in such strange subjection to their Lords that neither in respect of their Services nor their Persons they could merit that name especially if we take the word in that reproachfull sense that it is usually taken in at this houre But if wee account those villaine Services which any way touch Husbandry as Plowing Sowing Reaping and such like and these men villaines who exercise themselves in any point of Husbandry then they agrue that their Tenure could in no wise have an apter terme than this for they confesse that these Copyholders were for the most part Rustici Pagani and their Services wholâ—y ad Rusticitatem tendentia Howsoever I dare not wholly disallow of this opinion though I cannot altogether approve of it for I admit and in a manner consent that amongst the Normans these Services which wee call Rurall Services were called villaine Services and those men whom we terme Husbandmen were termed Villaines and doe hold that the Copyhold Services in those dayes were more slavish than Rurall and they themselves rather Bondmen than Husbandmen otherwise we should make their Tenure differ in nothing from ancient Soccage Tenure which I assure my selfe is otherwise for though Soccagres were Rustiques and in that sense Villaines yet their Tenure was never noted by the name of a Tenure in Villenage till in many places their Corporall Services begun to be turned into money then for distinction sake the one began to be called Liberum Soccagium the other Villanium Soccagium But long before these Coppiholders were termed Villeynes and therefore without all doubt their Tenure was in basenesse and slavery a degree above the ancient Soccage Tenure till at length the Lords of Manors being framed to more civility began then to thinke it a most uncharitable part to keepe their poore Tenants in that bondage therefore out of the remorse of their owne consciences and the compassion of their Tenants miseries by little and little they infranchised them and released them of their heavier burthens reserving Services of another nature in liew of them Thus having shaken off the fetters of their bondage they were presently freed of their opprobrious name and had other new gentle stiles and titles conferred upon them they were every where then called Tenants by Copy of Court Roll or Tenanâ—s at will according to the Custome of the Manor which styles import unto us three things 1. Nomen 2. Originem 3. Titulum His name is Tenant by Copy of Court Roâ—e for he is not called Tenant by Court-Role but by Copy of Court-Roll and this is the sole Tenant in Law who holdeth by Copy of any Record Charter Deede or any other thing 2. His commencement is at the will of the Lord. For these Tenants in their birth as well as the Customary Tenants upon the borders of Scotland who have the name of Tenant were meere Tenants at will and though they keepe the Customes inviolated yet the Lord might sans controll eject them neither was their estate hereditarie in the beginning as appeareth by Britton Britton Ca. 66. for if they died their estate was presently determined as in case of a Tenant at will at common Law and in some points to this present houre the Law regardeth them no more than a meere Tenant at will for the Freehold at the Common Law resteth not in them but in their Lords unlesse it be in Copyholds of Franke Tenure which are most usuall in ancient Demesne though sometimes out of ancient Demesne wee shall meete with the like sort of Copyholds as in Northamton-Shire there are Tenants which hold by Copy of Court-Roll and have no other evidence and yet hold not at the will of the Lord. These kinde of Copyholders have the Franke Tenure in them and it is not in their Lords as in case of Copyholds in base Tenure Besides Copyholders shall not attourne upon the granting away of the Manor no more than Tenants at will at the Common Law and their estate can be no infranchisement to a villaine no more then a meere estate at will And further their Lands are parcell of the Lords Demesnes as well as Lands granted away at Will according to the course of the Common Law and for his Title and Assurance that is according to the Custome of the Manor For the Custome of the Manor hath so established and so fixed them in their Land that if they doe their Services and Duties and performe the Customes of the Manor they are as well inheritable according to the Custome as he that hath a Franck Tenement at the Common Law and sithence Custome is the life and soule of Copyhold Estates and whatsoever shall or can be spoken touching Copy-holds ariseth from this Head and from this Fountaine Give mee leave in the second place to speake something concerning them SEC XXXIII CVstomes are defined to be a Law or Right not written which being established by long use and the consent of our Ancestors hath beene and is daily practised Custome Prescription and Vsage howsoever there be correspondencie amongst them and dependancie one on the other Custome Prescription and Vsage how they differ and in common speech one of them is taken for another yet they are three distinct things Custome and Prescription differ in this 1. Custome cannot have any commencement since the memory of man
be no strange thing to place their lands under the rancke of the Lords demesnes But to deliver my minde more freely in this point I thinke that howsoever according to the strict rules of Law these Copy-holds are parcell of Lands demesnes yet in propriety of speech if propriety can be in impropriety they are the more aptly called the Copy-holders demesnes for though the Franke tenement be in the Lord by the Common Law yet by the custome the inheritance abideth in the Copy-holders and it is not denied if a Copy-holder be impleaded in making tytle to his Copy-hold he may justly plead quod est seisitus in Dominico suo with this addition secundum consuetud Manerii Therefore I conclude that howsoever the Common Law valueth the tytle of the Copy-holder yet he hath such an interest confirmed unto him by Custome that the Lord having no power to resume his Lands at your owne pleasure they are though improperly called yet peradventure truly accounted the Lords demesnes and that in the eye of the world howsoever it be in the eye of the Law that these Lands alone can properly challenge the name of the Lords demesnes if any Lands in the possession of inferior Lords may properly challenge that name which the Lord reserveth in his owne hands for the maintenance of his owne Boord or Table be it his waste ground his arable ground his pasture ground or his medow be it his Copy-hold which he hath by escheate by forfiture or by purchase or be it any part of his Freehold Land of which I must speake a word by the way not to prove that it is demesne for manifesta probatione non indigentes but to shew you in what sense it is taken and how farre it extendeth SEC XV. A Freehold is taken in a double sense either 't is named a Freehold in respect of the state of the Land or in respect of the state of the Law SEC XVI IN respect of the state of the Land so Copyholders may be Freeholders for any that hath any estate for his life or any greater estate in any Land whatsoever may in this sense be termed a Freeholder SEC XVII IN respect of the state of the Law and so it is opposed to Copy holders that