else an Estate in Dower limited to a wife in mariage and this reckoned Free-hold for that it is an Estate for life An Estate for years by grant of the Estates for years by grant partie is when by Lease either in writing or word called a Lease parol or by Will such an Estate is granted An Estate for years by Law is divers Estates for years by the Law as that which the Lord or Guardian hath till his Ward be of full age the like by Elegit grounded upon a Statute Ed. 1. upon a recovery of Debt Trespasse or Acknowledgment of Debt in the Chancerie or before a Judge The like Estate for years by Law is by the Statute merchant or staple By acknowledging a debt before the Major of the Staple of antient Cities and some special merchandizing Towns The two last Estates for years created by the Law were ordained for the better recovery and assurance of due debts but whether they or that of a Guardian be Estates for lives by Law some make question There are two other Estates whereof Tenant by Copie of Court-roll first reckoned Tenants at will But now not so the Holders are called Tenans at Will but of them although they be so termed the first is now allowed for a more ample Estate by use and Continuance that is to say Tenant by Copie of Court-roll first called Tenant in Vilainage But now according to the Custome of Mannors these Tenants are not to be altered but may renew their Estates by common course The other which is the last the Tenant at will the meanest Estate the Law alloweth of least and meanest Estate that the Law alloweth is called Tenant at will who hath no longer term than standeth with the will and pleasure of the Landlord CHAP. VII Of Assurances and Conveyances which grow out of these Estates by the Common-law SInce we see that the Estates and Interests of Men cannot pass from one unto another but by Descent or by Conveyance It were not amiss to manifest the general course of Assurances which are usual and admitted by the Common-laws of this Realm These Estates have for the most part their passages by Feoffment by Deed by Fine and Release by Common-recovery by Wills and by Vses Feoffment is by Liverie and Seisin Feoffment that is by deliverie of Possession upon the Land by taking of turfe and twigg but in antient time as Bracton lib. 2. How it was executed in antient time sheweth when there was no House on the Land it was heretofore per fustim per baculum and this Livery by Bracton is called Vestimentum donationis thereby putting the party to whom the Estate is granted in possession or some other to his use by Letter of Attorney And though this be of the Possession only yet without Liverie and Seisin no Feoffment can receive life or force A Feoffment is proper to an Estate A Feoffment proper to an Estate for life at the least for life at the least and so upwards or else by grant of the Reversion and Attornament of the particular Tenant which must be by Deed because the possession passeth not by delivery only This Conveyance was antient and most of Force being notorious of which the Country might take notice and is much used at this day Exchange of Land whereby one Exchang of lands parcel of Land is exchanged for an other of equall estate heretofore much used but not now Grants by Deeds written in paper Graunts by Deeds with Dedi concessi or parchment sealed and delivered with these words Dedi concessi c. have been antient and most usual so is it yet used but not so frequent especially in Estates of any value An other Assurance there is by Fine which also is antient at the first it was the agreement of parties upon Arbitrement or otherwise after a Controversie arisen when an Action is brought and hanging for so is the ancient Law after H. 3. his time for before and then Fines were received of many such things and in such sort as will not be now admitted So was it set down betwixt them in these words Haec est finalis concordia that is That this is the final agreement betwixt such and such persons Therefore as some say it was called finis quia finem imponit litibus because it maketh an end of strife This Conveyance is most antient as some hold it before the Conquest but now used in the King's Court of Common pleas and principally in some Courts of Record to make the Assurance more forcible and certain The same by a Statute made in the Fines strengthned by Statute 18th year of Edw. 1. was strengthened and by the same Statute every person of full age of sound minde out of prison and within the Realm were bound and concluded by a Fine if they did not make Claim within a year and a day after the Fine levied But this Statute being thought too penal and prejudicial to Mens rights was repelled by another Statute in the four and thirtieth year of King Edward the third And then men were at liberty as before to make their Claim at any time But afterwards this Satute of 34 Former Statutes concerning Fines repealed Edw. 3. was