THE COPY-HOLDERS' PLEA Against the Excess of Fines, Uncertain Exacted of them by THEIR LORDS Upon their ADMITTANCE.  
LONDON: Printed by Peter Cole in Leaden-Hall, and are to be sold at his Shop at the sign of the Printing-press in Cornhill near the Royal Exchange. 165●. 1654.   

The Copyholders Plea against the excess of Fines uncertain Exacted of them by their Lords upon their Admittance.  
IT is agreed of all hands, That 
a Cook upon Littl. f. 60. Cook 11. Report, 44.  all excessiveness is abhorred in Law; and that 
b Cook upon Lit. f. 59 b Cook 4 Rep. 27. b.  where the Fine is uncertain, yet it must be reasonable: and so doth the Pleading of the Custom whereby such a Fine is Alleged to be due to the Lord plainly show. As may be seen in the New Book of Entries, f. 646. b. in the Title to Trespass: Whether then 3 years' Value, 2 years Value, a year and a half, or a years Value at a rack Rent, or those Fines exacted by Lords in those latter Ages, may be thought to be reasonable, is now to be discussed. For the true understanding of which, this Difference is to be well Observed, viz. Between voluntary Grants of Coppyhold Estates forfeited, or Escheated and Granted again the nono by the Lord, and Admittances upon Surrender to the use of another; or of the Hei● upon a Descent. In the first Case the Lord may take what Fine he pleaseth upon Admittance, being both Donor and Instrument to perfect his own Grant; for there it is truly said, Arbitrio Dominires aestimari debet, That the thing is to be estimated at the Lords or Owners Will. But in the other Case, the Lord is but an Instrument to perfect the Surrender, or the Heirs Estate Descended to him, the Lord Granteth nor doth nothing, But what he is compelable to do by the Purchaser or Heir, who are in by him which maketh the Surrender, or the Ancester respectively after admittance, and not by the Lord; and therefore shall not be subject to the Charge or Encumbrances of the Lord, and also the admittance of a Disseisor or other Lord which hath no good but a defeasible Estate and Interest in the Manor, 
Cooks 4 Rep. 27 b. Taverner and Cromwel's Case, & 28. b. in Westwicks and Wyers Case.  shall bind him which hath Right after that he hath recontinued the Mamnor by Action or Entry in such case, otherwise it is of voluntary Grants made by a Desseisor or Tenant by Sufferance of a Manor, 
d Cook 4. Rep. 24. Rous and Arters Case.  as may be seen in Chudleighs Case, Cook's 1 Rep. 140. b. And in Clarks and Penifathers Case, Cook. 4. Rep. f. 23. b. and 24. where the Earl of Arundels' Case T. 17. El. Dy. 343. is cited, and several good Cases put upon this Difference, Omitting therefore voluntary Grants upon Escheat or Forfeiture, and to speak only of Admittances upon surrender, and descent, where the Lord giveth nothing, nothing passeth from him, he is only an Instrument, and compellable to admit, and the Party admitted is not in by him, but by him which made the Surrender, or his Ancestor, How can a full years rack Rend, or those Fines now exacted, and taken upon such Admittance in latter ages be deemed or thought to be equal or reasonable? In the new Book of Entries, in the title before cited, p. 3. fol. 644. b. you shall find that famous Case adjudged in the Common Pleas, p. 6. Jacob Rot. 1468. upon a Demurrer as is said there, fol. 617. b. The Case was between Stallon Plaintiff, and Brady Servant of Thomas Willows, Lord of the Manor of Fendi●ton in the County of Cambridge Defendant, in which the Fine of Five pounds six shillings and eight pence, demanded by the Lord of the Plaintiff, who was Purchasor, for his Admittance to a Coppyhold Cottage and an Acre of Pasture let at Two pounds Thirteen shillings and four pence (which was two years value at a rack Rend) was adjudged an unreasonable Fine; And in the Report of that Case it is to be seen that the Lord Cook (being then Chief Justice) said, That for the Lord of a Manor to demand of his Copyholders Two years Profits for his Fine for his Admittance, it was a damnable thing: And Justice Walmsely said, That it was worse than Extortion: and Warberton, That it was a lamentable case: Daniel and Foster, Justices, said, If mean Lords might take such unreasonable Fines, it would overthrow all the Estates of Copyholders, which are a great part of the Realm; and that upon deliberation they all agreed in one, That Copyholders are to be compared unto Land that is holden in Capite, upon sale whereof, if a Licence of Alienation be sued forth, there was paid to the King but a Third Part of one year's Profit, and said, They could see no Reason that a mean Lord should have any more for an Admittance to any Copyhold, for the Lord doth but give a Breath for his Money, and doth neither add nor diminish any thing, to, or from himself: But in Case where a Third Part of One year's Profit had not been paid for a Fine, than they held the greatest Fine that had been paid, to be a reasonable Fine, and no more: This Case is Observable, and very worthy of our notice, as coming nearest to the Ancient Precedents of Fines taken in former ages, appearing in the Court Rolls of Manors, where they be truly kept, and not imbeziled (as in too many places they are) to the great injury of Copyholders, who either by the wilful, or negligent keeping of those Rolls, are many times deprived of those Advantages and Remedies which otherwise they might have against the Exaction and Usurpations of