what Land soever is not Copyhold is Freehold and in this sense I take throughout this Discourse SEC XVIII THe name of Freeholders extendeth not onely unto Lands held per servitium militare as it did by th' ancient Lawes of Scots Skens de verb. sign tit milit and amongst whom Freeholders were knowne by the name of milites but it reacheth likewise to lands holden per servitiū Socae whether in libero Socagio or in villano Socagio Liberum Socagium is where any Tenant holds of any Lord by paying yearely a certaine summe of money in lieu of tillage and such like services and not by escuage and this is termed sometimes common Socage Socagium villanum is where the ancient services of carrying the Lords dung into the fields Stat. 37 H. 8. Cap. 20. It is so called of plowing his ground at certaine dayes of plashing his hedges and such are not turned into money but remaine still unaltered and if you doubt that such Land as is held per villanum Socagium cannot come within the compasse of Freehold Land for your satisfaction reade Bracton lib. 2. cap. 8. num 8. Hactenus de primo defunctionis membro ad secundum properemus pauca de servitiis Domino debitis periractemus Services in individuo are manifold in specie threefold 1. Corporall services 2. Annuall services 3. Accidentall services Corporall services are of two sorts Services of Submission services of Profit SEC XIX SErvices of Submission are homage and fealty which are certaine Ceremonies used among tenants whereby they submit themselves unto their Lords and binde themselves by solemne oath or by faithfull promise from that day forward to become the Lords men for life for member for terrene honour or adminimum to owe unto him faith for the Lands which they hold of him Both these Ceremonies are used at the first entrance or admittance of any Tenant and both tend to one end viz. to inforce every Tenant to acknowledge and confesse himselfe Tenant unto his immediate Lord yet they differ in many materiall points SEC XX. IN regard of their severall manner of performance for in doing fealty the Tenant taketh a solemne oath in doing homage only giveth his faithfull promise and thence it is that fealty is accounted the more sacred service though homage be the more humble service and performed with farre greater reverence than fealty in many respects for in doing homage the Tenant kneeleth in doing fealty he standeth in doing homage the Tenant must remaine uncovered in doing fealty he may remaine covered in doing homage the Lord kisseth his Tenant in doing fealty he kisseth him not Lastly in doing homage the Tenant promiseth to become the Lords man for life for member and terrene honor In doing fealty he onely sweareth to become the Lords faithfull Tenant the reason of this difference I learne to be this Skens de verb. signum Homage because homage especially concerneth service in warre properly appertaineth unto Knights service but fealty chiefely concerneth service at home and properly appertaineth to Socage tenure and though now 't is held that a Tenant by Socage may doe homage and that homage ex se maketh Socage tenure and not Knights service yet originally homage was invented for Tenants by Knights service and such as were bound by their tenure to attend their Lords in the warres but fealty was primarily devised for Tenants in Socage and such as were bound by their tenure to manure the Lords ground and carefully to discharge all rurall affaires and this agreeth with the ancient Lawes in Scotland for amongst them none were accounted Freeholders but onely Tenants by Knights service and consequently none but they could doe homage and therefore marvell not why in doing homage the Tenant promiseth to become the Lords man for life for member for terrene honor in doing fealty hee onely sweareth to become the Lords faithfull Tenant 2. They differ in regard of the persons to whom they are performed and that two wayes In respect none is capable of receiving homage but the Lord in person but the Lords Steward or his Bailiffe is capable to receive fealty in the Lords behalfe 2. In respect that a Lord who hath but an estate for his life in his Seigniory cannot receive homage but such a Lord may receive fealty 3. They differ in regard of the persons to whom they are performed and that two wayes 1. In respect th t no Copyholder is capable of doing homage but he is of doing fealty witnesse common experience 2. In respect that a Tenant for life or yeares is unable to doe homage for t is a ground in Law that none can doe homage but tenant in fee-simple or ad
manus suas capere ita tamen moderate id fleri debet ne aliquam disseisinam haeredibus faciant possunt enim haeredes si opus fuerit violentiae Dominorum resistere dum tamen parati sunt Relivium altaretro servitia eis inde facere with this agreeth the definition of Hotoman Hotoman Comment de verbo seod verbo Relivium Relivium est honorarium quod novus vassallus introitus causâ patrono largitur quasi morte usuali altius vel alâ—o quo casu feoduÌ„ ceciderit quod jam a novo sublevatur This reliefe by the ancient Civill Law was termed Introitus and Vincentius termeth it Praestantionem seu saluationem factam pro confirmatione seu renovatione possessionis and that very aptly for indeede Reliefe is the key which opens the gate to give the heire free passage to the possession of his inheritance Bracton giveth this reason why it is called a Reliefe Bracton lib. 2. cap. 86. Quia haereditas quae jacens fuit per antecessoris decessum Releviatur in manus haeredis propter factam relevationem faciend erit ab haerede quaedam praestatio quae dicitur Relevium Skene de verbo signum tit Reliefe Skene fondly imagineth that it taketh his name a relevando in another sense for saith he Reliefe is given by the Tenant or Vassall being of perfect age after the expiring of the Wardship to the Lord of whom he held his Land by Knights service it is by Ward and Reliefe and by payment thereof he relieves and as it were raiseth up againe his lands after they were fallen downe into his superiors hands by reason of Wardship Glanvil lib 9. cap. 9. But these words of Glanvil will serve to convince him of error Taâ—dam vero eodeâ—ad aetateÌ„ pervenieâ—te facta eâ— haereditutis restitutione quietas erit a Relivio ratione custodiae this Reliefe is twofold 1. Reliefe Service 2. Reliefe Custome Reliefe Service is that which is paid upon the death of any Freeholder Reliefe Custome is that which is paid upon the death change or alienation of any Freehold according to the Custome of the place in many places halfe a yeares profit in many places a whole yeares profit and therefore where Bracton saith Quod dat Domino Relevium qui succedit jure haereditatis non autem is qui acquirit that is to be taken with this caution nisi illud etiam consuetudine praestare debet qui acquirit These Reliefes are paid as well for lands-holden in Soccage as Lands holden by Knights service for lands holden in Soccage in this manner If a Tenant in Soccage die his heire above the age of fourteene then shall the heire double the Rent that his Ancestors was woâ—â— to pay to the Lord as if the Tenant holdeth of his Lord by fealty and five shillings then shall the heire double the Rent and shall pay ten shillings viz. five shillingâ— in the name of a Reliefe over