also repealed by a Statute in the fourth year of King H. 7. and also by a Statute in the 32 H. 8. Fines were made so strong that after the Fine ingrossed and Proclamation made all persons after 5 years Non-claim were bound unless they were under age lunatick in prison or out of the Land at the time of the Fine levied And by this Statute of 32 H. 8. Tenant in tail may barr his issue which before he could not by reason the Statute of 13 Edwardi 1. provided he should not binde him by any act Another Conveyance there is now Common-recoverie an Undoer of former Conveyances much in use yet not very antient which may be called a Pick-lock or an Undoer of former Assurances This is called a Common-recovery and was never used till about the 12 year of Ed. the 4. it is not warranted by any Statute but an Invention first grounded upon a mere Conceipt now held the strongest Conveyance The Invention was that the Issue The fraudulent invention of Common-recoveries in tail or he in the Reversion or Remainder upon a tail should be barred of his Right and Estate by a recovery against the Tenant in tail wherein Tenant in tail upon a supposed Warrantie did vouch an estranger because the Issue or he in the Reversion by this voucher was supposed to have a recompence in satisfaction of his Estate which being not so indeed this is then but a mere Collusion and indeed the most injurious Conveyance that the Law doth allow of to cut off mens titles and possibilities without their privitie or satisfaction This Conveyance is used only to cut off the Reversion or Remainder depending
are called the Common Laws of the Kingdom because all the Subjects of this Kingdom must live under them and may challenge them as their Birth-right for the defence of their Estate Right and Liberty In which sence also the general Laws of any Kingdom or Commonwealth may be called their Common Law Howsoever it may be a question how at the first the name of our Common Law came or how the same may differ from the Statute Laws or from any other Law allowed within this Kingdom Yet it is certain that the The municipal Laws of England is the most proper Title of our Laws Term and title of the municipal Laws of this land is both proper to our Laws and doth include all our Laws as well the Statute as Common Law First it is proper in that our Laws of this land are peculiar to this Kingdom and the territories thereof and thereto adjacent being not elsewhere in use or allowed Now for the Municipal Laws of this Kingdom under which title the special and particular kindes of our Laws of England may The division of our Laws of England into several parts and grounds be most aptlie comprehended sundry persons have made several Divisions thereof Some have divided them into Customes which is like to the Civilians Jus privatum and into Statute Law others into Common Law Customes and Statute Law This last Division consisting of three Another division of the grounds and parts of the Laws of England parts Seingerman in his fundamental partition of our Laws doubleth by adding thereto another foundation and division of our Laws which is the Law of God the Law of Reason and certain principles or maximes which with the three former he maketh as several grounds of our Laws of England They which stand to the first bipartite division of our Laws setting them to stand only as it were upon two leggs do conjoyn Custom with our Common Law for they say what is any Custom allowed by the Laws of the land but the Common Law of the land since that the Judges to whom delegation is made for the Whether Customs allowed for lawful be ground or made parts of our Law determination of civil Causes do admit those Customs to be pleaded before them and do give judgment for the same yet the difference between them will be first that these Customs do not equally extend throughout the Realm and therefore if they be incorporated into our Laws they are but private and not our Common Laws Secondly the Judges do ex officio take notice of the one but not without a special pleading of the other So it may well be said in some sort that Customes allowed for Laws or for lawful may be made some part of our Laws but yet I can hardly allow them the honour to be made grounds of our Laws unless they be first reduced to certainties and so be made as it were maximes So are general received opinions by Custom continuance and approbation of authority and Judgment made Common Laws whereto some add this rule Communis error facit Legem As for the other addition of St. Germans St. Germans division of the grounds of our Laws not allowed sextuple division of our Laws of England although he hath therein shewed some learning yet without offence be it spoken he hath mustered together divers things different in name but the same in nature For what is the Law of reason other than the Law of God if it be rightly understood because what