their Lords, both of Fines and Herriots, and otherwise: For before these hundred years last passed, or thereabouts, there never did arise any Questions or Controversies about the reasonableness of Copyholders Fines, which do appear (so moderate were they before) That the Copyholders had then no Cause to Complain in that Particular, and the Cases and Controversies upon that Question in our Books, or Reports are but of late times: Actions upon the Case for Words, are not so Rare in our year Books, as this Question about the Reasonableness of Copyholders Fines: The Fines anciently taken, were indeed but very small and inconsiderable, rather Gratuities and Acknowledgements given to the Lords for their Steward's Wages, and Charges in keeping of those Courts at which the Copyholders had their Admittances, than out of any reference or respect had to the rack Rent of the Copyhold; the improvement whereof by Building, or good Husbandry, and by the Industry and Charges of the Tenant, could in no reason be thought to be a good consideration for the Lord to ask a higher Fine; the Lord bearing no share at all either in the Costs or Pains in the improvement: And therefore that vulgar Objection made for the Justification of Excessive Fines taken in these days, because of the yearly value of those Lands being now much more and greater than in former times, is of no moment or regard at all, for where no consideration is of the Lords part, who is only an instrument, and compelable to admit as is before showed, and all his Charge and Costs is in keeping of his Courts & his Steward's stipend: The Fine aught to be set with reference to that only, and not to the value of the Copyhold Estate which moveth not from the Lord; but where he maketh a voluntary Grant as aforesaid: The ancient Precedents therefore of those Court Rolls where they have been, and are well kept, are the best Precedents for Fines in such Cases; and where they are lost or concealed, the Rule given in Stallon and Willows Case before mentioned by the Judges there named, seemeth most agreeable to Reason and Equity: Or if neither like you, and that the Fines must needs be with reference to the value of the Land, why should not that Rate by the Stat. of West. 1. c. 36. allowed for reasonable aid (which before the Statute was uncertain) to be taken by Lords for the making of their eldest Sons Knights, or for the Marriage of their eldest Daughters be thought sufficient? Before that Statute they were both near a Kin, both reasonable, and yet uncertain at the Will of the Lord: Pity it is that no Statute hath redressed the uncertainty of Copiholders Fines, which being redressed in the other Case, it is observed by Sir Edward Cook, That Certainty the Mother of Quiet and Concord was established therein, which see in his Comment upon the same Statute, Page 232. But Copiholders they are still left to their Suits with their Lords, to avoid these outrageous and excessive Fines wherein they may find by experience those old verses (cited there) true:  
Come  Luctari dubium, cum procere stultum,  
Cum puero-poena, cum muliere pudor.  
In English. 
With Equals strife's not sure, with great ones, vain;  
Shame with a Woman, with a Child 'tis pain.   
They may find the Remedy by Law also no better than the Disease, when the Chancellor or Judges (before whom the reasonableness dependeth to be determined) are themselves Lords of such Copiholders, and biased with their own interest and concernment; and cannot be taken for such Saints, as that Pope was (of whom 8. H. 6.20. b. Rolfe telleth the tale, but nameth him not) that having committed a great offence, and being told by the Cardinals that he had sinned, he bade them Judge him, who (saying they could not, because he was head of the Church) bade him Judge himself; who accordingly adjudged himself to be burnt; and was burnt, and afterwards Sainted: Indeed it cannot be thought that they will give Judgement against their own proper Interests and concernment. And therefore where any modern Precedents, or Reports approving, or allowing excessive Fines (and consequently oppression) shall be produced, it may justly detract from their weight and Credit, if the Judges were upon the matter concerned as in their own case. The Rule put by Sir Edward Cook in his Comment upon Lit. and in his 4 Report, f. 27. b. before cited (and in Godfrey's Case in his 11 Report, f. 44. said by him to be adjudged in Stallon and Willows Case aforesaid) which is Quam rationabilis debet esse finis non desinitur sed omnibus circumstantiis inspectis pendet ex Justiciariorum discrecone: How reasonable the Fine aught to be is not defined, but all circumstances considered, it dependeth upon the discretion of the Justices, is framed by Sir Edward Cook himself and grounded by him upon another Rule in Bracton. b. 2. f. 3●. ●. c. 22. touching time of prescription, which is Quam longum debet esse tempus non definitur in jure sed ex Justiciariorum discrecone, How long the time ought to be is not defined by Law, but dependeth upon the discretion of the Justices & mutatis mutandis applied to this Case, and as to this point owneth him for the sole Author, but whether aptly applied in this Case may worthily be questioned; for where the Judge is directly, or indirectly concerned in another man's Case depending in Judgement before him, you may well imagine which way the bias will carry him: Upon Reading the 2d Chap. 