and above the five shillings which hee payeth for his Rent For Lands holden by Knights service in this manner if a Tenant by Knights service dieth his heire of full 21. if he holdeth by an intire Knights Fee hee payeth five pound if by halfe a Knights Fee then he payeth fiftie shillings if by a quarter of a Knights Fee hee payeth 25. shillings and so proportionably who so holdeth more payeth more and who holdeth lesse payeth lesse yet for the fuller apprehension of the quantity of a Reliefe let us examine what a Knights Fee signifieth A knights Fee is so much land as in ancient time was accounted a sufficient living for a Knight but whether this was rated according to the quantity or according to the value Causidici certant adhuc sub jâ—di ce lis est Some hold according to the quantity and that according to the severall computations used in severall places A Knights Fee was either more or lesse as in the Dutchie of Lancaster a Knights Fee contained foure hydes of land every hyde foure carnes of land every carne foure yard lands every yard thirty acres and every Knights Fee 1920. acres According to other computations a Knights Fee contained 680 but according to most computations a Knights Fee contained five hides of land evey hide foure yard lands every yard land 24. acres according to which computation a Knights Fee contained 480. acres so that according to severall computations a Knights Fee was more or lesse Others hold that a Knights Fee was measured according to the quality not according to the quantity according to the value not according to the content and amongst these some hold that land to the value of fifteene pound par annum made a Knights Fee and therefore Camden in sua Brâ—tan pag. Camden saith that Sub Henrich tertio quodammodo coacti fueruÌ„t equites fieri quot quot libras quindeceÌ„ exannuis terrarum redditibus colligarunt and out of Matthew Paris hee writeth that anno 1256. Exit edictum regium preceptumque est acclamatum per totum regnum ut qui haberet 16. libratas terrae supradict armis redimitus tirocinio donaretur ut Anglia sicut Italia militia roboraretur qui nollent vel qui non possunt honorem status militaris sustinere pecunia se redimerent Others hold that census â—questris was fortâ—e pound revenue in Freehold land and of this opinion is Sir Thomas Smith Smith de rep pag. 31 32 33. others held that census equestris was twentie pound revenue and this opinion is confirmed by many authorities and reasons cited in Anth. Lowes Case by an ancient Treatise de modo tenendi Parliamentum tempore Regis Edwardi filii Etheldred where it appeareth quod comitatus constabat ex viginti feodis unius militis quolibet feodo computato ad viginti libratas Baronia constabat ex 13. in feodis ac tertia parte unius feodi militis secundum computationem predicta unum feodum militis constabat ex terris ad valentiam 20. li. and therefore where the Statute of Ed. 2. dâ—militibus provideth that a Knights Living shall be measured by the value of twenty pound per annum this is but an affirmance of the Common Law 2. This is strengthened by the words of the Statute of W. 1. cap. 36. and by Fitch Fitch nat Bâ—evâ—um fo 62. this seemeth something pregnant for in both these places Soccage land to the value of twentie pound par annum are put in equipage with a Knights Fee 3. In a Writ of mesne brought per Ranulphum de Normanvile petentem versus Luciam de Kyme tenentem P. 3. E. 1. appeareth that twelve carnes of Land made a Knights Fee every carne being in ancient time of the value of five nobles per annum according to which account a Knights Fee amounted to twenty pound per annum These are the severall opinions touching the quantity of a Knights Fee imbrace of these which shall seeme most
aliquid de suo honorabili contenen amittat and therefore by this appeareth that this Stat. of Magna Charta was but an affirmance of the Common Law in this point of afferance Touching the second question know that 't is not in the power of the Court to impose a Fine or an Amerciament at their election for any offence committed but still the quality of the punishment must necessarily sute with the qualitie of the offence from the severall natures of offences committed arise the severall names of punishments inflicted The offences in respect of the place are twofold and in respect of the persons twofold In respect of the place offences committed extra curiam of which the Steward by no common possibilitie can have cognizance without the presentment of the homage and therefore the power of presenting them and imposing punishments for them belongeth unto the Jurors of the Leet and not unto the Steward and these punishments thus imposed are termed Amerciaments 2. Offences committed in Curia of which the Steward can take sufficient notice without the helping hand of the homage and therefore the punishments of these offences belong unto the Steward not unto the Jurors and these punishments thus imposed are termed Fines Thus in respect of the place offences are twofold In respect of the person they are likewise twofold Offences committed by private persons 2. Offences committed by publike Officers and Ministers of the Court in the administration of their office punishments imposed for offences of the former ranke are termed Amerciaments of the latter ranke Fines the one afferable per pares th' other not and the reason why the Statute of Magna Charta in this point of afferance extendeth not unto any offences committed in Court by private Persons Co. 8. Greislegt Cafe or publique Officers neither unto any offences committed extra curiam by publique Officers in administration of their Office is this because though the words of the Statute are generally extending unto all offences whatsoever yet th' intent of the Statute makers was not to make the Jurors Afferors in omnibus delictis mulctandis sed in iis tantummodo puniendis quorum certam possint habere notitiam Fleta lib. 1. cap. 98. intelligentiam as Fleâ—a speaketh and therefore sithence the Steward hath more certaine notice of offences committed in curia by what persons soever then the Jurors have and can better judge and discerne of the natures and qualities of offences committed Extra curiam by publike Officers than Jurors can therefore surely the intent of this Statute was to leave the punishment of these offences to the discretion of the Steward and not the afferance of the homage Thus much concerning Amerciaments a word concerning Forfeitures SEC XXVII FOrfeiture commeth of the French word Forfaict scelus quia scelerum delictorum perpetratio est forisfacturarum causa origo In our Language it signifieth the effect of transgressing rather than the transgression it selfe I meane it signifieth the penalty for the offence committed rather than the act it selfe whereby the offence it selfe is perpetrated and it extendeth both unto Lands and unto Goods unto Lands both Copyhold and Freehold Touching the causes from whence springeth the forfeiture of Copyhold Lands I shall have occasion to speake more liberally in another place and therefore I will silently passe them over speaking some few words touching the causes from whence Forfeitures of Freehold Land arise The causes are many amongst the which I have observed 1. That if any Freeholder alieneth