proceedeth from reason not darkned with the clouds of error but such things as were charactered in the soul by him which first framed it according to his likeness And saith Seneca quid est ratio he answereth himself naturae imitatio Therefore that our Laws of England are composed and wholly framed on the Laws of God is more than may be said of them or of any other humane positive laws but that they do depend on them and not mainly differ from them may be well and truly justified Now for as much as there hath bene mention made of three principal parts of our municipal Laws let us a little take some particular and several view of them what they are they are said to be the Common Law the Statute The particular parts of our Law examined Law and Customs allowed for law The first which is the Common Law of this land consisteth partly of the collection of such laws as were allowed by King William the Conquerour What Laws King William the Conqueror allowed in England who neither wholly introduced his Norman Laws nor altogether allowed of the former but out of the best parts of either took that which was fittest for the time and present government The former laws which he allowed of were such of the Saxons and Danish laws as he found fittest for the time And first of the Saxons who came into this Kingdom about Anno 449. whose King Ethelbert of Kent did constitute as Beda saith decreta judiciorum Some part of the Saxon and Danish Laws allowed by the Conqueror cum consilio sapientum quae conscripta saith he Anglorum sermone hactenus habentur observantur The succeeding Saxon Kings did in their Wintenagemotes or conventus sapientum which were in the nature of Parliaments make diverse constitutions cum consilio sapientum senatorum cum Episcopis as that Learned and industrious gentleman Mr. Lambert affirmeth who compiled some of them into one book as the Laws of Inas Alfred Athelstan Atheldred Canutus Edgar Edward the Confessor and others out of which the Conqueror took such as he thought convenient whereof some are enumerated by the forenamed Mr. Lambert and by Hoveden Also Gervasius Tilburiensis he The Conquerors allowance of the former Laws saith of the Conqueror decrevit subjectum sibi populum viri scripto legibusque subjicere propositis igitur Legibus Anglicanis secundum tripartitam earum distinctionem hoc est Merchenleg Daneleg West Saxenleg quasdam reprobavit quasdam autem approbans c. The first part of the Common Law of England So then we see that King William the Conqueror took some of the ancient Laws of this land which is the first part of our Common Law of England The residue which came for a supply unto the same sprang out of the judgments given since in particular cases upon arguments made before and by the learned Judges of this Land The second part of the Municipal The statute law differing from the Common Law yet a part of our Municipal Laws Laws of this land though not properly called but differing from the Common Law as the Pretorian Law amongst the Romans did differ from their Civil Law is the statute Law of this Realm made by the King as head with the Nobles and Commons as members of this body politique This Law was invented to give speedy remedy and redress unto such suddain matters as were mischievous in the
upon an Estate-tayle and to destroy perpetuities which no other Conveyance doth as a Fine is used to barr estrangers that pretend right of Possession or Action which no other Conveyance can doe Conveyance of Land by Will or Conveyance of Land by Will how it stood at first last Testament in antient time was only in such antient Cities and Boroughs which specially prescribed for the same and that the Lands were devisable by Custome But the greatest part of the Land within this Realm was not subject to this kind of Conveyance unless the same Land were first granted over to Uses or in Trust and then the said Trust was devisable by Will because it was a matter in Conscience and a Subpoena in Chancery was the only remedy But in the 27 year of King H. 8. all those Uses were transferred into Possessions so that by means thereof no Land by any means was deviseable but Customary-lands untill the 32 and 34 years of King H. 8. when it was Enacted that all Lands Farther liberty granted by statute to convey Lands by Will might be devised by Will and if the same were held in Socage tenure the whole passeth by Will But if of the King in Chief or of a Subject by Knight-service two parts only do pass by Will and the King or Lord of whom it is holden is to have a third part during the nonage of the Heir and the Heir the said third part afterwards The Conveyance by Uses was in Conveyance by Uses when and how it begun antient time unknown and began in the time of the Civil-warrs of Ed. 2. against the Barons and of Lancaster and York bred and begotten by fear for the owners of Lands doubting lest themselves by partaking