THE COMPLETE COPYHOLDER.  
Wherein is contained a Learned Discourse of the Antiquity and Nature of Manors and Copy-Holds.  
With all things thereto incident,  

As.  
Surrenders.  
Presentments.  
Admittances.  
Forfeitures.  
Customs, etc.   
Necessary, both for the Lord and Tenant.  
Together, with the form of keeping a Copyhold Court, and Court Baron.  
By Sir EDWARD COKE, Knight.  
LONDON, Printed by T. Cotes, for W. Cook, and are to be sold at his Shop, at Furnivalls-Inne Gate in Holborn. 1641.   

TO THE READER.  
THis Copy coming to my hands, perused, and reverenced by men learned in the Laws. I thought most worthy of Publication. The very name of the Composer, who hath been an Ornament to our Kingdom, is enough to give it sufficient authority, and endear it to every wise opinion. But the profit which doth attend, is most considerable, it being a subject so material, declaring the Antiquity of Manors and Copyholds; and written for the good of Lords and Tenants; and by consequence of all men: it cannot but receive a becoming entertainment. In the confidence of this truth, I refer it to all judicious perusal, not a little congratulating my own happiness, to have been an instrument of bringing so excellent a Piece from obscurity, for the benefit of the Commonwealth.  
W. C.   

MANORS AND COPY-HOLDS.  

SECTION I.  
THough a Manor and Copyhold have such mutual respect, and reciprocal reference one to the other, as that they are almost in nature of Relatives, yet the knowledge of the one cannot be attained unto, unless the sense of the other be truly apprehended: for a Manor is as the body, and Copyholds certain members of this body. In this Treatise I will discourse of them severally apart, and begin with the Manor itself especially, when common reason teacheth us, that totum magis illustrate parts, quam partes aliquae illustrant totum.   

SEC. II.  
THe Saxons (who held England in subjection immediately before the coming of the Normans) were unacquainted with these Manors, yet in effect they had Manors in those days in circumstance peradventure something varying in substance, surely nothing differing from our Manors at this day; they wanted neither demesnes nor services, the two material causes of a Manor, as Fulbecke termeth them, 
Fulbecke in his fourth Dicalogue.  their demesnes they termed Inlands, because the Lords kept them in their own hands, and enjoyed them in their own possession, their Services they termed Vtlands, because those lands were in the manurance and occupation of certain Tenants, who in consideration of the profits arising out of these lands, were bound to perform unto their Lords, certain duties and services: their Demesnes were of two sorts; and their services likewise were of two sorts.   

SEC. III.  
ONe sort of their Demesnes was termed Bockland, because they passed by book, and they in effect differed nothing from our Freehold lands at this day.   

SEC. iv  
TH'other sort of their Demesnes was termed Folklands, because they passed by Polls, and were claimed and challenged by the Tenants; not by any assurance in Writings, but only by the mouth of the people; Per vocem populi, and they in effect differed in nothing from Copyhold Lands at this day.   

SEC. V  
TOuching their Services, one sort of their Services were Servicia libera, which consisted most commonly in Render, as to pay yearly such a Rent, or in user, as where the Lord reserved Common for his Cattles, or in Prender, as where the Lord reserved three shillings, and four loads of Estovers for fuel to be taken yearly in his Tenants grounds.   

SEC. VI  
TH'other sort of Services, were Servitia villana, which consisted altogether in Fesance, as to scour the Lords ditches, to tile his houses, to thatch his barns, or such like.   

SEC. VII.  
ANd in the reservation of these Services, the Lords had a special respect unto the quality of the Land, did they transfer their Bockelands, hoc est,  Lands, they would never reserve Villeine Services; did they transfer their Folklands, hoc est, Copyhold Lands, they would never reserve free Services, but still they suited their Services according to the nature of the Land: the reason I gather was this, in those days none but men of good account and reckoning enjoyed the said Bock lands, whereas Holblands were in the hands of men of meaner sort and condition, and therefore had not the Lords care been extraordinary in reserving apt Service they should have much wronged their Tenants; 
Lamb. in his explication of the Saxon word, Terra exscripta.  and thus much Lambert verifieth, saying, Terra ex scripto fuit haereditaria, libera, at que immunis: terra vero sine scripto officiorum quadam servitute f●it obligata: priorem plerum que nobiles atque ingenui, posteriorem vero rustici feri & pagani possidebant. Lambert termeth these Bocklands, Terras liberas atque immunes, non quod ab omnibus servitiis fuerunt liberae aut immunes, sed quod tenentes ipsi fuerunt liberi & servitiis tantum liberis onerati. But I much wonder, why this Bockland doth to this day retain the name of  Land, since time hath bred such an alteration, that in the point of Service, a man can scarce discern any difference between  Lands, and Copyhold Lands. The favourable hand of time hath so enfranchised these Copy-holders', that whereas in the Saxons time, their Services did consist wholly in Feasance; now they consist in Render, in user, and in Prender: as Freeholders' Services did in those days: And on the other side, time hath dealt so unfavourably with Freeholders', and hath so abridged them of their former freedom; that if you compare the Service of the Freeholders', with the Service of the Copy-holders', Senties hunc potius quam illum fore liberum, How many Freeholders' are there at this day, charged with base Services, as many (I doubt not) as there are Copy-holders'? No marvel then that many able men turn Copy-holders', and many Peasants turn Freeholders; no marvel, I say, that men of all sorts and conditions, promiscuously, both Freeholders' and Copy-holders', since there is such small respect had unto the quality of the Land in the reservation of our Services. Yet observe, I pray, though time hath so enfranchised these Copy-holders', that they have in a manner shaken off all villain Service; yet they retain a badge of their former bondage, for they remain still subject to their Lords will; therefore at this day they are termed Tenants at will: but with Freeholders' otherwise it is, for they are not in that subjection to their Lords; peradventure in this respect only Bocklands may be termed  Lands, and Folk-land Villain Lands; and yet time hath dealt very favourably with Copy-holders' in this point of will, as well as in the point of Service.   

SEC. VIII.  

Bract lib. 4. Tr. 3. cap 9 numb. 5. Fleta lib. 5. cap 51.  FOr, as I conjecture, in the Saxons time; sure I am, in the Normans time, those Copy-holders' were so fare subject to the Lords will, that eorum tenentes tempestive & intempestive pro voluntate Domini possent resumi & revocari, as Bracton, and Fleta both speak; the Lords upon the least occasion, sometimes without any colour of reason, only upon discontentment and malice; sometimes again upon some sudden fantastic humour, only to make evident to the world, the height of their power and authority, would expel out of house and home their poor Copy-holders', leaving them helpless and remediless by any course of Law, and driving them to sue by way of Petition.   

SEC. IX.  
But now Copy-holders' stand upon a sure ground, now they weigh not their Lord's displeasure; they shake not at every sudden blast of wind, they eat, drink, and sleep securely, only having a special care of the mainechance (viz.) to perform carefully what duties and services soever their Tenure doth exact, and Custom doth require; then let Lord frown, the Copyholder cares not, knowing himself safe, and not within any danger, for if the Lords anger grow to expulsion, the Law hath provided several weapons of remedy; for it is at his election, either to sue a Subpena or an Action of Trespass against the Lord. Time hath dealt very favourably with Copy-holders' in divers respects.   

SEC. X.  
But I perceive myself rashly running into an inextricable Labyrinth, I will therefore sail no longer in these unknown coasts, but will hasten homewards, I will content my self with this. I know amongst the Saxons th'essential parts of a Manor were known; but whether there then were the same form of Manors which is at this day, that I dare not examine, for fear of being accounted more curious than judicious, and therefore leaving the Saxons, I draw somewhat nearer home, and come to the Normans, from whom we had the very form of Manors, which is observed amongst us at this present hour.   

SEC. XI.  
I Confess indeed, that since the Original creation of Manors, Time hath brought in some innovations and alterations, as in giving a large freedom unto Copy-holders', both in the nature of their Service, and in the manner of their Tenure. Yet I may boldly say, that the selfsame form of Manors remain unaltered in substance, though something altered in circumstance, Demesne termed in Latin Demanium, Domanium or Dominicum, is taken in a double sense, proprie, and improprie; proprie, for that Land which is in the Kings own 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 pass over the Demesne Lands, as soon 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 Heirs, yet coming 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 own possession, yet to term them at this day the Lords Demesnes, or the Tenant's Demesnes being severed from the Crown 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 inferior Lord or Tenants, nor can such a one in propriety of speech be said to stand seized of any Land whatsoever in Dominico suo, but if you observe narrowly the manner of plead, the words are used in a proper sense, for you shall never find that an inferior 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 enjoyeth in his own 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 tempestive & 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 adds 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 quamdiu commissori placuerit: poterit & dici dominicum de quo quis habet liberum tenementum alius usum fruct. & etiam ubi quis habet liberum tenementum aliter curam de custode dicipoterit & curatore quorum 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 fructum 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, both consenting in one, that Copyhold Land is parcel of the Lords demesnes, wanteth not modern authority to second it, for 15. Eliz. in the Excheq. I find it adjudged in the case of a common person, howsoever it is otherwise in the King's Case; That if the Lord of a Manor granteth a way, Omnes terras suas dominicales; the Copy holds parcel of the Manors pass by these general words; neither doth this want Reason to confirm it; for in the time of Henry the 3. and E. 2. when Bract. and Fleta lived, Copy-holders' were accounted mere Tenants at will, and therefore after a sort their Lands reputed to continue still in the Lords hands, and now, though custom hath afforded them a surer foundation to build upon, yet the Francke Tenement at the common Law, resting in the Lord, it can be no strange thing to place their lands under the rank of the Lords demesnes. But to deliver my mind more freely in this point, I think that howsoever, according to the strict rules of Law, these Copy-holds are parcel 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 Frank tenement be in the Lord by the Common Law, yet by the custom, the inheritance abideth in the Copy-holders'; and it is not denied, if a Copyholder be impleaded in making title to his Copyhold, 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 title of the Copyholder, yet he hath such an interest confirmed unto him by Custom, that the Lord having no power to resume his Lands at your own 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 own hands, for the maintenance of his own Board or Table, be it his waste ground, his arable ground, his pasture ground, or his meadow; be it his Copyhold which he hath by escheat, by forfiture, or by purchase, or be it any part of his Freehold Land, of which I must speak a word by the way, not to prove that it is demesne, for manifesta probatione non indigentes, but to show you in what sense it is taken, and how fare it extendeth.   

SEC. XV.  
A Freehold is taken in a double sense; either 'tis 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 holder's, 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 only unto Lands held per servitium militare, as it did by th'ancient Laws of Scots; 
Skens. de verb. sign. tit. milit.  and amongst whom Freeholders were known by the name of milites, but it reacheth likewise to lands holden per servitium Socae, whether in libero Socagio, or in villano Socagio: Liberum Socagium is, where any Tenant holds of any Lord by paying yearly a certain sum 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 ploughing his ground at certain days, of plashing his hedges, and such are not turned into money; but remain still unaltered; and if you doubt that such Land as is held per villanum Socagium cannot come within the compass of Freehold Land: for your satisfaction, read 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. Corporal services. 2. Annual services. 3. Accidental services.  
Corporal services are of two sorts; Services of Submission, services of Profit.   

SEC. XIX.  
SErvices of Submission, are homage and fealty, which are certain Ceremonies used among tenants, whereby they submit themselves unto their Lords, and bind themselves by solemn oath, or by faithful 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 enforce every Tenant to acknowledge and confess himself Tenant unto his immediate Lord, yet they differ in many material points.   

SEC. XX.  
IN regard of their several manner of performance: for in doing fealty, the Tenant taketh a solemn oath, in doing homage only giveth his faithful promise; and thence it is that fealty is accounted the more sacred service, though homage be the more humble service, and performed with fare 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 remain uncovered; in doing fealty, he may remain 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 honour. In doing fealty he only sweareth to become the Lords faithful Tenant: the reason of this difference I learn to be this, 
Skens. de verb. signum Homage.  because homage especially concerneth service in war, & properly appertaineth unto Knight's service; but fealty chiefly concerneth service at home, and properly appertaineth to Socage tenure; and though now 'tis held, that a Tenant by Socage may do homage, and that homage ex se maketh Socage tenure, and not Knights service; yet originally homage was invented for Tenants by Knight's service, and such as were bound by their tenure to attend their Lords in the wars; 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 rural affairs; and this agreeth with the ancient Laws in Scotland, for amongst them none were accounted Freeholders, but only Tenants by Knight's service, and consequently none but they could do homage; and therefore marvel not why in doing homage, the Tenant promiseth to become the Lords man for life, for member, for terrene honour, in doing fealty he only sweareth to become the Lords faithful Tenant.  
2. They differ in regard of the persons to whom they are performed, and that two ways. In respect none is capable of receiving homage, but the Lord in person, but the Lords Steward, or his Bailiff is capable to receive fealty in the Lord's behalf. 2. In respect that a Lord who hath but an estate for his life in his Seignory 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 ways. 1. In respect th' t no Copyholder is capable of doing homage, but he is of doing fealty, witness common experience. 2. In respect that a Tenant for life or years, is unable to do homage, for 'tis a ground in Law, that none can do homage but tenant in fee-simple, or ad minimum, tenant in tail.   

SEC. XXI.  
But a Tenant for life or years, 
Brudnal and Yoxley 5. H. 7. The Justices of the Common Place, 10. H 6. held, that Lessee for years cannot do fealty.  are both able to do fealty, according to Littleton's rule, that fealties are incident to every tenure, except tenors in Franck-almoigne, and tenants at will, contrary to some erroneous opinions, they differ in regard that homage can be but once done unto one Lord by the same Tenant; and therefore 'tis agreed, that if Lands descend unto me, which is holden of I. S. by homage, and I do 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 do homage again, but fealty only, because I cannot twice become the Lord's man; but the selfsame Tenant may several times do fealty unto the selfsame Lord; and therefore if a Copyholder surrendreth Whiteacre unto me, for his Whiteacre I should do fealty unto the Lord. If after another surrendreth unto me Blackeacre, I shall do fealty likewise unto the same Lord. And thus much for services of Submission,   

SEC. XXII.  
SErvices of Profits are of two sorts tending to the public profit of the Commonweal, as when the Lord enjoineth his Tenant to amend high ways, to repair decayed bridges, or similia. 2. Tending to the private profit of the Lord, as where the Tenant is enjoined to be the Lords Carver, Butler, or Brewer, or is tied to pail the Lords Parks, to tile the Lords Houses, to thatch the Lords Barns, and similia. And thus much for corporal services.  
Annual 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 seldom reserved for Copyhold-Land, but only for Freehold-Land. I will not enumerate many particulars of annual services, for that were as endless, as numbering the sands of the Sea; only this I say, that those annual services which here come within the compass of my meaning, consist all in Render, none in Feasance, for those annual services, as well as accidental services, which consist in Feasance, I comprehend under corporal services; thus leaving both corporal services and annual, I bend my course towards accidental services, which before I begin to particularise, observe these two things by the way:  
1. That accidental services differ from corporal and annual services in this, that most accidental services are incident to the Fee, and are due without special reservation of the Lord; but most corporal services, and all annual services are due upon special 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, etc. that duty which the Tenant oweth unto his Lord, either in performing some corporal function, or in discharging some annual payment. In latiori sensu, and so it signifieth any duty whatsoever accrueing unto the Lord, by reason of his Signiory; and in this sense, these accidental services following (which prima fancy, may seem better to rank under the title of jurisdictions, or rather under the name of the fruits of a Manor) may very fitly be reduced to this kind of services.  
The services I aim at, and which I mean to treat of particularly in this place are these following, 

1. Wardships.  
2. Herriots.  
3. Reliefs.  
4. Amerciaments.  
5. Forfeitures.  
6. Escheates.    
Now touching every one of these apart, and first with Wardships.   