his Land in Mortmaine hee forfeiteth his Freehold 2. If a Freeholder ceaseth for the space of two whole yeares to performe such Services or to pay such Rents as he is tied unto by his Tenure and hath not upon his Land sufficient goods or chattels to be distrained he forfeiteth his Freehold 3. If any Freeholder infringeth any condition whereunto hee is tied hee forfeiteth his Freehold Touching the causes from whence grow the forfeitures of goods they are likewise in number many and from the severall causes of forfeiting goods arise severall names of goods forfeited 1. If a Felon stealeth goods and upon pursuite made waiveth these goods and leaveth them in any part of the Manor and be not attached upon the fresh suite of the owner then are these goods forfeited to the Lord and are termed waives 2. If any beasts are found wandering in any place and be proclaimed in three market Townes adjoyning and are not claimed by the owner in a yeare and a day then are the beasts forfeited to the Lord who hath such a liberty and are termed Estrayes 3. If any suffer Shipwracke upon the Seas and through the violence of the Waves goods are cast upon the Shore and being seized by the Bayliffe are not claymed within a yeare and a day after the seisure then are these goods forfeited to the Lord who hath that Franchize and are termed Wrecks 4. If one come to a violent end without the fault of any reasonable creature then immediatley that thing which is the cause of that untimely death becommeth forfeited unto the Lord and it is termed a Deodand as this old Verse testifieth Omnia quae movent ad mortem sunt Deodanda as if a Horse striketh his Keeper and killeth him or if a man driveth his Cart and seeking to redresse it falleth and the Cart wheele running over him presseth him to death or if one felling a tree giveth warning to commers by to look to themselves and notwithstanding warning given some body is slaine by the fall of the tree the Horse in the first Case the Cart and the Horses in the second Case the Tree in the third Case are forfeited to the Lord as Deodands many other sorts of forfeited goods I might adde unto this but I will forbeare to enumerate any more in this kind and to speake more largely of these which I have already enumerated for three speciall reasons 1. Because they are duties accruing unto the Lord not meerely from the Tenants nor solely by the Act of the Tenants but most commonly from strangers and by the sole act of strangers and therefore I confesse are not aptly ranked under the name of Services 2. Because a perfect Manor may well subsist without their assistance since they adde nothing to the perfection of the essence of a Manor 3. because they are not incident unto every Manor but into such Manors onely as can challenge them either by speciall prescription or by Patent from the King for primarily and originally these forfeitures of goods belonged to the King for these reasons especially because what goods soever have no certaine owner knowne to challenge interest in them as waives estrayes and wreckes the propertie of such goods belong unto the King virtute praerogativae and thus much Bracton intimateth when he saith Sunt alia quaedam quae in nullius bonis esse dicuntur sicut wreccum maris c. aliae res quae Dominum non
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
were deprived of that dignity which was inherent to their names yet their Courts retaine still the name of Court Barons because they were originally erected for such personages as were Barons neither hath time beene so injurious as to eradicate the whole memory of their auncient dignity in their name there is stamps left of their nobility for they are still intituled by the name of Lords These Courts differ from Court Leets in diverse respects In this that Court Barons by the Law may be kept once every three weekes or as some thinke as often as it shall please the Lord though for the better ease both of Lords and Tenants they are kept but very seldome but a Court Leete by the Statute of magna Charta is to bee kept but twice every yeare one time within the moneth after Easter Magna Charta C. 35. 31. E. 3. Ca. 15. and another time within a moneth after Michal 2. In this that Court Barons may bee kept in any place within the Manor contrary to the opinion of Brian But a Court Leete by the Statute of Magna Charta is to be kept in certo loco ac determinato within the Precinct 3. In this that originally Court Barons belonged unto inferior Lords of Manors but Court Leets originally belonged unto the King 4. In this that Court Barons are incident unto eâ—â—â—y Manor so that every Lord of a Manor may keepe a Court Baron but few have Leets for inferiour Lords of Manors cannot keepe Court Leetes without speciall prescription or some speciall Patent from the King 5. In this that in Court Barons the suitors are Iudges but in Court Leets the Steward is Iudge 6. In this that in Court Barons the Iewrie consisteth oftentimes of lesse than twelve in Court Leets never the reason of that is because none are impanelled upon the Iewrie but Freeholders in Court Barons of the same Manor but in Court Leets strangers are oftentimes impanelled 7. In this that Court Barons cannot subsist without two suitors adminimum but Court Leets can well subsist without any suitors 8. In this that Court Barons enquire of no offences committed against the King but Court Leetes inquire of all offences under High Treason committed against the Crowne and dignity of the King In many other respects they differ as that a writ of errour lyeth upon a judgement given in a Court Leete but not in a Court Baron So in a Court Leete a Capias lyeth but in a Court Baron in steade of a Capias is used an Attachment by goods So in a Court Baron an action of debt lyeth for the Lord himselfe because the suitors are Judges but in a Court Leete the Lord cannot maintaine any action for himselfe because the Steward is Iudge but omitting these with many more I come to the Etymologie of a Manor Some derive the word Manor a manendo and then it taketh his name either from the Manor-house which the Lord maketh his dwelling place or else a manendo quia Dominus ac tenentes in Manerii sui circuit cohabitant ac manent Some thinke t is termed Manor from manuring the ground and then it taketh its name either from the Lords Demesnes which the Tenants are bound to Manure or else from the Land remaining in the Tenants hands which are likewise tilled and manured others are of opinion that it is derived of the French word mesner which signifieth to governe or guide because the Lord of a Manor hath the guiding and directing of all his Tenants within the limits of his jurisdiction and this I hold the most probable Etymologie and most agreeing with the nature of a Manor for a Manor in these dayes signifieth the jurisdiction and royalty incorporate rather than the Land or Scite Thus much touching the Etymologie A word touching the division of a Manor A Manor is twofold re nomine 2. Nomine tantum re nomine as where the two materiall causes of a Manor the efficient cause causa sine qua non doe meete and joyne together nomine tantum as where any of these causes is wanting as to insist in the two materiall causes if the Lord will transferre over to some stranger the services