Stat. 25. Edw. 3. of Treasons.  of Sir Edward Cook his Pleas of the Crown, Page 22. upon the Word [specify] in the Statute of 25. Edw. 3. of Treasons, which he would have to be specially observed, and to signify perticularized and set down particulary, and that nothing is left to the construction of the Judge what shall be said to be Treason, if it be not specified and particularised by that Act, which he further noteth to be a happy Sanctuary or place of Refuge for Judges to fly unto that no man's blood and ruin of his Family do lie upon their Consciences against Law; and that if constructions by Arguments à simili, or à minori ad majus had been left to the Judge, the mischief before that Statute would have remained, viz diversity of Opinions what should be Treason, and what not, which that Statute taketh away by express words; may be gathered what an inconveniency it is to leave things to the construction and discretion of Judges, which very inconvenience falleth out by leaving it to their discretions upon Demurrers, or upon Evidence to a Jury upon the confession or Proof of the yearly value of the Land to determine whether the Fines demanded of Copiholders be reasonable or not; and a hard Case it is for Copiholders if they must be fined according to the rack values of their Copyhold Estates at the Lords Will or the Judges (who for the most part are themselves Lords of Manors) since the Lords give nothing but their breath for their Money as is said before, and seeing of late years their Fines have been raised to such an excessive height, whereby the saying of Hill in the great Case of the Honour of Gloucester, 14. H. 4.9. cited upon this occasion in Godfrey's Case, Cook's 11. Report sol. 44. That a Fine at the Will of the Lord is an Oppression to the People, is fully verified. The vulgar Objections that Copiholders are but Tenants at Will, and that they had their Estates Originally upon that condition to be fineable at the Lords Will, and that the value of the Land being higher now than in ancient times when their Estates were first granted to their Ancestors, are no good Reasons to warrant such excessive Fines as have been exacted these last Ages, for custom and continuance hath fised an inheritance in their Estates, 
Cooks 4 Report 21. Cooks 9 Report 76. b.  and made the same Discendable to their Heirs, so as they are not bare Tenants at Will, 
Cooks 1 Report 22 21.21. Edw. 4.80. b. Brian Cook upon Lit. f. 61.  but have Estates of inheritance and actionr of Trospass are maintainable against their Lords by them: And if their Estates were Originally granted upon any such pretended Condition (which is denied) and that the Fine aught to be Assessed according to the present value, and not according to the Ancient value, and precedents; yet we see time and custom which hath fixed their Estates hath taken away that Condition and hath made the Justices to be Judges of those Fines and not the Lords according to those Cases before remembered: And if the Justices shall make the present value material to increase his Fine who hath been at no cost or pains in the improvement, and is but an instrument compelable to admit, and giveth nothing but his breath: This (under correction) seemeth very unreasonable, and against equity and conscience, and so are all modern Reports grounded upon that strain, not regarding the Reasons herein before set forth and especially that Report of Stallon and Willows Case, for as the Custom which establisheth their Estates is to be favourably construed, so that custom which savoreth of Oppression, and tendeth to the overthrow of their Estates, is, and deserveth to be rejected: In Fran●i● Case, Cooks 8 Rep f. 90. b. it is said, That a beneficial Condition which maketh or buildeth up an Estate, is to be construed favourably; but that is odious which destroyeth an Estate, and is to be taken strictly: The same Rule holdeth in Customs, and therefore odious is that custom which by Oppression overthroweth the Copiholders estates, & as, or more worthily to be abhorred & abolished as Tenors in Capite & by Knight's Service have been (which had for their countenance Law and the defence of the Realm) by reason of the Slavery and Oppression incident to those Tenors, whereas the pretended Custom of uncertain Fines respecteth only the private interest of mean Lords of Manors, and tendeth to the destruction of a multitude of Copyhold Tenants, who are in all things equally rated with Freeholders of Inheritance for the Public Service of the Commonwealth, without any consideration, or deduction at all, in respect of the grievous burden of excessive Fines, by which they are disabled to settle their Estates (as other Freeholders do) towards payment of their Debts, the preferment of their Wives and Children, or other just & urgent occasions, which may happen frequently; and so they should be oppressed not by the excess alone, but by the multitude of Fines: All which considered together, with the comfortable experience of many other Oppressions abolished, and promises of Redress of all; why may not the Copiholders now expect Relief if they shall Petition for the same? The bias of Self-interest is we hope dissolved with the last Parliament; and that in this, there are not so many Lords of Manors to hinder so good and acceptable a Service to their Country: The Freehold of all Copyholds is the Lords, and the Copyhold in Cases of Treason forfeited to him, whereas formerly Forfeitures of any Freehold holden of a common person in Case of high Treason, were to the Crown: The Copyholder without special Custom cannot fallen Trees, nor make Leases for above One year; and divers other Privileges the Lord hath as Herriots etc. in many places: Are not these sufficient, but must they take Fines at will too? Assuredly it were better for Copyholders, might they be admitted to buy out at once their Fines, Herriots, and destructive Customs paying for the same such a valuable Consideration (to be divided one Moiety thereof for the Service of the Commonwealth, and the other Moiety to their Lords) as to this present Parliament shall seem fitting and reasonable: This is Written for the general Good of the Copyholders of England, who if they shall neglect the present happy Opportunity for their Freedom, will hardly ever meet with the like again.  
FINIS.