SEC. XXII.  
Warshipp. est custodia heredis infra aetatem existentis, Polidore Virgil saith, that this was novi vectigalis genus excogitatum, to help, Hen. 3. being oppressed with much poverty, by reason he received the Kingdom greatly wasted by wars of his Ancestors, and therefore needing extraordinary help 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 been used among the Normans, immediately after the erection of Manors, and that the use of Wardships was a foot before H. the thirds time, as appeareth manifestly by Glanvil, who writeth very largely in many places in his Book, 
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 we have Tutorem testamentarium, viz. where a man possessed of certain goods and chattels demiseth these unto his child, and withal, committeth the care of his child's body, and disposition of his substance unto some friend, this committee is Tutor testamentarius, unto whom belongeth the care and custody of the child's body, and the disposition of his substance, until he accomplish the full age of fourteen years, and then immediately he shall be out of Ward for his body, but his goods may be kept longer, for as for them they shall remain in the trusties hands, so many years as the Testator appointed by his last Will and Testament: for though it be not in the Father's power to restrain the liberty of his child's bodylonger then to the age of 14. yet the disposing of his goods he may commit to any, for as long time as himself shall think expedient: So by the Stat. 32. and 34. H. 8. If a man be seized of Socage Lands, not holden of the King in Capite, he may by his last Will and Testament commit the ordering of Theoglands', to what friend soever, for as many years as shall seem most convenient, and that friend is Tutor testamentarius, otherwise it is of Lands holden by Knight's service; for it is not in any man's power by his last Will and Testament, to deprive the Lord of that duty which, de jure, belongeth to him, and therefore if a Copyholder dieth, his heir under the age of fourteen. In regard that this privilege of appointing the heirs a Guardian for their Copyhold Land, until he accomplish the age of fourteen, de jure, appertaineth unto the Lord. It seemeth that the father cannot prejudice the Lord in this kind, by appointing him another Guardian by his last Will and Testament; haec de Tutore testamentario. 2. We have Tutorem a Praetore datum, viz. where a man deviseth goods unto his child, and appointeth him not Guardian, than it is in the Ordinaries hand to commit the ordering of the Infant's goods unto some trusty friend, unto the age of fourteen; at what time the Infant himself may choose a Guardian: for it is a rule in the Civil 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 ligi●t●mum, viz. where the interest doth de jure belong unto any, without the nomination of a private person, or the appointment of any public Officer: and this Guardian is twofold, either ligitimus jure naturae, or ligi●imus jure Comuni; ligitimus jure naturae, as where the Father or the Mother hath the Wardship of their heirs apparent, be it heir male or female: Ligitimus jure comuni; and that Guardian is twofold, either Guardian in Chivalry, or Guardian in Soccage; Guardian in Chivalry is, where any Tenant seized of Land, holden by Knight's service dieth, his heir male under the age of fourteen, and unmarried; then shall the Lord have the Ward, both of the Lands, and body of this heir male, unto the age of 21. because the Law intendeth, that before that age, the heir is unable to perform Knights service, according to the tenure; but the heir female shall be in Ward, no longer than to the age of sixteen, because the heir female, though she herself be unable to perform Knights service, yet at sixteen, she is able to take a husband, who in her behalf may do Knight's service; and therefore at those years she shall be out of Ward; nay, sometimes she shall be out of Ward before sixteen; and that is either, where she is married at the death of her Ancestor, or where she is any whit above fourteen: 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 year's next ensuing the fourteenth, yet that is to be understood, where she is under the age of fourteen, 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 heir under the age of fourteen, than the next friend unto the heir, to whom the inheritance cannot descend, shall have the Ward of the heirs body, and of his Land, until the age of fourteen, as if the Land descendeth unto the heir by the father's side; then the mother, or next cousin of the mother's side shall have the Ward; and if the Land descendeth to the heir by the mother's side, than the father, or next cousin on the father's side shall have the Ward. To conclude, observe this difference between Guardian in Chivalry, and Guardian in Socage, that then one receiveth the commodities of the Land to his own use, without giving any account; th'other only to the use of the heir, to whom he shall be accountable whensoever it shall please the heir to call him to account after th'age of fourteen. Thus much concerning Wardships; a word concerning Herriots.   

SEC. XXIV.  
HErriot, or Harriot cometh of the Latin 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 known, Herrior signified nothing else but a tribute given to the Lord for his better preparation towards war, as a horse trapped, or a spear, or armour, or a sword, or some suchlike Military weapon; and therefore in this sense importing a thing appertaining to the war, and being due unto the Lord, by reason of this service which Tenants own unto their Lords, many warlike employments, 
Vide Lamb. in h●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 Relief at this day, howsoever now they differ ex diame●ro: But let us examine the nature of our Her●iots at this day, and not search into the nature of their Herriots in those days; for that were to examine the nature of Reliefs 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 heir, nor his inheritance, neither hath any comparison to a Relief, for it proceedeth rather of grace and good will, than of right, and rather from villains, 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 Custom; Herriot Service, is that Herriot which is never due, without special reservation, and is seldom reserved upon any less estate, than an estate of inheritance. Herriot Custom, is that Herriot which is never due upon special reservation, but is challenged upon some particular Custom, and is usually paid upon an estate for life, and for years, as well as upon an estate of inheritance. Touching the original of these Herriots, doubtless they are not of that antiquity which the name doth promise, for though among the Saxons, the name of Herriot was known, yet the nature of both these, Herriot Services, and Herriot Custom, was utterly unknown, until the coming of the Normans; who immediately upon the Conquest changed the name of the Saxons Herriot, and termed it by the name a of Relief, leaving notwithstanding some d●fference betwixt them, for where the Saxons Herriot, consisted usually in the payment of some military weapon; our Relief in those days consisted wholly in the payment of a certain sum 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 kind of service unknown amongst the Saxons, and termed it by the name of the Herriot Service, afterward, upon the enfranchisement and manumission of certain villains; these Herriot Customs, were given to the Lords as a continual, future gratulation: so that originally, as Britton, and Fleta well note, they were granted merely, ex gratia, but now time hath effected it, that they are challenged, ex debito. Thus much of Herriots; a word of Relief.   

SEC. XXV.  
Relief is a certain sum of money which every Freeholder payeth unto his Lord, 
Gl●●v. lib. 7. cap 9  being at full age at the death of his Ancestor, which in effect foundeth all one, with these words of Glanvil, Haeredes majores statim post decessum antecessorum suorum possunt se tenere in haereditate sua licet Domini possint feodum suum cum herede in manus suas capere: ita tamen moderate id fleri debet, ne aliquam disseisinam haeredibus faciant, possunt enim, haeredes si opus fuerit, violentiae Dominorum resistere, dum tamen parati sunt Relivium altaretro servitia eis inde facere; with this agreeth the definition of Hotoman, 
Hotoman Comment. de verbo seod & verbo Relivium.  Relivium est honorarium quod novus vassallus introitus causâ patrono largitur quasi morte usuali altius vel al●o quo casu feodum ceciderit quod jam a novo sublevatur. This relief by the ancient Civil Law was termed Introitus; and Vincentius termeth it Praestantionem seu saluationem factam pro confirmatione seu renovatione possessionis, and that very aptly: for indeed Relief is the key, which opens the gate to give the heir free passage to the possession of his inheritance. Bracton giveth this reason why it is called a Relief, 
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. Relief.  Skene fond imagineth that it taketh his name, a relevando, in another sense; for saith he, Relief is given by the Tenant or Vassal, being of perfect age, after the expiring of the Wardship, to the Lord, of whom he held his Land by Knight's service, it is by Ward and Relief, and by payment thereof he relieves, and as it were, raiseth up again his lands after they were fallen down 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; Ta●dam vero eode●ad aetatem pervenie●te, & facta e● haereditutis restitutione quietas erit a Relivio ratione custodiae: this Relief is twofold. 1. Relief Service. 2. Relief Custom: Relief Service, is that which is paid upon the death of any Freeholder. Relief Custom, is that which is paid upon the death, change, or alienation of any Freehold, according to the Custom of the place, in many places half a years profit, in many places a whole year's 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 Reliefs are paid, as well for lands-holden in Soccage, as Lands holden by Knight's service: for lands holden in Soccage in this manner. If a Tenant in Soccage die, his heir above the age of fourteen, then shall the heir double the Rent that his Ancestors was wo●● to pay to the Lord, as if the Tenant holdeth of his Lord by fealty and five shillings; then shall the heir double the Rent, and shall pay ten shillings, viz. five shillings in the name of a Relief, over and above the five shillings, which he payeth for his Rent. For Lands holden by Knight's service in this manner; if a Tenant by Knight's service dieth, his heir of full 21. if he holdeth by an entire Knight's Fee, he payeth five pound, if by half a Knight's Fee, than he payeth fifty shillings, if by a quarter of a Knight's Fee, he payeth 25. shillings, and so proportionably, who so holdeth more, payeth more, and who holdeth less, payeth less; yet for the fuller apprehension of the quantity of a Relief: let us examine what a Knight's Fee signifieth. A knight's 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 j●di ce lis est. Some hold according to the quantity, and that according to the several computations used in several places. A Knight's Fee was either more or less; as in the Duchy of Lancaster: a Knight's Fee contained four hides of land, every hyde four carnes of land, every carne four yard lands, every yard thirty acres; and every Knights Fee 1920. acres. According to other computations, a Knight's Fee contained, 680; but according to most computations, a Knight's Fee contained five hides of land, every hide four yard lands, every yard land 24. acres, according to which computation; a Knight's Fee contained 480. acres: so that according to several computations, a Knight's Fee was more or less. Others hold, that a Knight's 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 fifteen pound par annum made a Knight's Fee; and therefore, 
Camden in sua Br●tan. pag.  Camden saith, that, Sub Henrich tertio quodammodo coacti fuerunt equites fieri quot quot libras quindecen exannuis terrarum redditibus colligarunt; and out of Matthew Paris, he 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 ●questris, was fort●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 twenty 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. d●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. B●ev●um. foe 62.  this seemeth something pregnant, for in both these places, Soccage land to the value of twenty 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 Knight's Fee, every carne being in ancient time of the value of five nobles per annum; according to which account, a Knight's Fee amounted to twenty pound per annum. These are the several opinions, touching the quantity of a Knight's Fee, embrace of these, which shall seem most consonant to reason. For my own part, I think that in the ancient time, a Knight's Fee, was measured according to the number of the acres; but in those days, according to the value of the land: the reason of this alteration is; that though in ancient time, as well as in these days, some lands were fare more fruitful than others; yet the value of every quantity of land was certainly rated, according to the Custom of the places, and never upon any occasion was the land increased or decreased; and therefore were they to examine whether any man had a sufficient living for a Knight, they would look no further than to the quantity of his land, for by the quantity, they could presently judge the value; but now the value is not certainly rated in any place, but increaseth and decreaseth upon every occasion; and therefore reason requireth, that in these days a Knight's Fee, should be measured, according to the value, not according to the quantity of the Land, for by reason of the different value of the land, one man may be better able to maintain the dignity of a Knight, with two hundred acres in some place, and of some land, than another with four hundred acres of other land. But howsoever it is, whether a Knights Fee be rated according to the value, or according to the quantity let it here rest.  
Now give me leave to examine at what time, and by what Law it was first provided, that for every Knight's Fee, the fourth part of a Knight's Revenue should be paid in the name of a Relief, viz. 5. li. for every Baron's Fee, the fourth part of a Baron's Revenue, viz. one hundred marks; for every Earl's Fee, the fourth part of an Earl's Revenue, viz. one hundred pound; surely Reliefs were paid in this manner, before the Statute of Magna Charta, 
Glan vil. lib 9 cap 9  and that is somewhat pregnant by this, that by the very words of that Statute. This Relief is termed Antiquum Relevium; and by Glanvil, who writ before the making of this Statute, this is some what manifest; for he speaketh to this effect, Dicitur rationabile relevium alicujus juxta consuetudinem regni de feodo unius militis centum solidos? de Soccagio vero quantum valet, census illius Soccagii per annum de Boronia vero nihil certum statutum est quia juxta voluntatem & misricordiam Domini Regis solent Baroniae capital. de relevis suis Domino Regi satisfacere: from whence I gather, that Statute of Magna Charta was in part an affirmance of the Common Law, in part an institution of a new Law.  
Touching Relief paid by Knights, it was but an affirmance of the Common Law, because they were certain before the Statute. Touching Reliefs paid by Barons, it was an institution of a new Law, because they were before uncertain; and the reasons why Dukes and Viscount's, are not mentioned in this Statute, as well as Earls, Barons, and Knights is this, because when that Statute was made, there was neither Duke, marquis or Viscount in England. The first Duke that ever was in England since the Conquest, was the Black Prince, eldest son to Ed. the 3. The first marquis that ever was in England, was Robert Earl of Oxford, created by R. 2. and the first Viscount that ever was in England Dominus de Bello monte, created by H. 6.  
But though at the making of this Statute, these dignities were unknown, yet they are comprehended under the equity of the Statute, and according to their several dignities shall pay Relief unto the King, a Duke two hundred li. a marquis two hundred marks, and so ratably and proportionably. But to conclude, let us compare Herriots and Reliefs together, and observe in what they differ.  
1. They differ in this, that a Herriot lieth in Prender, and a Relief in Render. 2. In this, that a Herriot is paid in the name of a Tenant deceased; but a Relief in the name of an heir, who is become Tenant. 3. In this, that Heriots are paid by Copyholders, as well as Freeholders; but Relief by Freeholders only. 4. In this, that Herriots are ever due upon a special reservation, or upon some particular Custom; but Reliefs are incident to the Fee, and are due without reservation or Custom, contrary to the opinion of Vincentinus, who holdeth a Relief extrinsecam fore praestationem & non in esse feodo. Thus much touching Reliefs, a word touching Amerciaments.   

SEC. XXVI.  
AMerciament is a Pecuniary punishment for any offence committed against the Lord of any Manor, or (as some more at large define it) it is a certain sum of money imposed upon the Tenant by the Steward by oath, and presentment of the homage; for the breach of any by Law made, either for the profit of the whole Kingdom, or for the benefit of the little Commonwealth among themselves, or for default of doing suit, or for other misdemeanours, punishable by the same Court, infinite in number and quality; and this word Amerciament taketh his name from being in the Lord's mercy, to be punished more or less at his will and pleasure, and it differeth from a Fine in divers respects.  
In that whosoever is fined may lawfully be imprisoned, but whosoever is a mercied cannot. 2. In this, that Amerciaments are incident unto Court Barons, as well as unto Court Leets, and Fines are never incident to any Court Barons, but to Court Leets only, or other Count 'tis of Record. 3. That Amerciaments are incident unto every Manor whatsoever; but Fynes are incident unto some few Manors only: the reason of this difference is partly grounded upon the former difference; for since Amerciaments are incident unto every Court Baron, and Court Barons are incident unto every Manor: Sequitur ex consequent, that unto every Manor amerciaments are incident, but ex adverso, Fines being incident unto Court Leets only, and those Court Leets being in some few Manors only, not in every Manor expressly sequitur, that Fines are not incident unto every Manor, but unto some few Manors only. 4. In this, that Amerciaments are afferable Per pares, per sacramentum prob●rum & legalium hominum de viceneto qui secundum modum delicti majori vel minori amerciamento delinquent. mulctare possunt: but Fines are never afferable in this kind; for look what Fine soever the Court imposeth upon the delinquent, that bindeth sufficiently, without further afferance. Give me but leave to ask two questions, when had this afferance his first conception or creation? 2. How may Amerciaments in Court Leets be discerned and distinguished from Fines imposed in the same Court, since they are both pecuniary punishments for offences committed? Touching the first question, I think this Law of afferance was before the Statute of Magna Charta; 
Glanv. lib. 1. cap. 11.  for Glanvile thus speaketh of it, Est autem misericordia Domini Regis, quo quis per juramentum legalium hominum de viceneto eatenus amerciandus est ne 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 'tis 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 suit with the quality of the offence, from the several natures of offences committed, arise the several 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 possibility 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 public Officers, and Ministers of the Court, in the administration of their office, punishments imposed for offences of the former rank are termed Amerciaments, of the latter rank 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. Case.  or public Officers: neither unto any offences committed extra curiam, by public 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 Fle●a speaketh, and therefore since the Steward hath more certain notice of offences committed in curia by what persons soever then the Jurors have, and can better judge and discern of the natures and qualities of offences committed, Extra curiam by public 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 cometh 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 itself, I mean, it signifieth the penalty for the offence committed, rather than the act itself, whereby the offence itself 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 speak more liberally in another place, and therefore I will silently pass 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 Mortmain, he forfeiteth his Freehold. 2. If a Freeholder ceaseth for the space of two whole years, to perform 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 he is tied, he forfeiteth his Freehold.  
Touching the causes from whence grow the forfeitures of goods, they are likewise in number many, and from the several causes of forfeiting, goods arise several names of goods forfeited. 1. If a Felon stealeth goods, and upon pursuit made, waiveth these goods, and leaveth them in any part of the Manor, and be not attached upon the fresh suit 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 Towns adjoining, and are not claimed by the owner in a year and a day; then are the beasts forfeited to the Lord, who hath such a liberty, and are termed Estrays. 3. If any suffer Shipwreck upon the Seas, and through the violence of the Waves, goods are cast upon the Shore; and being seized by the Bailiff, are not claimed within a year and a day after the seizure; 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, than immediatley that thing which is the cause of that untimely death, becometh 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 redress it, falleth, and the Cart wheel running over him, presseth him to death; or if one felling a tree, giveth warning to comers by to look to themselves, and notwithstanding warning given, some body is slain 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 add unto this, but I will forbear to enumerate any more in this kind; and to speak more largely of these which I have already enumerated, for three special reasons;  
1. Because they are duties accrueing unto the Lord, not merely 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 confess are not aptly ranked under the name of Services. 2. Because a perfect Manor may well subsist, without their assistance, since they add nothing to the perfection of the essence of a Manor. 3. because they are not incident unto every Manor, but into such Manors only as can challenge them, either by special 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 certain owner known to challenge interest in them, as waives, estrays, and wrecks, the property 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, etc. & 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 God's wrath, and the appeasing of God's anger, and these things thus forfeited, were according to the true intendment of the Law to be sold, and money distributed among the poor; and therefore upon whom could the Law have better conferred this benefit, or rather imposed this charge then upon the King, who representeth God's person upon the earth, and whom the Law presumeth will deal more justly, and truly, nay, more liberally and bountifully with the poor in this kind, than any inferior Lord, who peradventure out of his uncharitableness, peradventure out of want, will be so fare from adding any thing to that which is due, that he will rather unjustly subtract part, or unconscionably detain the whole.  
Since therefore, these Forfeitures of goods neither add to the perfection of a Manor, neither are incident unto every Manor, to spend any further time about a subject so superfluous would ill beseem this small Treatise, wherein the scope and end I aim at, is this, only 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 Lord's hand for want of heir, general or special to inherit them, but before the Lord enter into an Escheat in this kind, 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 claim, he shall be received; the homage then finding it clear entitle the Lord, as to Lands Escheated.  
Besides this ordinary sort of Escheat, there is another sort of Escheat, and that is, where any Freeholder committeth Felony, and is attainted, the King shall have animum diem & vastum; and than it cometh unto the Lord as an Escheat; thus much concerning the nature of Services in general, and there are so many particular Services in individuo, that I might insist in millions more, but fear of incurring the censure of being over tedious, restraineth the forwardness of my hand: yet since occasion is so favourable to me, I will presume so much upon your patience, as to lay open the several remedies which the Law hath provided for the obtaining of those several Services before mentioned, if perchance they be wrongfully deceived by the Tenants; and for method sake, I will begin with corporal Services.   