of all his Tenants and reserve unto himselfe the Demesnes or if he will passe away the Demesnes and reserve the services in both causes the Lord peradventure hath a Manor nomine but not otherwise because in the one cause he wanteth Demesnes in the other services So if a Manor discendeth to Co-parteners and they make partition and the intire Demesnes are allotted to the one and th' intire services to the other the Manor is now in suspence for neither of them hath any Manor but in name onely but if part of the Demesnes and part of the Services be allotted to each one then have they each of them a Manor not nomine tantum but re nomine To insist in the efficient causes If the King at this day will grant a great quantitie of land to any Subject injoyning him certaine duties and services and withall willeth that this should beare the name of a Manor howsoever this may chance to gaine the name of a Manor yet it will not be a Manor in th' estimation of the law to insist in this cause sine qua non If the King grant away a Manor to I. S. excepting the Courts and perquisites the Grantee hath a Manor in name onely So if all the Freeholders dye but one if the Lord purchase all the Freeholders land or passe away the Services of the Freeholders or release unto his Freeholders all their services notwithstanding the Demesnes and the Services of the Copiholders yet the Lord hath but a Manor in name because the Freeholders are wanting which are the maintainers and upholders of the Court Baron and consequently necessary helpe to the perfection of a Manor So if the Lord granteth away the inheritance of all his Copyholders or demiseth all his lands granted by Copie to another for 2000. yeares the Grantee in the one case and the lessee in the other have a kinde of Seigniority in grosse and may keepe a Customary Court where the Steward shall be Judge and shall take surrenders and make admittances and this in the eye of the world is a Manor though in the judgement of the law it cometh far short of one Thus much touching the division of a Manor I might here handle many collaterall jurisdictions appropriated to Lords of Manors as that our erecting Dove-houses of proving the Wills of their Tenants deceased within their Precincts in many places of inclosing Common leaving sufficient besides for the other Commoners with many of the like Sed haec lubens libensque omitio And thus closing up this part of my Treatise touching Manors I come to the other part touching Copyhold SEC XXXII INeede not stand to discourse at large th'antiquitie of the Copyholders for if you cast your eye backe to that is past
but a Prescription may both by the Comon-Law and the Civill and therefore where the Statute 1. H. 8. saith that all actions popular must be brought within three yeares after the offence commi ted whosoever offendeth against this Statute and doth escape uncalled for three yeares he may be justly said to prescribe an immunity against any such action 2. A Custome toucheth many men in generall Prescription this or that man in particular and that is the reason why Prescription is personall and is alwayes made in the name of some person certaine and his Ancestors or those whose estate he hath but a Custome having no person certaine in whose name to prescribe is therefore called and alledged after this manner In such a Borough in such a Manor there is this or that Custome And for Vsage that is the efficient cause or rather the life of both for Custome and Prescription lose their being if Vsage faile Should I goe about to make a Catalogue of severall Customes I should with Sisiphus saxum volvere undertake an endlesse piece of worke therefore I will forbeare since the relation would be an argument of great curiosity and a taske of great difficulty I will onely set downe a briefe distinction of Customes and leave the particulars to your owne observation Customes are either generall or particular generall which are part of the Common law being currant through the whole Common-wealth and used in every County every City every Towne and every Manor Particular which are confined to shorter bounds and limits and have not such choyce of fields to walke in as generall Customes have These particular Customes are of two sorts either disallowing what generall Customes doe allow or allowing what generall Customes doe disallow as for example sake By the generall Customes of Manors it is in the Copiholders power to sell to whom he pleaseth but by a particular Custome used in some places the Copyholder before he can inforce his Lord to admit any one to his Copihold is to make a proffer to the next of the blood or to the next of his Neighbours ab oriente solis who giving as much as the partie to whom the Surrender was made should have it so on the other side by the generall Customes of Manors the passing away of Copyhold land by deede for more than for one yeare without licence is not warranted yet some particular customes in some Manors doe it so by the generall Customes of Manors Presentments or any other act done in the Leete after the moneth expired contrary to the Statute of magna Charta and 31. E 3. are voyd yet by some particular Customes such acts are good and so in millions of the like as in the sequell of this discourse shall be made manifest And therefore not to insist any longer in dilucidating this point let us in few words learne the way how to examine the validitie of a Custome For our direction in this businesse wee shall doe well to observe these sixe Rules which will serve us for exact tryall 1. Customes and Prescriptions ought to be reasonable and therefore a Custome that no Tenant of the Manor shall put in his Chattell to use his common in Campis seminatis after the Corne severed untill the Lord have put in his Chattell is a voyd Custome because unreasonable for peradventure the Lord will never put in his Chattell and then the Tenants shall lose their profits so if the Lord will prescribe that he hath such a Custome within his Manor that if any mans beasts be taken by him upon his Demesnes damage Fesant that he may detaine them untill the owners of the beasts give him such recompence for his harmes as he himselfe shall request this is an unreasonable Custome for no man ought to be his owne Judge 2. Customes and Prescriptions ought to be according to common right and therefore if the Lord will prescribe to have of every Copyholder belonging to his Manor for every Court he keepeth a certaine summe of money this is a voyd prescription because it is not according to common Right for hee ought for Iustice sake to doe it Gratis but if the Lord prescribe to have a certaine Fee of his Tenants for keeping an extraordinary Court which is purchased onely for the benefit of some particular Tenants to take up their Copyholds and such like this is a good prescription and according to common right 3. They ought to be upon good consideration and therefore if the Lord will prescribe that whosoever passeth through the Kings High way which lyeth through his Manor should pay him a peny for passing this prescription is voyd because it is not upon a good consideration but if hee will prescribe to have a peny of every one that passeth over such a bridge within his Manor which bridge the Lord doth use to repaire this is a