should be attainted and so their livings forfeited did convey their Lands over to their Friends in trust but received the profits themselves which perception or propertie by Law was called Use And the party who was Owner in Conscience was called Cestuy a que use or pernor of the profits Also afterwards Uses were invented by fraud to deceive Creditors of their Debts Purchasers of their Bargains and Men that had right of their Actions all which was remedied by the Statute of the 27 of H. 8. whereby the Possession of the parties trusted was transferred to the Cestuy a que use and the Use and Possession were incorporated and united But yet at this day Conveyance by Use is very common and many kindes of Conveyances are lately sprung up out of this Statute of 27 of H. 8. as Bargains and Sales for money But this must be enrolled within six monthes by the Statute of 27 H. 8. CHAP. VIII Of Actions and of their Trials according to the Common-laws of England IT is a saying both in the Civil-laws and Common-laws of this Kingdome that Actions whereupon the Trials of Suits betwixt party and party do depend are of three sorts either real personal or mixt The Actions of 3 sorts first concerneth the Title of man's Lands and Freeholds the second of their Goods and Chattells and the third are in Rem personam simul as Waste Quare impedit Ejectione and the like Actions heretofore used for real Actions real matters were Assises Writts of Entry and Writts of Right for Fee-simple and as some hold for Fee-tail confirmed by Precedents of experience also Formedon for Fee-taile Cui in vita for a Woman upon the discontinuance of her Inheritance by her husband And for personal Matters and Actions personal Contracts it was as at this day which real Actions were so used because the partie oftentimes was barred of his Entry by a discent that if one did disseise or unlawfully dispossess another of any Land and the Disseisor or Wrong-doer died thereof seised the lawfull Heir or he that had the Right might not put the other out of possession or enter for his Right but ought to sue first for it But by the Statute of 32 of H. 8. The most usual Trial of Actions real at this day no discent to take away an Entry may be without five years peaceable possession And therefore now to bring such Titles to trial the use is either to enter and bring an Action of trespass and thereby to try the Title or to distrein some Cattel upon the ground and upon a Replevin to avow a dammage Fesant that by affirming the Cattell hath trespassed his ground the interest thereof may thereby be tryed but the common course is to seale a Lease upon the Land and so to try it by an Action of Ejectione firmae Few real Actions now used being full of delay At this day few real Actions are used because they are more full of delay and also they are more peremptory and binding against the party for a former Recovery was a good Plea but in these personal Actions it is not for in them the party may bring as many Actions as his purse will maintain Also Actions upon the Case for Actions upon the Case are common Words are very common CHAP. IX Of Trials allowed by the Laws of England AS it is usual amongst men to commence Suits and Actions so it is of necessity that some certain Form should be prescribed by which those Variances Suits and Actions should be brought to Conclusion so hath the Laws of this Land and Wisdome of the Law-makers found out two wayes for the Trial of Suits Two ways for the Trial of Suits and Variances which is either by Jury upon the Oaths and Verdict of twelve Free-holders or else by Battaile between the parties but this is out of use or their Champions or by the Oath of the defendant which is called Ley Gager Some have conceitedly said that A conceited opinion of Trials the Trials except Battaile have confisted upon the number of twelve with a triple distinction as twelve Judges for matter in Law twelve Jurors and twelve in Wager of Law for so is the form There is a Trial also by the Certificate Trial by Certificate of the Bishop c. of the Bishop for Bastardy and Mariage also of Infancie by Inspection of the Court also of Villanage by his Kinsfolks also Death of the Husband by proofs in Dower But these especially the latter of these are not so much in use though allowed by our Laws Of which Trials although Trial by Trial by Battaile not abolished nor lately used Battaile being antiently used and is not yet abolished by any Statute yet by reason of the unchristian and bloody proceedings thereof when the strongest Hand and Heart may overcome the best Right and losse of Living is determined with losse of Life it is therefore obsoleted and grown out of use Such Trial by Battaile was appointed to be in Tuttle-Field in the 13 Eliz. where the Champions Lists Judges and all being prepared the Demandant was non-suite and so that Trial ceased And another was appointed in the same