SEC. XXIX.  
IF any Freeholder refuseth to do homage, or fealty, which are corporal Services of submission; or to mend high ways, repair decayed Bridges; or similia, which are corporal Services, tending to the public profit of the Commonweal, or to discharge the office of a Carver, a Butler, a Brewer, or such like; or to pail the Lords Park, to tile the Lords Houses, or to thatch his Barns, or similia; which are corporal 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 distrain his cattle or his goods, and detain them until satisfaction be given, by performing such Services as the Law doth require, and the same remedy which the Law hath provided for Corporal Services, is likewise provided for Annual Services.   

SEC. XXX.  
FOr if any Freeholder refuseth to pay any annual Rent, or to discharge any annual payment, according to his Tenure; then may the Lord lawfully distrain and in a Replevin brought by the Tenant, may avow the distress, and justify the taking. But no action of debt will lie for these annual Services, no more than for Corporal Services; for it is a ground in Law, that as long as the Rent continueth of any estate or Frank tenement, no action of debt lieth for the arrearages of the Rent, nor for any other Service whatsoever; and therefore if a Lease for life be made reserving rend, the Lessor cannot maintain 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 lieth for the arrearages of the Rent incurred before the time of the determination: but what hath the Law provided no other remedy for those annual Services, than a distress? Surely no, before seisein, none, but after seisein once gained, 'tis at his election, either to distrain, or to bring an Assize: and thus much touching remedies for corporal and annual Services.   

SEC. XXXI.  
Accidental Services are gotten by many differing means; By seizure only, as the Wardship of the heirs body together with the Waives, Estraies, Wrecks, Deodands, and such like forfeitures of goods. 2. By th'entry only, as the Wardship of the heirs Land, together with Lands forfeited to the Lord, either upon the breach of some condition, or upon an alienation in Mortmain. 3. By Seizure or Distress, as Herriot Services, contrary to the opinion of some who held them gaineable by Distress only, & not by Seizure, or action, as Herriot Customs; for upon the eloignement of the best beast, the Lord may maintain an action of detinue against the heir. 5. By entry, or action as Lands forfeited to the Lord, by the cessing of his Tenant, or Escheat, accrueing unto the Lord, either upon the attaindeur or death of his Tenant without heir; in the first, the Lord may enter or maint●ine a Writ of Cessavit; in the secord, the Lord may enter or maintain a Writ of Escheat. 6. By Distress or Action, as Reliefs and Amerciaments. For Reliefs the Lord may distrain, or bring an action of debt; neither doth this any whit impugn the former ground, that as long as the rent doth continue, etc. because indeed Relief is the fruit and approvement of Services rather than any service, and for Amerciaments the Lord may either distrain 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 lieth against the stranger, but to meddle with strangers were to wander out of the little Common weal, and therefore to keep myself within my bounds and limits, I will here conclude, touching the two material 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 indeed time is the mother, or rather the nurse of Manors; time is the soul that giveth life unto every Manor, without which a Manor decayeth and dyeth, for 'tis not the two material 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 himself cannot create a perfect Manor at this day, for such things as receive their perfection by the continuance of time, come not within the compass of a King's Prerogative, and therefore the King cannot grant Freehold to hold by Copy, neither can the King create any new custom, nor do any thing that amounteth to the creation of a new custom, and therefore a composition made between the King and his Tenant, where he hath Herriot custom to pay 10. li. in Levie thereof every time it falleth, is no binding composition: for this amounteth to the creation of a new custom. 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 chief 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, between 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 enfeoffed a stranger, he might have reserved what services he thought fit, or had he reserved no services, yet the Law would have employed a perfect tenure, between 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 seized of Land in Fee, infeoffeth a stranger neither by the express reservation of the Feoffor, nor by the employed reservation of the Law, can there be a perfect tenure created at this day between 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 do nothing which amounteth to the creation of a new custom: so a common person can do 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 confirm the estate of a Tenant Tenend. by a Hawk, a pair of gilt spurs, a Rose or similia, this is a void confirmation; otherwise had it been if the Lord had confirmed the estate of the Tenant Tenendum per 5. s. that had been a good confirmation, because it tendeth only 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 foreign land lying without the Precincts and bounds of the Manor he cannot annex this unto the Manor though the Tenants be willing to do 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 do their suit 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 be 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 itself is not sufficient to make any such union, causa qua supra, But if one Manor holdeth of another, by way of Escheat these two Manors may be united together, fortior enim est dispos●tio legis quam hominis. But in this, that I exclude common persons from being able to create a tenure, I may seem to impugn many authorities which hold at this day, that a tenure may be created by a common person, for to clear this colour of contradiction, know that tenors are two fold. First imperfect, as where a man maketh a Lease for years or for life, or a gift in tail, here is an imperfect tenure between the Lesso● and the Lessee, the Donor and the Donee; and this imperfect tenure I confess may be created by a common person at this day. Secondly, perfect between 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 since, 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 material causes, together with the efficient cause. A word of another cause of a Manor which appeareth not in the definition so manifestly as the other causes do, this is a cause which among the Logicians is termed, Causa sine qua non, and that is a Court Baron; for indeed that is the chief prop and Pillar of a Manor, which no sooner faileth but the Manor falleth to ground: if we labour to search out the antiquity of these Court Barons, we shall find them as ancient as Manors themselves. For when the ancient Kings of this Realm, who had all the lands of England in Demesne did confer 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 parcel the land out to other inferior Tenants, reserving such duties and Services as they thought convenient, and to keep Courts where they might redress misdemeanours within their Precincts; punish offences committed by their Tenants, and decide 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 sat in the upper house; but when time had wrought such an alteration, that Manors fell into the hands of mean men, and such as were fare unworthy of so high a calling: than it grew to a custom that none but such as the King would should come to the Parliament, such as the King for their extraordinary wisdom or quality thought good to call by writ, which writ, ran hac vice tan●um, yet though Lords of Manors lost their names of Barons, and were deprived of that dignity which was inherent to their names, yet their Courts retain still the name of Court Barons, because they were originally erected, for such personages as were Barons; neither hath time been so injurious as to eradicate the whole memory of their ancient dignity, in their name there is stamps left of their nobility, for they are still entitled by the name of Lords. These Courts differ from Court Leets in divers respects: In this, that Court Barons by the Law may be kept once every three weeks, or (as some think) as often as it shall please the Lord, though for the better ease both of Lords and Tenants, they are kept but very seldom; but a Court Leete by the Statute of magna Charta is to be kept but twice every year; one time within the month after Easter, 
Magna Charta C. 35. 31. E. 3. Ca 15.  and another time within a month after Michal. 2. In this, that Court Barons may be 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 e●●●y Manor, so that every Lord of a Manor may keep a Court Baron, but few have Leets; for inferior Lords of Manors cannot keep Court Leetes without special prescription, or some special Patent from the King. 5. In this, that in Court Barons the suitors are judges, but in Court Leets the Steward is judge. 6. In this, that in Court Barons the jewrie consisteth oftentimes of less than twelve, in Court Leets never; the reason of that is, because none are impanelled upon the jewrie 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 inquire of no offences committed against the King, but Court Leetes inquire of all offences, under High Treason committed against the Crown and dignity of the King. In many other respects they differ, as that a writ of error, lieth upon a judgement given in a Court Leete, but not in a Court Baron. So in a Court Leete a Capias lieth, but in a Court Baron in stead of a Capias is used an Attachment by goods; So in a Court Baron; an action of debt lieth for the Lord himself, because the suitors are Judges, but in a Court Leete the Lord cannot maintain any action for himself, because the Steward is judge; but omitting these with many more, I come to the Etymology 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 think 'tis 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 govern 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 Etymology and most agreeing with the nature of a Manor: for a Manor in these days signifieth the jurisdiction and royalty incorporate, rather than the Land or Scite; Thus much touching the Etymology. A word touching the division of a Manor; A Manor is twofold, re & nomine: 2. Nomine tantum, re & nomine, as where the two material causes of a Manor, the efficient cause, & causa sine qua non, do meet and join together, nomine tantum, as where any of these causes is wanting, as to insist in the two material causes, if the Lord will transfer over to some stranger the services of all his Tenants, and reserve unto himself the Demesnes; or if he will pass 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 descendeth to Co-parteners and they make partition, and the entire Demesnes are allotted to the one and th' entire services to the other, the Manor is now in suspense, for neither of them hath any Manor but in name only: 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 quantity of land to any Subject, enjoining him certain duties and services, and withal willeth that this should bear the name of a Manor, howsoever this may chance to gain 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 only: So if all the Freeholders die but one, if the Lord purchase all the Freeholders' land, or pass 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 help 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 Copy to another for 2000 years, the Grantee in the one case and the lessee in the other, have a kind of Seigniority in gross, and may keep 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 collateral 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 enclosing 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'antiquity of the Copyholders; for if you cast your eye bacl to that is past, you shall easily perceive that Copyholders, though very meanly descended, yet they come of an ancient house; and therefore if in this point you desire satisfaction, call to mind what I have already spoken; and (if I mistake not) it will sufficiently answer your desire. Give me leave to go a step further, and to examine the several names which Copyholders have had from time to time allotted unto them, together, with their proper Etymologies immediately upon the Conquest: they were known by the name of Villains or Tenants in Villanage; so termed by the Normans, either in respect of Imbecility and incertainty of their estates, which were grounded upon a very weak 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 Villains; 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 join them together, and then he that judgeth most favourably of them, will think this the truest title that could be bestowed upon them, yet some there are, who in behalf of these Tenants, stick not to maintain (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 reproachful sense that it is usually taken in at this hour. But if we account those villain Services which any way touch Husbandry, as Ploughing, Sowing, Reaping, and such like; and these men villains, who exercise themselves in any point of Husbandry, than they agrue, that their Tenure could in no wise have an apt term than this; for they confess, that these Copyholders were for the most part, Rustici & Pagani, and their Services whol●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 we call Rural Services, were called villain Services; and those men whom we term Husbandmen were termed Villains; and do hold that the Copyhold Services in those days were more slavish, than Rural; and they themselves rather Bondmen, than Husbandmen; otherwise we should make their Tenure differ in nothing from ancient Soccage Tenure, which I assure myself is otherwise: for though Soccagres were Rustiques, and in that sense Villains; yet their Tenure was never noted by the name of a Tenure in Villeinage, till in many places their Corporal 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 baseness and slavery, a degree above the ancient Soccage Tenure; till at length the Lords of Manors being framed to more civility, began then to think it a most uncharitable part to keep their poor Tenants in that bondage; therefore out of the remorse of their own consciences, and the compassion of their Tenants miseries, by little and little, they enfranchised them, and released them of their heavier burdens, reserving Services of another nature in lieu of them. Thus having shaken off the fetters of their bondage, they were presently freed of their opprobrious name, and had other new gentle styles, and titles conferred upon them; they were every where then called Tenants by Copy of Court Roll, or Tenants at will, according to the Custom of the Manor: which styles import unto us three things. 1. Nomen. 2. Originem. 3. Titulum. His name is Tenant by Copy of Court Ro●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, Deed, 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 mere Tenants at will: and though they keep the Customs inviolated, yet the Lord might, sans control, eject them: neither was their estate hereditary, 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 hour, the Law regardeth them no more, than a mere Tenant at will; for the Freehold at the Common Law, resteth not in them, but in their Lords; unless it be in Copyholds of Frank Tenure, which are most usual in ancient Demesne; though sometimes out of ancient Demesne, we shall meet with the like sort of Copyholds, as in Northamtonshire, 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 kind of Copyholders have the Frank 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 enfranchisement to a villain, no more than a mere estate at will. And further, their Lands are parcel 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 Custom of the Manor: For the Custom of the Manor hath so established, and so fixed them in their Land, that if they do their Services and Duties, and perform the Customs of the Manor, they are as well inheritable, according to the Custom, as he that hath a Frank Tenement at the Common Law: and since Custom is the life and soul of Copyhold Estates, and whatsoever shall, or can be spoken touching Copy-holds, ariseth from this Head, and from this Fountain; Give me leave in the second place to speak 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 been, and is daily practised.  
Custom, Prescription, and Usage; howsoever there be correspondency amongst them, and dependency one on the other, 
Custom, Prescription, and Usage, how they differ.  and in common speech, one of them is taken for another, yet they are three distinct things; Custom and Prescription differ in this. 1. Custom cannot have any commencement since the memory of man, but a Prescription may, both by the Comon-Law, and the Civil: and therefore where the Statute. 1. H. 8. saith, that all actions popular, must be brought within three years after the offence committed; whosoever offendeth against this Statute, and doth escape uncalled for three years, he may be justly said to prescribe an immunity against any such action. 2. A Custom toucheth many men in general; Prescription, this, or that man in particular: and that is the reason why Prescription is personal, and is always made in the name of some person certain, and his Ancestors, or those whose estate he hath; but a Custom having no person certain in whose name to prescribe, is therefore called and alleged after this manner. In such a Borough, in such a Manor, there is this or that Custom. And for Usage, that is the efficient cause, or rather, the life of both; for Custom and Prescription lose their being if Usage fail. Should I go about to make a Catalogue of several Customs, I should with Sisyphus saxum volvere, undertake an endless piece of work, therefore I will forbear, since the relation would be an argument of great curiosity, and a task of great difficulty: I will only set down a brief distinction of Customs, and leave the particulars to your own observation. Customs are either general or particular; general, which are part of the Common law, being currant through the whole Commonwealth, and used in every County, every City, every Town, and every Manor. Particular, which are confined to shorter bounds and limits, and have not such choice of fields to walk in, as general Customs have. These particular Customs are of two sorts, either disallowing what general Customs do allow, or allowing what general Customs do disallow, as for example sake. By the general Customs of Manors it is in the Copiholders' power to sell to whom he pleaseth, but by a particular Custom used in some places, the Copyholder before he can enforce his Lord to admit any one to his Copyhold, 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 party to whom the Surrender was made, should have it: so on the other side by the general Customs of Manors, the passing away of Copyhold land by deed for more than for one year without licence is not warranted; yet some particular customs in some Manors do it: so by the general Customs of Manors Presentments, or any other act done in the Leete, after the month expired, contrary to the Statute of magna Charta, and 31. E 3. are void, yet by some particular Customs such acts are good, and so in millions of the like, as in the sequel of this discourse shall be made manifest. And therefore, not to insist any longer in dilucidating this point, let us in few words learn the way how to examine the validity of a Custom: For our direction in this business, we shall do well to observe these six Rules, which will serve us for exact trial. 1. Customs and Prescriptions ought to be reasonable, and therefore a Custom that no Tenant of the Manor shall put in his Chattel to use his common in Campis seminatis: after the Corn severed, until the Lord have put in his Chattel, is a void Custom, because unreasonable, for peradventure the Lord will never put in his Chattel, and then the Tenants shall lose their profits: so if the Lord will prescribe that he hath such a Custom within his Manor, that if any man's beasts be taken by him upon his Demesnes damage pheasant, that he may detain them until the owners of the beasts give him such recompense for his harms as he himself shall request; this is an unreasonable Custom, for no man ought to be his own Judge. 2. Customs 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 certain sum of money, this is a void prescription, because it is not according to common Right, for he ought for justice sake to do it Gratis; but if the Lord prescribe to have a certain Fee of his Tenants, for keeping an extraordinary Court, which is purchased only 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 King's High way which lieth through his Manor, should pay him a penny for passing, this prescription is void, because it is not upon a good consideration; but if he will prescribe to have a penny of every one that passeth over such a bridge within his Manor, which bridge the Lord doth use to repair, 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 custom doth admit the husband to be Tenant by the courtesy, 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 month to bear his charges in time of war, this prescription is void; 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 certain; and therefore if the Lord will prescribe that whensoever any of his Copy-holders' dye without heir, that then another of the Copyholders shall hold the same lands for the year following, this prescription is void., for the incertainty; but if the Lord will prescribe to have of his Copy-holders', 2. d. an Acre Rent, in time of war four pence an Acre, this prescription is certain enough. 6. They ought to be beneficial to them that allege the prescription; and therefore if the Lord prescribeth that the custom hath always been within the Manor, that what distress soever is taken within his Manor for any common persons cause, is to be impounded for a certain time within his pound; this is no good prescription, for the Lord is hereby to receive a charge and no commodity: but if the prescription goeth further, that the Lord should have for every beast so impounded a certain sum of money, this is a good prescription. If we desire to be more fully satisfied in the general knowledge of prescriptions and Customs, we shall find many Maxims which make very material for this purpose, amongst which I have made choice of these three, as most worthy of your observation. 1. Things gained by matter of Record only, cannot be challenged by prescription, and therefore no Lord of a Manor can prescribe to have felons goods, fugitives goods, D●odands and such like; because they cannot be forfeited until it appear of Record: but waves, estraies, wrecks and such like may be challenged by prescription, because they are gained by usage without matter of Record. 2. A custom never extendeth to a thing newly created, and therefore if a Rent be granted out of Gavelkind-land, or Land in Borough-English, the rent shall descend, acorcording to the course of the Common Law, not according to the Custom. If before the Statute 32. H. 8. Lands were deviseable in any Borough, or City by special Custom; A Rent granted out of these Lands was not deviseable by the same Custom; for what things soever have their beginning, since the memory of man, Custom maintains not. If there be a Custom within a Manor, that for every house or cottage two shillings fine shall be paid, if any Tenant within these liberties maketh two houses of one, or buildeth a new house, he shall not pay a fine for any of these new houses; for the Custom only extendeth to the old. So if I have Estovers appendent to my house, and I build a new house, I shall not have Estovers for this new built house upon this ground. It hath been doubted, if a man by Prescription hath course of water to his Fulling-mill, he converting these into Corne-mills, whether by this conversion the Prescription is not destroyed, in regard that these Come-mills are things newly created; but because the quality of the thing, and not the substance is altered; therefore this alteration is held insufficient to overthrow the Prescription; for if a man by Prescription hath Estovers to his house, although they altar the Rooms and Chambers in the house, as by making a Parlour where there was a Hall, vele converso, yet the Prescription stands still in force: and so if by Prescription I have an ancient Window to my Hall, and I convert this into a Parlour, yet my neighbours upon this change cannot stop my Window; Causa qua supra. 3. Customs are likewise taken strictly, though not always literally. There is a Custom in London, that Citizens and Freemen may devise in Mortmayne. A Citizen that is a Foreigner, cannot devise by this Custom. An Infant by the Custom of Gavelkind, at th'age of fifteen, may make a Feoffment; yet he cannot by the Custom make a Will at that age to pass away his Land; to make a Lease, and a Release, which amounteth to a Feoffment. If there be any Custom that Copyhold-Lands may be leased by the Lord, vel per Supervisor. vel deputatum supervisoris: This Custom giveth not power to the Lord, to authorise any by his last Will and Testament, to keep a Court in their own name, and to make Leases, Secundum consuetudinem Manerii: but these Customs have this strict construction, because they tend to the derogation of the Common Law; yet they are not to be confined to literal interpretation; for if there be a Custom within any Manor, that Copyhold Lands may be granted in Feodo simplici, by the same Custom they are grantable to one, and the heirs of his body, for life, for years, or any other estate whatsoever; because, Cui licet quod majus, non debet quod minus est non licere; so if there be a Custom that Copyhold Lands, may be granted for life; by the same Custom they may be granted, Durante viduitate, but not e converso, because an estate during Widowhood, is less than an estate for life. Before the Statute of 32. H. 8. Lands in certain Boroughs were devisable by Custom. By the same Custom was implicit warranted, authorising Executors to sell Lands devisable. Now with your patience, I will only point at the manner of pleading of Customs, I find a fourfold kind of Prescribing.  
1. To prescribe in his Predecessors, as in himself, and all those whose estate he hath.  
2. To prescribe generally, not tying his Prescription to place, or person, as where a Chief Justice prescribeth, that it hath been used, that every Chief Justice may grant Offices; or where a Sergeant prescribeth, Quod talis habetur consuetudo, that Sergeants ought to be impleaded by original Writ, and not by Bill.  
3. To Prescribe in a place certain.  
4. To Prescribe in the place of another.  
The first sort of these Prescriptions, a Copyholder cannot use, in regard of the imbecility of his estate; for no man can Prescribe in that manner, but only Tenants in Fee simple at the Common Law.  
The second sort of these may be used sometimes by Copyholders in the pleading of a general Custom, but in alleging of a particular Custom, a Copyholder is driven to one of the last, and as occasion serveth, he useth sometimes the one, sometimes the other. If he be to claim Common, or other profit in the soil of the Lord, than he cannot prescribe in the name of the Lord, for the Lord cannot prescribe to have Common or other profit in his own soil; but then the Copyholder must of necessity prescribe in a place certain, and allege, that within such a Manor, there is such a Custom, that all the Tenants within that Manor, have used to have Common in such a place, parcel of the Manor: but if he be to claim Common, or other profit in the soil of a stranger, than he ought to prescribe in the name of his Lord, saying, that the Lord of the Manor, and all his Ancestors, and all those whose estate he hath, were wont to have a Common in such a place for himself, and his Tenants at will, etc.   