good prescription and upon a good consideration So if the Lord will prescribe to have a fine at the marriage of his Copyholder in which Manor the custome doth admit the husband to be Tenant by the curtesie or the feme Tenant in Dower of a Copyhold this prescription is good and upon a good consideration but in such Manors where these estates are not allowed the Law is otherwise 4. They ought to be compulsary and therefore if the Lord will prescribe that every Copyholder ought to give him so much every moneth to beare his charges in time of warre this prescription is voyd but to prescribe they ought to pay so much money for that purpose is a good prescription for a payment is compulsary but a gift is Arbitrary at the voluntary liberty of the giver 5. They ought to be certaine and therefore if the Lord will prescribe that whensoever any of his Copy-holders dye without heire that then another of the Copyholders shall hold the same lands for the yeere following this prescription is voyd for the incertainty but if the Lord will prescribe to have of his Copy-holders 2. d. an Acre Rent in time of warre foure pence an Acre this prescription is certaine enough 6. They ought to be beneficiall to them that alledge the prescription and therefore if the Lord prescribeth that the custome hath alwayes beene within the Manor that what distresse soever is taken within his Manor for any common persons cause is to be impounded for a certaine time within his pound this is no good prescription for the Lord is hereby to receive a charge and no commoditie but if the prescription goeth further that the Lord should have for every beast so impounded a certaine summe of money this is a good prescription If we desire to be more fully satisfied in the generall knowledge of prescriptions and Customes wee shall finde many Maximes which make very materiall for this purpose amongst which I have made choyse of these three as most worthy of your observation 1. Things gained by matter of Record onely cannot be challenged by prescription and
he useth to hold a little rod in his hand which he delivereth to the Steward or Bayliffe according to the Custome of the Manor to deliver it over to the party to whose use the Surrender was made in the name of Seisin and from thence they are called Tenants by the Verge In some Manors in stead of a wand a straw is used and in other Manors a glove is used Et consuetudo loci semper est observanda A Surrender where by a subsequent Admittance the grant is to receive his perfection and confirmation is rather a manifesting of the Grantors intention than of passing away any interest in the possession for till Admittance the Lord taketh notice of the Grantor as Tenant and he shall receive the profits of the Land to his owne use and shall discharge all Services due to the Lord but yet the interest is in him but secundum quid and not absolutely for he cannot passe away the Land to any other or make it subject to any other incumbrance than it was subject to at the time of the surrender neither in the Grantee is any manner of interest invested before admittance for if hee enter he is a trespasser and punishable in trespasse and if he surrender to the use of another this surrender is meerely void and by no matter ex post facto can be confirmed for though the first surrender be executed before the second so that at the time of the admittance of him to whose use the second surrender was made his surrenderer hath a sufficient interest as absolute owner yet because at the time of the surrender he had but a possibility of an interrest therefore the subsequent admittance cannot make this act good which was void ab initio but though the Grantee hath but a possibility upon the surrender yet this is such a possibility as is accompanied with a certainty for the Grantee cannot possibly be deluded or defrauded of the effect of his surrender and the fruits of his Grantee for if the Lord refuse to admit him he is compelable to do it by a Sub paena in the Chancery and the Grantors hands are ever bound from the disposing of the Land any other way and his mouth ever stopped from revoaking or countermanding his surrender But peradventure if a Copyholder languishing in extremity surrendreth out of Court to the use of his Cosin in consideration of consanguinitie or to the use of his sonne in consideration of naturall love and affection and after recovereth his health before presentment this surrender is revocable or countermandable but if it be granted upon valuable consideration as for the discharge of debts or for a summe of money paid though it be made out of Court yet it is as binding as any surrender whatsoever made in Court And thus much for a Surrender a word of a Presentment SEC XL. THe Presentment by the generall Customes of Manors is to be made at the next Court day immediately after the surrender but by speciall Custome in some places it will serve at the second or third Court And it is to be made by the same persons that tooke the surrender and in all points materiall according to the true tenure of the surrender And therefore if the surrender be conditionall and the Presentment be absolute both the Surrender Presentment and Admittance thereupon are wholly void But if the Conditionall surrender be presented and the Steward in entring of it omitteth the Condition yet upon sufficient proofe made in Court the surrender shall not be avoided but the Roll amended and this shall be no conclusion to the partie to plead or give in evidence the truth of the matter If I surrender out of Court and die before Presentment if Presentment be made after my death according to the Custome Co. 4. fo 39. b. this is sufficient so if hee to whose use the surrender is made dieth before Presentment yet upon Presentment made after his death according to the Custome his heire shall be admitted and so if I surrender out of Court to the use of one for life the Rendrour and the Lessee for life dieth before Presentment yet upon Presentment made he in the remainder shall be admitted And so if I surrender to two joyntly and one dieth before Presentment the other shall be admitted to the whole The same Law is if those into whose hands the surrender is made dye before Presentment upon sufficient proofe in Court that such a surrender was made the Lord shall be compelled to admit accordingly and if the Steward the Bailiffe or the Tenants into whose hands the surrender is made refuse to present upon a Petition or a Bill exhibited in the Lords Court the party grieved shall finde remedy But if the Lord will not doe him right he may both sue the Lord and them that took the surrender in the Chancery and shall there finde reliefe Thus much of Presentments A word of Admittance SEC XLI ADmittances are threefold 1. An Admittance upon a voluntary Grant 2. An Admittance upon Surrender 3. An Admittance upon a Discent Involuntary Admittances the Lord is an instrument for though it is in his power to keepe the Land in his owne hands or to dispose of it at his pleasure and to that intent may be reputed as absolute owner yet because in disposing of it he is bound to observe the Custome precisely in every point and can neither in Estate nor Tenure bring in any alteration in this respect the Law accounts him Customes instrument If the