SEC. XXXIV.  
THus much of Customs. I come now home to Copyholders: and in the third place I hold it the best course to dilate upon the manner and means of granting Copy-holds; wherein I will only rely upon these five parts.  

1. Upon the person of the Grantor.  
2. Upon the person of the Grantee.  
3. Upon the Grant itself.  
4. Upon the thing Granted.  
5. Upon the Instruments, through whose hands, as through Conduit-pipes, the Lands are Gradatim, conveyed to the Purchasor.   
And first, of the person of the Grantor. Sometimes the Lord himself is Grantor; sometimes a Copyholder. In voluntary Grants made by the Lord himself, the Law neither respecteth the quality of his Person, nor the quantity of his Estate; for be he an Infant, and so through the tenderness of his age, insufficient to dispose of any Land at the Common Law, or non compos mentis, an Idiot, or a Lunatic; and so for want of common reason, unable to traffic in the world; or an Outlaw in any personal action, and so excluded from the protection of the Law; or an Excommunicate, etc. and so restrained, ab omnium fidelium communione, or at least, à Sacramentorum partitipatione: notwithstanding these infirmities and disabilities, yet he is capable enough to make a voluntary grant by Copy, for if a feme seignioresse take Baron, and they two join in a voluntary Grant by Copy, this shall ever bind the Feme and her heirs, and yet she is not sui juris, but sub potestate viri, because the Custom of the Manor is the chief basis, upon which stands the whole fabric of the Copyhold estate, and therefore what Custom doth confirm to a Copyholder, the Law will ever allow, and never seek to avoid it, in respect of any such imperfection in the Grantors' persons, and the quantity of the Lords estate is no more respected than the quality of his person: for if his interest be lawful, be his estate never so great, or never so little 'tis not material; for be it in Fee, or be it in tail or dower, or as Tenant by courtesy, for life or for years, as Guardian, or as Tenant by Statute, or as Tenant by Elegit, or at will; the least of these estates, is a sufficient warrant to the Lord, to Grant any Copyhold esheated unto him: for as long time as the Custom doth allow; the ancient Rents and Services, being truly reserved, and these Grants shall ever bind them that have the Inheritance, or Franck-Tenement of the Manor, as well as offices granted for life, by the chief Justice of the Common Pleas, whose office is but at will, shall ever conclude the succeeding Justice. The reason of the Law is this. A Copyholder upon voluntary Grants made by Copy, doth not derive his estate out of the Lords estate only, for then the Copy-holders' estate should cease, when the Lords interest determineth, Nam cessante: primitivo cessat derivativus, but the life of the Copy-holders' estate is the Custom of the Manor; and therefore whatsoever befalleth the Lord's interest in his Manor, be it determined by the course of time, by death, by forfeiture, or other means; yet if the Lord were Legitimus Dominus pro tempore; how small so ever his estate was, that is enough, for the same Custom that fixeth a Copyholder instantly in his land upon his admittance, will likewise preserve, and protect his interest, to the end, in such manner, that though the Lords interest faileth, yet his shall never fall to ground, being upheld by such a prop, such a pillar, unless perchance the Copyholder offer violence to his Founder in breaking the Custom. If the Lord granteth a Copyhold, and after doth sever this Copyholder from the Manor, by granting the inheritance to a stranger, though now one of the chief pillars of a Copyhold estate is wanting, viz. to be parcel of the Manor; yet because the Land, at the time of the Copy-holders' admittance, had this necessary incident, this severance, being a matter ex post facto, cannot amount to the destruction of the Copyhold, espicially being the sole act of the Lord himself. If a Manor be granted upon Condition, and before the Condition is broken, the Land is granted by Copy, than the Manor become forfeited, and the Feoffer entereth; yet the Copyhold estate remaineth untouched, because lawfully established by Custom, and yet all mean estates and charges whatsoever, granted by the Feoffee at the Common Law were voidable upon the entry of the Feoffer; for we have a ground in Law, that when an entry is made for breach of a Condition, the party to all intents and purposes, is in the same plight that he was in at the time of the making of the estate. If a man seized of a Manor in Fee, dieth seized, having issue, a daughter; and his wife being privement inseint with a son, and the daughter granteth Lands by Copy, this Grant shall stand good against the son, for the daughter was Legitime Domina pro tempore. So if the Feoffee of a Manor, upon Condition to infeoff a stranger, the next day maketh a voluntary Grant by Copy, this shall bind, and yet his interest was to have but small continuance. If a Manor be Granted with a feme in Francke marriage, and there is a divorce had, causa paercontractus; so that now the interest of the Manor is now granted to the feme only, and by relation, the marriage is void, ab initio: yet because the Baron was Legitimus Dominus pro tempore, any Copyholders estates granted, before the divorce, remain good. So if a man espouseth a feme seignioresse, under the age of consent; and after she doth disagree, though the marriage by relation was void, ab initio, yet Copyholds granted before disagreement, shall never be avoided, causa qua supra.  
If the Lord of a Manor committeth felony or murder, and process of Outlawry, be awarded against him, after the Exigent, he granteth Copyhold estates, according to the Custom, and then is attainted, these Grants are authentical, though by relation, the Manor was forfeited, from the time of the Exigent awarded. So if the Lord had been attainted by Verdict, or Confession, any Grant by Copy, after the Felony, or murder committed, shall stand good, notwithstanding the relation. If the Lord of a Manor acknowledge a Statute, and then granteth Lands by Copy; and after the Manor is delivered to the Cognisee in extent; the Grant cannot by this be impeached. And if the Lord of a Manor taketh a wife, and after maketh Copyhold estates, according to the Custom, and dieth, though the feme hath this Manor assigned unto her for her Dower, yet cannot she avoid these Copyhold estates, because the Copyholders are in by a title Paramount, the title of the feme, viz. by Custom. But paradventure, if the heir after the death of his Ancestor, before the Assignment made unto the feme for her Dower, had granted Lands by Copy, the feme might avoid these Grants, because instantly upon the death of the Baron, her title received his perfection, and nothing more was wanting to the confirmation of her interest: but though the quantity of the Lords estate in the Manor be not respected, yet the quantity of his estate in the Copyhold is regarded. For if a Copyholder in Fee surrender to the use of the Lord for life, the Remainder over to a stranger, or reserveth the Reversion to himself, if the Lord will Grant this by Copy in Fee, whatsoever estate the Lord hath in his Manor; yet having but an estate for life in the Copyhold; no larger estate shall pass, than he himself hath, Quia nemo potest plus juris in alium transferre quam ipse habet: and further observe, that sometimes the Law respecteth the quantity of the Lords estate in the Manor; for what Acts so ever are not confirmed by Custom, but only strengthened by the power, authority, and interest of the Lord, have no longer continuance than the Lords estate continueth, and therefore it is held, that if a Tenant for life of a Manor, granteth a licence to a Copyholder to alien, and dieth, the Licence is destroyed, and the power of alienation ceaseth. As for the quality of the Lords estate in the Manor, that is much more now respected, than either the quality of his estate, or the quality of his person: for if the Lord, or he who soever it be that maketh a voluntary Grant by Copy, hath no lawful interest in the Manor, but only an usurped title, his Grant shall never so bind the right owner; but that upon his entry he may avoid them, otherwise we should make Custom an agent in a wrong, which the Law will never suffer; and yet if the Lord of a Manor by his Will in writing deviseth, that his Executor shall Grant Copy hold estates, Secundum consuetudinem Manerii, for the payment of his debts, etc. and they make voluntary Grants accordingly: these Grants are good, notwithstanding the Executor hath no interest in the Manor, nor is Dominus pro tempore.  
If a Disseinor of a Manor dieth seized, notwithstanding his heir come in by ordinary course of descent, yet because the Tort commenced by his Ancestor, is still inherent to his estate, if any Copyhold estate be granted by the heir, it may be avoided by the Disseinor, immediately upon his recovery, or upon his entry; and so if the Disseinor infeoff a stranger of the Manor; notwithstanding the Feoffee come in by title, yet no grant made by him of Copyhold-Land, shall ever bind the Disseined, no more than a Grant made by the Disseinor himself.  
If Tenant in Tail of a Manor discontinueth and dieth; and after the discontinuance Granteth Copyhold, estates, the heir recovering in a Formidon in the Discender, may avoid these Grants; for though the Discontinue come in under a just title, yet his interest being determined by the death of the Tenant in Tail, the continuance of the possession is a Tort to the heir, and Acts done by Tort-scisors tending to the dis-inheritance of the right owner's Custom, will never so strengthen, but they may be annihilated. So if a man seized of a Manor in right of his wife, Alieneth this Manor and dieth, any Grant made of Copyhold estates, after his death may be avoided by the feme, upon her entry, or upon her recovery, in a Gui in vita.  
If a Manor be Granted, pr. aut. vie, and Cestay que vie dyeth, and the Grantee continueth still in the Manor, and maketh Grants by Copy, these shall not bind the Grantor of the Manor; for immediately upon the death of Cestay que vie, the Grantee was but a Tenant at sufferance, and had no Manor of Lawful interest, for a Writ of Entry, ad terminum qui preter sit, lieth against him, as against Deforceor.  
And so if a Tenant for life of a Manor maketh a Lease for years of the same Manor and dieth, Copyhold estates granted by the Lessee, after the death of the Tenant for life, are voideable by the first Lessor.  
If a Lessee for years of a Manor granteth a Copyhold in Reversion, and before the Reversion eschew, the term is expired, the Grant is void; and so I take the Law to be, if the Lessee surrendreth his term, and then before his Lease should have ended in point of limitation, the Reversion falleth, yet the Grantee shall not have it.  
If a Lease be made for years of a Manor, the Lease to be void upon the breach of a certain Condition, if the Condition be broken, and afterwards the Lessee before the entry of the Lessor, granteth estates by Copy, these Grants shall never exclude the Lessor: for presently upon the breach of the Condition; the Lease is void, but had the Manor been granted for life, in Tail or in Fee, I think Law would have fallen out otherwise, for before entry, the Franck-Tenement had not been avoided, and wheresoever a man may enter and avoid any estate of Franck-Tenement, upon the breach of a Condition, the Law adjudgeth nothing to be in him before entry, and he may waive the advantage which he might take by the breach of the Condition if he will, and therefore notwithstanding the accruer of the title of the Grantor; yet before this title be executed by entry, the Grantee hath such a lawful interest, that what estate soever he granteth by Copy, in the interim shall stand good against the Grantor. And so if an Infant infeoff me of a Manor, though he may enter upon me at his pleasure; yet Grants made by me by Copy before his entry, shall never be defeated by any subsequent entry.  
And the same Law is of Grants made by a Villain purchaser of a Manor, before the entry of the Lord, or of Grants made after an alienation in Mortmayne, before the Lord Paramount hath entered for a forfeiture.  
If a Parson after Institution, and before Induction, a Manor being parcel of his Gleab Lands, Grants Lands by Copy, and after is inducted: this admitting of the Copyholders is no binding act, for though, as to the spiritualties, he be a complete Parson, presently upon the institution, yet as to the temporalities, he is not complete before Induction. So if a Parson be admitted instituted and inducted, but doth not subscribe to the Articles, according to the Statute of 13. Eliz. and granteth Lands by Copy, as before. This Grant shall not conclude the succeeding Incumbent because his Admission, Institution, and Induction were wholly void in themselves, but had the Parson been deprived for crime or heresy, or for being mere Laicus, although he be declared by sentence, to be uncapable of a Benefice; and so his presentment, void (ab initio) yet because the Church was once full, until the sentence declaratory came; for though the deprivation shall relate to some purposes, yet because the Presentment, is not in itself void, surely a relation shall never be so much favoured, as to avoid a Copyhold estate in this kind.  
So much of Grants made by the Lords themselves. In Grants made by Copyholders, as the Law respecteth the quality of the Copyholders estate, so doth it respect both the quality of his person, and quantity of his estate.  
The quality of person, for whosoever is uncapable of disposing of Land at the Common Law, cannot without special Custom pass away any Copyhold. The quantity of his estate, for no Copyholder can possibly pass away more than is in him; and therefore, if there be joint Tenants of a Copyhold, one cannot alien the whole. But if there be two joint Tenants of a Manor, and a Copyholder escheateth, one of them may grant this Copyhold, and his Companion shall never avoid any part of it.  
If a Copyholder for life, the remainder over in Fee to a stranger surrendreth in Fee, and the Lord admits accordingly, yet an estate for life only passeth.  
So if the Lord of a Manor granteth a Copyhold for life, where an estate in Fee, is warrantable, and the same Grantee surrenders in Fee, to the use of a stranger; and the Lord admits him, secundum officium sursumredditionis; I think no Fee passeth: for though the Lords admittance may, prima fancy, seem to amount to a confirmation of the estate surrendered; the Reversion resting in him to dispose of, according to the Custom; as where a Lessee for years at the Common Law maketh a Feoffment in Fee, and maketh a Letter of Attorney to his Lessor, to deliver Livery and seisin, who executeth it accordingly, though the Lessor be used as an instrument to perform the will of the Lessee; yet this being his voluntary act, the Law taketh it as a consent for the passing away of the whole inheritance; but if you look narrowly into both Cases you shall find the difference in the Latter Case, by the Feoffment, the Fee is devested out of the Lessor; and therefore a consent will serve to transfer the Reversion; but in the former Case, the Reversion is not plucked out of the Lord, by the Surrender, and therefore an implied consent is too weak to remove it. I will only add one observation more, and so I will end with the Grantor.  
The Law is not so strict to a Copyholder, as that he must come personally into Court upon the making of every Surrender, but they may Surrender by Attorney, as well as Livery and Seisin may be made by Attorney at the Common Law; and should the Law be otherwise, great inconveniency would ensue; for how should Copyholders that are in prison, or languishing upon bed, or beyond the Seas, surrender but by Attorney?  
But note this difference, if a man hath a bare Authority joined with a Confidence without interest, this Authority cannot be executed by Attorney; & therefore if I devise, that my Executor shall sell my Land, they cannot sell by Attorney, for that were to make an Attorney upon Attorney, which the Law will in no wise permit; and though a man have an Authority joined with an interest, yet if the Authority be warranted by special Custom only, it cannot be executed by an Attorney: and therefore if there be a special Custom, that a Copyholder for life may make estate, for 20. years to continue after his death, these estates cannot be made by Attorney. So if there be a special Custom, that an Infant at the age of discretion may surrender a Copyhold; this surrender being confirmed by special Custom only, cannot be made by Attorney. And so if there be a Custom, that a Copyholder out of the Court may surrender into the hands of the Lord, by the hands of two Customary Tenants, such Surrenders must be done in person.  
But wheresoever there is a general Authority, accompanied with an interest, that Authority may be executed by Attorney, as Cestuy que use, after the Statute of 1. R. 3. and before the Statute 27. H. 8. might have aliened by Attorney; for at that time he had an absolute authority to dispose of the Land at his pleasure, without any confidence reposed in him. And thus much of the Grantor; A word of the Grantee.   

SEC. XXXV.  
THe same persons that are capable of a Grant by the Common Law, are capable of a Grant by Copy, according to the Custom of the Manor.  
An Infant, a man of non sanae memoriae; an Idiot, a Lunatic, an Outlaw, or an excommunicate, may be Grantees of a Copyhold estate.  
The Lord himself may take a Copyhold to his own use, one joint Tenant may receive a Copyhold from the hands of his joint companion, because it passeth by Surrender, not by Livery.  
A feme covert may be a purchaser of Copyhold, and this purchase shall stand in force, until her husband disagreeth. Nay, further, a feme covert may receive a Copyhold estate by surrender from her husband, because she cometh not in immediately by him, but by mediate means, viz. by the admittance of the Lord according to the surrender.  
As the seem is capable of receiving a Copyhold from the hands of the Baron; so by special Custom, the Baron may take a Copyhold from the hands of his seem, for in some Manors, Custome● doth enable the feme to devise a Copyhold to the Baron, but this Custom hath been much impugned, therefore I dare not justify the validity of it.  
What persons soever are capable of a Grant by Copy, may well take by Attorney, not that the Lord shall be enforced to admit any one by Attorney, because upon every admittance, there is fealty due by the party admitted, which is a duty so inseparably annexed to the persons, that it cannot be discharged by deputy, and therefore no reason the Lord should be enforced to admit by Attorney, but if he will admit him, it standeth good.  
It is not necessary that upon Surrenders of Copyholds, the name of the party to whose use the Surrender is made, be precisely set down; but if by any manner of circumstance, the Grantee may be certainly known, it is sufficient. And therefore a Surrender made to the Lord Archbishop of Canterbury, or the Lord Major of London, or the high Sheriff of Norfolk, without mentioning, either their Christian-name, or Surname, are good enough, and certain enough, because they are certainly known by this name, without further addition. So if I Surrender to the use of the next of my blood, to the use of my wife, to the use of my brother or sister, having but one brother, or one sister, these Surrenders are good without any additions, because the Grantee may certainly be known by these words.  
If I Surrender generally into the hands of the Lord, not expressing to whose use the Surrender shall be, this Surrender is a good Surrender, and shall enure to the benefit of the Lord.  
If I surrender to the use of my son W. having more sons than one of that name, yet by an averment, this incertainty may be helped.  
But if I Surrender to the use of my cousin, or my friend, this is so general and so incertain, that no subsequent manifestation of my intention can any way strengthen it.  
So if three Surrender, to the use of three or four of S. Dunston's Parish, not naming the Parishiones by their names, this Surrender is utterly void.  
And so if I Surrender in the disjunction to the use of I. L. or I. N. this is insufficient for the incertainty.  
And in customary Grants upon Surrenders the Law is not so strict, as in Grants at the common Law, for in Grants at the common Law, if the Grantee be not in rerum natura and able to take by virtue of the Grant, presently upon the Grant made, it is merely void. But in customary Grants upon Surrenders the Law is otherwise: for though at the time of the Surrender, the Grantee is not in esse, or not capable of a Surrender, yet if he be in esse and capable at the time of the Admittance that is sufficient; and therefore if I Surrender to the use of him that shall be heir to I. S. or to the use of I. S. next child, or to the use of I. S. next wife; though at the time of the Surrender I S. had no heir, child, or wife: yet if afterwards he hath a child, or taketh a wife, his heir, his child, or his wife may come into the Court and compel the Lord to admit according to the Surrender. So if I Surrender to the use of him that shall come next into Paul's after such an hour, whose fortune soever it is to come first, the Lord must admit, and I shall never avoid it.  
The same Law is if I surrender to the use of him that I. S. shall nominate, or that I myself shall nominate to the Lord at the next meeting; the reason of the Law is this, a Surrender is a thing executory which is executed by the subsequent Admittance, and nothing at all is invested in the Grantee, before the Lord hath admitted him according to the Surrender, and therefore if at the time of the Admittance the Grantee be in rerum natura and able to take, that will serve.  
Besides in Customary Grants the intent of the Grantor is more respected than it should be by the strict rules of the Law, which appeareth by this, that if a Surrender be made of a Copiehold to the use of a last Will, and the Surrender deviseth it unto two, the one is admitted according to the purport of the Will, this shall inure to both, but though the Surrender be a thing executory and the intent of the Grantor so much favoured: yet if a Copyholder will Surrender to the use of the right heirs of I. S. he being alive, this is void because it cannot take effect according to the intent of the Grantor; for he would have the grant to be executed presently, which cannot be in regard that I. S. can have no heir till after his death: So much of the Grantee, and I come now to the Grant itself.   

SEC. XXXV.  
A Copyhold interest cannot be transferred by any other, assurance then by Copy of Court Roll, according to the Custom.  
If I will exchange a Copyhold with another, I cannot do it by an ordinary exchange at the Common Law, but we must surrender to each others use, and the Lord admit us accordingly.  
If I will devise a Copyhold I cannot do it by will at the Common Law, but I must surrender to the use of my last Will and Testament, and in my Will I must declare my intent.  
If I am ousted by a Copyholder, a release made to him is void, because it would be a prejudice to the Lord, and besides there is no Customary right, upon which the release may inure, but a release inuring by the way of extinguishing where no prejudice accrueth to the Lord, will serve to drown a Copyhold right, and therefore if I surrender out of Court upon condition, 
Co. 4 fo. 25.  to the use of I. S. and the presentment is made absolute in Court, and the admittance framed accordingly, this admittance and presentment differing from the effect of the Surrender are both void. Yet because upon the admittance the Lord is satisfied of his fine and so nothing at all prejudiced, and besides here is a customary right, upon which the release may be grounded, I may by a release at the Common Law, sufficiently confirm this void estate. And so upon the same reason if I am ousted of a Copyhold, and the Lord admit him according to the Custom, a release made by me at the Common Law, will extinguish my right, but if I make a Lease for years of a Copyhold, I cannot by my release pass my Reversion, because this release injureth by way of enlargement to transfer an interest, and not by way of extinguishment, to drown a right, but my way is to surrender my Reversion into the hands of the Lord, and he to Grant it over to the Lessee.   

SEC. XXXVII.  
IF Copyhold Land come into that plight that it cannot pass by Copy, it is become not alienable; and therefore if the Lord of a Manor will grant to me a Copyhold in Fee, and after will grant the inheritance of this Copyhold to a stranger in regard that now my Copyhold is become no parcel of the Manor, and so I cannot surrender into the hands of the Lord and the Grantee of the inheritance, though I am to him a Tenant, and am tied to do unto him all manner of services which are due without keeping of Court, as to pay Rend, to discharge Herriots and all other Duties, of the same nature: yet because the Grantee cannot keep a Court, and so is incapable of taking a Surrender, or making an admittance, therefore I cannot by any means alien for no conveyance at the Common Law will serve, because it remaineth still Copyhold notwithstanding, and what Customs soever were incident to the Land before severance, do remain still undestroyed, as if the land were Burrow English, or Gavelkind before, it so continueth, 
Co. 4. fo. 24.  and a decree in Chancery will not serve no more than an ordinary assurance at the Common Law; for that bindeth my person only, not my interest: since therefore Copyhold estates cannot be conveyed away otherwise than by Copy of Court Roll, according to the custom, let us examine the nature of these customary grants, wherein three branches are to be considered.  

1. The Surrender.  
2. Presentment.  
3. Admittance.   
In some Grants a Surrender is sufficient without Presentment or Admittance.  
In some an Admittance without a Surrender or Presentment.  
In some a Surrender and Admittance and both necessary; and in some, a Surrender, Presentment, and Admittance are all requisite.   

SEC. XXXVIII.  
IF a Copiholder will Surrender to the use of the Lord the interest of the Copyhold is sufficiently vested in the Lord immediately upon the Surrender without any Admittance of the Lord, because the Lord cannot admit himself.  
If the Lord will make a voluntary grant of a Copiehold, no Surrender is requisite, for by the Admittance of the Lord according to the custom, the Copieholder is sufficiently settled in his Land without any other ceremony.  
If a Copyholder will Surrender in Court to the use of a stranger, besides the Surrender the Admittance is requisite, and if the Surrender he made out of Court into the hands of the Lord himself, which the general custom will warrant, or into the hands of the Bailiff or of two Tenants of the Manor, which by special custom only is warrantable, besides a Surrender, two other ceremonies are requisite, the one a true presentment of the Surrender in Court by the same persons into whose hands the Surrender was made, the other is an Admittance of the Lord according to the effect and tenor both of the Surrender and presentment.  
But now more particularly of every one of them apart, and first of a Surrender.   

SEC. XXXIX.  
THis word Surrender, is vocabulum artis, and therefore where a Surrender is needful, if this one word be wanting, all other words, used in ordinary conveyances, are uneffectuall and insufficient to convey any Copyhold estate, for if a Copyholder come into Court, and offer to pass his Copyhold by word of grant, of gift, of bargain, or sale, or such like, I doubt he will fail of his purpose, for as he is tied to a singular form of assurance, so is he restrained to peculiar words in his assurance.  
Surrenders are made in several sorts according to the several customs of Manors.  
In some Manors where a Copyholder surrendreth his Copyhold, he useth to hold a little rod in his hand, which he delivereth to the Steward or Bailiff, according to the Custom 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 own 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 pass away the Land to any other, or make it subject to any other encumbrance 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 he enter he is a trespasser, and punishable in trespass; and if he surrender to the use of another, this surrender is merely 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 interest; 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 Cousin, in consideration of consanguinity, or to the use of his son, in consideration of natural 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 sum 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 general Customs of Manors, is to be made, at the next Court day, immediately after the surrender, but by special Custom; in some places, it will serve at the second or third Court. And it is to be made by the same persons, that took the surrender, and in all points material, according to the true tenure, of the surrender. And therefore if the surrender be conditional, and the Presentment be absolute, both the Surrender, Presentment and Admittance thereupon are wholly void.  
But if the Conditional surrender be presented, and the Steward in entering of it, omitteth the Condition; yet upon sufficient proof made in Court, the surrender shall not be avoided, but the Roll amended, and this shall be no conclusion to the party, 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 Custom, 
Co. 4. fo. 39 b.  this is sufficient; so if he, to whose use the surrender is made dieth before Presentment, yet upon Presentment made after his death, according to the Custom, his heir 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 jointly, 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, die before Presentment, upon sufficient proof in Court, that such a surrender was made, the Lord shall be compelled to admit accordingly; and if the Steward, the Bailiff, or the Tenants, into whose hands the surrender is made, refuse to present, upon a Petition or a Bill exhibited in the Lord's Court; the party grieved shall find remedy. But if the Lord will not do him right, he may both sue the Lord, and them that took the surrender in the Chancery, and shall there find relief. 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 Descent.    
Involuntary Admittances the Lord is an instrument; for though it is in his power to keep the Land in his own 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 Custom precisely in every point, and can neither in Estate nor Tenure bring in any alteration, in this respect the Law accounts him Customs instrument. If the Custom doth warrant an estate only, Durante viduitate, and the Lord admits for Life; this shall not bind his heir or successor, because Custom hath not sufficiently confirmed it. So if the Lord fail in reserving verum & antiquum redditum; as if he reserveth ten shillings, where the usual rent Customably reserved, is twenty shillings: this may be a means to avoid 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 heir 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 quality of the rent is in force to destroy the Grant: so if the ancient rent hath been accustomably paid at four Feasts in the year, and the Lord reserveth it at two Feasts. So, if two Copyholds Escheat to the Lord, the one of which hath been usually demised for twenty shillings rend, th'other for ten shillings rend, and he granteth them both by one Copy, for one rend of thirty shillings, this is not good; and so if a Copyhold of three acre's Escheates, which hath been ever granted for three shillings rend, and the Lord granteth one Acre, and reserveth pro rata, one shilling rend, verus & antiquus reddit, is not reserved: but if a Copyhold of six Acres, which hath ever been demised for six shillings rend, Escheateth to two Coparteners, and one granteth three Acres, reserving three shillings pro rata, this is a perfect reserving. In Admittances upon surrender, the Lord to no intent is reputed as owner, but wholly as an instrument, and the party admitted, shall be subject to no other charges or encumbrances of the Lord, for he claims his estate under the party that made the surrender: and in the plaint, in the nature of a Writ of entry in the per, it shall be supposed in the per by him, not by the Lord; and as in admittances upon surrenders; so in admittances upon descents, the Lord is used as a mere instrument, 
Co. 4. fo. 27. b.  and no manner of interest passeth out of him, and therefore, neither in the one nor in the other, is any respect had unto the quality of his estate in the Manor; for whether he hath it by right, or by wrong it is not material, these admittances shall never be called in question for the Lords Title, 
Co. 1 fo. 140. b.  because they are judicial acts, which every Lord is enjoined to execute.  
Besides in admittances upon Surrenders, the Lord being accounted nothing but a necessary instrument, it followeth that he hath a bare Customary power to admit, secundum formam & effectum sursum reddendi: therefore if there be any variance between the admittance and the surr. either in the person, in the estate, or in the tenure, or in any other collateral points, the Lord doth only transfer an estate according to the surr. and his authority if it can take such effect. As if I Surrender to the use of I.S. and the Lord admits I.N. this admittance is wholly void; and notwithstanding this admittance the Lord may afterwards admit I. S. according to the effect of his authority: but had he admitted I. S. and I.N. jointly, than the admittance had been void for the one, and good for the other, like the Case of a Devise: where a Devise of a term is made to I. S. and the Executors agree, that I. S. and I.N. shall have this term; 
Co. 4 fo. 28  this consent is void to I.N. for after the consent of the Executors, I. N. is in by the Devise. Yet some are of opinion, that if I surr. to the use of I. S. in Fee, and the Lord admits I. S. together with his eldest son and heir apparent, that this is an estate by Estoppell to I.S. and that he shall only claim jointly with his son, because he might have refused an admittance in this manner; but I can hardly be brought, to think that this admittance, giving a present interest in theson, who by surrender was to have no interest till the death of his father, should be any such estopell.  
If I surr. to the use of I.S. for life, and the Lord admits him in Fee, an estate for life only passeth. 
Co. 4. fo. 29.  So if I surr. without mentioning any certain estate, because by implication of the Law, estate for life only passeth, though the Lord admit in Fee, no more doth pass, than the implication of Law will warrant. If I surr. with the reservation of a rent, and the Lord admits not, reserving any rent, or reserving a less rend than I reserved upon the Surrender, this admittance is wholly void: but if the Lord reserveth a greater rent, then is the reservation void, only for the surplusage, and the admittance, so far currant as it agreeth with my surrender. If I surrender upon Condition, and the Lord omits the Condition, the admittance is wholly void; but if my surrender be absolute, 
Co. 4. fo. 25.  and the Lords admittance be conditional, the Condition is void, but the admittance in all points else is good.  
The reasons of these diversities are these, where an Authority is given to any one to execute any act, and he executeth it contrary to the effect of his authority, this is utterly void, but if he executeth his authority and withal goeth beyond the limits of his warrant, this is void for that part only, wherein he exceedeth his authority. These admittances upon Surrender, differ from admittances upon Descents in this, that in admittances upon surrender, nothing is vested in the Grantee before admittance, no more then in the Voluntary admittances; but in admittances upon Descents, the heir is Tenant by Copy immediately upon the death of his Ancestor, not to all intents and purposes; for peradventure he cannot be sworn of the homage before, neither can he maintain a plaint in the nature of an Assize in the Lords Court before, because till then he is not complete Tenant to the Lord, no further forth than the Lord pleaseth to allow him for his Tenant. And therefore, if there be Grandfather, Father, and Son; and the Grandfather is admitted, and dyeth, and the Father entereth, and dyeth before admittance, the Son shall have a plaint in the nature of a writ of Ayell, and not an Assize of Mort d'auncestor, so that to all intents and purposes, the Heir, till admittance is not complete Tenant, yet to most intents, especially as to strangers, the Law taketh notice of him, 
Co. 4. fo. 23.  as of a perfect Tenant of the Land, instantly upon the death of his Ancestor, for he may enter into the Land; before admittance, take the profits, punish any trespass done upon the ground, Surrender into the hands of the Lord, to whose use he pleaseth, satisfying the Lord his fine, due upon the Descent, and by estoppel, he may prejudice himself of his inheritance, for if an Estrange come and surrender to the use of him and his Wife, before admittance, he shall ever claim jointly with his Wife, and never be taken as sole Tenant, and the Lord may avow upon him before admittance, for any arrearages of Rent, or other Services, and last of all, 
Co. 4. fo. 22. b.  upon an actual possession, there shall be possessio fratris, before admittance, for if a Copyholder in Fee, have issue a Son, and a Daughter by one Venture, and a Son by another venture, and dyeth seized, and his Son by the first Venture, entereth into the Land, and dyeth before admittance, the Daughter shall inherit, as Heir to her brother; and not the Son by the second Venture, as Heir to his Father: and many times the possession of a Guardian, or a Tearmer, without an actual entry, or any claim made by the Heir, will make a possessio fratris. As if a Copyholder in Fee, having issue a Son or a Daughter, by one venture, and a Son by another Venture; by Licence of the Lord, maketh a Lease for years, and dyeth, and the Son of the first Venture dyeth, before the expiration of the Term, being neither admitted, nor having made any actual entry, or any claim. Yet this possession of the Lessee is sufficient, and the Reversion shall descend to the daughter of the first Venture, and not to the son of the second Venture. But if the Lease had been determined living, the Son by the first Venture, and afterwards he had died before any actual entry made, the Law would have fallen out otherwise, because there was a time, when he might have lawfully entered; therefore, where some have imagined that nothing should be invested in the Heir before admittance; because every admittance of an Heir, upon a Descent, amounteth to a Grant, and so may be pleaded, they are in an error, for though it be true, that after admittance, the Heir may in pleading, allege this as a Grant, and that hath been allowed, to avoid the inconveniencies that otherwise should ensue; For if the Copyholder should be driven in pleading, to show the first Grant, 
Co. 4. fo. 22. b.  either that being made before the memory of man, is not pleadable, or since the memory of man, and then Custom fails, for this reason the Law hath allowed a Copyholder, in pleading to allege any admittance aswell upon a Descent, as upon a Surrender, as a Grant: and yet he may if he will, allege the admittance of his Ancestors as a Grant, and show the Descent to him, and that he entered; and well without any admittance; but the Heir cannot plead that his Ancestor was seized in Fee, at the will of the Lord, by Copy of Court Roll, of such a Manor, according to the Custom of the Manor, and that he died seized, and that the Copyhold descended upon him, because in truth such an interest is but a particular interest at will, in judgement of Law, although it be discendable by Custom.  
So that I conclude, that an admittance is principally for the benefit of the Lord, to entitle him to his Fine, and not much necessary for strengthening of the Heirs title.  
Then will some say, if the benefit which the Heir shall receive by the admittance, will not countervail the charges of the Fine, he will never come in, and take up his Copyhold in Court, and so defeat the Lord of his Fine: I assure myself, if it were in the election of the Heir to be admitted, or not to be admitted, he would be best contented without admittance, but the Custom in every Manor is compulsary in this point, for either upon pain of forfeiture of their Copyhold or of incurring some great penalty, the Heirs of Copyholders are enforced in every Manor to come into Court, and be admitted according to the Custom within a short time after notice given of their Ancestors decease. And thus much of the Grant itself. A word of the things granted.   