Custome doth warrant an estate onely Durante viduitate and the Lord admits for Life this shall not bind his heire or successor because Custome hath not sufficiently confirm'd it So if the Lord faile in reserving verum antiquum redditum as if he reserveth ten shillings where the usuall rent Customably reserved is twenty shillings this may be a meanes to avoide the admittance and the Law is very strict in this point of reservation for though the ancient accustomable rent be reserved according to the quantity yet if the quality of the rent be altered the heire may avoid this Grant for if the ancient rent from time to time hath been twenty shillings in Gold and the Lord reserveth it in Silver this variance of the qualitie of the rent is in force to destroy the Grant so if the ancient rent hath beene accustomably paid at foure Feasts in the yeare and the Lord reserveth it at two Feasts So if two Copyholds Escheate to the Lord the one of which hath beene usually demised for twentie shillings rent th' other for ten shillings rent and he granteth them both by one Copy for one rent of thirty shillings this is not good and so if a Copyhold of three acres Escheates which hath beene ever granted for three shillings rent and the Lord granteth one Acre and reserveth pro rata one shilling rent verus antiquus reddit is not reserved but if a Copyhold of sixe
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
licence of the Lord maketh a Lease for yeares the Lessee cutteth downe trees the Copyholder shall not have a Writ of waste but shall sue at the Lords Court to punish this waste If a feme Dowable by Custome of a Copyhold by plaint in the Lords Court recovereth Dower and damages no action of debt lieth at the Common Law for these damages because the action though it be in it selfe personall yet it dependeth upon the realitiy If a Copyholder maketh a Lease by Copy for Yeares or by Deede with Licence an action of debt lieth for the Rent reserved upon either Lease at the Common Law but I much doubt whether he can avow for the Rent either in the one or in the other no more than Cestuy que use before the Statute 27. H. 8. cap. 10. could avow for the Rent reserved by him upon a Lease for yeares and yet he could maintaine an action of debt for such a Rent because an action of debt is grounded upon the contract If a stranger cut downe trees growing in the Copyhold ground an action of trespasse lieth at the Common Law against him so doth it against the Lord where hee cutteth them downe when by Custome they belong to the Tenant because this is a meere personall action and damages onely are to be recovered And if a copyholder without Licence maketh a Lease for one yeare or with Licence maketh a Lease for many yeares and the Lessee be ejected he shall not sue in the Lords Court by plaint but shall have an ejection firme at the Common Law because hee hath not a Customary estate by Copy but a warrantable estate by the rules of the Common Law Thus much of the manner how Copyholders are to impleade and be impleaded SEC LII I Come now in the sixt place to shew under what Statutes Copyholders are Comprehended Copyholders are comprehended under Statute either by expresse limitation in precise words or by a secret implication upon generall words by expresse limitation in precise words As by the Statute of the first of R. 3. cap. 4. it is expressely provided that a Copyholder having Copyhold Land to the yearely value of twenty sixe shillings and sixe pence above all charges may be impanelled upon a Jury as well as he that hath twenty shillings per annum of Freehold-Land So by the Statute of 1. E. 6. cap. 14. it is expresly provided that upon the dissolution of Abbyes and Monasteries Copyholds should continue as they did before the Statute and should fall into the Kings hands So by the Statute of 2. E. 6. cap. 8. it is expresly provided that the interest of a Copy-hold should be preserved notwithstanding it be not found by Office after the decease of the Kings Tenant So by the Statute of 1. Mar. cap. 12. it is expresly provided that if any Copyholder being Yeoman Artificer Husbandman or Labourer and being of the age of eighteene or more under the age of sixtie not sicke impotent lame maymed nor having any other just or reasonable cause of excuse upon request made by any man in authourity refuseth to aide Justices in suppressing of riotous persons that then immediately he shall forfeit his Copyhold to the Lord of whom it is held during the Copyholders naturall life So by the Statute of 5. Eliz. cap. 14. it is expresly provided that the forging of a Court Roll to the intent to defraud a Copy-holder shall be as well punishable as the forging any other Charter Deede or Writing sealed whereby to defeate a Copyholder or Freeholder So by the Statute of 13. Eliz. cap. 7. It is expresly provided that the Copyhold Land as well as the Freehold Land of a Bankerupt shall be sold for the satisfying of the Creditor So by the Statute of 14. Eliz. cap. 6. It is expresly provided that if any of the Queenes subjects goeth beyond the Seaes without Licence that then the Queene shall not onely take the ordinary profits of the fugitives Copyhold Land as they arise but shall let set and make Grants by Copy and usuall Wood-sales and other things to all intents and purposes as a Tenant pro terme durante vie may doe So by the Statute of the 35. Eliz. cap. 2. It is expresly provided that if any person or persons being convicted of recusancie repaire not home to their usuall place of abode not removing from thence above five miles distant that then any person or persons thus offending shall not onely forfeit their Freehold Land to the Queene but withall their Copyhold Land to the Lord or Lords of whom it is holden Thus have I shewed in briefe under what Statute Copyholders are comprehended by expresse limitation in precise words Now I will shew you as briefely as I can under what Statute they are comprehended by secret implication upon generall words SEC LIII SOme hold that all Statutes that speake generally of Tenants extend to Tenants by Copy but it is much to be feared that wee shall wander from the Truth if we give credit to this conceit for if wee peruse the Statute we shall meete with an infinite number of them that speak generally of Tenants and yet touch not Tenants by Copy wherefore not giving way to this opinion as being erronious I will set you downe an infallible rule which will truely direct you in the exposition of the generall words in Statutes and that is thus When an Act in Parliament altereth the service tenure interest of the Land Co. 3. fo 8. or other thing in prejudice of the Lord or of the Custome of the Manor or in prejudice of the Tenant there the generall words of such an Act in Parliament extend not to the Copy-hold but when an Act is generally made for the good of the Common-wealth and no prejudice may accrue by reason of the alteration of any interest Service Tenure or Custome of the Manor there usually Copy-holds are within the generall purveiw of such Acts. The Statute of West 2. ca. 1. of intailes extendeth not to Copyholds because it would be prejudiciall to the Lord for by this meanes the Tenure is altered for the Donee intayle without any speciall reservation ought to hold of the Doner by the same Service that the Doner holdeth over besides the words of the Statute are Quod voluntas Donator in charta Domini sui manifesta expressa decetero observit which proveth that the intent of the Statute was that no hereditament should be intailed within this Statute but such an one as either was given or at least may be given by Charter or Deede but Copyholds are no such hereditaments and therefore not within the body of the Act yet it is holden that Custome with the cooperation of the Statute will make an estate tayle The Statute of W. 2. ca. 20. which giveth the Elegit extendeth not to Copyhold because it would be prejudiciall to the Lord and a breach of the Custome that any stranger should have interest in the Lands holden by