SEC. XLII.  
THings that lie not in Tenure, are not Grantable by Copy. As Rents, Bailiwickes', Stewardships, Common in gross, Advowsions in gross, and such like. All which are incorporate Hereditaments, and therefore no Rent can issue out of them; neither can they be held by any manner of Service, but an Advowson appendent, a Common appendent, or a Fair appendent may pass by Copy, by reason of the principal thing, to which they are appendent, and generally what things soever are parcel of the Manor, and are of perpetuity, may be granted by Copy, according to the Custom, as Vnderwoods' growing upon the Manor, being things of continuance, (for after they are cut they will grow again, 
Co. 4 fo. 31.  ex stipitibus) may well be granted by Copy; and so of herbage or any other profit of the Manor; and sometime of the grant of a Copyhold, things shall pass that are severed from the Manor. As if the Lord of a Manor grant his Manor for years, except. bosc. & sabosc. growing in certain Copyhold ground, and the Lessee by his Steward granteth a Copyhold within which Manor there is a Custom that every Copyholder may take within his Copyhold Woods, and Vnderwoods', growing upon the ground for his necessary fuel, notwithstanding this exception in the Lease of the Manor, the Copyholder may cut down Woods or Vnderwoods' according to the Custom, though by exception severed from the Manor, for though the Lessee of the Manor, in respect of the exception, could not meddle with the Woods or Vnderwoods', and so it might seem, p●ima fancy, very probable that the Copyholder, coming in by the voluntary admittance of the Lessee, should have no more Authority nor interest then the Lessee himself had; yet because the Copyholder being once in by Custom, and so his title being grounded upon Custom is paramount the exception; Therefore, the exception in the Lease of the Manor, though preceding the Grant of the Copyhold, cannot any way touch or prejudice the Copyholder. And so, if there be a Custom, within a Manor that Copyholders have used to have Common in the Wastes of the Lord, and the Lord granteth away his Wastes, and after granteth a Copyhold, the Copyholder shall have Common, but in alleging the Custom, he shall not say, Quod infra Manner. praed. talis habetur consuetudo. but that till such a time, viz. before the severance, talis habebatur & toto tempore, etc. consuetudo, and then show the severance. If there be an incertainty in the things granted, the Grant is not therefore insufficient; for by the election of him that is the first Agent, it may be made certain.  
As if I grant by Copy, twenty loads of Hasell, or twenty loads of Maple in the disjunctive to be cut down, 
Co. 4. fo. 31. a Co. 2 fo. 37. a  and taken by the Grantee in my Manor of Dale, there the Grantee hath election to make choice of which he pleaseth, because he is to perform the first Act of cutting down, and taking them, but if I am to cut them down, and deliver them to the Grantee, then have I the election, and observe this difference touching this point of election.  
If a Grant be made in the dis-junctive of two annual things, and things of continuance; if the election belong to the Grantor, and he faileth at the day to make election, yet his election is not determined, but continueth the same after the day, that it was before the day, but otherwise it is, where things are not annual, but are to be performed unica vice tantum.  
Therefore if the Lord of a Manor granteth by Copy, twenty trees growing upon Black-acre, or Whiteacre, to be cut down yearly by himself, and to be delivered to the Grantee at such a day, though the Grantor fail at his day to make his election, yet his election is not gone, because the things granted are annual, but had these trees been to be delivered to the Grantee once only, and not yearly, then by the failor of the Grantor at the day, the election is devolved to the Grantee.   

SEC. XLIII.  
ANd thus much of the thing granted, a word of the Instruments, through whose hands, as through Conduit-pipes, the Lands are gradatim, conveyed to the purchasor; I will not speak of those men, that are used as Instruments by special Custom to present in Court surrenders taken out of Court. These I have sufficiently spoken of already. I will here point only at these persons; that by the general Custom of every Manor, are employed as necessary Instruments in Customary admittances, and will cursarily examine the extents of their authorities, and the quality of their offices.  


The persons I aim at are these;  
1. The Lord.  
2. The Steward.  
3. The Vnder-Steward.     

SEC. XLIV.  
THe Lord's Authority consisteth chiefly in these four things.  
1. In punishing offences, and misdemeanours committed within his precincts, as not performance of Customs, breach of By-lawes, not discharging of duties, and such like.  
2. In deciding controversies arising about the Title of Copyhold-Land, lying within his bounds; and when he sitteth as Judge in Court, to end debates of this nature, he is not tied to the strict form of the Common Law, for he is a Chancellor in his Court, and may redress matters in Conscience upon Bill exhibited, where the Common Law will afford no remedy in the same kind, as to insist in one familiar example.  
If I surrender a Copyhold to the use of a stranger, upon confidence, that such debts being by me discharged, he shall surrender bacl this Copyhold; I upon discharge of the debts demand a surrender, and he refuseth, at the Common Law I were left remediless, this being a bare confidence, and no Condition, but upon Bill exhibited in the Lord's Court I shall be relieved, for the Lord upon proof of the matter may seize the Copyhold, and readmit me, according to the effect of the Confidence.  
3 In admitting Copyhold. And in this Customary power of admittance, the Lord doth somewhat outstrip the Steward, for the Lord may make either admittances upon voluntary Grants, 
Co. 4 fo. 27.  admittances upon surrrenders, admittances upon descents, in any place where he pleaseth out of the Manor, but so cannot the Steward: and in giving Licence to Copyholders to alien by deed, and in this point of Licence, the Lords authority doth exceed the Steward's authority; for though some are of opinion, that it is both usual and warrantable, for the Steward of a Manor in absence of his Lord, to Licence a Copyholder in full Court to alien by Deed, for as many years as he shall think good, because he is Judge in the Court, and besides the entry of it in the Court Roll is in this manner. Ad hanc curiam. P.S. petit Licentiam Domini dimittendi, etc. Cui Dominus licentiam dat, etc. and therefore this Licence being granted in the Lord's name in full Court, the Lord shall never enter for a forfeiture, but shall ever be estopped, to say the contrary, but that he did give licence, yet (under reformation be it spoken) I must mistrust the truth of this opinion; for this power of Licensing Copyholds to alien by Deed, is not Customary, for than it were as proper to the Steward, as to the Lord; but it is a power of interest annexed to the person of the Lord, in respect of his estate in the Manor, and not in any other Collateral respect; and therefore if the Steward having a bare authority to execute what the Custom of the Manor doth warrant, sans doubt, he cannot, virtute officii, grant any unwarrantable Licence to alien by deed, no more than to commit waste: for the one act, as well as the other, tendeth to the breach of Custom, and both of them without a sufficient allowance, amounts to the forfeiture of a Copyhold, but by express words in the Steward's Patent, or by special authority given him by the Lord, or by some particular Custom warranting the same, the Steward may in Court lawfully Licence Copyholders, to alien as well as the Lord may. And thus much of the Lord.   

SEC. XLV.  
STeward, is derived from those two words, Stead, and Ward; and so any that doth supply another's place, or that is in any employment deputy to another, may according to the true sense of the word be termed a Steward; as the high Steward of England, because the King appointeth him in divers matters to exercise his place: and so the under Sheriff may be termed by the name of the Sheriff's Steward, being his Deputy, and how properly the Lord's Steward is so named, any man may judge by this, that the whole authority of the Steward is derived from the Lord, as from the Head; and not only so, but withal he representeth the Lord's person in many employments; for in the Lord's absence, he sitteth as judge in Court to punish offences, determine controversies, redress injuries, and the like; and further, some things he performeth in the Lord's name, and not in his own name, for if the Steward admitteth any Copyholder, or by special Authority, or particular Custom, licenceth a Copyholder to alien, this admittance and licence shall be made in the Lord's name, and the entry in the Court Roll, shall be, Quod Dominus per Senescallū admisit, & licentiav●t, and not that the Steward did admit, or licence; therefore fithence the Steward hath this measure of authority and confidence committed unto him, the Lord shall do very well to be very careful in making choice of his Steward; for if he be defective in any one of these three qualities, Knowledge, Trust, or Diligence, the Lord may be much prejudiced and damnified; therefore Fleta wisely giveth the Lord this counsel.  

Fleta l. 2. c. 6.  Provideat sibi Dominus de Senescallo circumspecto & fideli & pacifico & modesto, qui in legibus consuetudinibusque provinciae Domini sui in omnibus tueri affectet, quisque Ballivos Domini in sui● erroribus & ambiguis sciat instruere & docere, quique egenis parcere, & nec prece vel pretio velit à tramite justitiae deviare & pervense judicare.  
These Stewards for the most part, have Patents for their Offices, yet they may be retained by paroll, & this reteiner by paroll, is as effectual in all points before discharge, as the most effectual institution by Patent: for a Steward thus retained, may take surrender out of Court, or make voluntary admittances, or any other Act incident to the office of a Steward, 
Co. 4. fo. 30. b.  as well as a Steward instituted by Patent. But in the King's Manors, a Steward cannot be retained by paroll by the mouth of the Auditor or Receiver; but to make the Steward's authority currant, 
Co. 4. fo. 30. a.  especially to make voluntary admittances; it is necessary he have a Patent, and then, by virtue of his Patent, without any special Authority, or particular Custom, he may justify the making of any voluntary admittance, upon Escheates or forfeitures, or the doing of any Act belonging to his Office; but though he may Ex officio, do those things without special warrant, yet duty binds him before he make any voluntary admittance to inform the Lord Treasurer of England, the Chancellor, and Barons of the Exchequer, or any of them for his better direction, and the King's better benefit, the Law is not very curious in examining the imperfections of the Steward's person; nor the unlawfulness of his authority, for be he an Infant, or non comps mentis, an Idiot, or Lunatic, an Outlaw, or an Excommunicate; yet what things soever he performeth, as incident to his place, can never be avoided for any such disability, because he performeth them as a Judge, or at least as Customs Instrument: and for his authority, though it prove but counterfeit, if it come to exact trial; yet if in appearance or outward show, it seemeth currant, that is, sufficient. As if I grant the Stewardship of my Manor of Dale by Patent, and in the Patentees absence, a stranger by my appointment keepeth Court, this is authentical. If a Grant of a Stewardship be made to one, and for some fault or defect in the Grant, it is avoidable, yet Courts kept by him before the avoidance, shall stand in force: and whatsoever he did as Steward, are ever unavoidable. As if a Corporation, retaineth a Steward by paroll, and he keepeth a Court, punisheth offences, decideth controversies, taketh surrenders, maketh admittances, either upon surrenders or descents: these Acts being judicial shall ever stand for currant, though his authority be grounded upon a wrong foundation, for a Corporation cannot institute any such officer without writing. And so if the King's Auditor or Receiver, retain a Steward by paroll, he may lawfully execute any judicial Act, but things which he performeth, as Customs instrument, not as Judge, such as are voluntary admittances, neither in the retainer by the Corporation, or in this retainer by the King's Officers, shall any whit bind, but if a stanger without the appointment of the Lord, or consent of the right Steward, or without any colour of authority, will of his own head, come into a Manor, and keep a Court; it seemeth that the performance of any judicial duty, or the executing of any act whatsoever will not be warranted, especially if the Court be kept without warning given to the Bailiff by precept, according to the Custom.  

The Office of a Steward may be forfeit three manner of ways.  
1. By Abuser.  
2. By non user.  
3. By Refuser.   
By abuser, As if the Steward burn the Court Rolls, or if he taketh a bribe to wink at any offence, or use partiality, in any cause depending before him, these and the like abuses will make him subject to a forfeiture.  
By non user, as if the Steward by his Patent being tied to keep Court at certain times of the year, without request to be made by the Lord if he faileth, and by his failer the Lord receive any prejudice, this is a forfeiture. But if the Lord be not damnified, than this non user is no forfeiture. As if a Parker attends not for the space of three or four days, and no prejudice or damage happeneth in the interim, this is no forfeiture: and in Offices, which concern the administration of Justice, or the Commonwealth the Law is more strict then in these Offices which concern private men: for where an officer ex officio, or of necessity ought to attend for the administration of Justice, or for the good of the Commonwealth, there non user, or non attender in Court is a forfeiture, though this be prejudicial to no man, as the office of the Chamberlain in the Exchequer, a Protonotary Clarke of the Warrants Exigentur Filizar, or the like in the Common Pleas, because the attendance of these and the like officers, is of necessity for the administration of Justice, so the attendance of the Clerk of the Market, is of necessity for the good of the Commonwealth, and so is holding of the Sheriff's turn, etc.  
By refuser the office of a Steward may be thus forfeited, if the Steward be tied by his Patent to keep Court upon a demand or request, to be made by the Lord, if the Lord demandeth or requesteth him to keep a Court, and he faileth; this is a forfeiture, though the Lord be thereby nothing damnifyed, and thus much of the Steward.   

SEC. XLVI.  
THe under steward is the Steward's deputy, and sometimes appointed by writing, sometimes by paroll, and the extent of his Authority, is as great as the Stewards own Authority, and his office consisteth in performance of the self same duties, that the high Steward himself is to perform, only in this point the power of the Steward goeth beyond the power of the understeward, that the Steward can make an admittance out of Court, and it shall stand good if entry be made in the Court Roll, that he that is admitted, hath paid his fine and hath done fealty, but the understeward though he may take a surrender out of the Court, yet he cannot make any admittance out of Court, without especial Authority or particular Custom.  
Some have thought, that an understeward may be made without special words in the Steward's Patent, authorising him to make a Deputy, but surely since it is an office of knowledge, trust, and discretion it cannot, unless it be in cases of necessity. As if an office of Stewardship descend unto an Infant, he may make a Deputy, because the Law presumeth he is himself uncapable to execute it, so if it be granted to an Earl in respect of th'exility of the Office in a base Court, and of the dignity of the person, who is Praepositus Comitatus, and had in ancient time the charge and custody of the whole shire, whose attendance the Law intendeth to be most necessary, upon the King and the Commonwealth, therefore it is employed in Law for the conveniency, that he may make a Deputy, for whom he ought to answer. This is one observation touching understewards, in admittances made by understewards, aswell as in admittances made by the Stewards themselves it is good order to express in the Copy, and in the Court Roll, the name of the understeward, or of the Steward, because in pleading any admittance a man must say that he was admitted by such a one understeward or Steward, naming his name. And this shall suffice touching the manner and means of granting Copyholds: Suffer me now in the fourth place to point at the several estates of Copiholders, together with their several qualities incident to their several estates.   

SEC. XLVII.  

ALl estates whatsoever may be reduced to one of these three heads.  
1. Inheritance.  
2. Francktenant.  
3. Chattels.   
All Inheritances are of two sorts, either Fee simples, or Fee tails.  
Of Fee simples, some are determinable, some are undeterminable.  
Determinable, as where Land is given to a man and his heirs, for so long time as Paul's steeple shall stand.  
Undeterminable, as where Land is given to a man and his heirs, without further limitation.  
Of Fee tails, some are general, some are special.  
General, as where Land is given to a man and the heirs of his body, or heirs males, or females of his body.  
Special, as where Land is given to a man, and the heirs, males or females, which he shall beget of such a woman.  
All Francketenants are of two sorts, either created by the act of the party, or by the Act of the Law.  
Of Francketenants created by the act of the party, some are determinable by death, some by collateral means.  
By death, as estates granted during the life of the Grantor, of the Grantee, or of a Stranger.  
By collateral means, as estates granted quia diu fuerit innupta, to a Widow qùia diu remanserit vidua, or to a Minister, quamdiu Sacerdotium exercuerit.  
Of Francke tenants created by the act of the Law, some are Francketenants simpliciter, some secundum quid simpliciter, as the estates of a tenant in Dower, of a tenant by the courtesy of an occupant, a tenant in tail, after possibility of issue extinct, secundum quid, as the estates of a tenant by Statute, Merchant, Stat. Staple & Elegit. who though they are to have the Land, but for so many years as will give a plenary satisfaction to their debts, yet by the Stat. of Westmin. 2. they may maintain an Assize, which no other tenant having but a Chattel can have.  
All Chattels are either certain, or incertain, of Chattels certain, some are in themselves certain, some are made certain by relation to a certainty. Certain in themselves, as where Lands are granted for 20. 30. or 40. years. Certain by relation to a certainty, as where Land is granted for so many years as I. S. hath acres of Land.  
Of incertain Chattels, some are incertain in their commencement, some incertain in their determination.  
In their commencement, as where a Guardian hath an estate during the minority of the heir, all these estates either by the general or by the particular Customs of Manors, are of Copyholds aswell as of Freeholds, in what manner soever an estate in Fee simple is warranted by the Custom, 
Co. 4. fo. 23.  most inferior estates are by implication likewise warranted. All Francke tenants created by the act of the party, the estate of an occupant, and all Chattels whatsoever, without any other particular Custom, are hereby warranted.  
But the Law is otherwise, 
Co. 4. fo. 22. a.  of estates in Dower by the courtesy, by Statute Merchant, Statute Staple, or Elegit, for as long as such a Copyhold, by the Custom of the Manor grantable in Fee simple, continueth in the Copyholders hands, it is not liable to any of these estates, but if once it cometh to the Lord by Escheat forfeiture, or by other means, so long as it remaineth reunited to the Manor, it is in the nature of a Freehold, and shall be subject to the charges and encumbrances, as Land at the Common Law, and howsoever by implication these estates are not allowed in Copyholds, continuing in the Copyhold possession, yet by particular Custom the Wife may be Tenant in Dower, the Husband Tenant by the Courtesy, a stranger Tenant by Stat. Merchant, Stat. Staple, or Elegit, of a Copyhold, resting in the Copyhold, aswell as if it rested in the Lord, whether an estate tail, or an estate Tail, after possibility of issue extinct, which hath a necessary depending upon an estate Taile may by any particular Custom be allowed, that I may dispute, but cannot determine; for it is vexata quaestio, much controverted; but nothing concluded, I will briefly touch the reasons alleged on both sides. They which are against the validity of Intails by special Custom, do chiefly urge these two reasons, that no estates tails were before the Stat. de donis conditionalibus, but all Inheritances were Fees conditional, and the Statute being made 13. E. 1. which is within the memory of man, it cannot be that any special Customs have any Commencement, since the Statute, for then a Custom might begin within time of memory, which is altogether repugnant to the rules of Custom.  
Two great inconveniencies would ensue, if a Copyholder might be Entailed by special Custom, because neither fine nor Common recovery can bar it; so that he hath such an estate, that he cannot of himself, without the assent of the Lord, dispose of it, either for the payment of his debts, for the advancement of his wife, or preferment of his younger sons.   

SEC. XLVIII.  
THe main reasons insisted upon in defence of intailing Copyholds are these.  
1. In divers Manors they have been from time to time, not only reputed as Tenants in tail, but in every man's mouth termed by that name.  
2. A Form on in the Descender lieth of a Copyholder, which Writ none can bring but Tenant in tail.  
3. A remainder limited upon such an estate in such Manors hath been allowed, and therefore is no Fee conditional; for upon a Fee, whether absolute or conditional, a Render can by no means depend.  
4. It is a common usage there by a Recovery to dock intayles of Copyhold▪ or to defeat these estates by presentment, that the Copyholder hath committed a forfeiture, and so the Lord to seize, and then to surrender it to the purchaser; and therefore there is not that inconvenience which is supposed in the Copyhold, scilicet, want of power to dispose of such an estate without the Lords consent.  
5. Much inconvenience would depend upon this if Copyholds might not be entailed, for it would tend to the subversion and destruction of many men's estates, which from time to time they have enjoyed without contradiction, and therefore for the quiet of the Commonwealth how necessary it is, that Copyholds should be entailed, let any man judge.  
Thus much of the several estates of the Copyhold. A word of their several qualities incident to several estates.   

SEC. XLIX.  
WHat qualities soever are necessarily incident to estates at the Common Law, are incident to estates by Custom. In illustrating this I will confine myself to the discussing of these two points.  
1. What words will create Copyholds of inheritance, and what Copyholds of Francktenant.  
2. How Copyholds of inheritance shall descend.  
Touching their creation, Copyholds of inheritance, 
Co. 4. fo. 2●.  and Copyholds of Franck-Tenement, are created by the same words that Inheritance and Franck-Tenement at the Common Law are created by.  
If a Copyhold be granted to a man, and to his heirs males, or heirs females.  
If to a man & sanguini suo hereditabili.  
If to a Dean and Chapter, or to a Major & Commonalty, without any express estate, or without a limitation of some inferior estate. In all these Grants, a perfect estate in Fee passeth.  
And so peradventure if I surrender a Copyhold to a man and his heirs, and he reciting this estate, re-surrendreth in the same manner to me, that I surrendered to him, not making any mention of my heir, yet this recital seemeth sufficient to pass a good Fee-simple.  
So, if I surrender unto you as large an estate, as I. S. hath in his Manor of D. and he hath a Fee-simple in his Manor, it is somewhat probable, that an estate in Fee simple should pass, by reason of his relation without the word heirs.  
If a Copyhold be surrendered to a man, & semini suo haereditabili de corpore, or to a man, & haeredibus ex ipso precreatis, or to a man in Franck-marriage with his wife, in these Grants an estate tail passeth in the first, without the word heirs, in the second, without the word body; in the third without either.  
If the King by his Steward granteth a Copyhold to a man, and to his heirs males, or heirs females, no Fee-simple passeth, because the Lord never intended to pass such an estate.  
If a Copyhold be Granted to an Abbot, and to his heirs, an estate for life only passeth.  
So if I Grant a Copyhold to a man in Fee-simple, ac sanguini suo imperpetum, or sibi & assign. suis impe●pectum; yet the word heirs wanting no greater estate than for life passeth.  
The same Law is, if a Copyhold be granted to a man, and to his heirs, as long as I. S. shall live, this is only an estate, per anter vie, & a rend. limited upon this estate, is good.  
But if a Copyhold be granted to a man, and to his heirs, as long as such a tree shall grow in such a ground, this is a good Fee, and a render limited upon it is void.  
If a Copyhold be granted to I. S. and I. N. & haeredibus, they are joint Tenants for life; and no inheritance passeth unto either, because of the uncertainty for want of this word (suis) but if a Copyhold be granted to I. S. only & haerend. a good Fee-simple passeth without the word suis.  
If a Copyhold be granted to a man, & haered bus, an estate tail doth not pass, for want of the words de corpore. And if a Copyhold be granted to a man, & liberis aut puer. suis de corpore; an estate tail doth not pass for want of this word (heirs) for what estates soever are intayles since the Statute De donis Conditionalibus were Fee-simples Conditional; but this could be no Fee-simple conditional before the Statute without the word (heirs) and therefore no entail since the Statute. And for the same reason, if a Copyhold be granted to a man, and to the issues males of his body an estate for life only passeth.  
If a Copyhold be granted to a man, without expressing any certain estate by implication of Law, an estate for life only passeth; and if I grant a Copyhold to three habendum successive, they are joint Tenants, unless by special Custom the word successive make their estates several. Thus much touching the creation of Copyhold estates.   

SEC. L.  
THe descents of Copyhold of inheritance are guided and directed by the rules of the Common Law, as well as the creation of Copyhold estates.  
If a Copyholder in Fee-simple having issue, a son and a daughter by one venture, and a son by an other venture, dieth, and the son by the first venture entereth and dieth; the Land shall descend to the daughter, Quia-possessio fratris de feodo simplici facit sororem esse haeredem.  
But if a Copyholder in tail, have issue, a son and a daughter by one venture, and a son by another, venture dieth, and the son by the first venture entereth and dieth, the son of the second venture shall inherit.  
If a man having issue, a son and a daughter by one venture, and a son by another venture, the eldest son purchaseth a Copyhold in Fee, and dieth without issue, the daughter shall have the Land, not the younger son, because he is but of the half blood to the other.  
If a man hath a Copyhold, by descent from his mother's side, if he die without issue, the Land shall go to the heirs of the mother's side, and shall rather escheat, than go to the heirs of the father's side; but if I purchase a Copyhold, and die without issue, the Land shall go to the heirs of my Father's side: but if I have no heirs of my father's side, it shall go to the heirs of my mother's side rather than escheat.  
If there be Father, Uncle and Son, and the son purchaseth a Copyhold in Fee, and dieth without issue, the Uncle shall inherit and not the Father, because an inheritance may lineally descend, but not ascend.  
If there be three brothers, and the middle brother purchaseth a Copyhold in Fee, and dieth without issue, the eldest shall inherit, because the worthiest of blood.  
If there be two Coparteners, or two Tenants in Common of a Copyhold, and one dieth having issue, the issue shall inherit, and not the other by the survivership; but otherwise it is of two joint Tenants. Should I give way to my Pen, and write of this Theme till I wanted matter to write on, I should make a large Volume in dilating this one point; therefore I will contract myself, entreating you to supply by your private cogitations, what I have either willingly or unwittingly passed over in silence, only take this caveat by the way.  
Though all qualities necessarily incident to estates at the Common Law, are likewise incident to Copyhold estates; yet the Law is not so of collateral qualities without special Custom; 
Co. 4. fo. 22. a.  and therefore a Copyhold shall be no assets to the heir.  
A descent of a Copyhold, shall not toll an entry. A surrender made by Tenant in tail (admit a Copyhold may be entailed) or by a Baron of a Copyhold, which he hath in right of his wife shall make no discontinuance, because these are collateral qualities, and not necessarily incident.  
Thus much of the several estates of Copy-holds together with their several qualities incident to their several estates. I come now in the first place to examine how Copyholders are to implead, and be impleaded.   

SEC. LI.  
A Copyholder cannot in any Action real, or that savoureth of the realty, or hath a dependence upon the realty implead or be impleaded in any other Court, but in the Lord's Court, for or concerning his Copyhold, but in actions that are merely personal, he may sue or be sued at the Common Law.  
If a Copyholder be ousted of his Copyhold by a stranger, he cannot implead him by the King's Writ, but by Plaint in the Lord's Court, and shall make protestation to prosecute the suit in the nature of an Assize of novel disseisin, of an Assize of Mort D'ancestor of a Formedon in the Discender, Reverser, or Remainder, or in the nature of any other Writ, as his cause shall require, and shall put in pleg. de prosequend.  
If a Copyholder be ousted by the Lord he cannot maintain an Assize at the Common Law, because he wanteth as Francktenant, but he may have an action of trespass against him at the Common Law; for it is against reason, that the Lord should be Judge where he himself is a party.  
If in a plaint in the Lord's Court touching the title of a Copyholder, the Lord giveth false judgement, he cannot maintain a Writ of false judgement, for than he should be restored to a Francke-Tenant where he lost none.  
No Copyholder of base Tenure in ancient Demesne can maintain a Writ of droit close, or a Writ of Monstrauêrunt, but Tenants of Francke-tenure in ancient demesne can.  
A Copyholder that may cut down Timber trees by Custom, by licence of the Lord, maketh a Lease for years, the Lessee cutteth down 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 Custom of a Copyhold; by plaint in the Lord's Court, recovereth Dower and damages, no action of debt lieth at the Common Law for these damages, because the action, though it be in itself personal, yet it dependeth upon the realitiy.  
If a Copyholder maketh a Lease by Copy for Years, or by Deed 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 years, and yet he could maintain an action of debt for such a Rent, because an action of debt is grounded upon the contract.  
If a stranger cut down trees growing in the Copyhold ground, an action of trespass lieth at the Common Law against him; so doth it against the Lord, where he cutteth them down, when by Custom they belong to the Tenant, because this is a mere personal action, and damages only are to be recovered.  
And if a copyholder without Licence, maketh a Lease for one year, or with Licence maketh a Lease for many years, and the Lessee be ejected, he shall not sue in the Lord's Court by plaint, but shall have an ejection firm at the Common Law, because he 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 implead, and be impleaded.   

SEC. LII.  
I Come now in the sixth place, to show under what Statutes Copyholders are Comprehended. Copyholders are comprehended under Statute, either by express limitation in precise words, or by a secret implication upon general words: by express limitation in precise words;  
As by the Statute of the first of R. 3. cap. 4. it is expressly provided, that a Copyholder having Copyhold Land, to the yearly value of twenty six shillings and six 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 expressly provided, that upon the dissolution of Abbeys, and Monasteries, Copyholds should continue as they did before the Statute, and should fall into the King's hands.  
So by the Statute of 2. E. 6. cap. 8. it is expressly provided, that the interest of a Copyhold, should be preserved, notwithstanding it be not found by Office, after the decease of the King's Tenant.  
So by the Statute of 1. Mar. cap. 12. it is expressly provided, that if any Copyholder being Yeoman, Artificer, Husbandman, or Labourer; and being of the age of eighteen or more, under the age of sixty; not sick, impotent, lame, maimed, nor having any other just or reasonable cause of excuse upon request made by any man in authourity, refuseth to aid 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 natural life.  
So by the Statute of 5. Eliz. cap. 14. it is expressly provided, that the forging of a Court Roll, to the intent to defraud a Copyholder, shall be as well punishable, as the forging any other Charter, Deed, or Writing sealed, whereby to defeat a Copyholder or Freeholder.  
So by the Statute of 13. Eliz. cap. 7. It is expressly provided, that the Copyhold Land, as well as the Freehold Land of a Bankrupt, shall be sold for the satisfying of the Creditor.  
So by the Statute of 14. Eliz. cap. 6. It is expressly provided, that if any of the Queen's subjects goeth beyond the Seas without Licence, that then the Queen shall not only take the ordinary profits of the fugitives Copyhold Land, as they arise, but shall let, set, and make Grants by Copy, and usual Wood-sales, and other things, to all intents and purposes, as a Tenant pro term durante vie, may do.  
So by the Statute of the 35. Eliz. cap. 2. It is expressly provided, that if any person or persons being convicted of recusancy, repair not home to their usual place of abode, not removing from thence above five miles distant, that then any person; or persons thus offending, shall not only forfeit their Freehold Land to the Queen; but withal their Copyhold Land to the Lord, or Lords of whom it is holden.  
Thus have I showed in brief under what Statute Copyholders are comprehended by express limitation in precise words. Now I will show you as briefly as I can, under what Statute they are comprehended by secret implication upon general words.   

SEC. LIII.  
SOme hold that all Statutes that speak generally of Tenants, extend to Tenants by Copy: but it is much to be feared that we shall wander from the Truth, if we give credit to this conceit: for if we peruse the Statute, we shall meet 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 erroneous, I will set you down an infallible rule, which will truly direct you in the exposition of the general 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 Custom of the Manor, or in prejudice of the Tenant, there the general words of such an Act in Parliament extend not to the Copyhold; but when an Act is generally made for the good of the Commonwealth, and no prejudice may accrue, by reason of the alteration of any interest, Service, Tenure or Custom of the Manor there usually Copy-holds are within the general purveiw of such Acts.  
The Statute of West. 2. ca 1. of intailes, extendeth not to Copyholds, because it would be prejudicial to the Lord; for by this means the Tenure is altered: for the Donee entail, without any special reservation ought to hold of the Donor by the same Service that the Donor 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 entailed within this Statute, but such an one as either was given, or at least may be given by Charter, or Deed; but Copyholds are no such hereditaments, and therefore not within the body of the Act; yet it is holden, that Custom with the cooperation of the Statute will make an estate tail.  
The Statute of W. 2. ca 20. which giveth the Elegit, extendeth not to Copyhold, because it would be prejudicial to the Lord, and a breach of the Custom, 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, etc. in the Court of Rome, against the King, etc. extendeth not to Copyhold, because it would be prejudicial to the Lord to have the King so fare intereressed in his Copyhold without his consent.  
The Stature of 2. H. 5. ca 7. of Heretics extends not to Copyholds; for though the Lord of a Manor is yearly to receive a benefit, in having the Lands after the year 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 general words; besides the Statute speaketh of the Kings having annuum diem, & vastum of these Lands forfeited for heresy, as in Lands forfeited for felony; whereby it appeareth, that the meaning of the Statute is, that such Lands only 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 general purview of this Statute.   