Copy without the admittance and ordinary allowance of the Lord. The Statute of 16. R. 2. cap. 5. which maketh it a forfeiture of Lands Tenaments and Hereditaments to the purchasor of Excommunications Bulls c. in the Court of Rome against the King c. extendeth not to Copyhold because it would be prejudiciall to the Lord to have the King so farre intereressed in his Copyhold without his consent The Stature of 2. H. 5. ca. 7. of Heretiques extends not to Copyholds for though the Lord of a Manor is yearely to receive a benefite in having the Lands after the yeare and the day forfeited unto him yet because the King is a sharer in this for feiture therefore Lands by Copy are not comprehended under the generall words besides the Statute speaketh of the Kings having annuum diem vastum of these Lands forfeited for heresie as in Lands forfeited for felony whereby it appeareth that the meaning of the Statute is that such Lands onely should be forfeited in which the King by the ordinary course of the Law should have An nuum diem vastum if the Tenant of them had committed felony but such lands are not Lands by Copy for if a Copyholder committeth felony his Copyhold is presently forfeited to the Lord therefore Copyholds are out of the generall purview of this Statute SEC LIV. THe Statute of 27. H. 8. ca. 10. of Vses toucheth not Copyholds because the transmutation of possession by the sole operation of the Statute without allowance of the Lord or the Agreement of the Tenant would tend to the prejudice both of the Lord and of the Tenant and the branch of the same Statute which speaketh of Joyntures toucheth not Copy-holds because Dowers of Copyholds are warranted by speciall Custome onely and not by the Common Law or by the generall Custome The Statute of 31. of H. 8. ca. 1. 32. H. 8. cap. 32. by which joynt-Tenements and Tenants in Common are compellable to make partition by a Writ de partitione faciend As Coparteners at the Common Law touch not Copyholds because this alteration of the Tenure without the Lords consent may sound to the prejudice of the Lord. The Statute of 32. H. 8. ca. 28. which confirmeth Leases for 21. yeares or three Lives made by Tenants in tayle or by the husband and wife of the Lands of the wife touch not Copyhold for the Statute speaketh of Leases made by Deede onely so that the intent of the Statute is to warrant the Leasing of such Lands only as are Grantable by Deede but such are not Copyhold-lands for though they may by Licence of the Lord be demised by Indenture yet in their owne name they are demiseable onely by Copy and therefore out of the generall purview of the Statute for the same reason the same Statute cap. 34. which giveth an entry to the Grantee of a Reversion upon the breach of a Condition by the particular Tenant toucheth not Copyholds SEC LV. THe Stat. of 17. E. 2. cap. 10. which giveth the Wardships of Idiots Land unto the King toucheth not the Idiots Copyhold for thereby great prejudice would accrue to the Lord. But the Statute of Marton cap. 1. which giveth damages to a feme upon a Recovery in a Writ of Dower Co. 4. fo 30. b. where the Baron dieth seised extendeth to Copyhold So that the Statute of Westm 2. cap. 3 and the three severall branches of the same Statute 1. The one which giveth the Cui in vita upon a discontinuance made by the Baron 2. The second which giveth the receit unto the feme upon the Barons refusall to defend the wives title 3. And the third which giveth a quod ei deforceat to particular Tenants extends to Copyhold So that the Statute of 31. H. 8. ca. 13. of Monaster which provideth for the avoidance of doubling of estates And the Statute 32. H. 8. cap. 9. against Champertie and buying of Litigious Titles and chap. 28. which giveth an entry in Liew of a Cui in vita Co 4. fo 26. extendeth all to Copyholds because these Statutes are beneficiall to the Common-wealth and not at all prejudiciall to the Lord in the alteration of Tenure estate Service c. So the Statute of 4. H. 7. cap. 24. of Fines extendeth to Copyholds for if a Copyholder be disseised and the Desseisor levieth a Fine with proclamations and five yeares passed without any claime made this is a barre both to the Lord and to the Copyholder So if a Copyholder make a Feoffment in Fee and the Feoffee levieth a Fine with proclamation and five yeares passe the Lord is barred but if a Copyholder levie a Fine and five yeares passe the Lord is not barred for the Fine levied the Copyhold having no Franck-Tenant is utterly voide And whereas it hath beene doubted that this Statute should not extend to Copyhold but the Lord should hereby receive grand prejudice Co. 9. fo 105. a. for he should not onely lose the Fines upon alienations or descents and the benefit of forfeiture but should withall be in hazard to be barred of his Franck-tenant and inheritance To that I answer if the Lord receive any such prejudice it is through his owne default for not making claime for in regard of the privitie in estate that is betweene him and the Copyholder he may make claime as well as the Copyholder himselfe Et vigilantibus non dormientibus jura subveniunt Thus have I shewed under what Statutes Copyholds are comprehended I come now in the seventh place to speake of Fines SEC LVI A Fine is a summe of money paide to the Lord of the Mannor for an Income into any Lands or Tenements In some Manors Fines are certaine in some incertaine Fines of Copyholds By speciall Custome Copyholders are to pay Fines upon Licences granted unto them to demise by Indenture but by generall Custome they are to pay Fines onely upon admittances If the Lord having a Copyhold by Escheate forfeiture or other meanes maketh a voluntary admittance a Fine is due unto the Lord. If a Copyholder surrendreth to the use of a stranger and the Lord admitteth a Fine is due to the Lord. So if a Copyhold descendeth and the Lord admitteth the heire where by the Custome of the Manor the wife is to have Dower and the husband is to be Tenant by the curtesie of a Copyhold either of them shall be admitted and shall pay a Fine to the Lord. If a Copyhold be granted du rante vie and the Grantee dieth living Cestuy que vie and a stranger entreth as a generall occupant he shall be admitted and shall pay a Fine And so if a Copyhold be granted to one and his heires durante vie and the Grantee dieth and his heire entereth as a speciall occupant where by the Custome of the Manor a Copyhold may be extended upon the extent the party shall be admitted and shall pay a Fine Where by the Custome of the Manor