SEC. LIV.  
THe Statute of 27. H. 8. ca 10. of Uses, 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 Jointures toucheth not Copy-holds, because Dowers of Copyholds are warranted by special Custom only, and not by the Common Law, or by the general Custom.  
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. years, or three Lives made by Tenants in tail, or by the husband and wife, of the Lands of the wife, touch not Copyhold: for the Statute speaketh of Leases made by Deed only; so that the intent of the Statute is to warrant the Leasing of such Lands only as are Grantable by Deed, but such are not Copyhold-lands: for though they may by Licence of the Lord be demised by Indenture, yet in their own name they are demiseable only by Copy; and therefore out of the general 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 Idiot's Land unto the King, toucheth not the Idiot's 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 seized, extendeth to Copyhold.  
So that the Statute of Westm, 2. cap. 3 and the three several 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 receipt unto the feme upon the Baron's refusal to defend the wife's 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 Champerty, 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 beneficial to the Commonwealth, and not at all prejudicial to the Lord in the alteration of Tenure estate Service, etc.  
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 years passed without any claim made; this is a bar 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 years pass, the Lord is barred; but if a Copyholder levy a Fine, and five years pass, the Lord is not barred, for the Fine levied the Copyhold, having no Francktenant, is utterly void. And whereas it hath been 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 only lose the Fines, upon alienations or descents, and the benefit of forfeiture, but should withal be in hazard to be barred of his Francktenant and inheritance.  
To that I answer, if the Lord receive any such prejudice, it is through his own default, for not making claim, for in regard of the privity in estate, that is between him and the Copyholder he may make claim, as well as the Copyholder himself; Et vigilantibus non dormientibus jura subveniunt.  
Thus have I showed under what Statutes Copyholds are comprehended. I come now in the seventh place, to speak of Fines.   

SEC. LVI.  
A Fine is a sum of money paid to the Lord of the Manor for an Income into any Lands or Tenements. In some Manors Fines are certain, in some incertain.  

Fines of Copyholds.  By special Custom Copyholders are to pay Fines upon Licences granted unto them to demise by Indenture, but by general Custom they are to pay Fines only upon admittances.  
If the Lord having a Copyhold by Escheat forfeiture, or other means, 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 heir, where by the Custom of the Manor, the wife is to have Dower, and the husband is to be Tenant by the courtesy 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 entereth as a general occupant he shall be admitted, and shall pay a Fine.  
And so if a Copyhold be granted to one and his heirs, durante vie; and the Grantee dieth, and his heir entereth as a special occupant, where by the Custom of the Manor, a Copyhold may be extended, upon the extent the party shall be admitted, and shall pay a Fine.  
Where by the Custom of the Manor, the Bailiff of the Manor, is to have the Wardship of the Copyhold heir; being under the age of fourteen, 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 own right, but in the right of him to whom he is Guardian.  
If the Copyhold Lands of a Bankrupt be sold according to the Statute of the 13. Eliz. cap. 7. the Vendee shall be admitted and pay a Fine.  
If a Villain purchaseth a Copyhold, the Lord of the Villain 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 entereth, he 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 been 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 Title, 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 seized, a stranger abateth, and the heir recovereth by plaint in the nature of an Assize of Mort d'auncester upon this recovery he 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 seized, non jure proprio, but jure alieno, therefore I shall not be admitted, neither shall I pay a Fine.  
The same Law is, 
Vid. Plowden come. 4 18. b.  if she be a Termor of a Copyhold; for though the term by the inter-marriage be so vested in me, that I may dispose of it without control; 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 surrendered 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, he in the Remainder shall be admitted and pay a Fine.  
So if a Copyhold be granted to three habend. success. vie whereby Custom 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 descent, he shall be admitted, and shall pay a Fine. But if two joint-tenants be of a Copyhold, one dieth, the other shall have all by the survivorship without admittance, or paying Fine, because joint-tenants to all intents and purposes, are seized per my, & per tout.  
If two several Copyholders join in a Grant of their Copyhold by one Copy; or if one Copyholder having several Copy-holds, granteth them by one Copy; yet the Grantee shall pay several Fines, for they shall inure as several Grants.  

Co. 4 fo. 27. b.  But if two joint-tenants, two Tenants in Common, or Tenant for life, and he in the Remainder join in the Grant of a Copyhold, one Fine only is due, and it shall inure, as one Grant only: 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 only shall be paid.  
And thus much of Fines. I come now in the next place to Forfeitures; wherein I will chiefly rely upon these four 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 instant,, that they are committed: some are not Forfeits till presentment. Offences which are apparent and notorious, by which the Lord by common presumption, cannot choose but have notice are Forfeitures, eo instant, that they are committed, as if by special Custom, upon the descent of any Copyhold of Inheritance, the heir is tied upon three solemn Proclamations made at three several 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 appear, and he faileth, this is a forfeiture Ipso facto.  
But if he be hindered by sickness, or by over flowing of waters, or if he be much in debt, and fear to be arrested, or if he be a Bankrupt, and keepeth his house, than his default is no forfeiture.  
If a Copyholder in the Court be called, and summoned to be sworn of the homage, and refuseth; this is a forfeiture Ipso facto.  
So if a Copyholder be sworn 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 swear 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 means no longer to be the Lords Copyholder, this is neither cause of fine not forfeiture; for peradventure the means that he intended was lawful, viz. by passing away his Copyhold; Et ubi sensus verborum est multiplex, verba semper sunt accipienda in meliori sensu.  
If the Steward showeth 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 showeth a Deed, pretending thereby to procure his Land to be Freehold, and teareth in pieces 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 Custom of the Manor being certain, 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 lawful distress 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.  
If the Fine by the Custom of the Manor, be incertain, though a reasonable Fine be assessed, yet because no man can provide for an incertainty, the Copyholder is not bound to pay it presently upon demand, but shall have convenient time to discharge it, if the Lord limit no certain day for payment thereof, and if within convenient time it be not discharged, this is a forfeiture without presentment.  
But if the Fine be unreasonable, though it be never paid, it is no forfeiture, and it shall be determined by the opinion of the Justices before whom the matter dependeth, either upon a demur, or in Evidence to the Jury, upon the confession or proof of the yearly value of the Land, whether the Fine be reasonable or not; for if the Lords might Assess unreasonable Fines at their pleasures, than most estates by Copy, which are a great part of the Kingdom, and which have continued time out of mind, might now at the will of the Lords be defeated, and destroyed, which would be very inconvenient.  
If the Lord demandeth his Rent, and the Copyholder denieth to pay it, this is a forfeiture Ipso facto.  
So if the Copyholder saith, that he wanteth money to discharge the Rent, and therefore intreateth the Lord to forbear, until he be better provided, unless the Lord giveth his consent; this non payment is a forfeiture, Ipso facto.  
For a Copyholder knowing his day of payment is to provide against the day; but if the Lord cometh upon the Copyholders ground, and demandeth his Rent, and neither the Copyholder himself, nor any other by his appointment, is there present to answer their demand, though this be a denial in Law of the Rent, yet this is no forfeiture.  
But if the Lord continueth in making demand upon the ground, and the Copyholder is still absent, this continual denial in Law, amounteth to a denial in fact, and maketh the Copyholders estate subject to a forfeiture without presentment.  
If a Copyholder for life suffereth a Recovery by plaint in the Lord's Court, as Copyhold of the inheritance, this is a forfeiture Ipso facto.  
But if he surrender in Fee, this is no forfeiture, because it did not pass by Livery.  
If a Copyholder committeth waste voluntarily or permissive, this is a forfeiture Ipso facto.  
Voluntary, as if he plucketh down any ancient built house, or if he buildeth any new house, and then pulleth it down again; or if he ploweth meadow, so that thereby the ground is made worse; or loppeth the trees, or selleth the lopping; or if he cutteth down any fruit-trees for fuel, having other wood sufficient, this and the like voluntary waste are forfeitures Ipso facto.  
Permissive, as if he suffereth his house to decay, or fall to ground for want of necessary reparations; or if he suffereth his meadows for want of mending his banks to be surrounded, so that it becomes Rushy, or worth nothing; or his arable ground, so to be surrounded, that it is become unprofitable. These and the like permissive wastes are forfeitures Ipso facto.  
And thus much of Acts which are forfeitures, eo instant, that they are committed. A word of those Acts which are said not forfeitures till presentment.   

SEC. LVIII.  
ANd such are those offences, which by common presumption, the Lord cannot of himself, have notice of without notice given, as if a Copyholder committeth felony or treason.  
So, if a Copyholder be Outlawed, or excommunicate, that the Lord may have the profits of his Copyhold Land, a presentment is necessary.  
So, if a Copyholder goeth about in any other Court to intytle any other Lord unto his Copyhold, or if he alieneth by Deed; these and the like aught to be presented.  
If a Copyholder maketh a bargain and sale of his Copyhold, and it is not enrolled according to the Statute; this is no forfeiture; no more than a Feoffment without Livery, because nothing passeth.  
So if a Copyholder maketh a Feoffment of all his Lands in Dale, and maketh Livery in his Charter Lands, no part of his Copyhold-Land is thereby forfeited; but if Livery be made in any part of the Copyhold Lands; all his Copyhold Lands are forfeited.  
If a Copyholder by Deed of bargain and sale enrolled according to the Statute, doth bargain and sell all his Lands in Dale, having both Copyhold and Freehold; his Copyhold is not thereby forfeited; for the Law will construe this to extend to his Freehold only, rather than by any over large constructions make a forfeiture in this kind.  
And if a Copyholder by Deed enrolled, bargaineth or selleth all his Copyhold Lands in Dale, or all his Lands in Dale generally, having no Freehold Lands, this is a forfeiture.  
Thus I have showed you what Acts amount to a forfeiture. Now I will show you what persons are able to forfeit.   

SEC. LIX.  
A Man of non sanae memoriae, an Idiot, or a Lunatic, though they be able to take a Copyhold, yet they are unable to forfeit a Copyhold, because they want common reason, nay common sense.  
So an Infant that is under the age of fourteen is unable to forfeit his Copyhold, because he wanteth discretion, and till than he is to be in Ward to the next of his kindred, to whom th'inheritance cannot descend, or to the Lord, or the Bailiff of the Manor, as the Custom shall warrant.  
So a feme covert by any Act she can do of herself, cannot possibly forfeit her Copyhold, because she is not sui juris sed sub potestate viri: but if she do any act which amounteth to a forfeiture by the consent of her husband, this is in her a forfeiture.  
An Infant at the age of discretion may forfeit his Copyhold, not by offences which proceed from negligence or ignorance, but by such as proceed from contempt.  
If an Infant come not in to be admitted, according to the Custom at three solemn proclamations made at three several Courts; or if he will suffer his houses to go to ruin, or his ground to be surrounded; these Acts savouring of negligence only are no forfeitures.  
So if an Infant Copyholder sueth a Replevin against the Lord, upon a distress lawfully taken; or if he alieneth by Deed, or the like; these Acts relishing of ignorance only are no forfeitures.  
But if he denieth from time to time to pay the Lord the Rent, or committeth voluntary waste, notwithstanding often warning given him by the Lord; these Acts proceeding from malice and contempt are forfeitures; and so if he comitteth felony or treason.  
If a Guardian of a Copyholder committeth waste, he shall forfeit the Wardship only, not the inheritance of the Copyhold.  
If Cestuy que use, of a Copyhold committeth waste, he shall not forfeit the Copyhold.  
If the husband committeth waste in Copyhold Lands, which he hath in the right of his wife; 
Co. 4. fo. 27. a.  this is a forfeiture of the wife's Copyhold.  
But if a stranger committeth waste without the consent of the husband, this is no forfeiture though the wife consenteth.  
If a Diffeisor of a Copyhold committeth waste; this is no forfeiture.  
So, if a Copyhold be surrendered to the use of I. S. and before admittance, I. S. committeth waste; this is no forfeiture, for by the same reason that he cannot grant before admittance, he cannot forfeit before admittance.  
If two joint Tenants be of a Copyhold, and one committeth waste, he forfeiteth his part only, for no man can forfeit more than he hath granted.  
And therefore if there be Tenant for life with a remainder over of a Copyhold, and the Copyholder for life purchaseth the Manor, committeth waste, or doth any Act, which amounteth to the extinguishment, or the forfeiture of a Copyhold, yet the remainder is not hereby touched.  
And so if a Copyholder be granted to three habend. successivie, whereby the Custom of the Manor, this word Successivie taketh place, the first Copyholder cannot prejudice the other two by any Act: he can do no more, than if a Copyholder in Fee by Licence, maketh a Lease for years by Deed, or without Licence by Copy, and either of these Lessees committeth waste, the reversion is not hereby forfeited.  
If I have two several Copyholds, by two several Copies, and I commit waste in one, this is a forfeiture of this one only, and not of the other.  
And so if I grant these several Copyholds by one Copy, yet they continue several as they did before, and the forfeiture of the one is not the forfeiture of the other.  
The same Law is, if two several Copy-holds Escheated to the Lord, and he regranteth them again by one Copy.  
And thus have I shown what persons are able to forfeit. I will now in a word show what persons are able to take benefit of a forfeiture.   

SEC. LX.  
REgularly it is true, that none can take benefit of a forfeiture; but he that is Lord of the Manor at the time of the forfeiture.  
And therefore if a Copyholder maketh a Feoffment, and then the Lord alieneth, neither the Granter, nor the Grantee can take benefit of this forfeiture, for neither a right of entry, nor a right of action can ever be transferred from one to another. And therefore if a Freeholder alieneth in Mortmain, and then the Lord granteth away his Seignory, neither the one nor the other can ever take benefit of this forfeiture.  
So if a Lessee for life committeth waste, and then the Lessor granteth away the reversion, this waste is made dispunishable.  
But if Tenant for life be of a Manor, with remainder over in Fee to a stranger,  
If a Copyholder committeth waste, and then Tenant for life of the Manor dieth before entry; yet he in Remainder may enter, for he had an interest in the Manor at the time of the forfeiture committed, though he could not enter, by reason of the State in Tenant for life, which being determined, his entry is now accrued unto him for the forfeiture committed in the life of Tenant for life.  
And sometimes, he that is neither Lord of the Manor, at the time of the forfeiture committed, nor ever after shall take benefit of a forfeiture.  
As if a Lord of a Manor granteth a Copyhold in Fee, and then granteth the Franck-Tenement, or the inheritance of this Copyhold to a stranger; the Grantee, though no Lord of the Manor, nor able to keep any Court, 
Co. 4. fo. 24.  shall take benefit of forfeitures made by the Copyholder, as if the Copyholder do make a Feoffment, Lease, waste, deny the Rent, etc.  
Thus have I shown what persons are able to take benefit of a forfeiture. I will now in one word show what Acts amount to a confirmation of an estate forfeited.   

SEC. LXI.  
IF the Lord doth any thing whereby he doth acknowledge him his Tenant after forfeiture; this acknowledgement amounteth to a Confirmation; as if he distreyneth upon the ground for Rent due after forfeiture; or if he admitteth after the forfeiture, or the like: these are estoppells to the Lord, so that he can never enter, so the Lord have notice of such forfeitures before any such act, which may amount to a confirmation be done, yet some make this difference, that these forfeitures only which destroy not the Copyhold are only conformable by subsequent acknowledgement, and not those forfeitures which tend to the destructions of a Copyhold, as if the Copyholder maketh a Feoffment; by this the Copyholder is destroyed, and therefore no subsequent acknowledgement of the Lord will ever salve this sore.  
And this shall suffice for forfeitures. I come now in the last place, to show what Acts amount to the extinguishment of a Copyhold.   

SEC. LXII.  
Wheresoever a Copyhold is become not demisable by Copy, either by the Act of the Lord, by the Act of the Law, or by the Act of the Copyholder himself, it is extinguished for ever.  
By the Act of the Lord, as if a Copyholder Escheateth, and the Lord granteth away any estate by Deed, this is an extinguishment. 
Co. 4. fo. 31.  So if he maketh a Feoffment upon Condition, and then entereth for breach of the Condition: yet the Copyhold is extinguished, because once not demisable.  
But if the Lord keepeth the Copyhold-Lands, for never so many years, or granteth at will, this destroys not the Copyhold, because it continueth ever demisable by Copy.  
By the Act of the Law, as if the Copyhold escheated be extended upon a Statute or Recognizance acknowledged by the Lord, or if the feme of the Lord hath this Land assigned unto her for her Dower, although these impediments be by the Act of the Law: yet because they are lawful, the Land can never after be granted by Copy.  
By the Act of the Copyholder himself, as if he accepteth a Lease for years at the Common Law, either mediate or immediate from the Lord; of the Copyhold, this is an absolute extinguishment.  
But if he accepteth a Lease for years of the Manor, the Copyholder by this hath not continuance, but this is no extinguishment, because the Land continueth still grantable by Copy.  
If a Copyholder with Licence make a Lease for years to a stranger; or without Licence, maketh a Lease for years to the Lord, the Copyhold is not hereby extinguished, and yet it is not demisable by Copy.  
So if a Copyholder intermarrieth with a feme Seignioresse; this is a suspension only of the Copyhold, no extinguishment.  
So if the interruption be torcious, as the Lord be disseised, and this disseisor dieth seized, or if the Land be recovered by false verdict, or erroneous judgement; and after the Land is recontinued, it is not extinguished, but may be granted arere by Copy; for Non valet impedimentum quod de jure non sortitur effectum, & quod contra legem fit pro infecto habetur.  
And so I conclude with Copyholders, wishing that these may ever be a perfect union betwixt them and their Lords, that they may have a feeling of each others wrongs and injuries; that their so little Commonwealth, having all his members knit together, in complete order, may flourish to the end.   
FINIS.